Transformative Constitutionalism and the Adjudication of Elections in Kenya

Abstract

The judicialization of politics has been an ongoing and expanding global phenomenon for decades. In Kenya, the record number of cases brought before courts prior to and following the 2017 elections is evidence of the continued growth and spread of the judicialization of politics, and more specifically elections; it is also the result of Kenya’s 2010 Constitution, which introduced a new form of governance, expanded the number of elective seats and mandated judicial and electoral reforms. One of the most remarkable events of the 2017 election period was the Supreme Court’s nullification of the presidential election due to electoral irregularities. The decision, which was a historical first for the African continent and a rare occurrence by international standards, was praised for affirming judicial transformation, electoral justice and transformative constitutionalism, and for departing from the precedent established by the Supreme Court’s decision to uphold the flawed 2013 presidential election, which was criticized for continuing the status quo of a history of electoral injustice. The Supreme Court’s nullification of 2017 presidential election also inspired roughly 300 petitions contesting the outcomes of the five other elective seats in the 2017 elections, yet only a small fraction resulted in nullifications, which raised the question – how could the same courts judge the presidential election as deeply flawed, but uphold hundreds of other elections when all were managed by the same electoral commission. This research examines the judicialization of elections in Kenya as a framework for understanding advancements towards electoral justice and transformative constitutionalism. Using a petitioner-centric analysis that focuses on how petitions were pleaded, a court-centric analysis that focuses on the reasonings and rulings of courts, and analysis of news media reports to situate judicial election disputes within broader sociopolitical contexts, this research investigates continuities and discontinuities in the adjudication of election petitions, how aspects of electoral and judicial reforms and the transformative principles and values enshrined in the 2010 Constitution are expressed in the emerging jurisprudence on elections, and how the judicialization of elections relates to broader issues of judicial independence and the balance of power within the state.