Green party President Peter Sinkamba has said that the preparation and serving of the petition should have been reduced to a maximum of two days.
In a statement to the media, reacting to the new rules for the Constitutional Court to govern petitions in the upcoming general elections slated for 12 August 2021, Mr. Sinkaba said that two days would have been enough considering that the petitioners have seven (7) days provided for in the Constitution within which to make up their mind.
“Allocating an additional five (5) days after the lapse of the said seven days gives the petitioners undue advantage in that they have a total of twelve (12) days in which to prepare their cases, while the respondents merely have four (4) days, ” he said.
Below is the full statement
MORE ISSUES NEEDED TO HAVE BEEN ADDRESSED IN THE NEW CONSTITUTIONAL COURT RULES BEFORE THE AUGUST PRESIDENTIAL ELECTIONS
As the Green Party, we commend the Chief Justice for the promulgation of the new rules for the Constitutional Court to govern petitions in the upcoming general elections slated for 12 August 2021. By and large, the new rules have addressed the timeframes within which the petitioners must serve the petitions on the respondents; the timeframes within which the respondents have to answer; and the timeframes within which the petitioners have to answer to the respondents.
The rules imply that petitioners now have five (6) days in which to prepare and serve their petitions and answer the petitioners (four (4) days from the date of filing of the petition, plus one (1) extra one for substituted service in the event that the petitioners are unable to serve the petition on to the respondent after lapse of 4 days; and one (1) additional day to file an answer to respondents). The rules also imply that the respondents have four (4) days in which to file the answer and serve the petitioner. Effectively, this means that from the fourteen (14) days provided by the Constitution to hear and determine presidential petitions, ten (10) days have been reserved for paperwork i.e. filing of petitions, responding to documents, and service of documents. This leaves four (4) days only in which to hear preliminary applications, consolidation of petitions (if any); hear testimonies from witnesses; cross-examinations; re-examinations; closing submissions; filing of written submissions; and delivery of the abridged judgment.
My worry is that the last four days have been left open for judges and lawyers to allocate as they wish. This will be tricky if, for example, they will be several petitioners, say ten or even fifteen petitioners. I would have loved that all days were allocated by statute so that no one blames the judges if the time allocated by statute is not enough.
Otherwise, my preference would have been that the days for preparation and serving of the petition were reduced to a maximum of two (2) days (one day to file and serve, and the next day if service is substituted. The two days would have been enough considering that the petitioners have seven (7) days provided for in the Constitution within which to make up their mind. Allocating an additional five (5) days after the lapse of the said seven days gives the petitioners undue advantage in that they have a total of twelve (12) days in which to prepare their cases, while the respondents merely have four (4) days.
If, for example, there are twelve (12) petitioners, the implication of the new rules is that, collectively, the petitioners will have a total of 144 days in which to prepare their petitions and witnesses, whilst the respondent will have only four (4) days in which to respond to all the 12 petitions. The time allocated to the respondents is therefore unfairly little.
If per my suggestion, the petitioners’ time in the rules was reduced from five (5) days to two (2) days for filing of petitions and service, then the time served would have been better allocated for post-filing of petitions and responses. I say so because a lot needs to be done after filing petitions and receipt of responses. First, there is a need to hear and determine preliminary applications, such as consolidation of the petitions before a single judge. Then, there may be appeals of preliminary applications to the full bench. Then, there are testimonies from witnesses, cross-examinations, re-examinations; and closing submissions (oral and written). Clearly, this is where the bulk of time needed to have been allocated, say, six (6) days. Lastly, one (1) needs to be reserved for delivery of the abridged judgment. It should stand alone.
From the experience of the 2016 presidential petition, the confusion started from hearing of preliminary applications and appeals from the single judge to the full bench and going forward. This is where the rules should have been clear and strict in terms of time allocation. The rules should have been very strict on the length of the petitions and responses in terms of the permissible number of pages. In the Kenya petition of 2017, written submissions were restricted to ten pages only. Just imagine how much work the respondent would have to respond to if written submissions are one hundred (100) pages by twelve (12) petitions? This is almost three reams of paper that must be responded to in four (4) days? Plus volumes of witness statements and other evidence that must be carefully examined before responding?
I feel that the new rules should have addressed the issue of court attendance by the public. Due to Covid 19, court attendance by members of the public is restricted. However, due to the importance of the presidential petitions, it is important that the public is allowed to witness the trial fully. This entails that if members of the public cannot physically be present in court, then the rules must be changed to allow live broadcast on TV of the petition proceedings. Otherwise, party cadres may force their way into court premises, and they will be justified if there are no alternative means of transmitting the live coverage of the petitions.
Finally, avoiding electoral violence and ensuring legitimate election results is a key role of the judiciary in a democracy. But to achieve this, the judiciary should be fully prepared for electoral disputes. In addition, the public, including key stakeholders must be prepared for the electoral disputes. I am happy that on its part, the judiciary has done quite a lot to prepare by, among other things, review of the legal framework for the management of the presidential petitions. I think it is not too late yet for the Chief Justice to consider taking into consideration the issues that I have raised in this write-up.
May those with direct access to the Chief Justice convey my concerns. Due to the constitutional judicial independence provisions, I have no direct access to the Chief Justice.
6 June 2021