The Arbitration Board Verdict: The South Sudanese Students’ Association in Kenya

Posted: September 25, 2018 by PaanLuel Wël Media Ltd. in Junub Sudan

REPUBLIC OF KENYA

IN THE SOUTH SUDANESE STUDENTS ASSOCIATION IN KENYA ARBITRATION BOARD PETITION NUMBER 1 OF 2016 IN THE MATTER OF THE CONSTITUTION OF SOUTH SUDANESE STUDENTS ASSOCIATION IN KENYA 3,4,5,6,7,13,23,24,25,26,27,28,31,32,43,44,45,59,60,61,62,65,70,71,72,73,74,75,76 AND 77 IN THE MATTER OF THE CONSTITUTION OF SOUTH SUDANESE STUDENTS ASSOCIATION IN KENYA 2ND, 6TH, 7TH AND 9TH SCHEDULES

BETWEEN

CHUOT MAKUR CHUOT……………………………………………………..1ST PETITIONER

JOHN ANYAR DENG……………………………………….………………..2ND PETITIONER

MATAI MANUOI MUON……………………………..……………………..3RD PETITIONER

NYALANG THIEP………….…………………………………………………..4TH PETITIONER

JUMA LOKANG PETER……………………………………….………………5TH PETITIONER

AND

ELECTORAL COMMISSION OF SSSAK……………………………………1ST RESPONDENT

SIMON GATKHOR…………..……………………………………………..2ND RESPONDENT

ALIANDRO LOTOK…………………………………………………………3RD RESPONDENT

sssak

SSSAK

ARBITRATION BOARD VERDICT

BACKGROUND TO THE PETITION

Tuesday, September 25, 2018 (PW) —- Petitioners filed this petition supported with a sworn affidavit on the 4th November 2016. The petition challenges the just concluded SSSAK Annual General Elections before the Arbitration Board. It lists SSSAK Electoral Commission of 2016 as the First Respondent, the Chairperson of the Electoral Commission as the Second Respondent, and Mr. Aliandro Lotok (the president-elect) as the Third Respondent.

HISTORICAL BACKGROUND OF THE PETITION

The Annual General Elections for South Sudanese Student Association in Kenya (hereinafter referred to as SSSAK) were conducted on the 22nd October, 2016 in Eldoret and Nakuru, and on the 29th October, 2016 in Nairobi. Aspirants organized themselves into three teams: Triple Alliance Party (hereinafter referred to as TAP-SSSAK), United Student with Integrity (hereinafter referred to as USI-SSSAK) and Triple Alliance for Reforms (hereinafter referred to as TAR-SSSAK). These were the parties’ campaign vehicles. The teams fielded candidates for all positions except for the information secretary and legal affairs position which only had one person who registered interest to vie. The election results were announced on the 29th October 2016 for Nairobi and on 22nd October, 2016 for Nakuru and Eldoret. These results were disputed by TAR-SSSAK and USI-SSSAK who then filed petitions before the Arbitration Board for final determination.

The Petitioners sought for orders from the Arbitration Board including:

1. The Electoral Commission is restrained from swearing in the purported president-elect until the matter is heard and determined.

2. The General Elections held on 22nd and 29th October, 2016 respectively be rendered null and void abinitio.

3. In the event the Honourable Arbitrators nullify the said elections, a fresh body of electoral officials be appointed within reasonable time.

4. The petitioners’ rights as enshrined under the SSSAK constitution be upheld.

A NOTICE OF PRELIMINARY OBJECTION not dated was raised by the 3rd Respondent to the Petition under the following grounds:-

a) That the 3rd Respondent has met all the requirements as per article 24(3) of SSSAK Constitution hence eligible to vie for the presidential position.

b) The petition is founded in bad faith and the 3rd Respondent is not a proper party to respond in this matter.

c) The petitioners undermine the democratic right of the members to vote by failing to recognize the elected president of SSSAK.

d) The electoral commission of SSSAK is an independent body Article 55(c) of the constitution of SSSAK and the 3rd Respondent has no power to influence on how it carries out its affairs.

e) The 3rd Respondent should be relieved from being party to this matter and/or actively participating in the arbitration process since he has not breached any of the constitutional provisions.

All the Respondents filed replying affidavit to the petition denying the allegation of election malpractices. The matter proceeded for hearing.

PLEADINGS ON RECORD

PARTY

DOCUMENT FILED

DATE

Petitioner(s)

Petition attached therewith a Supporting Affidavit of Chuot Makur Chuot

2nd November, 2016

1st and 2nd Respondent

Replying Affidavit sworn by Stephen Lowosio Lorot

14th November,2016

3rd Respondent

Replying Affidavit sworn by Aliandro Lotok

14th November,2016

The Replying Affidavit by the 1st and 2nd Respondent.

The Arbitration Board sitting as a judicial authority and for that the laws of procedure should be followed at least if not to the letter. The 1st and 2nd Respondent advocate swore an affidavit in response to the petition. The affidavit was sworn by Stephen Lowosio Lorot who is not a party to the proceedings but just a legal representative.  The petitioners, in their submissions submitted that in the case of Raila Amolo Odinga & 2 others Versus Independent Electrol & Boundaries Commission & 3 others [2013] eklr where it was precedent that the 1st and 2nd Respondent filed a replying affidavit sworn by Mr. Isaac Hassan the chairman of IEBC which was admissible in law in the fulfillment of the spirit of the constitution of Kenya.

