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EIGHTH EAST AFRICAN MAGISTRATES’
AND JUDGES’ ASSOCIATION (EAMJA)
CONFERENCE
17TH – 22ND MAY 2010 ARUSHA,
TANZANIA
ICJ Kenya‘s Expert Opinion Paper on
the Jurisprudence Emerging from the 2007
Election Petitions.
Presented by George Kegoro, Executive
Director, ICJ Kenya
 Theme: The Right to Political
Participation and Elections in East
Africa
 Sub theme: Adjudication of Electoral
Disputes; the role of the Judiciary in
resolving electoral disputes.
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Masha Baraza
DO NOT COPY, QUOTE OR CITE WITHOUT ICJ KENYA AND THE AUTHORS
PERMISSION
Introduction ....................................................................................................................... 3
The 2007 General Election: Free and Fair? ................................................................... 4
Post-election opinions on the Judiciary .......................................................................... 5
A Brief Synopsis of the 2007 General Elections Petitions........................................... 7
Service ............................................................................................................................................. 7
Strict Interpretation ..................................................................................................................... 10
Inordinate Delays ........................................................................................................................ 11
Burden of Proof .......................................................................................................................... 12
Beyond the Bench ....................................................................................................................... 13
Legislative Provisions .......................................................................................................... 13
Incompetent Election Management ...................................................................................... 14
Lack of manpower.............................................................................................................. 15
Lack of resources ................................................................................................................ 15
Advocates and Litigants ..................................................................................................... 16
Concepts for consideration ............................................................................................ 18
International standards ............................................................................................................... 18
Judicial Activism .......................................................................................................................... 19
Terminology........................................................................................................................ 19
A Brief History ................................................................................................................. 19
Principles and Concepts ...................................................................................................... 21
The Debate in Praxis......................................................................................................... 24
A Multidimensional Model ................................................................................................ 27
Concluding Thoughts .......................................................................................................... 29
Thoughts for Change ...................................................................................................... 30
Essential and urgent reform of the Judiciary .......................................................................... 30
Election dispute resolution legislation ..................................................................................... 32
Voter and Civic Education ........................................................................................................ 32
Jurisdiction ................................................................................................................................... 33
Timely resolution of electoral disputes .................................................................................... 33
Enforcement and prosecution ................................................................................................... 34
Transparency ................................................................................................................................ 35
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Introduction
The role of the judiciary within the electoral process is widely recognised as essential and it is
perhaps never more acute than when it comes to the consideration of electoral petitions. The
right of every eligible citizen to determine who will represent them in government without
encumbrance is the basic unit and cornerstone of any democracy and a pre-requisite for social
cohesion and solidarity. Elections are indeed an element of within the principle of rule of law;
they are “...human rights events: first, because they give voice to the political will of the people
involved; and secondly, because, to be truly free and fair...they must be conducted in an
atmosphere which is respectful to human rights.”1 An election petition represents a potential
abuse of this basic constitutional right and as the final arbiter of the outcome of the electoral
process the Judiciary has a weighty and solemn responsibility. However, as the allegations made
by the petitioners betray, an election petition is only one part of a much longer process. To
consider the role of the Judiciary in the electoral process one must consider the role of the
Judiciary in the wider democratic process as well.
Shako explains that “[d]emocratic elections are a prerequisite for democratic governance and
public confidence in government is established when citizens believe that their will has been
freely expressed and honoured through genuine elections.”2 They “...are not just a right in and of
themselves. They cannot be achieved unless a range of other civil and political rights can be
freely exercised and realised...[such as] freedom of association, freedom of assembly, freedom of
movement, freedom of opinion and freedom of expression.”3 The Commission of the Office of
the High Commissioner for Human Rights has affirmed “...that democracy, development and
respect for human rights and fundamental freedoms are interdependent and mutually
reinforcing;”4 Therefore, in assessing the rulings and judgments of the courts in petitions
emerging from the 2007 General election and the procedural and substantive jurisprudence
therein, we must consider election petitions not as litigation causes in their own right, but as part
of a process of democratisation; part of the process of protecting and engendering the
fundamental human rights of the Kenyan citizenry.
There has been and still is ongoing attempts at constitutional, legislative and institutional reform
both the Judiciary and the electoral process particularly the main election management and
oversight body, the Electoral Commission of Kenya (ECK). Concerning the judiciary, many have
argued that election disputes should be removed altogether from the ambit of the discredited
court system particularly in a highly politicised nation explaining that “the judiciary should not be
unnecessarily exposed to the risk of being politicised, or being seen to be politicised, by its
involvement in political disputes.”5 This, I contend, is not an indictment of the court system in
election dispute resolution in particular but an indictment of the Kenyan courts in general. It
illustrates that the road to effective election dispute management by a court system begins
through developing the public trust through upholding justice and fairness in everyday judicial
functions and not just during the immediate election and post-election period.
This analysis begins with an analysis of the main findings of various institutions in regard to
offences committed during the 2007 General Elections in order to identify what would
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subsequently be the subject matter of the election petitions presented to the courts. The analysis
then summarises briefly the opinions of a number of relevant institutions and Commissions as to
the capacity of the courts to handle the above mentioned offences. We then proceed to assess a
selection of election petitions brought before the courts after the 2007 election reviewing and
summarising the procedural and substantive jurisprudence emerging from those rulings and
judgements. The next part of the analysis concerns conceptualising a way forward for the
Judiciary. It first considers the international standards and requirements for a free and fair
election and highlights the role of the Judiciary in relation to these standards. It then proceeds to
consider the discourse on judicial activism, identifying the principles underlying the concept, its
origins and development, and concluding with an argument for a more judicially active bench in
general and more particularly in relation to the consideration of election petitions. The
conclusion summarises the main points raised and considers the relationship between the
judiciary and other actors involved in the election petition litigation process.
The 2007 General Election: Free and Fair?
Reports from various institutions provide us with an analysis of the offences committed during
the 2007 election process. The IREC (Kriegler) Commission describes a ‘lack respect for laws or
regulations’ during the 2007 General Election and the ‘blatant violation’ of the Electoral Code of
Conduct. According to the Commission, the ECK itself deponed that “...the few politicians who
were fined for breaches under the code in the run-up to the 2007 general elections have refused
to pay the fines. ECK has had to file proceedings in the High Court in order to enforce its
orders but to date these cases remain undetermined.”6 Describing how the political parties
conducted themselves during the election period the IREC Report explains that they
“condone[d] without censure, their candidates’ violation of electoral regulations.”
Various observer reports were unreservedly damning; the Commonwealth Observer Report
described abuse of state resources for party political purposes, reports of vote-buying and
exceptionally high campaign expenditure and the overcrowding in polling stations by dominant
parties’ agents, many of these without visible identification. The European Union Election
Observer Mission (EU EOM) noted that “...candidates distributed money and goods widely, an
activity that appears to be entrenched in the political culture of the country.” “The Kenya
National Commission on Human Rights (KNHCR) in its monitoring report dated August 2008
named numerous ministers of government and other public officers who misused and
misappropriated public resources in furtherance of partisan politics for the incumbent
administration...It also gives examples of hate speech on the campaign trail.” The East African
Community Observer Mission reported ‘instances of political intimidation at various polling
stations throughout the country.’ “The Pan-African Parliament Election Observer Mission
reported agitated political party agents engaging ECK officials at the national tallying centre in
heated confrontation, in some instances becoming physical among political players.” Through its
public meetings around the country, the IREC received concerns from the wananchi of
widespread voter bribery, vote-buying, electoral violence and voter intimidation, use of hate
speech and the harassment and intimidation of party supporters by rival supporters during the
2007 elections. The political parties themselves told the Commission that “[e]thnic hate speech
and stereotyping was propagated and communities living outside their ‘indigenous’ provinces
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were threatened with eviction. There was ‘zoning’ too, which meant that dominant parties’
strongholds were out of bounds to the opposing party candidates.” Kriegler concludes that
“political parties breached most of the rules in the national and international books regarding the
orderly conduct of campaigns and elections.”
Concerning the processing of election results, the Kriegler Commission found that there were
major discrepancies between the information on the forms 16A and 17A as well as between the
constituency and national tallying centres; there were discrepancies in the turnout between
presidential and parliamentary elections; “Almost all parliamentary and presidential election
results for the constituencies sampled are erroneous, which means that very few of the officially
published figures are actually accurate.”7
“IREC’s analysis of counting and tallying in ten constituencies with huge turnout
discrepancies demonstrates convincingly that the discrepancies are probably due to
human error and general incompetence, difficult working conditions at constituency
tallying centres, pressure from KICC-based ECK staff on returning officers to provide
fast results, pressure from candidates and incumbents eager to know their own electoral
fate, lack of training and unclear messages as to when and how erroneous constituency
results might be corrected...Poor understanding of the procedures at KICC...among staff
members, temporary as well as permanent...”
This is a damning indictment of the 2007 General Election, those who managed and most of
those who contested it. It is evident that the process was significantly flawed and in many parts
of the country, citizens, voters and candidates had been denied their constitutional right to
participate in a free and fair election. The above analysis illustrates the potential task facing the
courts; as the principal dispute resolution mechanism in relation to electoral offences, the High
Court could therefore expect numerous petitions and complaints of impropriety. However,
public confidence in the Judiciary, the one arm of government that stands for justice and
equality, had been completely eroded; it is instructive that the second placed candidate, upon
request from the Ministry of Justice and Constitutional Affairs and the Electoral Commission of
Kenya to seek redress through the court, publicly dismissed the possibility of receiving justice
through the Judiciary which he deemed partisan and predisposed.
Post-election opinions on the Judiciary
In Kenya, as with many countries in democratic transition, there is no de facto separation
between the judiciary and the other arms of government, particularly the executive. The Judiciary
in Kenya has been described as ‘compromised by the internal and external patronage of the
executive’; “...a weak actor whose key role [since multiparty politics in Kenya] has been to
catalyse or deploy counter-democratisation tactics.”8 During the transition to democracy in some
Eastern European countries, the courts, through their rulings particularly on constitutional
questions, managed to send powerful signals to the other arms of government as well as the
public; these rulings reinforced the independence of the Judiciary as well as strengthening
democratic ideals and institutions in those countries. This has not been the case in Kenya; if the
dilemma is “[s]hould [the courts] make the legally correct decision and face the prospect of noncompliance and attacks on their own powers, or should they make a decision that avoids
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controversy, protects them...”9 the evidence from the Kenyan judicial experience is not
encouraging.
