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Published online by Cambridge University Press: 29 November 2021
In August 2017, responding to a petition from the losing candidate in the presidential election held days before, the Supreme Court of Kenya declared the results of the election null and void. Dramatic in itself, the decision stands in surprising contrast to the same Court's decision to uphold the 2013 election results following a similar petition. Beyond the different outcomes in 2013 and 2017, the Court's jurisprudential approach to the two petitions was markedly different. The Court showed significant deference to the Independent Elections and Boundaries Commission (IEBC) in 2013, and did not seriously interrogate its conclusion that the election had been free and fair. In 2017, however, the Court scrutinised the IEBC's process and paid close attention to the reasons it gave for declaring the result free and fair. This article considers the difference in the Court's approach in two ways. First, from a prescriptive perspective, it suggests when it is appropriate for courts to closely scrutinise the work of elections management boards and other ‘fourth branch’ institutions protecting democracy (IPDs). The article argues that where an IPD performs a function that is constitutive of rights, courts should be prepared to intervene. By contrast, where an IPD performs a function that is regulative of already constituted rights, courts of review should act with deference. On this basis, the article concludes that the Court should have engaged in a deeper review of the IEBC's 2013 decision. Second, from a descriptive perspective, the article suggests that the difference between the Court's 2013 and 2017 approaches can be explained by waning levels of public trust in the IEBC alongside growing levels of public confidence in the judiciary.
1 Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR, Presidential Petition 1 of 2017, 28 August 2017.
2 Section 23 of the Sixth Schedule to Kenya's 2010 Constitution provided:
‘Within one year after the effective date, Parliament shall enact legislation…establishing mechanisms and procedures for vetting, within a timeframe to be determined in the legislation, the suitability of all judges and magistrates who were in office on the effective date to continue to serve in accordance with the values and principles set out in [this Constitution].’ Parliament in turn enacted the Vetting of Judges and Magistrates Act, 2 of 2011, which established a Judges and Magistrates Vetting Board. After the board completed its work, 11 judges and 14 magistrates had been removed for having shown a lack of independence before 2010.
See too Jan van Zyl Smit, ‘Kenya's New Chief Justice Must Press on with Cleaning Up the Judiciary’ (The Conversation Africa, 6 October 2016) <https://theconversation.com/kenyas-new-chief-justice-must-press-on-with-cleaning-up-the-judiciary-66372>.
3 International Foundation for Electoral Systems (IFES), ‘Elections in Kenya: 2017 General Elections – Frequently Asked Questions’ (2017) 6; Maureen Murimi, ‘Kenya Recovers Ksh 52 million from “Chickengate’ Scandal’ (Citizen Digital, 30 March 2016) <https://citizentv.co.ke/news/kenya-recovers-ksh-52-million-from-chickengate-scandal-120362/>; Simon Ndonga, ‘LSK Urges Prosecutions in “Chicken Gate” Scandal’ Capital News (13 February 2015); Kenya Human Rights Commission (KHRC), ‘Chickengate Disgrace’ (Nairobi, Press Release, 27 February 2015); Isaac Ongiri, ‘IEBC Chair Ahmed Hassan Quizzed over “Chickengate” Scandal’ Nation (8 March 2016).
4 With respect to electoral management bodies in particular, see Pal, Michael, ‘Electoral Management Bodies as a Fourth Branch of Government’ (2016) 21 Review of Constitutional Studies 85Google Scholar. On institutions supporting democracy in general, see Mark Tushnet's two pieces: ‘Institutions Protecting Democracy: A Preliminary Inquiry’ (2018) 12 Law & Ethics of Human Rights 181, and ‘Institutions Protecting Constitutional Democracy: Some Conceptual and Methodological Preliminaries’ (2020) 70 University of Toronto Law Journal 95.
5 We make the distinction between constitutive and regulative institutions on the back of John Searle's distinction between constitutive and regulative rules in his Speech Acts (Cambridge University Press, 1969) 33–34. The former makes possible conduct that is not possible in the absence of the rules for doing it (think of voting, which is impossible without a framework of rules for doing so), while the latter refers to rules that regulate conduct people would otherwise be free to do (like riding a bicycle, but being required by law to wear a helmet).
6 Francis Fukuyama, The End of History and the Last Man (Free Press, 1992).
7 Zakaria, Fareed, ‘The Rise of Illiberal Democracy’ (1997) 767 Foreign Affairs 22Google Scholar.
8 Levitsky, Steven & Way, Lucan, ‘Elections Without Democracy: The Rise of Competitive Authoritarianism’ (2002) 13(2) Journal of Democracy 51CrossRefGoogle Scholar.
