In Africa, one of the major conflicts that
causes unrest is election. Theoretically and in a general sense, a change of
government ought to be conducted through the ballot boxes by means of free and
fair election and not through violence and political unrest.  Charters, Conventions and Declarations have
been adopted to ensure the conduct of free and fair elections in Africa. For
instance, The Declaration on the Principles Governing Democratic Election in
Africa, which was adopted in July 2002, is evident that African leaders have
sought to support the change of government in Africa through constitutional
means.1
However, African leaders are still persistent when it comes to relinquishing power,
which has resulted to series of unrest causing destruction and loss of lives in
many African countries.  African leaders
have as a result of their persistence to not leave power resorted to manipulate
independent electoral bodies to rig election results or risk losing their jobs
or in the worse case scenario, their lives.

 

Recent elections have exposed the weakness of
African institutions to uphold the democracy of our countries and sovereign
will of the people. Elections in countries like Kenya, Nigeria and Zimbabwe have
showed that electoral institutions are vested with immense power and failure to
exercise those powers constitutionally could lead to civil and political unrest
of the masses.  It is indeed ironic that
elections, which are supposed to be the legitimate means of manifesting the
sovereign will of the people is now what is used to reinforce undemocratic rule
in the African continent. The African Union has encouraged the creation of
electoral commission with independence. 
States have constitutions and Electoral Acts that refer to these
commissions as independent but notwithstanding, African leaders are still
unwilling to leave office and still continue to govern through unfair
elections.

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Kenya, which is the focus of this paper, has
experienced different forms of political unrest arising from elections. The
2007-2008 elections between Moi Kibaki and Raila Odinga led to a lost of about
1,300 lives and more than 650,000 people were displaced.2
Violence became the order of the day. While the country still continues to
reinforce electoral institution and ensure their practical independence, leaders
continue to unfairly remain in power. The 2013 elections resulted to the same
violence with thousands losing their lives. Ethnic tensions also emerged. How
can this be solved? What other means does Kenya, or Africa have to correct the
conduct of unfair and undemocratic elections? Can the courts work? Indeed it
can.

 

In the 2017 elections between the incumbent
President Mr Uhuru Kenyatta and Raila Odinga. A petition was filed by Mr Odinga
to the Supreme Court of Kenya to annul the 2017 election results because it was
conducted unfairly. The Supreme Court of Kenya in 2017 became the first court
in Africa and the third in the world to annul an election result. In 2007, a
petition was also filed but it did not succeed. In both instances however,
there was violence and lives were lost. But to what extent can the decision of
the Supreme Court in the 2017 Presidential Election go as far as conducting
free and fair elections in Africa?

 

This paper is not concerned with how
electoral commissions can be made independent, but rather how the Supreme Court
of Kenya played an important part in rule of law and was able to annul an
election which was at first alleged to be unconstitutional and undemocratic in
Kenya and how the decision of the court can be used as a means to correct election
irregularities in Africa through judicial review in courts in Africa. This
research will measure the impact the judgement may have on the African
continent if replicated by the courts.

 

1 Declaration on the Principles
Governing Democratic Election in Africa, 2002. Available at https://www.eisa.org.za/pdf/au2002declaration.pdf. Accessed 21 December 2017. 

2 Human Rights Watch, Political Violence and the 2013 Elections in
Kenya, 2013. Available https://www.hrw.org/report/2013/02/07/high-stakes/political-violence-and-2013-elections-kenya.

Last accessed 21 December 2017. 

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