Why Kenya's Supreme Court Can't Solve the Country's Electoral Crisis

It Lacks Sufficient Enforcement Capacity

Kenya's Supreme Court judge chief justice David Maraga presides before delivering the ruling making last month's presidential election in which Uhuru Kenyatta's win was declared invalid in Nairobi, Kenya, September 2017.  Baz Ratner / REUTERS

On September 1, 2017, the Supreme Court of Kenya delivered its verdict on the presidential election that took place in August and handed sitting President Uhuru Kenyatta another term despite allegations of fraud by his main rival, Raila Odinga. The opposition supporters packed into the courtroom were nervous with anticipation, but many international commentators and representatives didn’t even attend the proceedings, assuming that—as in every previous electoral petition in African history—the judiciary would find a way to uphold the initial results.

In fact, the court’s four to two decision that Kenyatta’s reelection was illegal and that Kenya would need to hold a fresh vote within 60 days sent shockwaves through the political system. In the courtroom, the decision was met first with gasps of disbelief and then with a spontaneous outbreak of celebratory song from Odinga’s allies. The verdict was also lauded in media outlets around the world, by both analysts with a deep understanding of the events and those who assumed that any assertion of judicial independence had to be a positive development on a continent that is experiencing a prolonged democratic recession. Some, including Civicus, an international civil society alliance, and the East African newspaper, which is sold throughout the region, even speculated that this legal breakthrough might unleash a tide of judicial activism in defense of the rule of law across Africa.

Two months later, the impact of that verdict on Kenyan democracy seems much more uncertain. The willingness of the four judges to challenge the status quo placed them directly in the political firing line. At the same time, their decision has done little to resolve the crisis. Instead, the second election on October 26, which was supposed to clarify who Kenyans wanted as their president, quickly descended into acrimony and farce. As a result, a growing number of commentators have been questioning whether the court would have done better to pull its punches and uphold the first-round results.

In the repeat election, the withdrawal

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