Role of the Courts in Ensuring Free and Fair Elections in Kenya

Abstract

Although the Judiciary has made many decisions that are consistent with the ideal of free and fair elections in the last fifty-six years, its dominant approach to electoral dispute resolution generally entails making superficially sound but disingenuous and deeply flawed decisions. This ‘clever’ approach, referred to as ‘legal sophistry’ in this article, generally entails an inflexible emphasis of legal and procedural technicalities; eschewing or suppressing serious genuine questions regarding the validity and integrity of elections; disingenuous adoption of discreditable case law from countries that practice pseudo or sham democracy; and manipulation of the law in favour of incumbency. Legal sophistry is inconsistent with the transformative agenda of the 2010 Constitution, which, inter alia, requires the Judiciary to promote the values and principles embodied in the Constitution and determine (electoral) disputes without undue regard to technicalities of law and procedure. Legal sophistry undermines the ideal of free and fair elections in at least three significant ways. First, it encourages electoral fraud and malpractice. Secondly, it leads to absurd or unjust outcomes, such as judicial affirmation of flawed elections. Lastly, legal sophistry undermines democracy, the rule of law and public confidence in the courts as honest arbiters of political disputes. The entrenchment of legal sophistry as the Judiciary’s dominant approach to electoral dispute resolution has defied constitutional, legal and institutional reforms specifically designed to end it. The resilience of legal sophistry may be attributed to the factors that have influenced the evolution of the Judiciary from its inception to date, especially colonial legacy, corruption, patronage politics, impunity and the institutional degradation of the pre-2010 years.