According to Nyaundi, there is a manifest confidence deficit in the capacity of the judiciary to
resolve political disputes due to a distrust of the court system & personnel, inordinate delays in
resolving political disputes, emergence jurisprudence lays a lot of emphasis on technicalities
(service of pleadings/discovery, etc)and unclear prosecutorial powers over election offences. The
Judiciary itself recognises this confidence deficit; in its Strategic Plan 2009-2012 lists as one of its
objectives “[t]o improve the image of the Judiciary to restore public confidence in the
institution.”10 This lack of confidence is expressed in a number of opinions on the Judiciary
particularly in the aftermath of the 2007 General Election. In their account of the post-election
violence, KNCHR describe the national ‘crisis of confidence in the Judiciary’. Citing Makau
Mutua they explain that “...there is little doubt that Kenya’s history of judicial subservience to the
executive and inefficiency precluded a strong pitch on behalf of its independence.”11 The
appointment of new Judges by the Kibaki administration just before the 2007 General Election
further entrenched suspicion and scepticism as to the neutrality and objectivity of the Bench.
The Waki Report explained that “...the checks and balances normally associated with
democracies are very weak in Kenya and are deliberately so...Individuals in various parts of...the
judiciary...understand that, irrespective of the laws, the executive arm of government determines
what happens.”12 The Report explains that as a consequence, there is a sense of lawlessness;
where even the Judiciary lacks integrity and autonomy. There is a widespread perception that
through corruption and entrenched systems of patronage, those who break the law, whether
during elections or otherwise, are ultimately unaccountable; there is a palpable air of impunity.13
The Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
described the Judiciary as ‘an obstacle in the path to a well-functioning criminal system.’14 Citing
‘crony opaque appointments’ and ‘extraordinary levels of corruption’ as the central problems the
Special Rapporteur made several recommendations: radical surgery to terminate the tenure of the
majority of the existing judges and replace them with competent and non-corrupt appointees;
Judicial appointment procedures should be transparent and appointments based on merit; the
Judicial Service Commission should be reformed and strengthened; there should be a create a
comprehensive complaints procedure on judicial conduct.15
In a statement forwarded to the Waki Commission,16 the Registrar of the High Court outlined
some of the major reform initiatives that the Judiciary was undertaking to improve the public
perception as well as service delivery: “recruitment of more magistrates and expansion of the
capacity to appoint more Judges, establishment of Court Users Committees where all actors in
the criminal justice system meet and resolve operational difficulties; customer care desks to
address public concerns; mobile courts for remote areas; construction of new courts around the
country; annual open day sessions for interaction with consumers of justice; publicizing judicial
service charter for education of the public; introduction of continuous legal education for judicial
officers through the Judicial Training Institute; comprehensive review and simplification of Rules
of Procedure, both civil and criminal; and the establishment of the Expeditious Disposal of
Cases Committee which has devised modalities for reducing backlog of cases.” 17 The
Commission predictably treated the above initiatives with scepticism; though commendable it
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stated, echoing the opinion of numerous commentators, that “nothing short of comprehensive
constitutional reforms will restore the desired confidence and trust in the judiciary.”
Part 3 of the Transitional and Consequential Provisions contained in the Sixth Schedule of the
Harmonised Draft Constitution of Kenya18 which concerns the Judiciary contains, in essence, an
overhaul if not removal of all members of the current Bench. Once effective, the newly formed
Judges Review Commission will carry out a mandatory vetting process with respect to all judicial
officers. Under this part, any judge who held office immediately before the effective date may,
within sixty days after the effective date, choose to retire from office or face a vetting procedure
to decide the Judge’s suitability to hold office.
It is well recognised that there are needs for structural and institutional changes in Election
Dispute Resolution; some of the suggestion will be further analysed below. However, even with
new laws and structures, it is still necessary to conceptualise the role of the judiciary in the
election process. Since the recommendations contained in the 1998 Kwach Report on judicial
reform to the numerous plans for constitutional reform we seem to be sat back waiting for a new
legal and constitutional dispensation that will lift us from the current political and legal quagmire.
This has not happened and we have had four multiparty elections and there is every probability
that we shall see a fifth under the current legal regime. Indeed whether or not there is
comprehensive change we will nonetheless require a progressive and active judiciary that can
interpret constitutional and legal principles robustly and creatively in the best interests of the
nation and its people. Ultimately, the judiciary must decide how it intends to engage in the
process of national re-generation and emancipation.
Ndung’u explains that “[t]he inability of the judiciary to engage itself in the current political
transitional debate has left it looking weak and unable to direct its own destiny. In the
constitutional reform debate, the judiciary has been identified by both ICJ-Kenya and the Law
Society of Kenya as the starting point of essential constitutional reform process...”19 Principle no.
8 of the guiding principles of Kenya Vision 2030 stresses the “...enhancement of the capacity of
the three arms of government (Legislature, the Executive and the Judiciary) to discharge their
Constitutional mandates in an efficient and expeditious manner – and to the satisfaction of the
public”20 The Judiciary must not and cannot continue to hide or to be percieved to hide in the
shadow of parliament and in the pocket of the executive; to do so it must recognise itself as a
separate, independent yet equal arm of government with the noble and solemn task of
promoting, preserving and enforcing principles of justice amongst all citizens and across all
institutions including the executive and parliament.
Let us now consider the position of the Judiciary vis-à-vis its handling of a selection of election
petitions emerging from the 2008 election.
A Brief Synopsis of the 2007 General Elections Petitions
Service
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Ndung’u explains that election petitions predominantly revolve around the issue of service;
respondents vehemently contest “any demonstration by the petitioner that the petition was
properly served and thus demeaning election petitions to be rarely determined on the substance
of the case but on the procedural questions of whether the petition is properly before the
court.”21 The evidence from the sampled cases is that this is still the case. The Court of Appeal in
Election Petition No. 1 of 1998 Mwai Kibaki v. Daniel Toroitich Arap Moi & 2 Others (Kibaki
v. Moi) managed to conjure the following principle: “...personal service remains the best form of
service in all areas of litigation and to say that members of parliament are a different breed of
people and different rules must apply to them as opposed to these applicable to other Kenyans
cannot support the principle of equality before the law;” beginning an obsequious fixation with
personal service in election petitions. In the sample of petitions analysed herein, 13 of the 29
cases were dismissed for want of service and in almost all of the cases there was an application
for the petition to be struck out of the grounds that the petition was not properly served as the
applicant was not personally served.
It is remains unclear why the courts do not actively question the reasoning in Kibaki v. Moi in
regard to personal service having consideration for the fact that, not only does the seemingly
obligatory application on the basis of want of service consume even more precious time and
resources, but the sheer percentage of petitions failing to be considered on merit due to this
judicial interpretation defeats the realisation of justice. Though it is arguable and probably true
that Rule14(1) is inconsistent with s. 20 of the Act in regard to time, there is no conflict between
Rule 14(2) and the Act in terms of the mode of service; it merely illustrates that other modes of
service were envisaged by the legislature. Even in light of s. 20(1)(iv) it might still be possible to
dispense with the fixation with personal service. The courts however, do not concur and most
opinion subscribes to the logic that before any other prescribed mode of service can be used,
due diligence must be exercised towards personal service. Election Petition No. 2 of 2008
Francis Mwanzia Nyenze v. Charles Mutisya Nyamae and 2 Others, Election Petition 1 of 2008
Jonathan Toroitich v. Moses Lessonet and 2 Others, Election Petition 2 of 2008 Juma Mbui
Suleiman & Yophes Gitteya Ogwoka v. Mwahima Mwalimu Masudi and 2 Others, Election
Petition 4 of 2008 Moses Nyambega v. Walter Enock Nyambati Osebe and 2 Others, Election
Petition No. 31 of 2008 Titus Kiondo Muya v. Peter Njoroge Baiya & 2 Others, Election
Petition No. 3 of 2008 Simeon Mwero Mkalla v. Devis Ngoyawu & Another, Election Petition
28 of 2008 Nasir Mohamed Dolal v. Duale Aden Bare & 2 Others, Election Petition 5 of 2008
Mwita Wilson Paul Maroa v. Gisuka Wilfred Machage & 2 Others and Election Petition No. 1 of
2008 Nambwa Sakaya Musavini v. Soita Peter Shitanda & 2 Others were all struck out inter alia
because the petitioner did not prove that he had exercised due diligence in attempting to serve
the respondent before resorting to other modes of service.
In terms of service, Rule 10 provides that the person elected may “...at any time after he is elected
send or leave at the office of the Registrar a notice in writing signed by him or on his behalf,
appointing an advocate to act as his advocate in case there should be a petition against him, or
stating that he intends to act for himself, and in either case giving an address in Kenya at which
notices addressed to him may be left or if no such writing is left all notices and proceedings may
be given or served by leaving them at the office of the Registrar.” This is the closest the Act
comes to requiring an elected person to avail themselves to service. Returning to Kibaki v. Moi,
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it could be argued that, yes, members of parliament, returning officers, and successful candidates
at general elections are a different breed of people considering the gravity and importance of an
election. It might be worth considering making it imperative that the winning candidate, the
electoral commission and its returning officers must, for the 28 day period, actively avail
themselves for service or appoint an advocate under Rule 10 because it is very likely that there
will be election disputes following an election.
In Election Petition 1 of 2008 Ayub Juma Mwakesi v. Mwakwere Chirau Ali & 2 Others Sergon J.
High Court Mombasa the court considered whether a returning officer can be deemed to have
been duly served if the Electoral Commission of Kenya is shown to have been validly served.
