Judicial resistance during electoral disputes: Evidence from Kenya

Abstract

Over the last decade, African courts have played an important role in the conduct of free and fair elections. In Kenya, the Supreme Court nullified the presidential election of the incumbent. These rulings challenge the conventional wisdom that courts in hybrid regimes always support power holders despite blatant evidence of electoral fraud. Furthermore, these sparks of judicial resistance deserve our scholarly attention as they have the power to start the democratization process or limit further autocratization. Hence, this paper seeks to understand the conditions under which courts are able to resist incumbents’ pressure to legitimize electoral malpractice and side with the opposition. I argue that institutional reforms incentivize courts to resist the incumbent’s pressure and to rule in favor of the opposition during electoral disputes under two conditions. First, institutional reforms must reinforce de jure independence by enacting effective legal and constitutional mechanisms that prevent the executive branch from undermining the separation of power. Second, institutional reforms must mobilize judicial support networks by granting them the tools to engage in strategic and repeated litigation. I test this novel theory by leveraging original qualitative and quantitative data from Kenya. Using process tracing, I show how the 2010 constitution created an environment where the courts had no other choice than to annul the election of the incumbent – President Kenyatta – in 2017.