Implications arising from judicial resolution of Presidential election disputes in Kenya
Musiga, Teddy J
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In recent years, there has been a substantial increase in the filing of presidential electoral disputes for purposes of resolution by the courts. This trend which can be observed globally has placed courts at the centre of the resolution of presidential election disputes as well as other electoral disputes. This central judicial role in resolving electoral disputes notwithstanding, a general analysis suggests that the judicial systems across the globe have been reluctant in annulling presidential elections as declared by the electoral management bodies (EMBs). Yet very few studies have interrogated the policy implications that could arise from the judicial systems’ exercise of judicial restraint in the resolution of presidential election disputes. This study sought to assess the policy implications arising from judicial resolution of presidential election disputes in Kenya. The study began by analysing the trends that have been emerging from the Kenyan judicial system when resolving presidential election disputes from between 1992 – 2013. The study relied on the Administrative Law theory of Red-light, Green-light and Amber-light. This theory helped demonstrate how the courts have been exercising their powers in resolving the administrative challenges of other organs of governance in Kenya. Whereas the Red-light theory seeks to control, limit or supervise the state and its power, the Green-light seeks to minimise the influence of the Courts over the other organs of governance. The blend of the two (Red-light and Green-light) which is the Amber-light provided a balance that suited the aims and objectives of the study. To analyse and describe the data, the study adopted a qualitative analysis approach. Particularly it used exploratory research design which pursued a critical review approach supplemented by targeted in-depth interviews with key informants who have been involved in the resolution of presidential election disputes in Kenya and use of questionnaires. The study targeted a sample size of 100 respondents drawn from judicial officers, legal practitioners, legal researchers, members of the civil society and politicians. Data collected was analysed and the results were then presented in tables and graphs. The study findings revealed that there is an emerging trend among Kenyan courts/judicial system to apply judicial restraint when resolving presidential election disputes. The major results of the study revealed that the policy implications for the exercise of judicial restraint in the resolution of presidential election disputes are that; first, doubt has emerged on the standards for the application and interpretation of what amounts to compliance with electoral laws. Second, there is lack of clarity on the applicable burden and standard of proof in presidential election disputes. Third, the EMBs and the courts have emerged to be wielding a lot of discretionary powers which are sometimes not backed by the prevailing electoral laws. The major recommendation from the study is that these issues need to be addressed through policy to avert possible policy challenges that may arise from future presidential election disputes and even all other electoral disputes in general.