We wish to state that a party swearing the affidavit has no case before this board and therefore is incompetent to swear this affidavit he has no interest at all other than to pursue the interest of the Electoral commission. The right person to have sworn the affidavit is the 2nd Respondent since he is seized of the matter. This is a quasi- judicial authority and need to be approached by the proper documents. An advocate need not debone on sensitive matters that will necessitate him to be a witness and appear before the dock to testify. Simon Gatkhor (2nd Respondent) was the right person to reply to the petition since he is the chairperson of the electoral commission and is seized of the matter at hand.

However, we stand by the principle that a mere technicality cannot deny one right to justice. Going by the contents of the affidavit, we wish to look at its importance and arrive at a concrete truth and for justice to be administered to all parties on board.

On the evidence adduced by RW3, the Arbitration Board comes to a conclusion that he is not the preferred witness for the 3rd Respondent. The reasons being are that the witness is a secretary to the commission and therefore well versed with the day to day running of the commission’s activities. The evidence he adduced centered on the requirement for election process, the verification of data and accreditation of various institutions. To our mind, the evidence is better placed to be adduced as a witness of the 1st and 2nd Respondent as opposed to the 3rd Respondent. He however made it clear during cross examination that he was merely on record to substantiate all the claims raised and to clear the commission on any malpractice as to the eligibility of the 3rd Respondent.

Upon having filed all the pleadings on record and each party served with the documents, the matter was set for hearing. First and foremost, a Preliminary Objection raised by the 3rd Respondent had to be determined first. All parties with their legal representatives appeared before the Arbitration Board on 17th November, 2016 for hearing of Preliminary Objection. The Preliminary Objection was raised on the basis of insufficiency of evidence adduced by the Petitioner. The 3rd Respondent submitted that there was no substantial evidence produced by the petitioner. The Counsel for the petitioner acknowledges receipt of the Preliminary Objection. However, they did not respond on the understanding that a Preliminary Objection is found on the old case of Mukisa Biscuits Manufacturing Co. Ltd Versus West End Distributors Ltd [1969] E.A. 696. In the celebrated case Law J.A. stated a Preliminary Objection to be thus:-

“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

Sir Charles Newbold, President stated in the same judgment as follows:-

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

The Petitioner counsel, John Obera, further submitted that the preliminary objection is unfounded and does not raise any question of law and the Arbitration Board should dismiss it. The issues raised in the Preliminary Objection ought to be raised in the hearing. Upon having heard the submissions of both counsels to the notice of motion raised, the Arbitration Board came to a conclusion that the Preliminary Objection is raised on factual basis. There is no point of law raised by the 3rd Respondent to warrant it being admissible. The issues raised are based on facts. The Board therefore dismissed the Preliminary objection on the basis that it doesn’t raise any point of law and orders that parties be ready for hearing of main suit. The Preliminary Objection was looked at objectively on the account of no point of law raised.

This Petition brings to the fore the special context of SSSAK vis-à-vis justice as universally understood and applied. Whereas SSSAK is an institution that operates within its socio-economic environment, justice is a time old function of coordination of human organization whose aims are to allocate and determine rights and obligations.

SSSAK is registered in Kenya as a non-profit civil base organization. Its membership comprises a community of South Sudanese students enrolled in recognized colleges and universities in Kenya. The orientations of this membership are not just those of any student group in Kenya; they are of South Sudanese citizens, and certainly, with dashes of Kenyan-ness or other hybrid orientations. SSSAK’s institutions are nascent and lack sufficient resources – challenges analogous to those fronting mother country institutions. The organization is regulated by its own law and other applicable laws.

The propriety or otherwise of the decision on this petition should not be pegged on the prognosis of SSSAK situations or its lack of resources thereof as such would not only be inconsistent with the organization’s objectives but also defeat the very purpose of justice process. Determination of justice in our understanding is to find the truth and make a fair ruling based on such findings.

We shall not delve very much into discussing justice in its classical sense save for a mention that it often requires an objective and logical reasoning process from its administrators. Therefore, the onus is on this Board to live up this expectation. In this regard, an absolute introspective deliberation possible in analyzing all the evidence presented is an indispensable standard criterion and we embrace no less.

Understanding the dynamics of SSSAK context and justice is critical because of the interconnectedness of law and society. And so, the question is, how can law simultaneously allocate rights and strengthen institutions that administer those rights within SSSAK community? In this petition, these kinds of socio-legal questions become as obvious and natural as infant’s smile.

SUMMARY OF WITNESS TESTIMONY

PW1 – Manyuon Mach Deng

He is the campaign agent for TARSSSAK and a witness in this matter. His testimony was about the collection of data. The collection of data was not fair at all. Irregularities were carried out in the election on 29th October, 2016. Voters were intimidated though he was not present during the voting process. He testified that some voters voted after closure of election. He raised a complain to the Electoral Commission and was chased away after making the complaint. He further mentioned 5 institutions that had no South Sudanese students but went on to vote during the election. There are also 14 institutions which were allowed to vote without valid Identification Cards. He however withdrew the statement due to lack of concrete evidence. Lastly, he testified that the election was not free and fair; the commissioners were unprofessional and demanded they be arrested.

