Chande: Kenya’s presidential petitions offer Tanzania key lessons

Dar es Salaam. Tanzania would not be on the losing side if it allowed individuals and candidates to challenge presidential results in court, former Chief Justice (CJ) Mohamed Chande Othman has said.

Mr Chande recently led a team of a high-level group of eminent African judges and jurists in observing the proceedings of the 2022 presidential petitions at the Supreme Court of Kenya.

Role of the constitutions

“One key lesson that one can draw from the conduct of the case and the electoral process is the opportunity of access to justice provided under Article 140 (1) of the Kenyan Constitution,” the former CJ told Mwananchi Communications Limited senior journalists during an interview.

He said the article allows individual Kenyans and presidential candidates to file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election.

For its part, the Constitution of Uganda provides the rights to candidates only, noting, however, such opportunity is not provided for at all by Tanzania’s constitution, according to him.

Furthermore, Mr Chande said in Kenya the opportunity is provided to any particular person, noting that for that regard of the seven petitioners, there was a voter who challenged the declaration of the president-elect this year.

Caps at polling stations

“The other lesson is the widespread nature of the polling stations amounting to 46,000 nationally. Each polling station had a cap of 700 voters that made it easy for vote counting without overloading,” he said. “For the Judiciary, one of the lessons learnt is case management. How do you handle a complex case which has tonnes of evidence, as some evidence was brought by lawyers in this particular case,” he added.

Case management

But, the former CJ said it was the first time for the seven petitions to be lodged in Kenya, as Article 140 of the Constitution provides that 14 days for the court to come up with decisions.

“I think the case management was excellent and we can learn from it. The conduct of pre-trial hearing, as eight days out of 14 provided were allocated for the pleadings submissions, three days were allocated for the parties to complete oral submissions with the petitioners were given one day, all the respondents were allocated one day, rejoinder another day and the court allocated itself with three days to deliberate and come out with decisions. In fact, they did it in two and a half days,” he said.

“How they managed to do that is because the case and time management was good. The nine issues that were framed by the court were central for the court’s determination. These were drawn from the pleadings and what the court saw as evidence. So, the way the case was managed was exemplary,” he added.

Furthermore, he noted that the process was quite good including the way they invited friends of the court; the Kenyan Law Society, the International Jurists of Kenya and the Civil Society Organizations, so the management part of it was exemplary.

Being in control of the court

Tanzania’s former CJ said the orders given to scrutinise 14 polling stations and evaluate the Information Communication Technology (ICT) under the supervision of the registry helped the court to make the right determination, hence, another key lesson to borrow a leaf from given the way the case was conducted.

“The bottom line for a good case is the one that is under the judges’ control. When a case is under the control of the parties, then the court has lost it. You can see in this case that the court was in the control of the judges,” he said.

“They gave one the opportunity to ventilate the case, they determined the issues, they looked at the evidence, they asked a lot of questions to each one from the bench and they gave them enough time to respond. The court was in-charge as judges are required to be in-charge of cases, not like advocates or parties,” he said, adding off-course that judges do not play in the arena.

According to him, the arena is for parties to decide and dispute among themselves, noting that the court was neutral, impartial and independent to discharge its duties very well.

Transformative constitutions

He said Kenya, South Africa, Malawi and Uganda were the East Africa Community (EAC) and Southern African Development Community (Sadc) member countries with transformative constitutions that allow petitioning of presidential election results in court.

“Our constitution doesn’t allow that as it also bars independent candidates. But, Kenya had independent candidates competing in this year’s election,” he said.

“There is no major reason why a presidential election shouldn’t be challenged in court. Once you say in the constitution that the judiciary is the final legal authority, then any dispute should come to that legal final authority,” he added.

Read on: ‘Time Tanzania borrowed a leaf from Kenya’s elections

Challenging results in court

According to him, by not allowing presidential election results to be challenged at the court, then there was a gap created, hinting that the constitution should provide who is allowed to challenge, grounds for challenging and time required for the court to dispose of.

Furthermore, he said there were different formulas of providing that right, saying while 14 days are provided for in Kenya, Uganda provides a month while Malawi provides a much longer period.

“But, if it is accepted, it shouldn’t be a longer period because the country needs to move on. I think it is possible because Kenya has demonstrated that in 14 days, court decisions can be announced and the reason will have to follow,” he said, adding that in Kenya the full judgement will be provided after 21 days.

According to him, as long as Tanzania was a multiparty democracy where there were competitive elections, the electoral commission cannot judge itself because it is the one declaring results.

“What happens if he/she declares wrong results, what is a check and an oversight? There is no guarantee and this question was asked in the Kenyan election petition. If you have a very powerful commission chairman and he is the one counting and declaring what is the oversight and checks to that powerful chairman from announcing wrong results?” he questioned.

“We need to agree that we need a strong commission. We should also agree to set standards like our Kenyan counterparts. The constitution must be open, technology should be simple and accountable as well as transparent etc. I think once we have all these conditions, we can then take steps further,” he added.

He said the Tanzania Constitution was adopted several years ago (1977), hinting that the context has changed a lot. According to him, the country can move forward if everything has been put in place and the environment built for democracy to be moved ahead.

Role of media

During the interview, the former Tanzania CJ provided his insights into the role of the Kenyan media during the case coverage and disclosed the four out of the nine key arguments.

CJ Chande also highlighted key issues that Tanzania shouldn’t learn from the Kenyan elections and why Tanzania politicians received outstanding regional compliments as compared to their roles in preventing election flaws back home.