Kenya has had its share of tumultuous elections, including ones marred by political and ethnic violence.
Elections cannot serve democracy if they are not finalized or if some parties refuse to recognize the official results.
It does not result in a legitimate government capable of meeting the demands of all citizens.
Kenya has had its share of tumultuous elections, including ones marred by political and ethnic violence.
Elections cannot serve democracy if they are not finalized or if some parties refuse to recognize the official results. It does not result in a legitimate government capable of meeting the demands of all citizens.
As Kenya prepares to hold elections in August 2022, it’s crucial to assess what role the court will play in ensuring free, fair, and credible elections.
As a legal scholar and economist who analyzes Africa’s rule of law, I believe Kenyans must struggle to ensure both individual and institutional judicial independence.
The first indicates that individual judges are free to make their own decisions. Courts are so separate from the executive and legislative branches of government.
The courts must be independent in order to do their work properly, which includes addressing election-related disputes. Kenyans must also have faith, trust, and confidence in their decisions.
The judiciary, unlike the administration, cannot employ military to execute its orders or deny development funding to a community to obtain support for its rulings. The legitimacy of the court gives it power.
This stems from a widespread belief and knowledge that following the court’s decisions is the proper course of action. Judges must function and be perceived as officials of the judiciary, not as representatives of the ethnic community to which they belong, in order to maintain this legitimacy.
Judicial victories
Kenya’s court, like its democracy, is in its infancy. In recent years, however, the country’s courts have demonstrated a remarkable amount of maturity and independence.
The supreme court’s unusual action in the context of the disputed 2017 presidential election results demonstrated this. The election of incumbent President Uhuru Kenyatta was declared invalid by a six-judge panel. Kenyatta won a new election mandated by the court in 60 days.
The high court intervened in a government-led effort to rewrite the constitution in 2021. The method was found unconstitutional.
Kenyatta accepted the court’s decision, reflecting a society with growing robust democratic institutions and an independent judiciary. Despite this, the government opted to appeal to the appeals court and the supreme court, as the constitution requires. The initial verdict was upheld by both courts.
Kenya’s judiciary, on the other hand, must continue to develop its infrastructure and professional capacities. This includes putting in place an effective framework for funding the judiciary so that it is not held captive by political shifts in the country. Politicians should not be allowed to use the courts to punish them for making legally valid but unpopular judgments.
The foundation of a democracy built on the rule of law is an efficient, equitable, and accessible judicial system.
Conflicts involving the judiciary and elections
Kenya’s 2010 constitution was written with the goal of “reconciling a fundamentally divided society.” It offered residents with methods to peacefully address election-related problems and bring them to a conclusion.
The constitution gives citizens the right to appeal a president’s election to the Supreme Court.
The legality of the presidential election is also decided by this court. It has been successfully tested in this capacity. Kenyatta was re-elected president with 54.27 percent of the vote in the August 2017 elections, according to official data. Raila Odinga, the opposition leader, received 44.74 percent of the vote.
Wafula Chebukati, the senior election officer at the time, and several international observers claimed the election was free, fair, and credible. The opposition protested, claiming that the election was tainted by irregularities.
There were fears of a repeat of the ethnic-induced violence that accompanied the 2007 elections.
Kenyatta encouraged the opposition to take their concerns to the courts. It did, and on 1 September 2017, the court made its historic ruling, annulling the presidential election results.
The real lesson from the 2017 supreme court decision was not that it granted the opposition another chance to capture the presidency or deprived the incumbent of his electoral win. It was that it reaffirmed the country’s move towards constitutionalism, peaceful resolution of conflict and the rule of law.
Although Kenya’s judiciary has proven itself capable of serving as an effective arbiter of elections-related conflicts and bringing finality to elections, there remain many challenges to the country’s democracy.
These include the politicisation of ethnicity. This is evidenced by the pressure imposed on judicial and other officials to act in favour of one ethnic group or another.
Ethnicity and Kenya’s struggle for peace
Kenya is a state that was founded by bringing together distinct groups. Each had its own customs, cultures and traditions, as well as laws and institutions.
The challenge the country faces today is how to make this forced marriage work to achieve peaceful coexistence, wealth creation and inclusive development.
Citizens continue to vote largely for people from their own ethnic group. This politicisation of ethnicity has created many challenges to Kenya’s efforts to deepen, entrench and institutionalise democracy.
First, it allows members of the country’s five largest ethnic groups to dominate national governance.
Second, it forces political elites to seek consent from their ethnic bases instead of developing more broadly appealing programmes.
Third, it puts pressure on civil servants and elected officials to act as ethnic, rather than country, representatives.
Kenya’s democracy cannot function effectively if its public officials, including its judges, serve as representatives of their ethnic groups. In performing their jobs, civil servants and politicians must be accountable to the constitution and the people of Kenya.
It is only through such an approach to public service that citizens can have trust in their institutions and leaders, including the decisions that they make.