The Judge ruled that all respondents must be served according to the manner prescribed
otherwise the petition will be deemed invalid. Appropriate service upon the Electoral
Commission does not extend to mean that its returning officers have also been duly served. He
explained that the returning officer must equally be served in order to enable the Returning
officer to participate in the election petition. The Judge however observed that the question
addressed herein raises important issues that ought to be looked into by legislators. He explained
that the duty of the Electoral Commission is amongst others the conduct of free and fair
elections. It is therefore imperative that at the end of an election the Commission as well as its
officers and returning officers avail themselves to receive and accept service. He labelled it
absurd that the 2nd Respondent, a returning officer, would seek to have a petition struck out for
want of valid service because it is the very obligation of the officer, in the interest of the
constitutional duty of conduct of free and fair elections, to ensure that any petition is received
and addressed to ensure the legitimacy of the process as well as maintain the confidence of the
public in the electoral system. Although not cited herein, the court was probably led by the Court
of Appeals decision in Mudavadi v. Kibisu which held that the returning officer must be made a
respondent and service upon him must be effected in accordance with rules 10 and 15 of the
rules. Consider however the decision of the High Court in Election Petition No. 11 of 1998
Samuel Kamau Macharia vs. Electoral Commission of Kenya & 3 Others where the court held
that the ECK is the returning officers principal, and service on the ECK constitutes service upon
the returning officer.
The most stark example of failure of democratic process that can be occasioned by an almost
blanket judicial obsession with procedure is the petition concerning the parliamentary election in
Kirinyaga Central. In Election Petition 1 of 2008 Dickson Daniel Karaba v. Hon. John Ngata
Kariuki and 2 Others the 1st Respondent brought an application under section 20(1)(a) of the
National Assembly and Presidential Elections Act and Rule 14 (1) of the National Assembly
(Election Petition) Rules seeking for the Petition to be struck out on the ground that it was not
personally served upon the first respondent within 28 days after the date of publication of the
results of the Parliamentary Election or at all. The court found shortcomings and contradictions
in the evidence and affidavits produced by the petitioner who therefore failed to satisfy the
burden of proof laid upon him in respect of service of the petition. The court found on a
balance of probability that the first respondent had proved that he was not served with a copy of
the petition as alleged by the process server. Citing Kibaki v. Moi which held that the best
service of a petition is personal service of the respondent and not through a secretary as in this
case the court ordered that the petition be struck out on the ground that it was not served
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personally on the first respondent within 28 days after the date of publication of the results of
parliamentary election. Subsequently, during the IREC (Kriegler) Commission investigations,
they discovered that in Kirinyaga Central, the contested constituency in the above case, “...the
parliamentary candidate with most votes (when properly transferred and aggregated) had not
been declared the winner, as that honour was enjoyed by the candidate with the second highest
number of votes (and the returning officer from the constituency in question has in his evidence
accepted the correctness of IREC’s analysis).”22 Perhaps this case best reveals the dire
consequences of deferring to procedure occasioning a failure to consider the petitions on merit.
It betrays that the focus of the judiciary is more in election petitions as the litigation process
rather than election petitions as a potential indictment of the electoral process.
Strict Interpretation
Concerning strict interpretation of the provisions of the National Assembly and Presidential
Elections Act and its subsidiary legislation, the issue of substitution of a petitioner came up in
Clement Kungu Waibara v. Peter Kamau Njeri & 2 Others Civil Application 274 of 2008 (UR
179/2008); the provisions concerning substitution are contained in Rule 24 and 26 of the
National Assembly Election (Election Petition) Rules. In this case the court of appeal allowed
the application for a stay of proceedings in the High Court pending the hearing and
determination of the intended appeal. The applicant’s primary ground was that the High Court
should not have allowed for substitution of the petitioner because there was no room for
substitution of a petitioner in an election petition. The court was satisfied that the intended
appeal was arguable; it was arguable that substitution of the petitioner might have been made
without any application since what was before the court was an application to withdraw the
petition. Further it is not clear from the record whether the party substituted was able to comply
with Rule 28(3) of the National Assembly Elections (Election Petition) Rules as to the provision
of security within the time stipulated. This sort of decision frustrates the election petition
process; the relevant provisions of the rules are clear in this regard; indeed, the court ought to
have rules that it is in the public interest that where one petitioner applies to withdraw for
whatever reason, if there is a valid petition before the court, then the allegations made therein
should be thoroughly investigated. The challenge is to identify who or which institution can then
step into this void; the court might not be expected to do so as this might compromise its duty
to neutrally adjudicate.
In Election Petition 2 of 2008 Jayne Njeri Wanjiku Kihara v. Christopher L. Ajele & 2 Others
the petitioner’s main complaint was that the Returning Officer neither declared the results as
required nor did he complete the tallying and counting of the votes. He allegedly merely
declared that ‘this old man was a head of Mrs. by 100 votes.’ The petitioner averred therefore
that no true and complete election took place for both Parliamentary and civic seats. The
respondent’s brought a number of applications inter alia seeking orders to have the petition
struck out on grounds that inter alia the petition was fatally defective for failure to state the
holding and the results of the elections and the candidates who took part in the election, the
subject matter of this petition, were not named in the petition under rule 4(1) (b) and rule 4(4) of
the National Assembly and Presidential Elections (Election Petition) Rules.
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The court held that concerning the allegation that the petition failed to state the results of the
election, this was as a arguably as a result of a breach of the provisions of regulation 40 by the
returning officer a serious allegation that requires an inquiry that can only be done by setting the
petition down for hearing. Concerning the failure of the petition to state the other candidates
the court felt that this was not an anomaly that went to the substance of the petition. It a mere
deviation from the format occasioning no prejudice on any of the parties and therefore the court
can disregard it as a mere technicality as envisaged under section 23 (d) of the Act. Moreover the
names of other candidates and the results that were provided for in the earlier answer to the
request for particulars. Koome J explained that “[t]he primary duty of this court is to do justice
to all the parties and to enquire into the allegations without undue regard to technicalities. I find
the omissions complained about as mere oversight and irregularities which are merely technical
and do not deserve the drastic penalty of striking a petition.” Hence the court disallowed all the
applications to strike the petition by the respondents.
On appeal however, the Court of Appeal allowed the appeal and struck out the petition. It stated
that Regulation 40 on the announcements of election results clearly suggests that the result is not
confined to just declaring who won but must be detailed and include votes cast, votes spoilt, and
those garnered by each candidate. Emphasising that the issue in any election petition is the
result, in that format, of the failure to include in these details in a petition renders the same
incomplete and incurably defective as the basis for any complaint will be absent. Whatever
complaints a petitioner may be having about an election may be regarded as having no legal
basis. That these details were contained in the answer for particulars did not cure the fatal defect
in the petition. Particulars are furnished to clarify issues not to regularize an otherwise defective
pleading. In overruling the High Court decision and striking out the petition, the Court of
Appeal illustrates a strict adherence to the letter of the law, to form and to procedure. The lower
court interpreted s. 23(1)(d) to give the court discretion to identify and ignore those technicalities
that did not go to the substance of the petition and that did not prejudice any of the litigants.
The court, despite the High Court’s best efforts did not even get to examine the prima facie
serious allegations of impropriety by the returning officer that might have been committed
during this election.
The discretion conferred by s. 23(1)(d) has therefore been used very sparingly if at all. The courts
have continued to apply a strict interpretation of the provisions of statute. Following the
reasoning in Alicen J. R. Chelaite V. David Manyara Njuki & 2 Others, Civil Appeal No. 150 of
1998 that the mandatory provisions of legislation cannot be ignored. They are not mere
technicalities and failure to comply, particularly with the time schedules given in these provisions,
renders the petitions fatally defective. The courts adopted this reasoning in Election Petition No.
1 of 2008 Nambwa Sakaya Musavini v. Soita Peter Shitanda & 2 Others ; Election Petition 2 of
2008 Jayne Njeri Wanjiku Kihara v. Christopher L. Ajele & 2 Others; and Election Petition No.
4 of 2008 Masumbuko Mohamed Omar v. Gunda Benedict Fondo and 2 Other.
Inordinate Delays
In Election Petition No. 14 of 2008 Moses Somoine Ole Sakuda v. George Saitoti and 2 Others
filed on 21 January 2008 withdrawn on 14 July 2009 petitioner explained that the subsistence of
the petition before the court was causing unnecessary partition politics in North Kajiado
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Constituency hindering the development, causing conflicts and disagreements among the
constituents and affecting the making and implementation of various beneficial policy decisions.
Whilst not expressly mentioning delay as a ground for withdrawal, considering the substantive
progress of the petition during a year and a half of litigation, it is apparent that inordinate delay
frustrated the petitioner. In Election Petition 1 of 2008 John Koyi Waluke v. Moses Masika
Wetangula & 2 Others filed in January 2008, the petitioner, in a letter dated 4th November 2009,
complained of inordinate delays and intentional frustration of the trial process in regard to his
petition. The first judge Hon. Justice Karanja was replaced on 14 January 2009 by Hon. Justice
Msagha who was replaced on 3 February 2009 by Hon. Justice Ochieng. According to the
allegations in the letter, several months passed before the Petition could be heard because Hon.
Justice Ochieng withdrew from hearing the petition because of a conflict of interest having been
classmates with the 1st Respondent. Hon. Justice Muchemi was subsequently appointed. Further,
the latter judge was seated in two stations, Busia and Bungoma, hence delaying the hearing of the
petition even further. In Election Petition No. 10 of 2008 William Kabogo Gitau v. George
Thuo & 2 Others, the seating judge Hon. Justice Nyamu was appointed to the Court of Appeal;
it took the Chief Justice several months to appoint a replacement judge to hear the petition.
Hearing of the petition, filed on 21 January 2008 resumed on 8 February 2010. There are no
provisions in regard to the time scale within which the Chief Justice must appoint a judge to
replace another in an election petition. The only direction is in s. 19 of the Act which requires
petitions to be heard on a priority basis.
In several cases, the importance of election petitions has been mentioned; for example, in
Election Petition 13 of 2008 John Kiarie Waweru v. Beth Wambui Mugo and 2 Others which
cited Joho v. Nyange & Another [2008] 3KLR (EP) 500 the court stated that:
“Election petitions are no ordinary suits. Though they are disputes in rem fought
between certain parties, election petition are nonetheless disputes of great public
importance...This is because when elections are successfully challenged by-elections
ensue which not only cost the country colossal sums of money to stage but also disrupt
the constituents’ social and economic activities.”
