Restoring Leviathan? The Kenyan Supreme Court, constitutional transformation, and the presidential election of 2013

Abstract

This paper analyzes the Kenya Supreme Court's ruling in Odinga v IEBC, a petition challenging the declared outcome of the 2013 presidential election. The case was immediately significant given the hope that recourse to the courts would help to avoid widespread civil unrest which had followed the disputed presidential election of 2007. It was also a crucial test for the new dispensation established under the 2010 Constitution widely held to have broken with the authoritarian and unaccountable regimes which dominated Kenya both under colonialism and after independence. The paper critically reviews the reasoning of the Supreme Court on six key issues raised in the petition attending to the broader normative and political implications of the judgment. We argue that both in its substantive conclusions and in the style of reasoning adopted, Odinga v IEBC is inconsistent with the transformative ambitions underpinning the new constitution. Through its emphasis on evidential and procedural rules, rather than principled analysis, the judgment tends to reinforce the powers of the executive and the model of a unitary state beyond the reach of the law.

Keywords:

• Kenya
• presidential election
• constitution
• transformation

Acknowledgments

The authors are grateful to Richard Barrett, Edward Clay, Jill Ghai, Charles Hornsby, Gabrielle Lynch, and Seema Shah for comments on earlier drafts, and to Daniel Cullen for research assistance. Versions of this paper were presented at the Centre for African Studies, University of Cambridge, Birkbeck Law School, University of London and the Biennial Conference of the African Studies Association, UK. Thanks are due to the participants for their criticisms and suggestions. We wish to record our particular debt to the late and much missed Patrick McAuslan for his comments and advice on this paper. We alone are responsible for opinions expressed and for any errors.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Odinga v IEBC (Petition No. 5 of 2013) [2013] eKLR (Supreme Court of Kenya). Further references in the text are to paragraphs of this judgment.

2. Cheeseman, “Elections of 2007”.

3. Lynch, “Briefing”.

4. International Crisis Group, Kenya's 2013 Elections. The integrity of the election process was endorsed by international observers, see for example, European Union Election Observation Mission, Peaceful Resolution.

5. International Crisis Group, After the Elections, 7.

6. Wolf, “Kenya's New Constitution”, 30.

7. Kenya National Dialogue and Reconciliation Process, How to Resolve the Political Crisis, 3.

8. Article 163(3)(a) Constitution of Kenya (2010).

9. See Lough, “Odinga to File”.

10. Our concern here is solely with the substance and implications of the judgment itself, not with the conduct of the election as such. On the latter see Shah, “Top Court Ruling”; Kegoro, “Low-Key Conclusion”.

11. Hornsby; Kenya: A History, 70.

12. Lumumba, “A Journey through Time”.

13. Harrington and Manji, “Satire and the Politics of Corruption”.

14. Okoth Ogendo, “Constitutions without Constitutionalism”, 10.

15. Lumumba and Franceschi, The Constitution of Kenya, 421.

16. Juma, “Normative Foundations”, 234; Ghai and Y.P. Ghai, Kenya's Constitution, 15.

17. Okoth Ogendo, “Constitutions without Constitutionalism”.

18. Mutua, Kenya's Quest for Democracy, 40.

19. Mutua, Kenya's Quest for Democracy, 10, 11.

20. See Mosota, “Constitutionalism”.

21. Constitution of Kenya Review Commission, Final Report, 85.

22. See respectively Commission of Inquiry on Post Election Violence. Full Report, 460–2; Independent Review Commission, Executive Summary.

