Nullification of Presidential Elections in Kenya: Addressing The Lacuna in The Elections Act 24 Of 2011

Abstract

The Supreme Court of Kenya was the first on the Continent to nullify a Presidential election after it departed from the hitherto used substantial effect rule in election determination, thus ushering a new era where the quality of the elections process, and not merely the numerical results truly mattered in an election. Section 83 of the Elections Act which was the ‘fulcrum’ that enabled the Supreme Court to depart from the substantial effect rule no longer exists in Kenyan law. This means that there is a risk that the courts may fall back to applying the restrictive substantial effect rule. This dissertation interrogates the legal framework on elections disputes resolution in Kenya, and particularly explores how the qualitative aspects of the election process can continue to play an essential role in the adjudication of election disputes in Kenya even in absence of section 83 of the Elections Act as it were. This dissertation argues that even in the absence of specific statutory guidelines on how the courts may adjudicate election petitions, there are constitutional and other legal provisions that can still guide the court to arrive at a decision that ensures procedural, qualitative and substantive justice when deciding election matters. The dissertation also argues that it is of paramount importance that the National Assembly re-introduces the original (disjunctive) section 83 into the Elections Act to ensure that in cases where the elections are held in an environment of substantial illegalities and irregularities, then the courts shall have specific statutory tools to deliver substantive electoral justice.