As the 2017 General Election approaches, political temperatures and disputes are rising. Over the past few weeks, the protests calling for the removal of the officials of the Independent Electoral and Boundaries Commission have led to the deaths of four Kenyans and looting and destruction of property.
There are fears that if voters go to the elections believing that the process is unfair, there could be violence.Elections should not be synonymous with violence.
There is a need for constant monitoring, dialogue, and use of dispute resolution mechanisms. International best practice demands that electoral systems establish effective mechanisms and remedies to enforce electoral rights during and after elections.However, it is not sufficient that these mechanisms exist. The electoral dispute resolution mechanisms should inspire confidence in both the petitioners and the public. Kenyan citizens have a constitutional right to free, fair, and regular elections and the right to vote.
These rights can only be safeguarded through mechanisms that the petitioners and citizenry can trust to be effective and efficient.In Kenya, the main avenue for electoral dispute resolution is the court system. To increase faith in the electoral process, the Judiciary should be subject only to the Constitution and the law and should not be under the control or direction of any person or authority. The Judiciary should act as a safety mechanism to defuse political tension and avert violence.
Where there is mistrust in the judicial system, it follows that losers are reluctant to place their faith in the Judiciary to resolve electoral disputes.
Further, if the electorate does not view the courts as sufficiently strong and independent, then the citizens resort to extreme methods to resolve their grievances.
There is also a need for alternative electoral dispute resolution mechanisms. South Africa’s Independent Electoral Commission established a conflict management programme to ease tensions in its post-apartheid elections.
This programme operates only at election time and includes experts in conflict management such as lawyers, teachers, and religious leaders, who are hired a few weeks before the election. They are trained in election law and can be called on when needed. The programme has proved effective and the number of challenges coming before the courts, and electoral disputes in general, has diminished.
These mechanisms have been effectively used in many post-conflict countries and there has been use of negotiation and mediation in other jurisdictions to manage electoral disputes through the assignment of adjudicative functions and powers to civic structures. These mechanisms can serve as the first port of call on electoral disputes and reduce pressure on the formal courts.
For the culture of political violence to cease, there should also be confidence in the body entrusted with conducting elections as well as the legitimacy of the process, assured by transparency and the involvement of party agents. There must be orderly conduct on the part of these agents. The responsibility for the maintenance of such order lies with the agency in charge of the electoral process.
As elections are for representative offices running in relatively short cycles, time is always of the essence in the resolution of any disputes. It is in the public interest that the dispute resolution mechanisms remain in charge of the essential steps in the run-up to hearing day and hold the parties under obligation to manage their evidence and to conduct their cases in a time-conscious and responsible manner.
The government, politicians, and the international community should work together to end the deadly cycles of electoral violence.
Effective electoral justice mechanisms can play a vital role in Kenya’s democratic process as they ensure that every action, procedure, and decision of the electoral process complies with the law.
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