Further in Wanguhu Ng’ang’a & Another v. George Owiti & Another, Election Petition No. 41
of 1993 the court stated that ‘election petitions should not be taken lightly.’ Instead of taking
these positions to mean that the court ought to do its utmost to hear these applications promptly
and on their merit because they involve the very democratic will of the affected people, it has
taken this to mean that procedure must strictly be followed and the standard of proof must be
relatively high and exactingly achieved.
Burden of Proof
Once the petitions go on to be heard and the allegations made in the petitions investigated, it is
very difficult to prove allegations of impropriety. The “burden of proving that a person is guilty
of an election offence is on the petitioner and his witnesses. That burden cannot be shifted to
the respondents to establish that they did not commit such electoral offences or malpractices.”23
The standards of proof are mentioned in a number of pre-2007 cases widely cited in post 2007
judgements: Muliro vs. Musonye & Another [2008] 2 KLR (EP) 52 explained the standard of
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proof required in establishing an election offence of bribery. Joseph W. Khaoya vs. Eliakim
Ludeki & another EP No.12 of 1993 (unreported) explained that “Election offences are serious
matters with grave penalties. They amount to criminal charges which should be proved. The
proof should be to a very high degree for the charges to be sustained before a court of law. We
are satisfied that that has not been done here.” The petitioners in Election Petition No. 6 of
2008 (NBI E/P 18/09) Abdulreheman Hassan Halkano v. Abdi Nassir Nuh and 2 Others,
Election Petition 13 of 2008 John Kiarie Waweru v. Beth Wambui Mugo and 2 Others and
Election Petition No. 2 of 2008 Simon Nyaundi Ogari and Zephaniah Moraro Nyangwara v.
Hon. Joel Omagwa Onyancha & 2 Others all failed to achieve the standard of proof in regard to
allegations of offences and corrupt practices committed by any of the respondents. Even in the
latter Ogari case in which the election was declared null and void, this was because of the failure
of the presiding officers to comply with the mandatory provisions of the Presidential
and Parliamentary Election Regulations and the incompetence of the returning officer during the
tallying process.
Beyond the Bench
Legislative Provisions
The burden of ensuring a just and progressive outcome to election petitions falls predominantly
but not solely on the bench. There are legislative provisions that definitely frustrate the court
process. As mentioned above, elections are a process throughout which offences which breach
the requirements for a free and fair election may be committed. Interested parties however
cannot bring these to the attention of the court until the results have been announced. The case
of Kimani Wanyoike v. Electoral Commission of Kenya & Another (Civil Application No. 213
of 1995) is particularly poignant in this regard. The Electoral Commission was refusing to accept
the nomination papers of a potential candidate; the latter sought a mandatory injunction from
the courts. The court of appeal dismissed the application stating that the only way to seek redress
for an offence under CAP 7 was through the institution of an election petition. So regardless of
the triviality or prejudice that a candidate is experiencing, they must bide their time until the end
of the process, until an election result is announced and published, in order to seek the courts
redress under the Act. The only other ways breaches may be brought to court is by the Electoral
Commission; breaches of the electoral code of conduct (schedule 4) under s. 43 of the act can
only be sanctioned by the ECK or by the High Court upon application by the Electoral
Commission. The Attorney General may institute proceeding under s. 6(3) and s. 11(3) of the
Electoral Offences Act for the prosecution for electoral offences; individuals and interested
parties cannot. There is not even a single case that has ever been successfully mounted by the
Attorney General under these provisions. It is important that there exist empowered
independent institutions, whether a court, tribunal or commission, that can deal effectively with
offences committed before and during the election process. Severe penalties for breach of the
electoral code of conduct and commission of electoral offences during the campaign and voting
period will greatly deter candidates from engaging in activities that later become the subject
matter of election petitions. This will contribute towards the speedy and comprehensive
conclusion of election petitions as it will protect the election process thereby reducing the
number of petitions and additionally, for example, ensuring that only significant allegations of
electoral malfeasance form the basis of election petitions.
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Additionally, some have argued that the requirement under section 21 of the Act, that a
petitioner deposit 250,000 within 3 days of filing the petition proscribes the principle of access to
justice. As in the case of Rotich Samuel Kimutai v. Ezekiel Kenyongopeta & 2 Others where the
Court of Appeal held that a delay in the deposit of the sum was fatal to the petition, the court in
Election Petition No. 1 of 2008 Esposito Franco v. Amason Kingi Jeffah and 2 Others found
this requirement mandatory and struck out the petition for non-compliance. The draft elections
bill has prescribes security of costs for presidential elections at 1 million, parliamentary at
300,000 and local government at 50,000 and increases the number of days within which the costs
shall be deposited to ten days.
Members of the Bench argue that the court can only apply and interpret the legislative provisions
governing the particular case and can only exercise their considered discretion where there are
lacunae or ambiguity in the relevant laws. Once the law is clear, some members of the Bench
argue, a judge cannot make law; in the Kenyan context therefore, you have a Judiciary struggling
to apply incompetent electoral laws to election petitions. Indeed, there is a strong and valid
argument for the amendment of laws governing electoral disputes and petitions. An analysis of
the election petitions emerging from the 2007 general elections does not reveal any breach of the
law; indeed, the judges have accurately and rigorously applied the law. Concerns have been raised
in regard to the legal regime governing election petitions in general: the National Assembly and
Presidential Elections Act and its subsidiary legislation. It has been described as one of the most
procedurally complex statutes designed and subsequently amended to protect elected members
and proscribe the petition process rather than facilitate efficient and just inquiry into the quality
and result of an election.24 For example, the problematic issue of service could be addressed by
simply amending the law to allow for personal service as well as service through advertisement or
requiring electoral officials as well as successful candidates to avail themselves for service for a
specified period following an election. The draft elections bill 2009 addresses this issue by
providing three ways by which a petition might be served: personally upon the respondent, by a
notice published in the Gazette or by notice published in any two daily national newspapers with
wide circulation.
Incompetent Election Management
The ineptness of officials and agents of the Electoral Commission continues to frustrate the
election petition process in the courts. As noted above, in Election Petition No. 2 of 2008
Simon Nyaundi Ogari and Zephaniah Moraro Nyangwara v. Hon. Joel Omagwa Onyancha & 2
Others the conduct and record keeping by the ECK officials and the failure to keep all election
materials in good condition for three months following an election means the loss of vital
evidence. In addition in Election Petition 3 of 2008 Manson Oyongo Nyamweya v. James
Omingo Magara and 3 Others and Election Petition No. 1 of 2008 Ayub Juma Mwakesi v.
Mwakwere Chirau Ali & 2 Others the incompetence of the electoral officials was
comprehensively revealed. In the latter case the Judge went so far as to state: ‘This case is now
proof that ECK deserved to be disbanded, as it was the mother of the chaos and may-hem that
followed the elections of 2007.’ In Election Petition 4 of 2008 Moses Nyambega v. Walter
Enock Nyambati Osebe and 2 Others the returning officer was strongly reprimanded for it was
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discovered during the trial that he had lied under oath in denying that he was aware of a petition
against him. As the judge stated in the Ayub Juma Mwakesi case above, it is the obligation of all
the electoral officials to ensure that the entire electoral process is free, fair and justly conducted
including the petitions. They therefore have an even stronger obligation to be candid and
truthful during the proceedings. As is explained under the section on inordinate delay, provision
must be made for efficient election dispute management. The ICJ position is that before every
general election, a separate election court must be constituted to hear election disputes and
election petitions; others have suggested that before the elections, a panel of 5 to 6 judges should
be selected to exclusively hear election petitions.
Lack of manpower
The Judiciary is also crippled by a widely documented manpower problem; currently there are 46
High Court judges, 11 Court of Appeal Judges and about 320 magistrates. This leaves the
Judiciary too thin on the ground; this was recognised in the Report of the Taskforce on Judicial
Reform (Ouko Report).25 The report cited the major problem within the Judiciary being the
backlog and delay of cases and proposed that vacant High Court and Court of Appeal judge
posts should be filled immediately, temporary judges should be appointed to help clear the
backlog, the report recommends and the number of puisne judges be increased to 120 while
Judges of Appeal be increased to 30. It also recommended the inter alia the appointment of
Commissioners of assize and the recruitment of additional Magistrates, standardization and
automation of court processes, the establishment of weekend and 24hr courts, the review of
court procedures and processes, and the introduction of ADR. All these recommendations relate
to delays in the hearing of electoral petitions; members of the Bench have drawn attention to the
excessive burden in having to hear regular matters, murder cases, appeals, administrative
processing as well as expediently hear election petitions particularly in certain stations where
there is only one high court judge. Additionally, in regard to administrative duties, the Judicial
Service Commission does not have a functioning secretariat and it is left to the registrar’s office
to handle all relevant matters.
Lack of resources
The budgetary allocation to the Judiciary was increased from 0.2% to 0.5% of the total budget in
2008; in comparison, Parliament, which only has one station in Nairobi and a staff of
approximately 700, receives a budgetary allocation of approx. 1.5%. Compare this to the
Judiciary which has 110 court stations and a staff of over 3500 spread across the country.1 In his
2009 Budget Speech, the Finance Minister outlined the government’s plans to fast-track reforms
within the Judiciary towards expediting service delivery and the faster disposal of commercial
and civil cases. The Judiciary was allocated Kshs.3.1 billion, of which Kshs. 250 million will be
used to fund the pilot phase of the automation and modernization of our courts and employ 20
additional Commissioners of Assize initially in Nairobi. In regard to automation, it might appear
that this only addresses the symptom and not the problem; perhaps the noting down of each
particular in the case allows the judge to become intimately acquainted with the evidence and
arguments therein. The problem is the high number of cases and the low numbers of judicial
Recurrent expenditure for the Judiciary – 1.5 Billion; for Parliament – 5.7 Billion
http://government.marsgroupkenya.org/
1
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officers. Indeed, the introduction of stenographers might actually increase the workload on
members of the bench.