23. Article 1(1),(3) Constitution of Kenya (2010).

24. Article 2(4) Constitution of Kenya (2010).

25. Article 258 Constitution of Kenya (2010).

26. Article 160 and s.23 Sixth Schedule Constitution of Kenya (2010).

27. Judges and Magistrates Vetting Board, Interim Report: September 2011-February 2013 (Nairobi 2013) 37–8.

28. Article 248(2)(c) Constitution of Kenya (2010).

29. Article 249(1)(c),(b) Constitution of Kenya (2010); Lumumba and Franceschi, The Constitution of Kenya, 642.

30. Juma, “Normative Foundations”, 216.

31. State v Makwanyane [1995] ZACC 3 (Constitutional Court of South Africa per Mahomed J at para [261]).

32. Klare, “Transformative Constitutionalism”.

33. Juma, “Normative Foundations”, 216.

34. Article 159(2)(e), (d) Constitution of Kenya (2010).

35. The contrast here is taken from Mureinik, “A Bridge to Where”, 32.

36. Mutunga, “Building a Progressive Kenya”.

37. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinions Application No.2 of 2012) [2012] eKLR (Supreme Court of Kenya per Mutunga CJ at para [9.3].)

38. In the Matter of the Principle of Gender Representation in the National Assembly and the Senate (Advisory Opinion Application No.2 of 2012) [2012] eKLR (Supreme Court of Kenya per Mutunga CJ at para [11.2]). The “one third” requirement is laid down in Articles 81(b), 97(1), 98(1) Constitution of Kenya (2010).

39. Article 140 Constitution of Kenya (2010).

40. A third petition, from supporters of Uhuru Kenyatta, was also included.

41. In fact violent incidents were reported before and on polling day, particularly at the Kenyan coast, see Maina and Kegoro, “IEBC Did Not Conduct”.

42. [2002] 5 SA 721 (Constitutional Court of South Africa).

43. Sachs, “Creation of South Africa's Constitution”.

44. See Klug, Constitution of South Africa, ch. 8.

45. “Editorial”.

46. Nowrojee, “Preface”, xii. See further, Mutunga, “Progress Report”.

47. Morgan v Simpson [1974] 3 All ER 722 (CA per Lord Denning MR at 728).

48. For a comprehensive analysis of relevant Kenyan and foreign case law on this point, see Katiba Institute, Submission, 16–9.

49. Abubakar v Yar’Adua [2009] All FWLR (Pt 457) 1 SC; Buhari v Obasanjo [2005] CLR 7(k) SC. These strength of these authorities has been sharply doubted by Kenyan and Nigerian commentators, see Maina, “Verdict on Presidential Election Petition”.

50. See Privy Council affirming decision of the Supreme Court of Mauritius: Jugnauth v Ringadoo and Others [2008] UKPC 50.

51. On the burden and standard of proof in criminal cases, Dennis, Law of Evidence, 153ff.

52. Ms Kethi Kilonzo and Mr George Oraro, Advocates, quoted in Kaberia, ^“AFRICOG Plea^”.

53. O’Brien, “Irregular and Illegal”, 24.

54. Manji, “Grabbed State”.

55. Ruteere, Mission to Repress.

56. Maina, “Verdict on Presidential Election Petition”.

57. Fayo, “Supreme Court Blow”.

58. See “Supreme Court Rejects Raila's Application”; “Court Rejects Africog's Application”.

59. The Supreme Court also rejected an application by the Katiba Institute to be joined as amicus curiae. It was found that the Institute, headed by renowned constitutional scholar Professor Yash Pal Ghai, was subject to bias in this matter: “Supreme Court Rejects Raila's Application”.

60. Article 159(2) (d) Constitution of Kenya (2010).

61. Indeed rule 10(f) of the Supreme Court (Presidential Election Petition) Rules 2013 clearly contemplates the filing of “further affidavits” and the “giving of additional evidence” since it requires the Court to ‘give directions in this regard’.

62. The closest relevant constitutional provision, unmentioned by the Court, is Article 87(1) which requires Parliament to legislate “for mechanisms allowing for the timely settling of electoral disputes”. It is submitted, however, that “timeliness” is considerably less onerous than the notion that “expedition is of the essence”.

