On 1 September 2017, in a first of its kind, the Supreme Court of Kenya by a majority decision annulled the presidential election. The Independent Electoral and Boundaries Commission (IEBC) had announced that the incumbent, Uhuru Kenyatta, had won the election with 54% of the vote, compared to that of his rival, Raila Odinga’s 44%. As with previous elections, this contest was highly emotive and split the country into two. Fears abounded of a repeat of the 2007 mass protest and post-election violence, particularly as the opposition had rejected the courts as arbiters given their past experience. Contrary to this earlier rejection, Raila Odinga petitioned the Supreme Court, which, in an unprecedented move, invalidated the results and called for a fresh election. Externally, the decision has been applauded as being transformative. Locally, the reaction is more nuanced. A section of society believes the judgment restored the credibility of the court in a context of rampant election irregularities. Another section believes the court delved into politics through a dangerous form of judicial activism. These divisions are reflective of the positions taken by the majority and minority judgments. The majority judgment is framed around the importance of the means, or the process of conducting an election, and not just the end, or outcome of the election. In contrast, the minority decision sees this approach as onerous because it calls for an election devoid of administrative errors, and overturns an earlier precedent requiring a nexus between alleged irregularities and the outcome of the election. This chapter hopes to analyse these two viewpoints by drawing upon jurisprudence from different jurisdictions.

Keywords: constitutionalism, democracy, Kenya, presidential election petitions, electoral reform, court intervention