PW2- Dau Lueth John

He testified as the campaign agent of TARSSSAK. According to him, the election was marred with irregularities. Prior to the election, he raised some concerns purposely on the electorate data to be used in Nakuru. He requested for the electorates data in good faith from the commissioners but was not given. He allowed the election to go on despite the setback. He mentioned of 2 institutions where he personally visited in Nakuru that students voted with fake Identification Cards. He claims that his testimony is not based on suspicion since he has evidence to prove his case. The failure by him to append signature on the declaration form was due to the irregularities marred in the election process.

PW3- John Anyar Deng

He is the 2nd Petitioner and a running mate to the 1st Petitioner. He is disputing the Nakuru results. Election was conducted in Nakuru on 22nd October, 2016 and thereafter results announced to the public. He was in Nairobi when the result was being announced in Nakuru. He later found out that TAR-SSSAK agent did not sign the declaration form. He boarded vehicle and travelled to Nakuru on the material date to inquire as to why the agent did not sign the form. In the course of his investigation, he found out no form of intimidation was occasioned to the voters. He visited schools together with PW2 and found that bonafide students did not vote from those institutions.

1st & 2nd Respondent Witness- Elizabeth Achol Ayuen

She was the returning officer to the Electoral Commission in Nakuru to oversee the election process. Prior to the election, some agents had a concern on the cancellation of Nairobi election. The party agents were called and briefed on the developments and all unanimously confirmed that voting should go on in Nakuru as scheduled. The whole process was transparent and there was indeed interaction amongst parties. There were 49 registered voters and only 29 turned up to vote. No party agent protested. She testified that one college did not agree on the voters selected by their councilor and the Electoral Commission agreed for them to reach a consensus. However, the institution did not reach a consensus. The college was disqualified due to lack of concrete agreement as to who should vote. Two observers were identified in presence of the party agents and the public. Voting went on well and counting commenced thereafter immediately. One party agent from TAR-SSAK declined to sign after consultation with his party leadership in Nairobi.

3RD Respondent Witness- Majok Makur

He is the Secretary General to the commission and therefore has capacity to testify. An objection was raised on the competency of the witness and the relationship between him and the 3rd respondent. He testified on the requirement for the elections. He produced a document containing the list of accredited institutions in Kenya from the embassy of South Sudan. He further stated the criteria used to disqualify the institutions and on the inclusion of 3rd Respondent as a candidate. His testimony centered on the general conduct of the election in Nairobi and reiterated that it was free, fair and transparent.

After closure of hearing, the Arbitration Board directed parties to file written submissions.

PARTY

SUBMISSION FILED ON RECORD

Petitioner

Filed on 22/11/2016 at 4.45pm

1st and 2nd Respondent

Filed on 22/11/2016 at 10.10 am

3rd Respondent

Filed on 22/11/2016 at 3.00pm

Thereafter, parties appeared before the board on 23rd November, 2016 and gave oral submissions. Having read the submissions, the testimonies of the witnesses and the documents presented, the following are the issues for determination by the board:

ISSUES FOR DETERMINATION BY THE ARBITRATION BOARD

1. Whether the Arbitration Board has the jurisdiction to hear and determine the matter beforehand.

2. Whether the 3rd Respondent was an eligible presidential candidate as per the SSSAK constitution?

3. Whether the 3rd Respondent was validly elected and declared as President-elect?

4. Whether the election held on 22nd and 29th October, 2016 were conducted in free, transparent and credible in compliance with constitutional provisions and all relevant enabling laws?

5. Whether all the electorates who voted on these material days were eligible to vote?

6. Whether the 1st and 2nd Respondent had a right to disqualify some colleges and universities from participating in the election?

7. Whether the 1st and 2nd Respondents were mandated to verify the data with the councilors?

8. Whether absence of signatures of some party agents from election results declaration forms can affect the election outcome.

These issues revolve around two basic points of contentions which are; Mr. Aliandro Lotok’s clearance to vie in the 2016 SSSAK election and the integrity of the conduct of election.

ANALYSIS OF THE ISSUES

Our understandings as Arbitration Board are that this petition mainly objects the credibility of the SSSAK’s Annual General Election and therefore disputes its outcome and that the responses refute any election misconduct and therefore defend its outcome. The petitioners argue that the conduct of the election was improper and thus its outcomes do not confer rights to the president-elect while the Respondents argue that the conduct of the election was proper and thus its outcomes confer rights to the president-elect. These arguments are mutually exclusive – should the Arbitration Board finds either valid, it follows that the other would be invalid. Their veracity is anchored on evidence.

WHETHER THE ARBITRATION BOARD HAS THE JURISDICTION TO HEAR AND DETERMINE THE MATTER BEFOREHAND.

First, this Honourable Arbitration Board has the competency as constituted under Article 59 of SSSAK constitution where it gives power for the establishment of Arbitration Board. The Arbitration Board has the jurisdiction to entertain this petition before it as stipulated in Article 61(1) (a) and we quote-

‘The arbitration board shall receive, evaluate, hear and make ruling and release the final verdict over the election petitions within a stipulated time frame’

The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 where Justice Nyarangi of the Court of Appeal held as follows:

‘I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’

Indeed jurisdiction is the first question to be dealt with by any judicial or quasi-judicial body in the exercise of its legal authority. It is worthy to note that the petition touches on the elections of the Executive Committee of SSSAK by the Electoral College representatives from various universities, colleges and institutions of Higher learning. In case the elections are challenged on the basis of its constitutionality, this Arbitration Board shall derive its jurisdiction from the provision of Article 61(1) (a) of SSSAK’s constitution. The article mandates the Arbitration Board to hear election petition within a stipulated time frame as captioned above.