63. See further Scheuerman, Social Acceleration of Time, 44.

64. Irungu, “BVR Technology Poised to Revolutionise Voting”; Kamau “On BVR Kits”.

65. See Africog and KPTJ, Voter Registration, 5–6.

66. See Africog and KPTJ, Voter Registration, 6–7.

67. As required by Articles 38(3), 81(d), 83(2), 86 and 88(4) of the Constitution of Kenya (2010), Sections 3, 4, 5, 6, 7 and 8 of the Elections Act 2011 and the Elections (Registration of Voters) Regulations 2012.

68. Reg 82(1).

69. Regulation 82(1) states that “shall … submit … the results in electronic form”

70. It is important to note that the review only extended to the Forms 34 and 36 on which results from polling stations and constituencies were tabulated. No actual votes were re-tallied, see Shah, “Scrutinizing of Election Results”.

71. Independent Review Commission, Executive Summary, 112.

72. Independent Review Commission, Executive Summary, 138, 9. It has to be admitted with the Court that the results thus communicated are clearly only “provisional” within the terms of reg 82(1) (para [131]). However, this status is not inconsistent with a mandatory obligation to transmit them electronically.

73. Dennis, Law of Evidence, 516.

74. For a convincing argument that the failure of technology was due to inadequate preparation rather than to inherent problems of Kenya, see Cheeseman “Make Electoral Technology Work”.

75. “Spoilt ballots” are defined in reg 71 of the Elections (General) Regulations 2012, which allows the presiding officer to cancel them and to issue the voter with a new ballot paper.

76. As recognized by the Court at para [263].

77. The former view is advanced in Maina, “Verdict on Presidential Election”; the latter in Katiba Institute, “Submissions as Amicus Curiae”.

78. See para [268].

79. Popular Democratic Movement v Electoral Commission [2011] Const Case no 16 of 2011, Seychelles Court of Appeal.

80. In accordance with reg 79(2) (a) Elections (General) Regulations 2012.

81. The petitioners had alleged that the IEBC “ejected party agents and accredited Observers from the National Tallying Center when they drew [attention] … to the irregularities in results from Constituencies”: Petition No.4 of 2013, para [35]

82. The Carter Center, Observing Kenya's Election.

83. See reg 85(1)(e).

84. The Court relied in particular on its own earlier ruling In the Matter of the Interim Independent Electoral Commission Sup Ct Const Application no 2 of 2011.

85. See Harrington, “Access to Essential Medicines”.

86. Lumumba and Franceschi, The Constitution of Kenya, 2010. An Introductory Commentary (Nairobi, Strathmore University Press 2014) 339.

87. For example, see Ongoya, “Supreme Court too Casual”; Maina, “Verdict on Presidential Election Petition”.

88. Wanyoike, “Judgment Lacks Clarity”.

89. See section 3 (c) Supreme Court Act 2011 (Act no 7 of 2011).

90. Juma, “Normative Foundations”, 235.

91. Speaker of the Senate v Attorney-General (Advisory Opinion Reference No.2 of 2013) [2013] eKLR (Supreme Court of Kenya at para [157].)

92. Klare, “Transformative Constitutionalism”, 159.

93. Lumumba and Franceschi, Constitution of Kenya, 676.

94. Hobbes, Leviathan.

95. Atieno-Odhiambo, “Democracy and the Ideology of Order”, 179.

96. Cheeseman, Lynch, and Willis, “Democracy and its Discontents”, 12.

97. Wrong “To Be Prudent”; Muhumuza, “Uneasy Calm after Court Ruling”.

98. See further, Shah, “Free and Fair”.

99. Macharia, “Militarization of Peace”.

100. “Supreme Court had Every Reason”; “Cord Case Based on Fanciful Hypotheses”; Kimalel, “Foreign Interests Funding Civil Society”.

101. Schmitt, Concept of the Political, 26.

102. Schmitt, Political Theology; see further, Stacey, “Constituent Power”, 594.