they concluded in saying{{{{{{election 2012 wahalaaaaa} respectfully commend to Your Lordships three judicial decisions -one of the erstwhile Court of Appeal under the 1969 Constitution of Ghana, another, fairly recently, of the Canadian Supreme Court and the last, very recently, of the Supreme Court of Kenya. In Re: Election of First President –Appiah v. Attorney-General [1970], reported at pp. 1423 – 1436 of A Sourcebook of Constitutional Law of Ghana, a case in which the election of the late Edward Akufo-Addo as the President-elect of the second Republic of Ghana was challenged by a lawyer, Joe Appiah, the Court of Appeal dismissed the petition, Bannerman, Ag CJ in his judgment relying on the following passage in the English case of Medhurst v. Lough &Casquet (1901) 17 TLR 210, where Kennedy, J, at p. 230 said: ‘An election ought not to be held void by reason of transgressions of the law committed without any corrupt motive by the returning officer or his subordinate in the conduct of the election where the court is satisfied that the election was, notwithstanding those transgressions, an election really and in substance conducted under the existing election law, and that the result of the election, that is, the success of the one candidate over the other was not and could not have been affected by those transgressions.’ 98. In the Canadian case of Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256, the Canadian Supreme Court made the following significant observations: “The practical realities of election administration are such that imperfections in the conduct of elections are inevitable….A federal election is only possible with the work of thousands of Canadians who are hired across the country for a period of a few days or, in many cases, a single 14-hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical on-the-job experience... The current system of electoral administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system. This overarching concern informs our interpretation of the phrase “irregularities …that affected the result.” (Rothstein and Moldaver JJ). 99. Finally, the Kenyan Supreme Court Case of Raila Odinga v. Uhuru Kenyatta [2013] at paragraphs 303, 304, 306 and 307 of its Judgment: ‘[303]… by no means can the conduct of this election be said to have been perfect… [304] Did the Petitioner clearly and decisively show that the conduct of the election to have been so devoid of merits, and so distorted, as not to reflect the expression of the people’s electoral intent? It is this broad test that should guide us in this kind of case, in deciding whether we should disturb the outcome of the Presidential election. [306] … In summary, the evidence, in our opinion, does not disclose any profound irregularity in the management of the electoral process, nor does it gravely impeach the mode of participation in the electoral process by any of the candidates who offered himself or herself before the voting public. It is not evident, on the facts of this case, that the candidate declared as the President-elect had not obtained the basic vote-threshold justifying his being declared as such. [307] We will, therefore, disallow the Petition, and uphold the Presidential election results as declared by IEBC on 9th March, 2013.’ (Willy Mutunga C.J).
Posted on: Sun, 04 Aug 2013 11:53:10 +0000
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