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Influencing electoral reform in Kenya

Research conducted at Cardiff University was instrumental in overturning an election result in Kenya and set a precedent for better accountability, fairness and the peaceful resolution of high-level political disputes.

Kenyan court

In 2010, a new Constitution was introduced in Kenya which promoted legally enforceable rights and judicial review of electoral conduct.

However, research carried out by Professors John Harrington and Ambreena Manji found that a Supreme Court decision in 2013, which saw a disputed presidential election result upheld, did not adopt a principled interpretation of the 2010 Constitution.

Why it's important

Kenya has a long history of civil unrest following the announcement of election results. When the 2007 Kenyan presidential election was disputed, the opposition leader – lacking confidence in the judiciary – called for civil unrest. This led to widespread violence, the deaths of an estimated 1,500 people, and considerable state breakdown. Centralisation and authoritarianism, coupled with widespread corruption, has led to economic inequality and serious civil conflict in the country.

2010’s Constitution was drawn up to ensure that this never happened again. Before this point, Kenya was being governed as a ‘Leviathan’ state - one which concentrated power in the executive and rendered itself immune to scrutiny. Principled adjudication of election petitions can contribute to stability and peaceful regime change. Courts are the guardians of this transformation as their decisions can contribute to a culture of accountability and respect for the rule of law.

In 2013, when the presidential election was challenged on the grounds of problems with registration, voting systems and counting, the leader of the opposition followed constitutional procedure and brought the case to the Kenyan Supreme Court. The petitions before the Court were a crucial test of new constitutional principles and the Court ruled in favour of upholding the result.

…it is important to view the courts as the 2010 Constitution does, not as an unwelcome usurper of the electorate’s power, but as a purposeful safeguard against fixing elections which has tainted a large part of Kenya’s history as a democracy.
David Maraga Writing in 2016 before becoming Chief Justice of Kenya (2016-2021)

Judicial review

Professors Harrington and Manji set about analysing the Court’s decision and found the judgment to be inconsistent with the transformative ambitions that underpinned 2010’s Constitution.

Their analysis involved a close reading of the key issues which the Court addressed when deciding that, although the election contained numerous irregularities, it was not so flawed as to be invalid.

These included the standard of proof; the presumption that the election was fairly conducted; the exclusion of opposition representatives from vote-counting; and the collapse of the electronic vote transmission system and its replacement by unreliable paper records.

They combined a technical legal review with historical contextualisation, showing the wider political significance of the decision, with reference to the literature on political reform in Kenya since the early 1990s.

Professors Harrington and Manji argued that the Constitution mandates a shift in legal culture away from narrow literalism to a more purposive and principled mode of argumentation. Therefore, detailed electoral regulations, the codes for transmission of results, and the rules on proof in any court case must be interpreted with a view to the Constitution’s ambition to protect good governance, integrity, transparency and accountability, and to promote political rights including free and fair elections.

The research concluded that the Kenyan Supreme Court’s failure to interpret the Constitution purposively in 2013 was a lost opportunity which bolstered the old model of state powers acting beyond the reach of the law. Instead of reinforcing the gains made by the new constitution in 2010, it threatened to undermine them.

[the research] should be required reading for the entire Judiciary…it reminds us why we fought so long for a new Constitution and what its promulgation was supposed to mean.
Maina Kiai Former Director of Amnesty International Africa and UN Special Rapporteur on the Rights of Assembly

History repeating itself

In 2017, the Kenyan presidential election was again won by the incumbent President Uhuru Kenyatta. The opposition leader, Raila Odinga appealed the decision via petition to the Supreme Court, with the aim of overturning the election result on the grounds of widespread irregularities.

Professors Harrington and Manji’s research had an influential role in persuading Mr Odinga to challenge the election decision. Mr Odinga initially announced he would not go to Court as the threshold for invalidating the election result established in 2013 seemed “insurmountable”. The prosecution team used the Cardiff University research to make a strong case for persuading the Court to accept only a qualitative test instead and stated that “part of the reason that Mr Odinga changed his mind and challenged the decision was because his legal team convinced him that he stood a good chance to get the Court to change the test of invalidating elections”.

On 7 August 2017, the Supreme Court ruled in Mr Odinga’s favour by declaring that the election had not been conducted in accordance with the Constitution. Reported as “a historic ruling”, this was “the first example in Africa in which a court nullified the re-election of an incumbent” (New York Times).

The judgment of the Kenyan Supreme Court, according to Dr Gladwell Otieno, Director, Africa Centre for Open Governance, gave “legal precedent and political courage” to other African nations “to demand full scrutiny” and challenge executive power. In 2019, the High Court in Malawi overturned its presidential election result using similar reasoning to the 2017 Kenyan judgment by highlighting the importance of interpreting the Constitution “broadly and purposively”. They followed the Kenyan judgment on the adoption of a qualitative test for invalidating elections aligned to the formative research analysis and outcomes undertaken by Professors Harrington and Manji.