Kenya 2013 elections: reflections on the Supreme Court ruling and the role of the judiciary in democratisation

The recent ruling by Kenya's Supreme Court of Kenyatta's presidential victory implies that democracy is taking root in the country. But were its actions simply to avoid more bloody conflict, rather than to promote judicial processes?

Yuhniwo Ngenge
18 April 2013

If the peaceful conduct of Kenya’s recent presidential elections was any kind of test of the development of the country’s new democratic culture, what happened in its aftermath bears even greater testimony to the fact that the culture of rule of law, democracy and constitutionalism may finally be taking root in Kenya as a nation and Kenyans as a people.

After Kenya’s election body - the Independent Electoral and Boundaries Commission (IEBC) of Kenya - declared Uhuru Kenyatta, son of Kenya’s first President, the winner of the March 4 presidential elections by a slim margin (50.07%), his main rival, Raila Odinga, seized the Supreme Court, contesting the results.

Considering promises by all sides during the campaigns to respect the outcome of the process, Odinga’s unexpected volte face not only froze the electoral process; it also upped anxieties and fears – as people were reminded of the violent experience of the 2007 elections – on what this might mean in the event of a ruling confirming, or voiding, the IEBC results.

However, the Supreme Court’s confirmation of Kenyatta’s victory on March 30, and Odinga’s peaceful acceptance of the same calls for a reflection of not only how this outcome came about, but also its implications for Kenyan democracy, including the role of the judiciary in the country’s democratisation process. So, why did the same parties, who seven years earlier chose violence, seek a judicial forum to resolve electoral squabbles seven years later? In what ways does the current ruling strengthen the judiciary’s role as a vehicle of democratisation?

Kenyatta supporters

Kenyans celebrate election of Uhuru Kenyatta.
Demotix/Evans Habil. All rights reserved.

External observers may point to the looming threat of criminal prosecutions against some of the candidates by the Hague-based International Criminal Court (ICC), in connection with elections-related violence in 2007, and conclude that there is now a higher deterrent factor for instigating such violence. There is no doubt some truth to this. However, it glosses over some of the experiences and tribulations of Kenyans, as a people, in their own historical search for democracy, constitutional governance and the rule of law.

Kenya’s 2013 election was probably the most democratic in the nation’s history in terms of turn out, the manner in which it was conducted and the choices that were made. It was the culmination of decades of costly – and often bloody – struggles, for a political and constitutional framework that would facilitate a transition to a more democratic ethos, after gaining independence from Great Britain. This episode peaked in the mid-2000s but then took a downward spiral when the Government hijacked the Constitution review process at the time. Kenyans voted down the proposed constitution following a campaign which polarized the country to extremes not seen before. Two years later, over 1200 persons were killed and 600,000 displaced in elections-related violence, resulting in a carefully managed and closely-watched reconciliation and transition process that finally established a democratic constitution in 2010.

The approval of this document in a 2010 referendum, setting the ground for the recent elections, is itself a reflection of the wishes of a people clearly in search of a break with the past. As one observer rationalised their voting preferences then, it was “not for politicians, [but] for issues and institutions and the foundations of the problems we [kept] facing". Still in relation to the constitutional referendum, another observer submitted that they “[were] trying to create a nation that runs on the competition of ideas and individuals rather than forcing people to coalesce around ethnicities in order to defend their interests".

Clearly therefore, Kenyans had internalised lessons from the bloodbath of the 2007 presidential elections. The experience had imprinted a bitter legacy on the national psyche which no one wanted to repeat. Any attempts to explain or understand how and why the 2013 elections turned out so differently from those in 2007 cannot discount this collective reality.

Another explanation perhaps finds expression in some of the features of the new Constitution itself. One of the central features it established is the system of devolution. This allows for the diffusion of political power vertically across different levels of the State, bringing government closer to the people. One may argue that unlike the former centralised system which tends to promote a “winner takes all” electoral culture at the national level, leaving dissatisfied but resolute vanquished parties with limited options to secure power but violence, the possibility of securing the same at devolved levels of the state offered consolation through broad power-sharing.

Beyond providing for devolution of political power, Kenya’s new Constitution also created a solid institutional framework for rule of law in the form of a Supreme Court. Among its key competencies was the exclusive jurisdiction to hear and determine matters relating to presidential elections.  The very fact that this Court was given the exclusive jurisdiction over presidential elections is important for a number of key reasons. Firstly, it represents recognition - by the new generation of Kenyan policy makers - that a robust electoral justice system that ensures all election-related matters are handled in full compliance with the law and the constitution is critical if democracy is to take root.

Secondly, that the parties themselves not only resorted to this institution  but also resolved to respect its decision underlines an emerging faith in the institutions of the new Constitution. As Odinga himself indicated when the Court’s ruling came down, “casting doubt on the judgment of the court could lead to higher political and economic uncertainty, and make it more difficult for our country to move forward.”

Thirdly, the decision to turn to the Court and its handling of the matter demonstrates the increasing role of judicial institutions in promoting the emergence of a democratic culture, rule of law and constitutionalism by ensuring that the dispensation of electoral and constitutional justice conforms to established constitutional and legal principles. In its disposition of the elections dispute, for instance, the Court was careful to ensure that its decision had both legal and constitutional foundations.

Uhuru Kenyatta elected

Uhuru Kenyatta elected Kenyan President.
Demotix/Evans Habil. All rights reserved.

It may be argued - and for good reasons - that the Kenyan judiciary is no new player in the resolution of electoral or political stalemates, and therefore the importance of the Supreme Court’s March 30 ruling need not be overemphasised. After all, wasn’t it the decision of a Kenyan Court in the 2005 case of Timothy Njoya v the CKRC and the National Constitutional Commission  that effectively precipitated the premature end of the 2002-2005 constitutional reform process? While all this may be true, the recent Supreme Court ruling and the context in which it was decided calls for special recognition to the extent that it establishes two important precedents.

Firstly, it is probably the first time in Kenyan history that an independently constituted judicial institution has adjudicated without political interference and pressure - apparent or otherwise - in such a politically sensitive electoral contest as that to elect the president of the republic.

Secondly, the gracefulness and respect with which the decision was accepted and respected should not be overlooked.  As Odinga acknowledged, despite disagreeing with the ruling, “this court process is another long road in our march towards democracy, for which we have long fought”. This message sets an important precedent as it demonstrates political recognition for the important role of the Kenyan judiciary not only in electoral justice but in the democratic process in general.

The ultimate question that remains is whether these precedents will inform future practices as Kenya forges ahead in carving its democratic pathway. How far will, or can, the courts go? To what extent will there always be political conviction to respect its authority and decisions - whether flawed or otherwise? It is certainly too early to tell, especially when one considers the Supreme Court’s controversial position in recent gender equality-related cases.  Looking at this more broadly, one might even argue that the Court has so far only been playing safe in what is a very politically charged environment, as it is hard to tell what a decision annulling the IEBC results might have caused. Yet, the mere fact that it is increasingly becoming the main forum for arbitrating such political questions not only creates room for hope; it also symbolises  two important things - recognition that the judiciary has a key role to play in the democratization process, and respect for democratic institutions and processes.

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