9 Choudhry, Sujit, ‘Resisting Democratic Backsliding: An Essay on Weimar, Self-Enforcing Constitutions, and the Frankfurt School’ (2018) 7 Global Constitutionalism 54CrossRefGoogle Scholar.
10 Tushnet, ‘Institutions Protecting Democracy’ (n 4) 182.
11 Ackerman, Bruce, ‘The New Separation of Powers’ (2000) 113 Harvard Law Review 633, 691–93, 716–18CrossRefGoogle Scholar; Mark Elliot, ‘Ombudsmen, Tribunals, Inquiries: Re-fashioning Accountability Beyond the Courts’ in Nicholas Bamforth & Peter Leyland (eds), Accountability in the Contemporary Constitution (Oxford University Press 2014) 233.
12 In 2019, the US Supreme Court essentially scuppered any further challenges to partisan gerrymandering by holding, by the barest majority, that ‘partisan gerrymandering claims present political questions beyond the reach of the federal courts’: Rucho v Common Cause, No 18-422, 588 US ___ (2019).
13 In March 2021, the US Supreme Court heard argument in Brnovich v Democratic National Committee (docket no 19-1257). The case involves a complaint that Arizona voting rules that do not count ballots cast in person by voters outside of the designated voter precincts violates the federal Voting Rights Act 1965 (52 USC §10101).
14 Pal, ‘Electoral Management Bodies’ (n 4) 87.
15 For relevant constitutional amendments, see Constitution of Kenya (Amendment) Act 1990, s 2 and Constitution of Kenya (Amendment) Act 1997, s 6.
16 See Independent Review Commission (IREC), ‘Report of the Independent Review Commission on the General Elections Held in Kenya on 27 December 2007’ (2008) ix, 49; Godfrey Musila, ‘The State of Constitutionalism in Kenya in 2012: Embarking on a Journey to Reestablish a New Order’ in Christopher Mbazira (ed), Annual State of Constitutionalism in East Africa (Kituo Cha Katiba 2013) 10; S Ndegwa, P Mwagi, S Kasera, H Owuor & I Karanja (eds), History of Constitution Making in Kenya (Media Development Association & Konrad Adenauer Foundation 2012) 41–42, 51.
17 Constitution of the Republic of South Africa 1996, ss 181–194. Section 181(1) lists six of these institutions: the Public Protector (a generalist ombudsman), the South African Human Rights Commission, the Commission for the Promotion and Protection of Rights of Cultural, Religious and Linguistic Communities, the Commission for Gender Equality, the Auditor-General and the Electoral Commission.
18 Pal, ‘Electoral Management Bodies’ (n 4) 87–88. Pal does recognise, however, that constitutionalizing EMBs has not eliminated partisan interference so much as channelled it in different directions.
19 David Dyzenhaus, ‘‘Dignity in Administrative Law’ (2012) 17 Review of Constitutional Studies 87, 109; David Dyzenhaus, ‘Constituting the Rule of Law: Fundamental Values in Administrative Law’ (2002) 27 Queens Law Journal 445, 466. See also Richard Stacey, ‘A Unified Model of Public Law’ [2021] (2021) 71 University of Toronto Law Journal 338–375.
20 Kruse v Johnson [1898] 2 QB 91.
21 In the UK, the limited ground for reasonableness review in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (decisions are reviewable by a court if they are ‘so unreasonable that no reasonable decisionmaker could have reached it’) has been expanded in recent years to include review of any decision where there is no ‘evident and intelligible justification’ (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713). In Canada, ‘patent unreasonableness’ crystallised as a standard of review in CUPE v New Brunswick Liquor Corporation [1979] 2 SCR 277, and moved to a broader conception of reasonableness in Dunsmuir v New Brunswick 2008 SCC 9; [2008] 1 SCR 190. In the recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65, the Court explained a reasonable decision at [85] as one ‘that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker’. In Kenya, see Rahab Wanjiru Njuguna v Inspector General of Police & Another [2013] eKLR [10]-[11]; Pastoli v Kabale District Local Government Council & Others [2008] 2 EA 300.