The constitution, as the ground norm underpinning the operations of the association, should therefore be the source of quasi-judicial authority by the board to hear and determine this election petition. The petition meets the justifiability test since it raises justifiable controversy before the Arbitration Board for hearing and determination. The petitioners submitted in their submissions that they do believe in the competency of the Arbitration Board as fully constituted to determine the matter to its logical conclusion.

WHETHER THE 3RD RESPONDENT WAS AN ELIGIBLE PRESIDENTIAL CANDIDATE AS PER THE SSSAK CONSTITUTION?

The petitioners contend that Mr. Aliandro Lotok (3rd Respondent) should not have been cleared by the Electoral Commission to vie for the presidential seat. The argument they raise is that he was admitted into a four-year program at Day Star University in May 2014 and therefore finalizing his studies in 2016. The allegations of Mr. Aliandro Lotok being a finalist were denied by both the Electoral Commission and Mr. Aliandro Lotok.

Article 24(3)(b) of SSSAK Constitution stipulates the eligibility of persons vying for the position of the president. It states that:-

A person shall be eligible to vie for the position of the president if he/she is in second year and above and shall not be a finalist.”

To decipher the meaning of this article, it clearly means that a person who wishes to vie for the position of president, he/she must be a second year student and should not be a finalist. The catching phrase here was the word finalist and the Arbitration Board had to clearly understand the meaning of the word. The question we get from the submission of petitioners’ counsel which we the Arbitration Board concur with is who is a finalist? The answer seems to be “a finalist is a student enrolled for a course which is sufficient to complete a qualification in that semester or year.” Therefore, the framers of the constitution had in mind that anybody who wishes to vie for the president ought not to be in the last semester of his/her academic year. The article is vague in its entirety and is open to many interpretations.

On the scrutiny of the documents before the Arbitration Board, there was no evidence that Mr. Aliandro Lotok was indeed a finalist. His admission date does not determine his finalizing year as he took fewer courses in 2015 thereby extending his studies beyond 2016.The petitioners have not proved to the Arbitration Board by producing documents to show indeed that Mr. Aliandro Lotok is a finalist. He who alleges must prove. The mere fact that the 3rd Respondent admitted in his Replying Affidavit that he is a fourth year should not be used as an excuse. Indeed the 3rd Respondent went further to produce documents and it is on record that he is not in fourth year. During oral submissions, the 1st and 2nd Respondent’s Counsel further submitted on the qualification of Mr. Aliandro Lotok to vie for SSSAK’s presidency. A brief breakdown of the units so far done by Mr. Aliandro Aliandro is 35 and he still remains with 17 units to complete his studies. We find this evidence adding weight since an admission to an institution does not guarantee one to complete after the stipulated time.

We therefore find that the petitioners have not proved to us enough that the 3rd Respondent is  a fourth year and secondly, evidence produced before Arbitration Board necessitates us to concur that the 3rd Respondent is eligible to vie for presidency as stipulated under article 24(3)(b) of SSSAK Constitution.

The evidence produced by PW1 is based on presumptions that Mr. Aliandro Lotok is in fourth year. In fact the duty shifted to the 3rd Respondent to produce evidence of his status.

The Arbitration Board on its own volition tends to think that the issue of eligibility of the 3rd Respondent ought to have been brought to the attention of the Electoral Commission before the commencement of the elections. As per the provisions of the SSSAK’s Constitution such issues/complaints ought to have been a pre-election petition issues and to be dealt with in the first instance/early stages before commencement of voting. The petitioners would have petitioned the Electoral Commission to have the candidate disqualified from vying for the seat. We find that it is an afterthought by the petitioners to bring such moot issues at the last minute when in reality it is an issue dealt with in a competent institution formed under the SSSAK constitution. The Electoral Commission is mandated to deal with such issues/complaints of eligibility and bringing it forth before the Arbitration Board would be tantamount to double standards.

WHETHER THE 3RD RESPONDENT WAS VALIDLY ELECTED AND DECLARED AS PRESIDENT-ELECT?

After the tallying of the votes, the Electoral Commission is tasked under the SSSAK Constitution to declare the winners in the various contested positions. The 1st Respondent being the Chairperson of the Electoral Commission is mandated under Article 65(2)(b) to announce the Annual General Election results.

The petitioners content that the president-elect was not validly elected as per SSSAK constitution and therefore render the election null and void. The Arbitration Board is therefore tasked with the duty to determine whether indeed the 3rd Respondent was validly elected and declared the winner.

To determine this issue, the Arbitration Board was to look at a number of factors including the evidence of the witnesses, the documents produced by the parties and come to a conclusion from the said evidence.

On witnesses

The Arbitration Board heard witnesses and examined documents and submissions. These were the two sources of evidences in reach for the Arbitration Board to make a decision. Hearing and scrutiny of evidentiary materials are processes meant to render all masks and lay the truth bare.

On the hearing, witnesses across the board were either lying or were inconsistent. They told antagonizing narratives and/or confusing accounts of events and procedures on the election process. The petitioners presented three witnesses who were involved in the campaign for TAR-SSSAK as agents or aspirants.