The lack of financial autonomy is also a significant obstacle to the operations of the Judiciary as
well as a factor compromising the principle of separation of powers. Currently in having to rely
on the Exchequer for disbursement of monies, the Judiciary is encumbered in its function by
executive control; indeed, even in regard to simple resources such as stationery, the lack of
control over their resource requirements constitutes a significant encumbrance to the judicial
function. The Judiciary have requested for “...financial independence subject only to
accountability to the National Audit Office and...[a] budget entrenched in the Constitution on
the basis of a fixed factor or percentage of the National Budget as a charge on the consolidated
fund.”2 In this regard the Harmonized Draft Constitution published on the 23rd of February
2010 established a Judiciary Fund to be administered by the Chief Registrar of the judiciary for
the administrative and other functioning expenses of the judiciary. Under the provisions, the
Chief Registrar would prepare estimates of expenditure for the following year, and submit them
to the National Assembly for approval; upon approval, the expenses of the Judiciary would be a
charge on the Consolidated Fund and the funds shall be paid directly into the Judiciary Fund.
This concern therefore might be addressed should the proposed constitution be adopted thereby
enabling the Judiciary to control, account for and allocate its own resources.
Advocates and Litigants
Advocates and/or litigants must also shoulder the burden of a flawed election petition process
appearing to intentionally frustrate the proceeding as well as the submission of inept
submissions. It had been noticed that “...Respondents have been seen to call very many
witnesses to cover virtually all allegations made against him...the result has been a prolonged trial
process.”26 An example is the request for more particulars made in Election Petition No. 1 of
2008 Ayub Juma Mwakesi v. Mwakwere Chirau Ali & 2 Others that was deemed to be
intentionally frustrating the court process. In Election Petition No. 1 of 2008 Esposito Franco v.
Amason Kingi Jeffah and 2 Others it further appears that the petitioner’s advocates were either
negligent or ignorant of the law hence resulting in the dismissal of the petition. In Election
Petition 2 of 2008 John Githui Mithamo v. Robinson Njeru Githae and 2 Others the
proceedings suggest that the petitioner and the process server therein were less than candid. It
cannot therefore be assumed that all petitions struck out are as a result of the courts strict
application of the personal service rule or the strict interpretation of statute. Considering that the
statute is clear and the courts strictly apply its provisions, litigants, advocates and process servers
ought to endeavour, for example, to ensure they exercise due diligence and present
comprehensive affidavits of service to the court to prevent petitions from being struck out on
technicality.
Indeed members of the Bench describe the conduct of advocates as a critical and primary
impediment in the frustration of the court process during the hearing of election petitions. It is
widely recognised that advocates hold the view that ‘once the ballot boxes are opened, the
Judiciary of Kenya (2009) Response by the Judiciary on the Harmonized Draft Constitution (Nairobi: Judiciary of Kenya) at
p. 23
2
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elections will most likely be nullified;’ and therefore, on numerous occasions, they employ all
sorts of tactics to prevent, in particular, the verification of results through tallying and scrutiny of
votes or indeed the hearing of the petition generally. It is expected that advocates will do their
utmost to defend and protect their client’s interests; it is therefore up to the courts as well as the
law to prevent abuse of the court process. A primary problem identified by practitioners and
commentators is that of interlocutory applications as well as appeals on rulings of the court. An
example of the court clamping down on applications was the practice of the court in Election
Petition No. 10 of 2008 William Kabogo Gitau v. George Thuo & 2 Others where the judge
ordered that all interlocutory applications be made within a few days; after which, the judge
declared the case would be heard on a continuous basis for 19 days without exception (the only
exceptions being death or withdrawal!). In regard to legislative provisions, the law can proscribe
applications during the hearing process, allow for pre-trial case management where certain
matters can be dispensed with before going to trial perhaps through a court mediation system
that allows for arbitration between parties and for the judge to take an active role in dispensing
with technicalities before substantive hearing. Another possibility is the limiting of appeals
during the hearing process; perhaps expressly prohibiting appeals on interlocutory applications
during the hearing of the petition. In regard to inordinate delay it is clear that witnesses must be
accorded adequate time to give their testimonies; however, litigants can frustrate the court
process through their witnesses taking too long giving their evidence or through parties calling
very many witnesses.
Particularly where the respondent is an incumbent member of parliament or a a member of the
previous government, abuses of executive power and interference with the judicial process
become more acute. In the Election Petition 15 of 2008 Mahamud Muhumed Sirat v. Ali Hassan
Abdirahman and 2 Others the court found that the claim of the 1st respondent, an assistant
minister, that the petitioner was a foreign national was meant to derail and frustrate the hearing
of the petition. A day before the planned scrutiny in this case, police officers took the petitioner
from his home and attempted to deport him. The minister for immigration had interfered with
the process by issuing a deportation order which another court subsequently found to be
invalid.27 This is symptomatic of other incidences of executive interference that affect the ability
of the Judiciary to execute its duties; due to the nature of the constitution of the judicial service
commission that hires judges, it is possible for the executive to compromise the integrity,
authority and dignity of the Judiciary and manipulate and frustrate the appointment of necessary
manpower.28 Further, declarations and statements by the ministers for justice and constitutional
affairs in the recent past in regard to freezing the appointment of new judicial officers or having
a level of control in that process further compromises the principle of separation of powers.29
On a point for discussion, is there a dialectic of mistrust between the Bench and litigants many
of whom are/were Members of Parliament? I suggest this because election petitions tend to be
brought by the runner up only or by voters or constituents who support the runner up. The fact
that other candidates (save the example in the Ogari case) are not involved in the petition,
suggests a disinterest in elections as a free and fair process. One could argue that the 250,000
security deposit is inhibitive, but this cannot be the case as the deposit only has to be paid by
once and not by each respondent. Nonetheless the cost of pursuing an election petition is
extremely prohibitive. Despite opinion that an election petition is brought in the public interest
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towards safeguarding the democratic process, litigants whose petitions fail face costs in the
millions of shillings; this therefore discourages potential petitioners.
Concepts for consideration
International standards
International norms as to the right to periodic, free and fair elections are contained in Article 21
of the foundational Universal Declaration on Human Rights30 and Article 25 of the International
Convention on Civil and Political Rights.31 Article 3 of the Constitutive Act of the African Union
includes among the Union’s objectives the promotion of popular participation and good
governance; Article 4 affirms the principles underlying the Union, including non-interference in
the respect for democratic principles, human rights, the rule of law and good governance. Article
13 of the African Charter on Human and Peoples’ Rights also entrenches the peoples’ right to
participate freely in government and to free chosen their representative. The Assembly of Heads
of State and Government of adopted the ‘Declaration on the Principles Governing Democratic
Elections in Africa’ where is calls on members to ensure good governance through popular
participation; Part II outlines the principles of democratic elections stating that elections are the
basis of the authority of any representative government and constitute a key element of the
democratization process. Article 4 requires that elections be held freely and fairly, at regular
intervals by impartial, all-inclusive competent accountable electoral institutions; under
democratic constitutions and in compliance with supportive legal instruments; under a system of
separation of powers that ensures in particular, the independence of the judiciary.
The Inter-Parliamentary Council adopted the Declaration on criteria for Free and Fair Elections
in 1994 setting out the principles and guidelines for the conduct of elections in a democratic
society.
All the relevant instruments, policy papers and opinions recognise the centrality of an
independent and competent judiciary to the achievement of free and fair elections. Kenya is a
party to most the above instruments which gives the courts extensive source of law upon which
to judge the standard of elections process as well as the commission of any breaches thereto by
participants and relevant institutions. These supplement the provisions in the Constitution, the
National Assembly and Presidential Elections Act, the Election Offences Act, the Local
Government Act and the Political Parties Act. These instruments therefore set out the rights that
must be enjoyed, throughout the election process, by all parties in order for an election to be
considered free and fair; that the election produces an outcome that reflects the will of the
citizenry. The role of the courts therefore is ensuring that these rights are enforced and
unencumbered and that those institutions and mechanisms mandated to ensure the security of
these rights carry out their duty accordingly. In order for the courts to carry out this function it
must be widely accessible, it must proffer timely and effective remedies, it must adjudicate
transparently and in a fair and just manner.
Though it is important to import from and consider international standards and best practices, to
think that there is a standard template that applies across the board is also to err. The particular
contextual dynamics must be taken into consideration. For example, if a comparison was made
between the processing of election petitions in Kenya and the practice in ‘more established’
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regimes such as the United Kingdom and Australia, one might see similarities in that very few
election petitions succeed. But within the context of each of the electoral processes, a different
much more unbalanced picture emerges. Because of the characteristics of Kenya’s legal system,
the incendiary nature of our politics, and the socio-economic and cultural circumstances perhaps
it is not advisable to follow the templates that appear so stable and feasible in other jurisdictions.
For example, whilst in the United Kingdom the main interest in time scales might be finality, in
Kenya we might see it wise to expand the time scales and privilege debate over the election
process rather than focus on the finality of results.
Judicial Activism
Terminology
Judicial Activism has been described as a ‘notoriously slippery term;’ 32 “...from the beginning,
there was no single, accepted definition of ‘judicial activism.’ The term has always embodied a
variety of concepts;”33 Hon Mr. Justice Bhagwati, the former Chief justice of India describes as a
‘perennial controversy’ in commonwealth jurisdictions as well as the United States the question
as to whether “...the judicial function in a democracy should be characterised by judicial activism
or it should be qualified by judicial restraint.”34 Cohn describes judicial activism as “...action that
extends beyond the role or function of the courts in liberal constitutional polities.”35 Concerning
current opinions on the subject, what emerges is what various commentators mean by the term
differs according to what perception on the role of the judiciary they hold or what perspective of
judicial function they are addressing. Therefore, rather than identify a definition, let us first look
at a brief history of its usage and the principles that underlie the term.
A Brief History
Bhagwati explains that we are at the synthesis of a two thousand year old problematic; on the
one hand, Plato asked: “Is it more advantageous to be subject to the best men or the best laws?”
