Implications arising from judicial resolution of Presidential election disputes in Kenya
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Date
2016-12
Authors
Musiga, Teddy J
Journal Title
Journal ISSN
Volume Title
Publisher
Kenyatta University
Abstract
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.
Description
A Research Project Submitted to the School of Humanities and Social Sciences in Partial fulfillment of the Requirements for the award of the Degree of Master of Public Policy and Administration, Kenyatta University