PW2 and PW3 alleged that they saw, in Nakuru, voters who claimed to come from institutions that do not have South Sudanese as their students and these voters were illegally permitted to vote. When asked about how they knew non-admitting-institutions had registered voters in the election at Nakuru, PW2 and PW3 testified that they individually and separately went to three institutions and got the information that those institutions have not enrolled students who are South Sudanese nationals. The Arbitration Board verified their claims and found it to be false.

On allegation that the electoral commission secretively manipulated the voting processes, PW1 testified and quoted“I saw the commission during the Election Day in Nairobi using two registers or lists: a public and a private list. I have the private list”. The witness did not present any list when asked by the Electoral Commission to avail it for review.

The Respondents’ witnesses were two (RW1 and RW3). Both were members of the Electoral Commission. They said they oversaw a credible, transparent, free, and fair election process. RW1 testified for the 1st and 2nd Respondents while RW3 testified for the 3rd Respondent. When asked about why the TAR-SSSAK agent refused to sign the forms used to declare results of Nakuru on the 22nd October, RW1 had this to say, “TAR-SSSAK agent refused to sign the forms because he received a call from Nairobi and was instructed not to sign…I do not know why he refused to sign”.

When asked about whether the commission had any written election guidelines during the election, RW2 said, “We did not have written guidelines. Our guidelines are in the constitution…We published our election guidelines on WhatsApp.

These witnesses’ testimonies do not add up. Their testimonies were plagued with such inadequacies that felt short of a recount that reflect a natural experience let alone that emanating from a responsibility and duty. The counsels for the petitioners have gone further not to mention the evidence of their witness during oral submissions. This clearly indicates that the veracity of the evidence adduced by their witnesses do not add weight since it was all hearsay.

Documentary Evidence

Now, if witnesses either lie or are inconsistent as they did and were, it follows that their testimonies must be objectionable and as such cannot be very helpful for the purposes of determining the truth. In other words, if the witnesses were to be the only sources of evidence, the Arbitration Board would come to no more than a bankrupt conclusion – an assumption devoid of any valid premise – about what actually transpired during the conduct of the election. We therefore find no evidence based on their testimonies that would reliably aid in deciding this petition and as such disregard them.

We now turn to other sources of evidence which were materials scrutinized by the Arbitration Board. These were the documents used by the Electoral Commission in conducting the election. Their review is in accordance with the law. Schedule Nine part 1(f) of SSSAK Constitution provides that:

The Arbitration Board] shall summon all parties to the petition, any member or document(s) of SSSAK it deems necessary for the determination of the petition; and shall be guided by the principle of natural justice. [Emphasis added].’ The documents scrutinized for evidentiary purposes were:

i. Application and clearing documents for Mr. Aliandro Lotok,

ii. List for verification of institutions by the Electoral Commission,

iii. Documents from 27 institutions which were rejected from being entered into voter registry,

iiii. Voter registry, and

v. Forms used in declaration of the 2016/2017 SSSAK Annual general Election results.

These materials helped in answering question in particular on the issues raised and in general on deciding on the credibility of the election.

The Electoral Commission submitted to the Arbitration Board a list of all the electorates and tallied results. Having a cursory look at the list, the Arbitration Board finds that a total of 180 registered voters hailed from Nairobi. The voter turnout in Nairobi on the Election Day was 124. Fifty six electorates failed to turn up on the Election Day.

Therefore, the submission by the petitioners was that the total electorates indicated did not match since the list showed a total of 196 votes.

To the contrary, the Electoral Commission was able to clarify to the Arbitration Board in reference to the 16 other voters which they ably did clarify in that it represented the 16 candidates vying for various positions. This was orally made to the Arbitration Board and we find that the electoral Commission erred in that area since they ought to have included in the final list.

A snapshot of this, means that the total registered voters in Nairobi are 180. This evidence is corroborated by PW1 during the examination in chief where he stated that 180 registered voters were from Nairobi.  Adding the 16 candidates amounts to 196 voters. Therefore 124 voters turned up on the Election Day and adding the 16 candidates totaling to 140 votes cast on the material day in Nairobi. The Arbitration Board took cognizance of this fact and indeed looked at the documents on record to give these results.

Going further on the declaration form, we find that a total of 129 voted for the three parties and 11 votes found to be spoilt adding to 140 as indicated above. This was the big challenge brought forward by the petitioners and we deem it fit to clear the doubt that the total votes were inflated in favor of the 3rd Respondent and do not add up.

NAME

NAIROBI

ELDORET

NAKURU

ALIANDRO

51

28

18

CHUOT

29

15

7

AMATI

49

4

4

TOTAL

129

47

29

The Eldoret and Nakuru results are not disputed by the petitioners, even from the initial petition. The petitioners ought to have indicated in the petition that they are disputing the results in Eldoret and Nakuru since the petition only indicate the dispute in the election held on 29th October   in Nairobi.

From the above and having looked at the documents on record, the Arbitration Board finds that there are no discrepancies made by the Electoral Commission since the figures and the calculation were matching and add up to the total voters registered.

WHETHER THE ELECTION HELD ON 22ND AND 29TH OCTOBER, 2016 WERE CONDUCTED IN FREE, TRANSPARENT AND CREDIBLE IN COMPLIANCE WITH CONSTITUTIONAL PROVISIONS AND ALL RELEVANT ENABLING LAWS?

