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ABSTRACT
Kenya’s 2017 elections stand out as the most litigated and judicialised in the country’s electoral history. The election witnessed a litany of legal disputes over rules and regulations ahead of the polls, two presidential petitions, and 388 petitions for other seats. Rulings met with controversy as losers viciously attacked the courts. Every decision the courts made potentially caused them trouble; it raised the ire of either the government or the opposition. Nevertheless, the judiciary made decisions independent of any party and candidate, and played such a critical role in the elections that it ultimately overshadowed the Independent Electoral and Boundaries Commission (IEBC). This article reveals how the judicialisation of elections in Kenya is an outcome of the 2010 Constitution, which sought to moderate the country’s ‘winner-takes-all’ politics. We argue that the electoral process in Kenya will remain judicialised not only because the courts have gained a degree of independence and can make brave decisions, but also that the political culture has not changed: the judiciary operates in an environment in which partisan political interests weaken all institutions and in which politicians seek to use the courts to advance their interests.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Daily Nation, “Stop the Insults, Judiciary Tells President Kenyatta,” September 3, 2017; Titus Waweru, “President Uhuru Kenyatta Threatens to ‘Deal with’ Judiciary if Re-elected,” The Standard, September 2, 2017.
2 Patrick Langat, “Kenya President, Deputy Hit Out at Supreme Court,” The East African, September 2, 2017.
3 Daily Nation, “Stop the Insults,” Op. cit.
4 Clayton, “Supply and Demand Sides of Judicial Policy-making”; Hirschl, “The Judicialisation of Mega-Politics.”
5 Politicisation also implies that broader policy and political considerations influence decisions by courts and that decisions on electoral disputes are based on judicial realism. Galligan and Russel, “Politicisation of Judiciary,” 89.
6 PPDT, Getting into Gear, 5.
7 Prempeh, “Comparative Perspectives,” 150.
8 Oloka-Onyango, When Courts Do Politics, 7–8.
9 Hirschl, “The Judicialization of Mega-Politics,” 94.
10 Ibid.
11 Prempeh, “Comparative Perspectives.”
12 Hirschl, “The Judicialization of Mega-Politics.”
13 Cited in par 19 in Erlam v Rahman & Another [2015] EWHC 1215 (comm.); see also extract of the letter cited in par.23 in Woolas, R (on application of) V. the Speaker of the House of Commons [2010] EWHC 3169.
14 Joseph Winter, “Zimbabwe Judge Under Pressure,” BBC News, October 15, 2015. Accessed January 15, 2018. http://news.bbc.co.uk/2/hi/africa/3743990.stm.
15 Ojwang, “Judicial Independence,” 5; Oloka-Onyango, “When Courts Do Politics”; Gathii, Contested Empowerment of Kenya’s Judiciary.
16 Isanga, “African Judicial Review,” 750; Clayton, “Supply and Demand Sides of Judicial Policy-making.”
17 Gathii, Contested Empowerment; Willy Mutunga, “Will the Kenya Elites Ever Grow Up?”, The Star, September 13, 2017.
18 Mutunga, “Kenya elites,” Op. cit.
19 Ojwang, Laying a Basis for Rights.
20 Republic of Kenya, Task Force on Judicial Reforms.
21 Oloka-Onyango, When Courts Do Politics, 11.
22 Republic of Kenya, Report of the Independent Review Commission on Elections, 142.
23 Mutua, “Justice Under Siege,” 8; Ghai and McAuslan, “Public Law and Change,” 173; Shadle, “White Settlers,” 513.
24 Ghai et al., “Constitutional Reforms”; Mwangi, Black Bar; John Kamau, “History of Love and Political Hate”, Daily Nation, September 24, 2017.
25 Karume, Beyond Expectations.
26 Mwangi, The Black Bar; Mutua, “Justice Under Siege,” 104.
27 Mbote and Akech, “Justice and Rule of Law,” 110.
28 Namunane, Bernard, “Why Martha Karua Walked Out,” Daily Nation, April 6, 2009.
29 Kenya National Dialogue and Reconciliation, Kenya National Dialogue and Reconciliation Monitoring Project.
30 African Union, Back from the Brink, 21.
31 Akech, et al., “Judicial Reforms and Access to Justice,” 28; Ghai, “Judicial Accountability.”
32 Article 159, 2(d).
33 Article 172 1(a).
34 Article 23 (1).
35 Other petitions would be heard within six months.
36 Karuti Kanyinga, “Constitution Gave Life to New Judiciary – So Man Up!” Daily Nation, August 29, 2015.
37 Eunice Muchuhi, “Second court order blocks Kibaki Nominee,” Daily Nation, February 23, 2011. Accessed February 10, 2018. https://www.nation.co.ke/news/politics/1064-1113246-gapqu8/index.html; Kanyinga, “Democracy and Political Participation”; Mbote and Akech, “Justice Sector and the Rule of Law.”
38 Kenya National Dialogue and Reconciliation, Kenya National Dialogue and Reconciliation Monitoring Project.
39 Daily Nation, “Back off, Mutunga Tells Raila on Courts.” March 19, 2012.
40 Long et al., “Choosing Peace Over Democracy”; Cheeseman et al., “Democracy and Its Discontents”; Brown and Raddaz, “Dire Consequences?”.
41 Ojwang, “Electoral Justice in Kenya.”
42 James Macharia, “Kenya Chief Justice Denies Taking Bribe in Presidential Election,” The Star, April 29, 2013. Accessed March 9, 2018. https://www.the-star.co.ke/news/2016/12/24/2-million-votes-used-to-rig-2013-election-raila_c1478146; The Star, “2 Million Votes Used to Rig 2013, Raila,” December 24, 2016.