He found that “...laws are by definition general rules and generality falters before the
complexities of life.” On the other, Aristotle disagreed, favouring the rule of law: “He who bids
the law rule, bids God and reason rule...” Our current justice systems plug the gap between these
two positions; “[t]he judge is required not only to temper his role to the individual case, but to
constantly invent new rules to more justly handle recurrent fact situations that the law has not
fully anticipated.”36 This mirrors Fitzpatrick’s thesis on modern law’s foundational embrace of
seemingly opposite attributes: “...the demand for assured position integrated with a
responsiveness to all that is beyond position.”37
The earliest scholarly debates over what we can now refer to as judicial activism were over the
concept of judicial legislation, which is judges making positive law, discussed amongst prominent
18th Century jurists. Quoting Cosgrove: “[w]here Blackstone favored judicial legislation as the
strongest characteristic of the common law, Bentham regarded this as a usurpation of the
legislative function and a charade or ‘miserable sophistry.’” 38 Austin, Bentham’s pupil, later
rejected Bentham's view and in his lectures on jurisprudence defended a form of judicial
legislation. The term ‘judicial activism’ itself was coined in 1947 by a non-legal writer Arthur
Schlesinger Jr. to describe the split amongst the United States justices of the Supreme Court
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“...over the interpretation of legislation and the proper function of the judiciary in a
democracy.”39 He’s description of the split is telling:
“One group regards the Court as an instrument to achieve desired social results; the
second as an instrument to permit the other branches of government to achieve the
results the people want for better or worse. In brief [one] wing appears to be more
concerned with settling particular cases in accordance with their own social
preconceptions; the [other] wing with preserving the judiciary in its established but
limited place in the American system.”40
This activism ‘perceived legal reasoning as malleable, rather than scientific’; believed that ‘law
and politics are inseparable’; they saw “judicial decisions as ‘result-oriented,’ because no result is
foreordained.”41 There are no right answers and therefore policy concerns are paramount.
“The resources of legal artifice, the ambiguity of precedents, the range of applicable
doctrine, are all so extensive that in most cases in which there is a reasonable difference
of opinion a judge can come out on either side without straining the fabric of legal
logic...A wise judge...knows that political choice is inevitable; he makes no false pretense
of objectivity and consciously exercises the judicial power with an eye to social results.”42
The Australian Justice and former President of the ICJ Hon Justice Kirby noted that “...in a real
sense the common law itself is the product of ‘judicial activists’.”43
The other group is ‘more skeptical of individual judges' notions of justice’ holding it ‘unfair and
unjustifiable to force one's view upon others.’ “To them, laws have fixed meanings, and
deviation from those meanings is inappropriate, no matter which groups may benefit from the
departure.”44 This school Schlesinger explained seeks to resist judicial supremacy in the name of
deference to the legislative will “...and rests on faith in the separation of powers and the
democratic process.”45 ‘[A]ll law is not politics;’ the ‘common law, statutes, and the Constitution
are not ‘empty vessels.’’ There is meaning... and there are right answers. Judicial activism would
lead “...toward a state of judicial despotism that would threaten the democratic process.”46
Detailing a history of the term, Kmiec notes that though at times ‘judicial activism’ has been
used to describe a praiseworthy judicial attribute, generally, even from its earliest use, the term
has generally had a negative connotation. This centres around the debate between various
positions: an unelected bench versus democratically enacted statutes; results-oriented judging
versus principled decision-making; strict versus creative use of precedent; democratic supremacy
versus human rights; law versus politics.47 He however asserts that “[u]sing ‘activist’ as a
substitute for ‘bad’ elides important differences between the two labels; it fails to elucidate the
specific ways in which a judicial opinion is improper, harmful, or wrong.” 48 Indeed, Rogers and
Vanburg undertook an economics study to compare the outcomes generated from of legal
models that embrace legislative supremacy to outcomes generated in a system in which judicial
review is provided by a legally unprincipled (i. e. Judges who deploy the judicial veto only to
advance their class-based policy preferences rather than to advance any conception of public
welfare or principled constitutionalism), activist judiciary. They concluded that “[c]ontrary to
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traditional criticisms...we show that unprincipled judicial activism can improve both the
distributive fairness and the efficiency of legislation relative to systems in which courts defer to
legislative policies.”49 The next section tries to expand on this caveat, clarifying the character and
limits of activism and processing the various positions in support of a judicially active bench.
Principles and Concepts
Justice Kirby identifies four ‘guideposts’ when assessing the opportunities and limits of judicial
activism: opportunity; need; inclination; and methodology.50 Opportunity: ‘Courts do not choose
their controversy’ except through the gateway of appeal; however, they can signal issues; they can
“afford a welcoming environment for legal innovation or one which repels every attempt at
change.”51 The nature of the adversarial legal process prevents ‘purely idiosyncratic judicial
change.’ The tradition of law as opposed to public policy is one of incremental, interstitial
change. We must be contextually sensitive; in the face of blatant injustice, interstitial change
might not be adequate.
Need: The limit on the legitimacy of Judges which places a check on their creativity derives from
the fact that they are not elected and are appointed and removed by elected officials. Kirby
suggests that the failure of legislation leaves the courts inclined to identify areas suitable for
judicial development and reform especially in areas of judge-made rules and of procedure where
they have the expertise and experience “and see the unjust results of unreformed laws and
practices.”52 This need is particularly acute in the Kenyan context, the failure of parliament to
institute law reforms and the abuse of executive power perhaps places relatively more
responsibility upon the judiciary in Kenya.
Inclination: I interpret this ‘guidepost’ to mean that character of the judges themselves will even
things out. Some personalities are more conservative, others more liberal, others more restrained,
and others more adventurous. Nonetheless, all must be committed to move the law forward
when the opportunity arises.“Even dissenting judgements can play an important part in
furthering new ideas and promoting the eventual emergence of new principles.”53
Methodology: The nature of adversarial litigation places limitations on the subject matter a judge
can consider. Litigants are not interested in legal development, just winning the case.
Nonetheless “the stimulus to new legal authority must often come from the judge’s own reading
and perceptions stimulated by a sense of grave injustice to which the law or legal procedures
seem directed.”54 In adopting ‘a new protocol or methodology for the judicial function’ judges
must remember they are not free agents; but limited ‘by the very nature of the judicial function’.
The must remain ‘within the framework of judge-like activity in a court disposing of real cases
for real parties in a true dispute’ otherwise they risk “expanding their procedures to take on the
appearance of a legislative committee and enlarging their function beyond the disposal by
reference to legal norms of the case before them.”55
Kmiec identifies five core meanings of ‘judicial activism’: the invalidation of the arguably
constitutional actions of other branches; the failure to adhere to precedent; judicial ‘legislation’;
the departure from accepted interpretive methodology; and result-oriented judging.56 As we
stated earlier, perceptions on and definitions of the term ‘judicial activism’ depend on the
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theoretical base from which one approaches; the first core meaning herein focuses on the
principle of separation of powers therefore, Jones describes it as “...any occasion where a court
intervenes and strikes down a piece of duly enacted legislation;”57 Graglia describes it as “...the
practice by judges of disallowing policy choices by other governmental officials or institutions
that the Constitution does not clearly prohibit.”58
Concerning the second core meaning, Kmiec reminds us to differentiate between vertical and
horizontal precedent as well as constitutional, statutory and common law precedent. Kmiec
asserts that “...the act of disregarding vertical precedent qualifies as one kind of judicial
activism.”59 In regard to election petitions, this aspect of activism (disregard of vertical
precedent) has been encountered in the Abu Chiaba case where the High Court attempted to
fault the judicial reasoning of the Court of Appeal in the Kibaki v. Moi case in regard to the
requirement of personal service being the best and required mode of service. Recently in the
Kihara case the High Court tried to overrule some of the Court of Appeal’s judicial reasoning in
Alicen J. R. Chelaite vs. David Manyara Njuki & 2 others Civil Appeal No. 150 of 1998.
Horizontal precedent is “...the doctrine requiring a court to follow its own prior decisions in
similar cases;”60 Kmiec then suggests that it is judicial decision is activist where it overrules
horizontal precedent. A ‘more complicated and debatable matter’ than vertical precedent, Kmiec
describes how in the United States while it is mainly the bench that deplores this species of
activism, the position is not very clear.61 In regard to stare decisis and the constitution, some
scholars have held that it is indeed the obligation of the courts to overrule erroneous horizontal
precedent in order not to elevate judicial doctrine over the Constitution itself.62 In the Kenyan
context, reading the sources of law, we could refer to constitutional precedent, statutory
precedent, subsidiary precedent and customary precedent.
The third core meaning, judicial legislation, has a particularly controversial history and connects
closely with the first core meaning concerning the separation of powers. The argument involves
court decisions that essentially usurp the powers of executive and legislative bodies by engaging
in policy making. Grounded conceptually in the principle of each branch of government
adhering to its own function, advocates of judicial restraint assert that “...courts are limited to
decision-making in concrete cases and controversies according to standards already established
by law.”63 Questioning the role or function of a judge in a democracy, Bhagwati asks whether the
function of a judge is to merely declare the law as it exists or to make law. The Anglo-Saxon
position is that the judge does not make law, he interprets it; in this phonographic theory of
judicial function the judge reflects the intention of the legislature. He criticises this view for
hiding the real nature of the judicial process.64 He describes it as a ‘fiction’ that judges are
“...merely carrying out the intention of the legislature or discovering the immanent something
called law.” “There can be no doubt that judges do take part in the law-making process...all
perceptive jurists recognise this creative function of the judicial process;” what Mr. Justice
Holmes describes as ‘interstitial legislation’.
