Monday, 15 July 2013 11:41

Cost of filing petitions denies poll losers access to justice

Written by Mercy Mumo

The number of women in the last parliament was more than what is in the current eleventh parliament. After the March polls, it was anticipated that there would be more women but  due to a number of factors that range  from malpractices and harsh political environment, the two-thirds threshold was not met, this despite the huge number of women seeking elective position.

However, all is not lost as many women who think they were robbed of their victory at the ballot have decided to go to court. However, it is not going to be easy as many have since given up hope.

If the presidential petition was  anything to go by, then justice may just be as elusive for the women who filed for an election petition. The costs involved in the quest for justice have made some of them  withdraw from seeking justice.

Price

As at April 15, 2013, the number of election petitions on all the elective posts countrywide was 186. Around the same time, the Judiciary Working Committee indicated that 70 petitions were challenging  elections in parliamentary posts, 67 county assembly, 23 governor, 12 senate and nine for the women representative seat.

Under Section(78, 2) (a-c) of the Elections Act 2011, a person who presents a petition to challenge an election shall deposit KSh1 million in the case of a petition against a presidential candidate,  KSh500,000 for a member of Parliament or governor and KSh100,000 against a member of the county assembly.

According to the Centre for Education Rights and Awareness (CREAW) Executive Director Wangechi Wachira, the security costs are exorbitant and beyond the reach of many. This is partly the reason why many women withdrew from their bid to file petitions.

The Act stipulates that security for costs which are payable by the petitioner should be done in not more than 10 days after the presentation of a petition. Section 78 (3) of the same act goes on to explain that where a petitioner does not deposit security as required as stipulated in this section, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition. In addition,  the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent’s costs.

“After coming from such an expensive campaign period, majority of the women did not have any money left to seek legal redress,” notes Wangechi.

In order to present a strong case, you need experienced lawyers who have handled such cases before and their legal fee is also not a walk in the park.

“Lawyers will equally be asking for their fee which in most cases is high. Inclusive of the deposit, the charges can go up to a million shillings.”

Justice

Initially, the Centre for Education Rights and Awareness (CREAW) worked with 37 women who had filed for the petition. Six of the women included Jacinta Mwatela, Naomi Cidi, Mary Mwangi, Rozaah Buyu,  Sophia Abdi and Waithera Chege requested to be supported financially. In partnership with the Centre for Multi-Party Democracy (CMD), CREAW secured lawyers for the women on pro-bono basis.

“Out of the 37 women who were challenging the election outcome, only 11 have gone through. We hope that justice will be served in their favour as they have fought hard for this,” she notes.

Wangechi  says that justice should be free and fair to all. It should be able to penetrate down to the lowest levels.

Campaigns cost money irrespective of the type. Political campaigns for most women are  a nightmare due to the costs involved. Most women during campaigns spend beyond their means and end up borrowing. Political parties did not sponsor them during the campaigns.

"When you place a price tag  on justice, it means that majority is locked out and only the few with resources are able to press on. This is denial of justice to anyone with a valid argument,” says Wangechi.

Most of the election petition cases are seeking to challenge the malpractices in the entire process, cancellation of some results, scrutiny and vote recounts, spoilt and rejected votes, declare fresh elections, costs incurred and the Independent Electoral and Boundaries Commission (IEBC) as a body.

The constitution requires that the cases should be heard and determined within six months of filing.

“The court has pledged to adhere to the stipulated period for ruling. Let’s hope that justice will be  served,” avers Wangechi.

 


This article was originally published in the icon Kenyan Woman Issue 37: Status of Women (Download the PDF)

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