Mapping the legal contours of presidential electoral law in Kenya

Abstract

The 2017 election cycle in Kenya was unprecedented in several ways. It was marred by several factors, such as fake news on social media sites, leadership squabbles within the electoral body, technological hurdles in running the elections, nullified presidential results, a boycotted repeat election, a second unsuccessful presidential election petition, an opposition leader’s resistance, and subsequent threats to be sworn in as the “People’s President.” These matters had serious implications for electoral law in Kenya; many were examined by the Supreme Court in Raila Odinga v. IEBC. Significantly, the Court held, “an election is a process, not an event” and thus, any irregularities arising prior to actual voting compromised the electoral process and, therefore, the final tallied results. The nullification of results led to some confusion about the meaning of “fresh” elections and the integrity of the Independent Electoral and Boundaries Commission (IEBC). In this chapter, the authors argue for recalibration of the current electoral law in Kenya, in view of the experience from the 2017 elections. They appraise the Raila decision, looking at the threshold of irregularity required to nullify presidential results and the legal implications of fake news and electoral cybersecurity in the Kenyan electoral process.