Ndung’u stresses that “the judiciary should not shy from addressing a political question...the
judiciary and specifically the election court, should adopt the principle of judicialisation of
politics...it involves a courageous attempt to solve political questions that are amenable to judicial
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resolution.”65 Bhagwati explains that a purely political question cannot be entertained by the
court; “But merely because a question has a political complexion, that by itself is no ground why
the court should shrink from performing its duty to adjudicate if it raises an issue of
constitutional or legal determination.”66 Kmiec explains that in the United States, though some
scholars argue that “...the Court should not be the final expositor of the Constitution for all
branches of government, the vast majority of legal scholars’ argue with equal vehemence
that...the Supreme Court can and should declare what the law is, even in difficult or politically
sensitive cases.”67 Lord Scarman asserted that “...a fundamental truth is that law and politics
cannot, and at a higher level must not, be kept separate.” Others have explained that ‘no exercise
of constitutional or legal power is beyond the scrutiny of the Court.’ This, I contend, includes
the parliamentary function of drafting legislation, a point the Kenyan Bench might do well to
note. Sorabjee pointed out that: “...indignant critics forget that it is the Executives failure to
perform its duty and the notorious tardiness of legislatures that impels judicial activism and
provides its motivation and legitimacy...the judiciary cannot procrastinate. It must respond.”68
However, though Bhagwati insists that “...something more is expected of a judge than imitative
reproduction, the lifeless repetition of a mechanical routine...when a law comes before a judge,
he has to invest it with meaning and content;”69 the self-avowed judicial activist defers to the
strict letter of the law where the language is clear and unambiguous. Similarly, though the activist
Justice Kirby states that “[w]e must continue to find the sources of our discipline in legal
authority. But when new problems arise, when the common law has no exactly analogous
decision or where (as is so often the case) the Constitution or legislation is ambiguous, we must
also look to legal principle and legal policy.”70 As with most commentators they limit judicial
activism to these parameters; does this mean the end for activist aspirations in the face of clear
unequivocal legislation? We need to actively debate the situation where the law is clear and
unambiguous but nonetheless, from judicial experience, unjust or obstructive to the ends of
justice. In the Kenyan context, another argument for strong judicial activism in this regard could
be raised; the argument for the supremacy of legislative provisions is that the laws were created
by a democratically elected parliament, chosen by the people, to legislate on all aspects of social,
political, economic and cultural activity in the state. In the Kenyan case, majority of our laws are
hangovers from a colonial and subsequently much less democratic period; many are indeed
concerned with proscribing the rights of the citizenry or conferring on state agents considerable
powers that are open to, and often are abused. Even those statutory provisions and regulations
that are not expressly prohibiting might, in the current circumstances, be unreasonable as is often
illustrated through judicial experience and the litigation process. In this case therefore, it is
perhaps imperative that the courts take the lead in remedying these provisions particularly in the
face of a disinterested and/or slovenly legislature.
The fourth core meaning involves the departure from accepted interpretive methodology. The
appropriate methodology depends on how one interprets the statutory and constitutional
provisions. Therefore, labelling a decision activist or not depends one’s position in regard to
interpretation. There are two aspects to this definition of activism: judges can disagree on the
kind and number of decision making tools or they may agree on the tools used, but apply them
differently from case to case. Interpretive methodology speaks to the interpretation of statutory
and constitutional provisions as well as the consideration of evidence and argument (e.g. the
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provision of sufficient information and material and the availability of relevant witnesses) during
the litigation process itself. In Kenya, the position is clear; there is generally a strict adherence to
the text of statutory provisions and a reluctance to adapt decision making to the particulars of
the petition or the wider requirements of justice. In this sense therefore, any decision that moves
beyond these normative boundaries, can be considered activist.
The fifth core meaning concerns result-oriented judging: “Judicial activism means not the mere
failure to defer to political branches or to vindicate norms of predictability and uniformity; it
means only the failure to do so in order to advance another, unofficial objective.”71 In regard to
Kenya, the Kibaki v. Moi case might be an example of ‘activism’; where the court showed
interpretative flexibility towards achieving the ‘unofficial objective’ of avoiding litigation on the
valid election of an incumbent president. However, it is difficult to ascertain if a particular
decision was made towards a certain objective, be that objective magnanimous or manifestly
unjust. However, in the Kenyan context, the maintenance by the bench of the status quo has
built a general perception that the courts objectives and those of the executive and the elites are
tied. It is therefore considered activist when a petition succeeds especially against a prominent
politician despite the fact that, on the reading of the judgement itself, the decision was nothing
more than the patently correct one.
The Debate in Praxis
“In the United States of America, the tension between judicial activism and judicial restraint has
been present since the foundation of the republic and the creation of the supreme court.”72 The
Supreme Court is suggested often oscillates between the ‘activist’ and ‘restraint’ camps
depending on who has been appointed to serve. In the United Kingdom, a lively debate has
taken place since the 1960’s concerning the relationship between the courts, the ministers and
parliament. In 1968 Lord Wilberforce noted the ‘enthusiastic expansion of judicial review since
1968’. In 1996 Lord Irvine initiated a debate in the Lord’s on the relationship between judicial
review, government policy and statutes of parliament. The Lord Chancellor, whilst supporting
the view that judges had developed the law of the land noted that “...[t]he extent to which that is
permissible for them is not easy to formulate...Development of the law is part of the traditional
role of the judges...It has been a healthy and powerful influence on the law...and the protection
of our people...when it has been done, and it continues with complete health and robustness at
the present time.”73
The courts in the United Kingdom have been particularly active in regard to participating in
social decision making since the passing of the Human Rights Act 1998. The House of Lords
decision in A v Secretary of State for the Home Department is illustrative of this increasing
activism. The appellants had been detained under the Anti-terrorism, Crime and Security Act
2001 s.23 on the ground that they posed a risk to national security; they had been detained
without charge or trial in accordance with the derogation from Art. 5(1)(f) of Sch.1 Part I of the
Human Rights Act 1998 permitted by the Human Rights Act 1998 Order 2001 . That Order had
been enacted to deal with the perceived terrorist threat from Al-Qaeda after the terrorist attacks
in the US on September 11, 2001. In an appeal from a decision in the Court of Appeal, the
Lords held that the decision to detain one group of suspected international terrorists, defined by
nationality or immigration status, and not another could not be justified and violated Art.14 of
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the Human Rights Act. It was also a violation of the International Covenant on Civil and
Political Rights Art.26 and so inconsistent with the UK's other obligations under international
law within the meaning of Art.15 of the European Convention on Human Rights. Because of
those obligations, the UK could not rely on the old rule that a sovereign state could control the
entry of aliens into its territory and their expulsion from it. The 2001 Order was quashed and it
was declared that s.23 of the 2001 Act was incompatible with Art.5 and Art.14 of Sch.1 Part I of
the 1998 Act in so far as it was disproportionate and permitted the detention of suspected
international terrorists in a way that discriminated on the ground of nationality or immigration
status.
The debate is lively in another common law jurisdiction, Australia. In the 1950’s Chief Justice
Dixon explained the position “Close adherence to legal reasoning is the only way to maintain
confidence of all parties in federal conflicts...There is no safer guide to judicial decisions in great
conflict that an strict and complete legalism.”74 The reasoning therefore was the extension of
settled legal principles to new cases and to take due note of unforeseen circumstances but not
the abandonment of precedent and fundamental principles ‘in the name of justice or of social
necessity or of social convenience.’ But in 80’s and 90’s the courts in Australia progressively
interpreted constitutional principles in certain circumstance to the extent that “the Federal
Attorney General stated that the Government would seek to reverse the trend towards an
interventionist High Court.”75 The Attorney General herein was also critical of the failure of the
other two arms, parliament and the executive to introduce the necessary reforms explaining that
‘such reforms should be made by the elected representatives of the people rather than by
unelected judges.’ This we can take as an example, of a judicially active court positively
influencing the other arms of government towards the proper performance of the legislative and
administrative duties.
It is widely known that the Supreme Court in India is relatively activist; in the Jain Hawala Case
for example, the Supreme Court of India actively supervised and pressed the Central Bureau of
Investigation in India to undertake investigations into alleged corruption involving high level
government officials. When interviewed about his role in the case, Justice J. S. Verma stated that
the judiciary will continue to respond to the changing needs of the time; treating the law as a
living organism. When asked ‘[h]ow does it feel to have shaken the entire polity?’ he replied “...it
proves that an average man like me can achieve extraordinary results by making extraordinary
efforts.” Justice Kirby commented that:
“...there is general belief or understanding that the Supreme Court of India, and the High
Court under its leadership, have been particularly creative and imaginative in the
development of the constitutional and common law of [India]...the Indian courts...have a
respected reputation for creativity and ingenuity in the development and adaptation of
common law to the enormous contemporary problems and opportunities of this
country.”76
“In India, by the expansion of the law of standing, the courts have enhanced their utility to
prevent infringements of fundamental rights.”77 Further, the Supreme Court in India has adopted
the practice of accepting letters and telegrams addressed to it as writ petitions; Justice Kirby
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explains while some have criticised the endeavour, “...it has often been the way by which the
Court has transformed a purely theoretical right, and a hypothetical application of the rule of
law, to the actual enforcement of the law in a way that brings justice under the law to the mass of
people.”78 Citing the extraordinary case of S P Gupta v. Union of India, Justice Kirby suggests
that perhaps it is the particular circumstances of India which propel its courts towards the radical
refashioning of the law and the reconceptualisation of the role of a modern judiciary in a free
society.
Bhagwati suggests a difference between ‘technical activism’ and ‘juristic activism’. The former is
‘concerned merely with keeping juristic techniques open ended’ maintaining the judges freedom
of action. The latter, is concerned with more; with ‘the creation of new concepts, irrespective of
the purpose which they serve;’ for example the concept of negligence in Donoghue v. Stevenson.
He further cites numerous examples where the English Courts have through judicial activism,
elaborated new principles of common law by invoking the European Convention on Human
Rights and the International Covenant on Civil and Political Rights. There are other cases of
activism across the board; the United States Supreme Court rulings in Baker v Carr and Brown v.
Board of Education for example. In India, examples abound where the courts have developed
administrative law through techniques of judicial activism: Maneka Gandhi case79, Motilal
Padampat Sugar Mill case80, International Airport Authority case81, Keshavanand Bharati case82
all demonstrate “...how judicial activism can expand the reach of administrative law with a view
of curbing and controlling executive discretion and ensuring the basic human rights of the
citizen.”83
The Supreme Court of India faced a legitimation crisis: how could it turn away all the claims and
demands for social justice and still claim to be the court for all citizens of India? In response, it
revolutionised the judicial process through the strategy of Public Interest Litigation (PIL);
“...[expanding] the frontiers of fundamental rights and of natural justice and in the process
rewrote some parts of the Constitution.”84 Through the innovative strategy of PIL, the Supreme
Court brought justice closer to the people enhancing its credibility; using international human
rights standards, civil, political, economic and social in their interpretation of the Constitution
and providing easier access to the courts the Supreme Court came to be identified as a bastion of
justice of last resort, securing the rights and interests of an oppressed and bewildered people.