The petitioners contend in the petition that election was conducted in Nairobi on 29th October, 2016 at Safari Club Hotel. There was hardly any mention on the election in Nakuru and Eldoret on 22nd October, 2016. However, in the prayers sought before the Arbitration Board, they tend to seek the prayers that the election in Nairobi, Nakuru and Eldoret be nullified due to the reason that it was not fair, transparent and credible.

The Arbitration Board therefore notes the inconsistency by the petitioners in deciphering the issues. Be that as it may, we are obliged to conclude that they are disputing the whole election both in Nairobi, Nakuru and Eldoret and it is our duty as Arbitration Board to determine whether indeed the election conducted on the diverse dates were indeed free, fair and transparent.

The supreme law of SSSAK under Article 65 clearly stipulates the duties and responsibilities of Electoral Commission and one of them is to conduct the Annual General Election of SSSAK. The constitution further states that the electoral Commission is to handle all modalities regarding the whole election process to ensure that the process is free, fair and transparent. It goes without saying that indeed the Electoral Commission is tasked with this enormous workflow for the whole process to come to abject conclusion.

Upon assuming office subject to approval and vetted by the council, the Electoral Commission 9 members began their work in ensuring that the Annual general Election took place as per the constitutional mandate. The Electoral Commission convened a General Meeting briefing members on the necessity to submit the names of the Electoral College and invitation of interested applicants for various positions being contested in the forthcoming elections to submit their documents to the Electoral Commission as required by law.

Various applicants submitted their documents to the commission and were rightfully cleared by the Electoral Commission after meeting the requirements of the law. Data collection from various universities and colleges thereafter followed and the same was verified by the electoral Commission as stipulated by law. A meeting was convened prior to the election date to brief the candidates and the council on the data collected and eventual announcement of the election date. The same was all agreed by all parties that the Annual General Election shall be conducted on the 22nd October, 2016. This Annual General Election was to be conducted at the three polling stations namely: Nairobi, Nakuru and Eldoret.

The election in Nairobi was cancelled after the emerging dispute between the office of the speaker and the Electoral Commission on who to verify the data of Electoral College. The other two centers proceeded to carry out the election on the initial agreed date of 22nd October, 2016 with all parties duly satisfied with the conduct of the election. Therefore, the election for Nairobi was rescheduled a week after the 22nd October, 2016.The election in Nakuru and Eldoret was conducted and results announced and there was no dispute that arose from the said results. It was until the announcement of the Nairobi results that the petitioners especially TAR-SSSAK party reject the results and eventually lodged the petition before the Arbitration Board.

In the conduct of the elections, a series of events guided by the constitution of SSSAK took place namely:

1. Collection of data of the electoral college

2. Submission of applicants data for various positions

3. Clearance of aspiring candidates by the commission

4. Kick off of campaigns by various parties

5. Election date

6. Tallying of results

7. Announcement of the results.

These key highlights of events enable the Arbitration Board to determine as to whether the conduct of the election was free, fair and transparent. The Arbitration Board comes to a conclusion that the parties had no problems with steps followed until the announcement of the result. After the rejection of the results and the petition on board herein, the Arbitration Board went further in analyzing the witness testimonies and the documents produced on record by the parties, we find that there is no improper misconduct of the election by the Electoral Commission.

WHETHER ALL THE ELECTORATES WHO VOTED ON THESE MATERIAL DAYS WERE ELIGIBLE TO VOTE?

The provision of the constitution under Article 71 stipulates the establishment of the Electoral College which shall be the voting body of SSSAK during the Annual General Election. This article clearly brings out the need for Electoral College that will be held responsible to vote for all the candidates vying for various positions.

Further to that, under article 72(1) of SSSAK Constitution talks about the composition of Electoral College. The Electoral College shall comprise of 5 students from each recognized university and 3 students from each recognized college. To help in deciphering the meaning of this article is that the students hailing from these institutions must be recognized under the laws of Kenya. The article clearly stipulates the composition of the Electoral College that has voting rights.

Upon fulfilling this constitutional requirement, the Electoral Commission formed a voter register with students hailing from recognized universities and colleges within the borders of Kenya’s jurisdiction. The voter register is on record and the Arbitration Board takes cognizance of it to be the list used for the Annual General Election. Therefore, once a voter registry is created, it comprises of electorates who have the right to vote as enshrined in the constitution. It goes without saying that they are eligible to vote.

The Arbitration Board takes note of the fact that once the voter register was computed, the candidates and party leadership were informed of the duly list and all were contented. Upon conclusion of the election and announcement of the results, the parties brought forth the issue of eligibility of the electorates. This issue ought to have been brought to the attention of the Electoral Commission earlier or rather during pre-election petition.

The bone of contention by the petitioners is in the 19 institutions which were allowed to vote yet the institutions are not accredited. This is clearly brought out by the lead Counsel of the petitioners in their written submissions and it emerges as an issue for determination by the Arbitration Board. Upon perusal of the record, the Arbitration Board finds that the institutions are accredited under the Kenyan Laws thereby conferring rights to the voters to vote. Secondly, from the said 19 institutions, 5 colleges emerge to have been from Eldoret. Going by the record, the petitioners are not disputing the Eldoret results and the Arbitration Board finds it moot to challenge the results yet in the petition they did not have a problem with Nakuru and Eldoret results. The 19 institutions being challenged by the petitioners happened to be among the list of 27 institutions brought by PW1 to the Electoral Commission.