22 Tushnet, ‘Institutions Protecting Constitutional Democracy’ (n 4) 104.
23 In the United States, court will show ‘Chevron deference’ to administrators interpreting ambiguous provisions in their own empowering statutes (Chevron USA Inc v Natural Resources Defense Council, Inc 467 US 837 (1984). For a similar principle in Canada, see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654. However, on the merits of decisions US courts will sometimes engage in ‘hard look’ review (Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Co 463 US 29 (1983)).
24 Tushnet, ‘Institutions Protecting Constitutional Democracy’ (n 4) 104.
25 Pal, ‘Electoral Management Bodies’ (n 4) 94: ‘The model carves out the election administration functions previously carries out by other actors within the state and assigns them to an autonomous body not directly accountable to any of the other branches.’
26 ibid 103.
27 HLA Hart, The Concept of Law (Oxford University Press 1961) 75 (original emphasis). These observations in The Concept of Law are the basis of the chapter that follows, describing how a legal system can be said to exist only when there is a ‘union of primary and secondary rules’.
28 ibid 68.
29 Ignacio Sánchez-Cuenca, ‘Power, Rules and Compliance’ in José María Maravall and Adam Przeworksi (eds), Democracy and the Rule of Law (Cambridge University Press 2003) 62, 65.
30 See, for example, Constitution of the Republic of Kenya 2010, art 38.
31 In Katiba Institute & 3 others v Attorney General & 2 Others [2018] eKLR, the Kenyan High Court declared unconstitutional various amendments to the Elections Act 2011 and the Independent Electoral and Boundaries Commission Act 2011 (Election Laws Amendment Act No 34 of 2017). In South Africa and Canada, courts have declared as unconstitutional statutes prohibiting persons serving prison sentences from voting (August and Another v Electoral Commission and Others [1999] ZACC 3; 1999 (3) SA 1 (CC), and Sauvé v. Canada (Chief Electoral Officer), [2002] 3 SCR 519, 2002 SCC 68) and which failed to enable citizens abroad to vote (Richter v The Minister for Home Affairs and Others (with the Democratic Alliance and Others Intervening, and with Afriforum and Another as Amici Curiae) [2009] ZACC 3; 2009 (3) SA 615 (CC and Frank v. Canada (Attorney General), [2019] 1 SCR 3, 2019 SCC1.
32 Pal, ‘Electoral Management Bodies’ (n 4) 96.
33 The distinction we draw here between what might be thought of as constitutive and regulative rights is not that different from Isaiah Berlin classic distinction between positive liberty – meant to connote the freedom to participate in one's own government – and negative liberty – describing a sphere of non-intervention from government control for people to pursue their own conceptions of the good life: Isaiah Berlin, Two Concepts of Liberty (Clarendon Press 1958).
34 In social psychology, this is referred to as the Dunning-Kruger effect, a cognitive bias in which people of low ability tend to be unaware of their low ability: Kruger, Justin and Dunning, David, ‘Unskilled and Unaware of it: How Difficulties in Recognizing One's Own Incompetence Lead to Inflated Self-Assessments’ (1999) 77 Journal of Personality and Social Psychology 1121CrossRefGoogle ScholarPubMed.
35 Collins Odote & Linda Musumba (eds), Balancing the Scales of Electoral Justice: 2013 Kenyan Election Dispute Resolution and Emerging Jurisprudence (International Development Law Organization and Judiciary Training Institute 2016) 5.
36 Harrington, John & Manji, Ambreena, ‘Restoring Leviathan? The Kenyan Supreme Court, Constitutional Transformation and the Presidential Election of 2013’ (2015) 9 Journal of East African Studies 175, 175Google Scholar.
37 Odinga and Others v Independent Electoral and Boundaries Commission of Kenya and Others [2013] eKLR, Petition 5 of 2013, 30 April 2013.
38 ibid [219].
39 In Bush v Gore 531 US 98 (2000), the US Supreme Court ordered a halt to the recount of ambiguous presidential election ballots in the state of Florida because different methods of counting in different counties violated the Equal Protection Clause, and no standardised method could realistically be determined before statutory deadlines for vote certification. In Minister of Health v Treatment Action Campaign [2002] ZACC 15; 2002 (5) SA 721 (CC), the South African Constitutional Court warned against ordering the government to take specific action to meet its obligations to fulfil economic and social rights. It must be noted, however, that the Court nevertheless found the government's policy to have infringed constitutional rights and ordered it to replace that policy with one that did not violate constitutional rights. It is exceedingly odd that the Kenyan Supreme Court would have relied on this case for the principle of restraint, when it is almost universally hailed as one of the most important examples of judicial willingness to engage government in meeting obligations flowing from constitutional economic and social rights.
