Mediation of Election-Related Disputes in Kenya: Challenges, Opportunities and The Way Forward

Election disputes inevitably occur owing to violation of the electoral law, commission of electoral offences, infringement of political rights, rigid dispute resolution systems and lack of confidence in the electoral management system. As a matter of constitutional principle, courts and tribunals must accord primary consideration to mediation and other forms of ADR in all disputes. Article 48 entitles every citizen aggrieved by the conduct of an electoral process with the right of access to justice. In addition, most pre and post-election disputes are amenable to mediation. Pre-election disputes entail disputes revolving around campaigns, nominations, party primaries and clearance of candidates. Post-election disputes comprise non-acceptance of declared results and management/operational disputes within the electoral commission. Although the 2022 General Election is a testament of the increase of election disputes, nevertheless litigation has always been the norm rather than the exception. This has in effected rendered courts ineffective in electoral dispute resolution due to case backlog, incompetence, corruption, costs, delay and partisan judges. This article observes that mediation is bringing the much needed paradigm shift to electoral justice in Kenya, especially with the success of Court-Annexed Mediation and previous mediated election disputes. Mediation assures parties of flexibility, party autonomy, win-win outcomes and finality once a decision is reached. Based on the foregoing, this paper urges election disputants to opt for mediation, court-annexed or otherwise, whenever they arise as an end to the negative flicker posed by incessant election disputes.