In an unprecedented turn of events, the Supreme Court of Kenya yesterday, in a 4-2 majority opinion, declared that the 2017 Presidential Election was not conducted in accordance with, inter alia, Articles 10, 38, 81 and 86 of the Kenyan Constitution as well as sections 39(1C), 44A and 83 of the Elections Act. The Chief Justice, David Maraga, read the majority opinion (by Maraga CJ & Mwilu DCJ & Wanjala and Lenaola SCJJ)—with Njoki Ndung’u and Ojwang SCJJ dissenting—without a full judgment because of the strict timelines, 14 days to hear and determine the petition. The full reasoned judgment will be given within 21 days of the decision, as required under Rule 23(1) of the Supreme Court (Presidential Elections) Rules 2017.
The issues for determination as set out by the Court were:
- Whether the 2017 Presidential election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections;
- Whether there were irregularities and illegalities committed in the conduct of the 2017 presidential election;
- If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election; and
- What consequential orders, declarations and reliefs should the Court grant, if any.
Having had a 14-day limit to hear and determine the Presidential Election Petition, hearings mostly ran until late in the night, with the judges being left with two days to deliberate before handing their decision. The majority decision of the Court, was that first, the Independent Electoral and Boundaries Commission (IEBC) failed to conduct the Presidential Election in a manner consistent with the dictates of the Constitution and the Elections Act. Second, that among other irregularities, the IEBC did not conduct the transmission of election results in a credible manner, particulars of which will be laid out in the full judgment. Third and lastly, the Court found that the illegalities and irregularities committed by the IEBC affected the integrity of the Presidential Election and thus ordered fresh elections to be conducted. It, however, found no evidence of misconduct on the part of the incumbent, Uhuru Kenyatta. Fresh Presidential elections are thus to be conducted within 60 days of the decision.
This decision has so far received mixed reactions with some hailing it as a win for the rule of law while others have criticised it as a judicial subversion of the will of the majority. Notably though, both the opposition and the incumbent, President Kenyatta, have accepted the decision and indicated that they will do as the Court said, even though the latter says he disagrees with the Court’s decision. Contrasting this 2017 decision with the 2013 Presidential Election Petition judgment, in the latter decision, despite the Supreme Court noting that there were many irregularities in the conduct of the election, it however held that ‘these were not substantial as to affect the credibility of the electoral process’ (see para  and ). This left open the question of what the threshold for nullifying an election is. We await to read the full judgment but, based on the Supreme Court majority’s determination, it can be concluded that the Court’s reasoning will provide more guidance on what the threshold for nullifying an election is, which would be a bold step for the Court. And, hopefully, the full judgment will be profound in closing pending questions on what the threshold for nullifying an election is. One would have expected a reluctance to nullify the Presidential election for the sake of peace, given the 2007/2008 post-election violence in Kenya, which arose mainly after the announcement of presidential election results allegedly marred by irregularities. On the other hand, of course, it could similarly be argued that reluctance to nullify would also have led to violence. The determination of the Court thus goes to show that the quest for peace is illusionary without justice.
Even as many consider the Supreme Court’s decision, questions remain pending on the weight that should be placed on reports by election observers. This is in noting the divergence of opinion between international and regional observers who concluded that the 2017 elections were free, fair and credible (cited in the dissenting opinions) and statements by some Kenyan civil society organisations that there were election irregularities.