40 Odinga v IEBC (2013) (n 37) [221]–[224].
41 Harrington & Manjee, ‘Restoring Leviathan?’ (n 36) 180.
42 Odinga v IEBC (2013) (n 37) [217]–[218].
43 Constitution of Kenya 2010, s 138(4)(a) (our emphasis).
44 Odinga v IEBC (2013) (n 37) 282–283.
45 ibid [285].
46 ibid [285]–[266].
47 Harrington & Manjee, ‘Restoring Leviathan?’ (n 36) 180.
48 Odinga v IEBC (2017) (n 1) [24]; Alvin Atallo, ‘The Kenyan Supreme Court Overturns Presidential Election Results: Of Forms 34As, Bs and Cs’ (Oxford Human Rights Hub Blog, 18 October 2017) < https://ohrh.law.ox.ac.uk/the-kenyan-supreme-court-overturns-presidential-election-results-of-forms-34as-bs-and-cs/>.
49 Odinga v IEBC (2017) (n 1) [29].
50 ibid [273].
51 ibid [92].
52 ibid [377].
53 ibid.
54 ibid [292], [378].
55 ibid [171].
56 For the Court's reasoning on this point, see [189]–[193].
57 In 2013, The Court referred glancingly to a Nigerian Supreme Court decision for the proposition that electoral irregularities must affect the outcome to be reviewable: Buhari v Obasanjo (2005) CLR 7(k) (SC), quoted in Odinga and Others v Independent Electoral and Boundaries Commission of Kenya and Others [2013] eKLR, Petition 5 of 2013, 30 April 2013 [184], [193].
58 ibid [379].
59 Michael Chege, ‘Kenya's Electoral Misfire’ (2018) 29 Journal of Democracy 158, 160; The Editorial Board of the Washington Post, ‘Kenya May Have Had Its Fairest Election Yet. The Winner Shouldn't Tarnish It’ (Washington Post, 14 August 2017) <http://wapo.st/2fFpF2F>.
60 Odinga v IEBC (n 37) [224].
61 Constitution of Kenya 2010, Sixth Schedule, s 23; Vetting of Judges and Magistrates Act 2011, ss 7 and 8.
62 See Jan van Zyl Smit, ‘Kenya's New Chief Justice Must Press on with Cleaning Up the Judiciary’ (The Conversation, 6 October 2016) <https://theconversation.com/kenyas-new-chief-justice-must-press-on-with-cleaning-up-the-judiciary-66372>.
63 See First Announcement: Judges and Magistrates Vetting Board Determinations Concerning the Judges of the Court of Appeal [2012] eKLR.
64 Judiciary Working Committee on Election Preparations, ‘Post-Election Report: March – September 2013’ (2013) 17.
65 David Majanja, ‘Judiciary's Quest for a Speedy and Just Electoral Dispute Resolution Mechanism: Lessons from Kenya's 2013 Elections’ in Collins Odote & Linda Musumba (eds), Balancing the Scales of Electoral Justice: 2013 Kenyan Election Dispute Resolution and Emerging Jurisprudence (International Development Law Organization and Judiciary Training Institute 2016) 28.
66 Murimi (n 3); Simon Ndonga, ‘LSK Urges Prosecutions in “Chicken Gate” Scandal’ Capital News (Nairobi, 13 February 2015); KHRC (n 3); Isaac Ongiri, ‘IEBC Chair Ahmed Hassan Quizzed over “Chickengate” Scandal’ Nation (Nairobi, 8 March 2016).
67 IFES (n 3) 5–6.
68 ibid.
69 ibid 6.
70 Diana Kethi Kilonzo & Another v Independent Electoral & Boundaries Commission & 10 Others [2013] eKLR.
71 Diana Kethi Kilonzo v Independent Electoral & Boundaries Commission & 2 Others [2014] eKLR [113].
72 Diana Kethi Kilonzo v IEBC & 10 Others (n 70) [68] –[70].
73 ibid [73].
74 ibid [75]– [76].
75 ibid [125], [168].
76 Moses Mwicigi & 14 others v Independent Electoral and Boundaries Commission & 5 Others [2016] eKLR, Petition 1 of 2015.
77 ibid [119].
78 Political Parties Act No 11 of 2011, ss 39, 40.
79 Bob Micheni Njagi v Orange Democratic Party [2017] eKLR, Election Appeal Petition 2 of 2017.