Judicial Resistance and Electoral Disputes: Evidence from Kenya

• In Event: How Courts Impact Democratic Erosion

Abstract

Over the last decade, African courts have played an important role in the conduct of free and fair elections. Both in Malawi and Kenya, the Supreme Courts nullified the presidential election of the incumbent. These rulings challenge the conventional wisdom that courts in hybrid regimes always support power holders despite blatant evidence of electoral fraud. Furthermore, these sparks of judicial resistance deserve our scholarly attention as they have the power to start the democratization process. Hence, this paper seeks to understand the conditions under which courts side with the opposition. I argue that institutional reforms incentivize courts to resist the incumbent’s pressure and to rule in favor of the opposition during electoral disputes under two conditions. First, institutional reforms must reinforce de jure independence by enacting effective legal and constitutional mechanisms that prevent the executive branch from undermining the separation of power. Second, institutional reforms must mobilize judicial support networks by granting them the tools to engage in strategic and repeated litigation. I test this novel theory by leveraging original qualitative and quantitative data from Kenya. Using process tracing, I show how the 2010 constitution created an environment where the courts had no other choice than to annul the election of the incumbent - President Kenyatta - in 2017.

Author

• Thalia Gerzso, University of York