Presidential Election Challenges & Legitimacy of the Court in Kenya
An image of Kenya’s Judiciary Building where the Supreme Court is situated
By: Ahmed H. Ali, Staff Editor
Kenya’s contentious 2022 presidential election raised questions about the role of the judiciary in resolving high-stakes political disputes. This, however, is not the first time the country has undergone such political turmoil, nor is it the first time the Supreme Court has stepped in to address such issues. This article outlines the role the judiciary has played in maintaining and evolving Kenya’s maturing democracy.
On August 15, 2022, the Kenyan Independent Electoral and Boundaries Commission (IEBC) announced that Deputy President William Ruto narrowly edged out his opponent, Raila Odinga, and was declared the winner of Kenya’s presidential elections with 50.5% of the votes. The announcement did not come without controversy, as it was preceded by a declaration from the vice-chair and three other officials of the IEBC disowning the results. "We cannot take ownership of the result that is going to be announced because of the opaque nature of this last phase of the general election," said Juliana Cherera, the Vice-Chair of the IEBC. Wafula Chebukati, IEBC Chair, denounced the allegations, stating that he has fulfilled his “duty in accordance with the Constitution and the laws of the land.”
Considering the conflicting reports about the election’s integrity it is unsurprising that Odinga disputed the election results and stated that he’d challenge it with “all constitutional and legal options.” On August 22, 2022, Odinga formally filed a petition at the Kenyan Supreme Court challenging the results announced by the IEBC Chair. Due to the growing uncertainty and the possibility of the Kenyan Supreme Court overturning the election causing great instability in a country not unfamiliar with election violence, the Supreme Court rejected the challenge and upheld Ruto’s victory.
This was not the first time that the Kenyan Supreme Court was faced with a presidential election challenge as it faced similar challenges in 2013 and 2017. Therefore, to fully comprehend the role of the Supreme Court in upholding the presidential elections, one must look back to the 2007–2008 Kenyan Crisis, a violent political, economic, and humanitarian crisis that erupted throughout the nation after former President Mwai Kibaki was declared the winner of the presidential election held on December 27, 2007. Then-Presidential Candidate Odinga, as leader of the Orange Democratic Movement, encouraged supporters nationwide to engage in mass protests which led to riots, mass looting, protests, and ethnic violence sweeping through the country. This wave of violence led to around 800 dead and a quarter of a million Kenyans being uprooted.
In response to this crisis, on February 28, 2008, Former UN Secretary-General Kofi Annan brokered a power-sharing agreement between the two sides which created a coalition government and brought an end to the violence. The following month, the Independent Review Commission (IREC), also known as the Kriegler Commission, was created and tasked with examining, inter alia, weaknesses in the constitutional and legal frameworks of presidential elections in the country.
In October 2008, The Kriegler Commission released its findings. One of the main findings the Commission found was that “a material contributor to the tension […] was the absence of an effective electoral dispute resolution (EDR) mechanism to resolve the mounting challenges to the integrity of the [presidential] results.” The IREC recommended that “a separate law be enacted to facilitate the establishment of a special Electoral Dispute Resolution Court to handle appeal matters from the initial stages of dispute resolution by the [Electoral Commission of Kenya].” Drafters of the 2010 Constitution of Kenya rejected the recommendation, electing to give exclusive jurisdiction regarding presidential election disputes to the Supreme Court.
The Supreme Court endured its first test in 2013 in a challenge to the presidential elections by Odinga against then President-elect Uhuru Kenyatta. Kenyans, along with the international community, anxiously awaited the much-anticipated decision. On March 30, 2013, The Supreme Court unanimously held that the conduct of the presidential election was in compliance with constitutional and statutory provisions. This was an unparalleled victory for the Court as the candidates accepted the Court’s jurisdiction and welcomed the ruling. In his concession speech, Odinga, maintained that the Court erred, but accepted the finality of the Court’s ruling and said “Kenya is more important,” urging Former President Kenyatta to reunite all Kenyans and uphold constitutionalism.
In August 2017, the Supreme Court again faced a challenge to a presidential election result. Published results revealed that incumbent President Kenyatta had been re-elected with 54% of the vote. After initially refusing to judicially challenge the integrity of the election, instead choosing to call on his supporters to protest, Odinga filed a petition challenging the results shortly before the deadline.
In an unexpected ruling on September 1, 2017, the Supreme Court annulled the results of the 2017 presidential election, “finding that the tabulation procedures failed to fulfill the constitutional requirement that all elections be “simple, secure, transparent and verifiable.” Contrary to reports by Odinga though, the Court found no evidence to support claims of fraud, hacking, or malfeasance. Despite widespread skepticism of the integrity of a second election, presidential elections were held on October 26, 2017, with incumbent President Kenyatta winning reelection with 98.3% of the votes.
The Court’s unprecedented decision was well-received internationally. The head of the 2017 Kenya European Union Election Observation Mission, Hannah Roberts, explained that despite the significant pressure, intimidation, and contestation of the presidential election challenge, the Court rose to the challenge and “demonstrate[d] its ability to operate independently by making a decision against the ruling party.”
Ugochukwu Ezeh, a researcher at Oxford University, called the ruling an "absolutely radical intervention [...] but also justifiable based on a plausible reading of the applicable constitutional and statutory frameworks." Ezeh also said that the decision did "reverberate beyond Kenya's borders" and that what he "most admired about the decision was the court's emphasis on the need to conceptualize elections as a process not just as a one-day event but to assess, evaluate the quality of an electoral contest we need to look at the process leading up to our voting day."
This familiarity with challenges to the presidential election results allowed the Court to provide stability in the extreme uncertainty following the 2022 elections. Kenyan journalist Patrick Gathara explained that “[b]eginning with the adoption of a new constitution in 2010, Kenya has slowly and purposefully been reinventing itself and its democracy.” Candidates’ willingness to litigate their political and legal disputes rather than resort to force is a testament to the faith entrusted in the judiciary, and more specifically, the Supreme Court.
Though “doubts over the autonomy of Kenya’s judiciary persists,” recent Supreme Court rulings against government interests have largely subdued those doubts. At a time when the independence of the judiciary across East Africa has been attacked, Kenya’s recent history is evidence of the significant role institutional capacity-building of the judiciary plays in maturing democracies and evading future conflict.
Ahmed H. Ali is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from George Washington University in 2020. Ahmed is interested in public international law, comparative constitutional law, and human rights in Sub-Saharan Africa.