Developing Jurisprudence beyond the Horizon

A Critique of the Supreme Court of Kenya Decision in Raila Amolo Odinga & Another v IEBC & Others (2017)

  • Mukami Wangai Strathmore University Law School
  • Linus Mwangi Advocate of the High Court of Kenya and Partner at Odhiambo; Taalam and Company Advocates.
  • Josephat Kilonzo Advocate of the High Court of Kenya; Doctoral Fellow at Strathmore University; LLD candidate at University of Pretoria
Keywords: Judicialisation, Elections, Right-centric, Electoral Dispute

Abstract

This paper scrutinises the Supreme Court decision that nullified Kenya’s presidential election in 2017. It emphasises that, thanks to judicialisation of politics in Kenya’s current constitutional era, the judiciary is placed at the centre of resolving electoral disputes. Basing arguments on articles 20 and 38 of the 2010 Constitution, the paper draws attention to the shortfalls in the Supreme Court’s reasoning in its decision to nullify the election. It is suggested that, a proper right-centric approach, one that is conscious of the people’s sovereign will in a political democratic process, would have led the court to question whether the election result expressed the will of the electorate. Thus, it is argued that the precedent’s standard on nullification of an election has proved inadequate and has eroded the institutional integrity of the Court. With an eye on the next general elections, recommendations are made on how the Supreme Court may improve this condition.

Author Biographies

Mukami Wangai, Strathmore University Law School

Doctoral Fellow at Strathmore University Law School

Linus Mwangi, Advocate of the High Court of Kenya and Partner at Odhiambo; Taalam and Company Advocates.

Advocate of the High Court of Kenya and Partner at Odhiambo, Taalam and Company Advocates. *

Josephat Kilonzo, Advocate of the High Court of Kenya; Doctoral Fellow at Strathmore University; LLD candidate at University of Pretoria

Josephat Kilonzo is an Advocate of the High Court of Kenya, a Doctoral Fellow at Strathmore University and an LLD candidate at University of Pretoria

Published
2021-11-01