The allegation of students voting without Identification Cards came to the fore-play during the hearing of the main suit. The witness, PW1, was put on task to explain whether he saw any voter voting without ID. PW1 disputed his own statement by objecting to those allegations. During cross-examination, he was asked to produce the names of schools which had students voting without IDs, he was not in a position to answer the same. Therefore, we find that these were mere allegations being raised by the witness and have no clear proof to substantiate their claims.

WHETHER THE 1ST AND 2ND RESPONDENT HAD A RIGHT TO DISQUALIFY SOME COLLEGES AND UNIVERSITIES FROM PARTICIPATING IN THE ELECTION?

The petitioners were questioning the procedures used by the Electoral Commission to disqualify some of the institutions from participating in the Annual General Election. The Arbitration Board takes cognizance of this fact and indeed our record shows that certain institutions were disqualified. We are therefore tasked to understand why such action was undertaken by the Electoral Commission was indeed viable as per the law.

PW1 during examination in chief stated that there were some institutions disqualified on the basis that they have particulars of students originating from certain communities they came from. He further intimated that some institutions were disqualified due to lack of stamping by the school management. PW2 also stated that some students in Kenya Industrial Training Institute (KITI) were disqualified in Nakuru to vote. The Electoral Commission rebutted these allegations during the main hearing in that the institution (KITI) was disqualified on the reason that the students themselves failed to come to a consensus on who should participate in the general election. The Electoral Commission gave the students time to agree and failure to do so necessitated their disqualification.

The Arbitration Board finds this a reasonable cause of action undertaken by the Electoral Commission upon consultation with parties’ agents. The Electoral Commission indeed acted within the precincts of the law and did contravene any laws on disqualification.

PW1 gave a reason for disqualifications of such institutions based on tribal line. However, the commission cleared the air by stating that there were some criteria used to disqualify the institutions including inter-alia:

1. Letter signed by Dean of students.

2. Institution stamp

The same evidence was supported by RW3 who categorically stated the criteria used in accrediting the institutions. The same witness, PW1, happened to have brought 27 institutions by himself to the commission. The Arbitration Board took note of this critically and came to a conclusion that PW1 had no right to bring these institutions by himself to the Electoral Commission and in reality he wasn’t the school representative of all these 27 institutions. The allegations that those institutions contain names of students hailing from one particular community is futile and does not hold water since the institutions did not meet the criteria of having the school letter head and stamp by the school management. These could be a game plan by the witness to aid his party to win the election which the Arbitration Board took note of. He who comes to equity must come with clean heart. The Arbitration Board finds that the witness was seeking justice yet in same spirit he muddied the water. He did not come clean and equity does not act in rem/vain. It aids not the indolent but the vigilant.

Upon perusal of the document on record, the Arbitration Board finds that some institutions were disqualified for failing to beat the deadline for submission of the data. A case in point is KCA University and KMTC College where they submitted their lists late despite having fulfilled the requirement as stimulated in the SSSAK’s constitution. The Electoral Commission has the right to disqualify the institutions for having not met the requirements as enshrined in the constitution.

Therefore, the Arbitration Board stands on the institutions being disqualified, there are genuine reasons that meted their disqualification and find no malice on the side of the Electoral Commission in undertaking their duties.

WHETHER THE 1ST AND 2ND RESPONDENTS WERE MANDATED TO VERIFY THE DATA WITH THE COUNCILORS?

The bone of contention that arose in reference to this issue is whether the Electoral Commission is tasked to carry out verification process of data. The Petitioners have arguably raised this issue since they are of the contrary view that the Electoral Commission must verify the data and thereafter submit to the councilors for approval.

This places a conundrum on the law as it stands as to who should do the verification. The law clearly stipulates that the electoral commission is mandated to verify the data as spelled out in Article 65(2) (e):

‘The Chairperson of Electoral Commission shall verify data of electorates and candidates with members of the commission’

Having a cursory understanding of this article of SSSAK’s constitution is that, the chairperson (2nd Respondent) and the Electoral Commission (1st Respondent) have a duty to verify data of electorates and candidates without involving any third party. They are mandated to carry this noble task since it is an independent organ within SSSAK. The arguments raised by the petitioners in seeking support of the Council to verify the data of electorates and candidates is moot and fall short of the precincts of the law.

We therefore find that the Electoral Commission acted as per the provisions of the law and seeking approval from the Council will be hijacking the commission’s work in conducting the election. The argument being put forward that it was a tradition of SSSAK to have councilors verify data of electorates is long gone and it is not supported by new SSSAK’s law.

WHETHER THE ABSENCE OF SIGNATURES OF PARTY AGENTS FROM ELECTION RESULTS DECLARATION FORMS CAN AFFECT THE ELECTION OUTCOME.

In his testimony, PW2 acknowledges complaining to the commission on election malpractices especially on the data to be used on the Election Day. However, he deems fit not to have allowed the election to proceed with the irregularities involved. After the announcement of the results, PW2 rejected to sign the declaration form citing reason well known to him upon receiving information from party leadership in Nairobi.

