Report on Legal Issues from Kenya 2017 Presidential Election
Carter Center Releases Analysis of Electoral Dispute Resolution in Kenya; Encourages Supreme Court to Clarify Threshold to Annul Election Results
ATLANTA — The Carter Center today released a report analyzing the resolution of electoral disputes stemming from Kenya’s 2017 presidential and parliamentary elections, which found that lower courts faced significant challenges in assessing consistently whether alleged electoral violations were substantial enough to warrant annulment of election results.
To address these challenges and enable Kenya’s courts to make consistent rulings on future election petitions, the Center encourages the Supreme Court to clarify the factors that lower courts should apply when considering what constitutes a substantial violation of the constitution’s requirement for free, fair, transparent, and accountable elections.
President Uhuru Kenyatta’s recent extension of the Building Bridges initiative, a task force charged with evaluating national challenges and recommending reforms, offers a renewed opportunity in advance of the 2022 elections for Kenyans to consider appropriate reforms to bring Kenyan practices into greater alignment with international practices for electoral dispute resolution.
The Carter Center’s report reviews the High Court’s April 2018 decision that struck down most of the provisions of the 2017 Elections Act amendments. The National Assembly passed the act after the Supreme Court’s annulment of the August 2017 presidential elections but before the fresh presidential re-run election in October 2017. According to the Center’s report, the 2018 High Court ruling is likely to complicate future efforts to reform the electoral system through legislation because any changes to the legal framework that are viewed as contrary to the 2010 Constitution’s requirements for free, fair, transparent, and accountable elections are likely to be deemed unconstitutional.
In striking down the 2017 Election Act amendments, the 2018 High Court maintained the standard that was established in the Supreme Court’s 2017 ruling that determined that courts can annul an election in Kenya if it was conducted so poorly that it was not “substantially” in accordance with the constitution’s principles for free, fair, transparent, and accountable elections, irrespective of whether the results were affected. The 2017 Supreme Court ruling overturned the August 2017 presidential elections, without saying whether the violation impacted the election results, and ordered that fresh presidential elections be held.
As a result of the 2018 High Court decision, petitioners challenging election results do not have to prove that any non-compliance with the law or constitution impacted the results of the polls, which means that Kenya’s current legal framework for electoral disputes is at odds with the majority of international practice on this issue.
In its report, the Center looked at how the High Court and Court of Appeal applied the 2017 Supreme Court ruling in a number of cases in which the results of an election were challenged. It found that lower courts reached vastly different conclusions when applying the legal precedent. In the cases scrutinized, there was no agreement among the lower courts on what constitutes a substantial versus a non-substantial violation of the principles in the constitution and the law.
Despite concerns that the High Court’s 2018 decision has reaffirmed a low threshold for nullifying an election by not requiring that violations affect the election results, recent rulings by the Supreme Court indicate that the court is aware that the threshold should not be too low. Only three of 299 petitions filed to challenge elections (in various races for governor, senator, member of parliament, country woman representative, and member of county assembly) resulted in a decision to annul the race and require a new by-election. This suggests that the Supreme Court is applying a relatively high threshold for what constitutes a substantial violation of the constitution.
The Carter Center encourages the Supreme Court to clarify the factors that lower courts should apply when assessing potential violations of Kenya’s constitutional principles regarding free, fair, transparent, and accountable elections, so that the difference between substantial and non-substantial violations is clear and so that the potential impact on the election results is taken into consideration.
Through the Building Bridges initiative and other mechanisms, Kenyans should consider appropriate reforms to bring the legal framework around electoral dispute resolution into alignment with international practice.
The Carter Center in Kenya: The Carter Center’s international election observation mission monitored key parts of the electoral process from April through November 2017. Following its mission, the Center deployed a small team of experts from February to August 2018 to conduct further activities focused on information and communications technology, legal reform, and women’s and youth participation.
The Center’s legal brief builds on its previous public statements and reports, including a 2018 report outlining key challenges women and youth face when trying to participate in politics and offering detailed recommendations for strengthening their political engagement in the future. Women’s political participation is also addressed in The Carter Center’s briefing paper on gender quota, which analyzes the two-thirds gender rule in the 2010 Constitution.