The Dilemma Facing Kenya’s Supreme Court: An Electoral Dispute in an Ethnically Divided Society

—Duncan Okubasu, Lecturer, Department of Public Law, Kabarak University (Kenya) and Advocate of the High Court of Kenya

On 8 August 2017, Kenya held its second general elections under the Constitution of 2010. At dusk, its electoral body, the Independent Electoral and Boundaries Commission (IEBC), started tallying results of the presidential election. Before the process could be concluded, Kenya’s former Prime Minister Raila Odinga (who has a large political following) addressed a press conference raising legion concerns about the validity of the electoral process. The sitting President, Kenyatta, who was also a contestant had a clear lead at that time. IEBC responded to the claims by Mr Odinga but continued with the tallying the concerns notwithstanding.

International observer missions including the European Union and a John Kerry led mission–the Carter Centre Observer Mission–responded to Mr Odinga’s press statements asking him to articulate his grievances through constitutional channels essentially to present his case to the Supreme Court (SC). It was feared that if Mr Odinga declined to accept the results and to challenge the election outcome in court, the country would plunge into civil strife as was the case in 2008. Since the election affairs of 2008 were also the founding moments of the Constitution of Kenya 2010, a disruption of the legal and political order would be fatal not only to the Constitution but also to the institutions it has created, the greatest casualty likely being the judiciary.

Indeed, there was considerable faith in the judiciary since 2010 following the creation of the SC and vetting of judicial officers that had served in the judiciary prior to 2010. In 2013, following the first general elections after the promulgation of the Constitution, Mr Odinga–and civil society organisations–presented their grievances about elections to the SC, and even when their grievances were dismissed, they criticised the court but called for respect for the court.

This new found faith in institutions created by the Constitution of 2010, more so the belief in a reformed judiciary, seems to have inspired confidence in the opposition and indeed prior to the elections, Mr Odinga (through the alliance of political parties that supported his candidature, the National Super Alliance – NASA) filed numerous suits in courts challenging the manner in which IEBC was preparing to conduct the elections including the election laws themselves. Decisions emanating from these cases elicited praise and criticisms to the courts from Kenyatta and Odinga led supporters (essentially ethnic groups) depending on the outcome. One of such suits challenged the procurement of presidential ballot papers through Dubai based printing firm Al Gurair, which was believed by NASA to have connections with President Uhuru Kenyatta. The High Court cancelled the procurement, a few days before the elections and President Kenyatta, visibly irate in political rally over that move , was seen to threaten the courts. IEBC appealed against the decision in the Court of Appeal, and the appellate court allowed its appeal–this was seen as victory in favour of President Kenyatta and his Jubilee Party. NASA’s reaction to the decision was to rule out the possibility of going to court again to challenge the elections should they be conducted in a manner it felt was not credible, free and fair.

Thus, when IEBC declared President Kenyatta as winner on 11 August 2017 Mr Odinga did not comment on the elections. Following that declaration and his silence, isolated protests were witnessed in various parts of the country and an attempt by the state to supress put seemed to put the western parts of the country on the 2008 trajectory. The SC was, I believe, anxious for a petition and started advertising procedures over presidential petition to the SC.

On 16 August 2017, Odinga broke the silence and issued a press statement, signalling that he was going to file a case at the SC because some civil society organisations that would have challenged the elections had been deregistered. Importantly, Odinga clarified, that he was giving the Supreme Court a “second chance” to redeem itself after siding with Jubilee’s President Uhuru in 2013. In later public speeches, Odinga has cautioned that if the Supreme Court fails to decide the case his way, he will resort to other means of protecting and enforcing democracy: essentially mass action. These sentiments are treated with a generous measure of seriousness in Kenya because in 2005, Mr Odinga successfully led a campaign against a constitutional referendum and takes credit for the Constitution of 2010 which he campaigned for and saw its promulgation. Mr Odinga triggered the SC on 18 August 2017 at around midnight.

Certainly, in respect of this petition, the SC finds itself in a bizarre situation. But what does the situation of the SC tell about currents in comparative judicial politics about the success of apex courts, more so in divided societies? Inference from Professor Roux’s study of South Africa’s Constitutional Court is that apex courts should protect their legal legitimacy and institutional security by deciding cases through well-reasoned judgments tampered with strategic pragmatism aimed at reaching out to the public (and at times ruling elites) for the sake of its perception. Yet, it seems that in the case of the SC any approach it adopts has the potential of destroying its legal and institutional security because of the character of the political domain under which it operates. The domain is characterised by identitarian politics such that entrenched constitutional values like democracy, free and fair elections that should be used as the fulcrums of jurisprudence development are, in actual practice, subordinate–in the constitutional order–to the quest by and success of social forces to form substantively exclusive ethno-political alliances to run the state. Seemingly also, it seems gratuitous for the court to strive for sociological legitimacy (which according to Dr Or Bassok should be a concern of such a court) because in a polity wrought with identity politics, such as Kenya, the public is essentially a divided house.

This conundrum means that the success/security/legitimacy of the SC (including its future) and that of the Constitution itself rests on how best it will play the role of a conciliator between ethnic social forces beyond determining the petition one way or the other and creating pleasing jurisprudence.

Suggested Citation: Duncan Okubasu, The Dilemma Facing Kenya’s Supreme Court: An Electoral Dispute in an Ethnically Divided Society, Int’l J. Const. L. Blog, August 27, 2017, at: http://www.iconnectblog.com/2017/08/the-dilemma-facing-kenyas-supreme-court-an-electoral-dispute-in-an-ethnically-divided-society