The Respondent submitted in the case of Kwame Frimpong Vs Electoral Commission (2012) where the court and the parties agreed to address the petition on broad issues including; the absence of signatures of the presiding officers, over-voting and voting without biometric registration. On the issue of absence of signatures on pink sheet by the presiding officers, the learned justices dismissed the petition on the ground that the failure of presiding officers to sign the pink sheet was simply the result of administrative error that could not affect the validity of the election results.

Signature in itself has no magic about it. The underlying purpose of the signatures of the agents is to provide evidence that the results to which they relate were in compliance with the constitution.

The Arbitration Board takes note of the fact that there is no law as per SSSAK ‘s constitution addressing the issue of failure of party agents to sign declaration result forms. There is a lacuna in the law and therefore no basis in the law to address the same. However, having raised the issue and constantly being mentioned during hearing, we deem it fit to address such issues for clarification and also for Council to address the same and come up with sound laws in place.

To help address the issue, we find that the party agent was under pressure that prevented him from signing the declaration form and we find it not affecting the election results. Secondly, the petitioners are not disputing the results in Nakuru and Eldoret in as far as the petition is concerned. The failure of the agent to sign the declaration form is not an error on the side of the petitioners or the commission. The commission should not be faulted on this. Until the announcement of Nairobi result is when the petitioners are disputing the election in Nakuru. That is merely one week after the results were announced in Nakuru.

CONDUCT OF THE ELECTIONS GENERALLY

Whether the commission allowing people to vote after closing the voting.

We find that it was not proper due to the lame reason put forward by the Electoral Commission that due to computer error. It is an error on the face of the record but of paramount importance is that agents agreed for them to vote. The agents should have rejected at first for the voters not to vote. Due to the fact that parties have agreed, it does not affect the general results.

Whether the acts mentioned by the witnesses amounted to intimidation.

Witness testified that commissioners asked for student ID and also further the date they joined institutions of higher learning.  Those who alleged to have been intimidated failed to justify that whether they indeed not allowed to cast their vote due to alleged intimidation. Students from St. Kizito were indeed rejected and the commissioner had a right to inquire the institutions they hail from. We find that the acts did not amount to intimidation since in essence it did not waive the right of voters of even changing the perception of preferred candidate to vote for.

Whether there was any private list.

PW1 raised this issue that the Electoral Commission used two lists. He who alleges must prove. We find that failure by the witness to provide evidence was a reason to reject the allegation that the Arbitration Board was perplexed by the list of 27 colleges brought by PW1. He self-appointed himself to bring the documents and yet he was not a Councilor of those 27 institutions.

Disqualification of institutions.

We find that the institutions fulfilled the requirement but denied chance to vote. For example, KCA submitted late, KMTC the councilor failed to submit, Magenta Institute one student was not in school. Basically, they failed to beat the deadline. There were genuine concerns to disqualify the said institutions based on the failure to meet the requirements on submission of documents. The Electoral Commission is not to be faulted on this since the school representatives played a big role to disqualify them.

PW2 made a lie to the Arbitration Board in that the contact he gave us was for the Registrar. Indeed we found out the number belonged to the student and not registrar.

CONCLUSION

The Arbitration Board having heard the witnesses and the documents filed before it come to a conclusion that the witnesses have failed to prove that indeed the election was not free, fair, transparent and credible. Their evidence is based on hearsay which is not admissible before any quasi-judicial body. For the petition to stand the ground and be allowed, the witnesses ought to have given counts of malpractices on the part of the Electoral Commission. Majority of the witnesses were not physically present in the polling stations and could give counts of events which they did not see or hear.

As a general rule, hearsay is not admissible and we tend to ascribe to this general rule across the board. Rather than proving the case that indeed the election was not fair, they let the burden to the respondents to prove on a balance of probability. He who alleges must prove. We tend to agree that the witness have not proved enough to warrant any malpractices on side of Electoral Commission.

The documents on record have also been looked at by the Arbitration Board and the total votes cast matched those voters registered. The allegations that the results were inflated does not hold water since we on our part did the calculations and indeed find that the tallying went as per the voter turnout. There is no clear indication of inflation on part of the Electoral Commission and what we have on record is the basic truth.

We therefore conclude that the SSSAK’s Annual General Election of 2016/2017 was free, fair, and transparent and credible. We recommend that the winning candidates be sworn in immediately as per the provision of the law. The petition is hereby dismissed with no orders as to cost.

ARBITRATION BOARD DECISION ON SECOND PETITION USI-SSSAK PARTY  

The AB decision was unanimous and petition found to lack merits for conclusive hearing and here is what the AB has decided:

✓ The produced video clip by respondents was examined by the Arbitration Board and found to have satisfied the allegation of conceding remarks by USI-SSSAK presidential candidate. This is viewed by AB to open a floodgate of double-speaking in future.

ARBITRATION BOARD RECOMMENDATION TO THE COUNCIL AND EXECUTIVE

ARBITRATION BOARD MEMBERS INVOLVED IN PETITION HEARING

1. AYUEL AMDUT MALUETH…………………………CHAIRMAN

2. SUNEIKA AMBROSE THOMAS………………………SECRETARY GENERAL

3. ACHOL MAYEN DENG……………………………….FINANCE SECRETARY

4. GADUEL TETENG……………………………………..MEMEBER

5. LIVIA OLIVER………………………………………….MEMBER

6. CHIER MAROU……………………………………….MEMBER

7. BROWN BILINY………………………………………MEMBER

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