Court rejects petition seeking to put ‘none of the above’ on ballot paper

A Kenyan court has dismissed an application by an individual who was seeking to have ‘none of the above’ included on the ballot papers during the country’s elections.

Boniface Mwai had argued in favour of the application, saying it would give voters the option to decide not to vote for any candidate and still maintain their right to secrecy.

But the court presided over by Justice Hillary Chemitei dismissed the application, saying granting it would be unconstitutional.

According to tuko.co.ke, the judge explained that the powers and functions of the Independent Electoral and Boundaries Commission (IEBC) are enshrined under Article 88(4) of the Constitution of Kenya.

For now, this court does not find any reason to allow the petition, noting that there is no evidence that not including none of the above has breached the petitioner's right or the general public, the judge ruled, as quoted by the news website.

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The court, however, advised Boniface to petition Kenya’s parliament to make an amendment to the law that empowers the Independent Electoral and Boundaries Commission if he is bent on seeing ‘none of the above’ on the ballot.

Therefore, in my view, this court cannot purport to give to the IEBC directions on exactly how to carry out its powers and functions. Further, the courts ought not to be drawn into determining how the people of Kenya should exercise their voting rights. That is the preserve of the legislature as rightly submitted by the IEBC.

The court also admitted that the petitioner had a good basis for his application, except that it did not have the power to grant it.

In the premises, the court does not find the petition meritorious. Being a public interest litigation, it is always necessary not to award any costs to any party, Chemitei said.

Kenya is expected to hold its general election on August 9.

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