43 Harrington and Manji, “Restoring the Leviathan”; Wachira Maina, “Verdict on Kenya’s Presidential Election Petition: Five Reasons the Judgment Fails the Legal Test,” The East African, April 20, 2013. Accessed March 22, 2018. https://www.theeastafrican.co.ke/oped/comment/Five-reasons-Kenya-Supreme-Court-failed-poll-petition-test/434750-1753646-5dfpys/index.html.
44 Long et al., “Kenya’s 2013 Elections,” 153.
45 European Union, Election Observation Mission to Kenya; Election Observer Group (ELOG), The Historic Vote.
46 Maina, “Verdict on Kenya’s Presidential Petition,” Op. cit.; Odote and Musumba, “Introduction.”
47 Evelyn and Wanyoike, “A New Dawn Postponed,” 97.
48 Willy Mutuga, “Elements of Progressive Jurisprudence in Kenya: A Reflection.” A speech by the Chief Justice and President of the Supreme Court of Kenya, a speech at a dinner for Judges of Kenya, 31 May 2012, Nairobi: Judiciary, 31 May 2012. Accessed March 2, 2019. http://kenyalaw.org/kenyalawblog/elements-of-progressive-jurisprudence-in-kenya-a-reflection/; Ojwang, “Laying a Basis for Rights,” pp. 308–323.
49 The divisions showed on national television during the hearing of the retirement case of the then Deputy Chief Justice, Kalpana Rawal.
50 The Chief Justice retired and two other justices forced to leave office on different grounds.
51 Majanja, “Judiciaries Quest”; Odote and Musumba, “Introduction.”
52 Republic of Kenya. Judiciary Committee of Elections.
53 This preparedness was demonstrated by judges of the Supreme Court during the hearing of the presidential petition in 2017. Thiankolu, “Supreme Court’s Approach.”
54 Maurice Alal, “Cord Leaders Warn IEBC Won’t Hold Elections in 2017,” The Star, June 7, 2016; Peter Leftie, “Cord Wants New IEBC Team in Office By December 23,” Daily Nation, December 8, 2016. Accessed January 16, 2018. https://www.nation.co.ke/news/Cord-wants-new-IEBC-team-in-office-by-December-23/1056-3479590-15bfgg8/index.html.
55 These resulted in the Elections (Amendment) Act 2016; the Political Parties (Amendment) Act 2016; and the Election Offences (Amendment) Act 2016.
56 Supreme Court of Kenya ruling on election petition no. 2,4, and 5 of 2013, Raila Odinga and others vs IEBC and others.
57 Aywa, “A Critique of Raila vs IEBC Decision,” 46.
58 Republic of Kenya, Joint Parliamentary Select Committee, 2016.
59 Elections (Amendment) Act 2016, Section 8A.
60 Republic versus IEBC and KPMG Exparte CORD, Misc Application Number 648 of 2016(Nairobi, JR).
61 Carole Maina, “Activist Fails to Stop IEBC from Giving KPMG Tender for Audit,” The Star, April 4, 2017.
62 Elections (Amendment) Act 2016, Section 44A.
63 Barkan, “Technology is Not Democracy.”
64 Aggrey Mutambo, “MPs Engage in Fist Fight, Insults during Special Sitting,” Daily Nation, December 20, 2016.
65 Carlos Mureithi, “CJ Maraga Condemns Duale’s attack on High Court Judge,” Daily Nation, December 22, 2016; Edwin Mutai, “Jubilee MPs Plan Judge Odunga Motion Over CORD Bias Claims,” Business Daily, December 22, 2016.
66 Mutai, “Jubilee MPs,” Op. cit.
67 National Super Alliance versus Independent Electoral and Boundaries Commission and others, Petition Number 328 of 2017.
68 Ibid.
69 Republic Versus IEBC and others Ex-Parte CORD, Miscellaneous application number 637 of 2016.
70 Ibid.
71 IEBC versus NASA and others, Court of Appeal Number 224 of 2017(Nairobi).
72 “NASA wants ballot contract revoked.” June 15, 2017; Kamau, “Greed and Lies,” Daily Nation, June 15, 2017.
73 John Ngirachu, “Report: IEBC Delayed in Giving Court Experts Access to Its Servers,” Daily Nation, August 31, 2017.
74 Kaboumba, “How do You Solve a Problem Like Substantiality?”
75 Raila Amolo Odinga and Another Versus IEBC and others, Supreme Court Petition Number 1 of 2017 (Majority Judgement).
76 Dissenting Judgment Njoki in Raila Odinga v IEBC (2017).
77 Dissenting Judgment Prof J.B. Ojwang in Raila Odinga v IEBC (2017).
78 The lines of division were evident even before the 2017 election (see note 49).
79 Daily Nation, “Jubilee Legislators Plan ‘All Out’ War on Judiciary,” September 17, 2017.
80 Interview with a former senior staff in the judiciary, Nairobi, 5 September 2017.
81 Interview with a judicial officer, Nairobi, 29 October 2017.
82 Interview with a former judge of High Court, Nairobi, 18 November 2017.
83 Ibid.
84 The High Court stated that the 2013 decision was made as a by the way, obiter dictum; the decision was incidental and not central to the issue in the petition before court.
85 Interview with former judge of High Court, Nairobi, 18 November 2017.
86 Interviews with a judicial officer, Nairobi, 29 October 2017.
87 The driver of the Deputy Chief Justice was shot the previous day; interviews with some judicial officers implied this to mean a direct threat to the judges.
88 Davis Ayega, “Uhuru Seeks to Mollify Kisii Community Over Maraga Name-Calls,” Capital News, September 5, 2017. Accessed March 16, 2018. http://www.capitalfm.co.ke/news/2017/09/uhuru-seeks-to-mollify-kisii-community-over-maraga-name-calls/.