“We in India are moving away from formalism and to use judicial activism for achieving
social or distributive justice and in this expression, I include basic human rights. We
firmly believe that the modern judiciary cannot afford to hide behind notions of legal
justice when social justice issues are addressed to it. It can no longer obtain social and
political legitimacy without making a substantial contribution to issues of social justice.”85
Whilst it is healthy to assess judicial practice in other jurisdictions, it is imperative that the
contextual dynamics of each be considered and hence the character and ‘radicalness’ of activism
will differ according to the socio-political, cultural and economic circumstances as well as the
matters in contention. Justice Kirby noted: “The law abhors a vacuum. Into a vacuum left by the
failure of the other branches of government to respond to urgent legal and social needs, the
courts have sometimes stepped.”86 The Bench in Kenya must decide whether it is prepared to
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step into the obvious ‘vacuum’ that exists in regard to the protection and promotion of rights,
social justice and democracy in Kenya.
As a protagonist of judicial activism Bhagwati proposes that “...in a democratic society which has
a constitution with a bill of rights or which has subscribed to regional or international
instruments on human rights and which is seeking to build a fair and just society, judicial
activism on the part of the judiciary is an imperative both for strengthening participatory
democracy and for realisation of basic human rights by large numbers of people in the
country.”87 There is evidence from other jurisdictions of increased judicial activism88 particularly
in the arena of human rights, and as has been explained earlier in the section on international
best practice standards related to the conduct of elections, the rights relating to the exercise of
democracy and fundamental and indefeasible.
A Multidimensional Model
Cohn convincingly argues for active judicial participation that is constrained by a constitutional
framework.89 Cohn supports a constitutionalist public law theory that advocates for an
empowered judiciary and ‘courts as active participants in an expanded public sphere of decisionmaking and rule-implementation.’90
Measurement of Judicial Activism91
Judicial function
Parameter
and underlying
constitutional
theoretical base
Resolution of
Sense
Judicial stability
disputes by
applying the law
(Separation of
powers)
Interpretation
Majoritarianism
and autonomy
Judicial
High level
Activism
Low
level
Activism/Restraint
Departure from
precedent; creation of
new law; choice of
most radical change
among possible options
Interpretation
that
contradicts linguistic
meaning/original
intent
Interference
with
legislation, subordinate
legislation, policy;
Injunction/
annulment/replacement
of challenged
action
Deference to
earlier judiciary
output; rejection of
appeals from
lower instances
Narrow/linguistic
interpretation,
textualist reasoning
Deference
to
law/policy
introduced through
majoritarian
processes;
Compromise/
arbitration/deferment
of decision/remedy
to other decision
makers
remit Expansion of court's Reliance on threshold
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and threshold remit (new ground for
activism
review, new area of
intervention), grant of
leave/certiorari,
disregard of threshold
barriers
(standing,
justiciability, delay, bad
faith), speedy resolution
Extent
and Broad
scope
of
direct
application
effect
of
decision
Legal
Decision made under
background
absent, incomplete,
complex
or
selfcontradicting rules
barriers,
postponement
decision-making
Judicial
reasoning
Process
related
reasoning/ground
of
Narrow application
to single/well defined
cases, no direct effect
Decision made
under simple and
complete set of
rules
Style
Participation in
ongoing
joint
process
of
decision-making
(constitutional
network)
Substantive
reasoning/substantive
ground for decision
Rhetoric and High
level
of
obiter dicta
substance-value
rhetoric, extensive
obiter
dicta,
long
decision
Comparative
Extensive reference to
sources
Comparative sources
Judicial voices
Multiple opinions,
Including concurring
opinions
Legislative
Statutory amendment
input
that
overrides
the
decision;
immediate
action
Administrative Administrative
input
defiance,
non-compliance
Judicial input
Public input
Protection
core
of
Value content
Short
decision,
legalistic
rhetoric,
absence of obiter
dicta
Reliance on domestic
law only
Unanimous
decision
Immediate statutory
alignment
in
accordance
with
decision
Immediate
compliance,
administrative
realignment
Subsequent
Subsequent
overruling
adoption
High level of criticism, Social adoption or
pre and post decision
acquiescence
Minimal regard to Promotion of ‘thin’
protection of ‘thin’ Values
(dignity,
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values
(Constitutionalist
values)
values; intervention in
low-value areas
liberty,
equality);
deference in lowvalue areas.
Cohn’s table is a comprehensive map illustrating the various parameters within the three
theoretical ‘bases’ that he contends constitutes the judicial function. He then places these
parameters, which represent a particular attribute of the judicial decision on the activist/restraint
continuum. He criticises literature on judicial function for often focusing on one of the three
bases and not considering all of them together. The first theoretical base is premised on the
principle of separation of powers; “...the extent of judicial interference with the action of other
branches of [government]. Under this criterion, judicial reticence would be ‘restraint’, while
‘activism’ would mean interference.”92 The second base “...draws on the emerging concepts of
constitutional dialogue and institutional interdependence;”93 the court here is considered but one
participant in a constitutional decision-making network.
“Government branches, individuals, interest groups, the media and other members of
society continuously interact to produce a social solution under constantly changing
tensions and coalitions of interest. The judiciary operates under legal and extra-legal
constraints within these shifting balances of relative power. As a strong participant, it can
act as a facilitator and catalyst for change, but it is unable to effect change singlehandedly.”94
A judicial decision therefore must be considered within the societal and political context and in
regard to the contributions of other actors within the constitutional network. A judicial decision
which finds wider acceptance or congruence in the opinions of other actors and the society at
large would be considered less activist than one which does not. The third base “...draws on
constitutionalist principles under which legal systems are permeated with certain core values and
judiciaries are entrusted, albeit not exclusively, with the protection of these values.”95 In the
Kenyan context these are the principles enshrined in the Constitution as well as those contained
in international and regional treaties and protocols to which Kenya is a signatory.
What Cohn is proposing then is an analysis of each decision along the lines of each of the
parameters; a decision will therefore most probably consist of expressions of both activism and
restraint. Analysing the majority of decisions and ruling in post-2007 election petitions using
these parameters, we see that the courts have taken a negative and conservative model of ‘judicial
activism’ mixed with a large dollop of judicial restraint. An example of negative judicial activism
is the Court of Appeal decision in Kibaki v. Moi where the court was prepared to be ‘judicially
active’ in reading into legislation the superiority of personal service. The predominant example of
judicial restraint is the interpretive stability and fidelity the courts place on procedural rules and
the general legalistic rhetoric and lack of obiter dicta in majority of decisions.
Concluding Thoughts
Judicial activism emerges from the need to reconnect the law and legal practice with the needs,
suffering and expectations of ordinary citizens and particularly the most disadvantaged in the
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community. Kmiec explains that “...early treatments of the term [judicial activism] evince a
refreshing optimism about its potential to help the legal community and the public to better
understand the nature of judicial decision making. If we tread carefully, there is still reason to
share that hope.”96 In regard to election petitions, there is a responsibility of the Bench to be
aggressively active because the rights at risk, the potential injustice threaten the very fabric of a
nascent and fragile democracy. It is undoubtedly controversial “For every litigant demanding
judicial activism, there is ordinarily another urging judicial restraint.”97 Activism is not a call for
unpredictability and anti-uniformity; further ‘prejudice and partiality have no place in the judicial
function.’
“Of judges the community expects honesty, integrity and learning; they also expect
efficiency, timeliness and attention to case management. The people have the right to
expect judges to be calm, objective and neutral...Through judicial activism the courts
must not lose the public’s confidence in them as fair and impartial arbiters...[nonetheless]
our communities have come to understand that some measure of ‘judicial activism’ is not
only permissible but is traditional in our system of law. Moreover it is beneficial to the
noble cause of justice under the law.”98
In Kenya today, in light of the rampant abuse of authority and the general mire of injustice in
which most of the citizenry exists, the Bench, as the custodian of justice, has great responsibility
and a great opportunity to re-direct the future of the nation. As we stated earlier, the ability of
the Judiciary to handle election petitions begins with public confidence in the institution itself,
which is developed through the everyday solution of disputes and provision of justice.
Thoughts for Change
Let us consider the recommendations for an effective dispute resolution system in light of the
capacity of the Judiciary. Whilst many of the recommendations concerning election dispute
resolution involve a radical overhaul of the Judiciary, the reform of electoral management system
and institutions, and the revision and introduction of adequate and competent legislation, the
analysis here hopes to distil principles from these recommendations that will reform the process
from within the Judiciary as it exists now as well as in any form which it may adopt in the future.
As Ndung’u explains “The judiciary should change from within, especially by directing its own
reform programme.”99
Essential and urgent reform of the Judiciary
There are numerous and incessant calls for the urgent reform of the judiciary; this, I contend, is
based on the a public lack of confidence in the courts as the impartial, just and fair arbiter of
civil, criminal and electoral disputes across the country. The Judiciary can go a long way towards
remedying this justified perception by being more judicially active. For an electoral dispute
resolution process to facilitate democracy, it must address each step in the electoral process and
not just the more dramatic post election recounting and contestation.”100 Nyaundi explains that
an election is a cycle of events constituted by the pre-electoral period (voter registration, party
registration, party financing, voter & civic education, training for electoral officials, staff
recruitment & logistics), the electoral period (campaign, nomination, voting, results), and the
post-electoral period (petitions, evaluations, reform, voter register up-dates). Considered as such
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it is apparent that to judge an election as free and fair, one has to go beyond the activity of voting
and the tallying of votes. Most election petitions involve alleged offences committed in the
immediate electoral and the post-electoral periods.
Free and fair elections depend on a wider respect for human rights within a particular society. If
in the period between the actual election a atmosphere that respects the human rights and dignity
of all citizens is engendered through active and progressive litigation and decision making in the
courts, once the election period arrives, the same has a more stable, equitable and enabling
platform upon which to operate. Perhaps we can view an election petition as the ‘final
assessment’ in a series of exams taken by the Judiciary; though the petition might be the most
high profile because of its importance to the citizenry’s basic democratic rights, failure in the
previous exams ultimately ends in overall failure. The public confidence will be maintained where
the courts consistently perform to a high standard particularly in matters that involve the
protection of the social interest and the promotion and enforcement of human rights.
Further, focusing on service delivery and ensuring efficiency throughout the litigation process
and the timely ruling on disputes are achievable targets even within the current framework.
Recommendations for electoral reform often cite the need for the establishment of an
autonomous electoral court or a specialised electoral court within the Judiciary. What these
demands are alluding to is the competence of judges in electoral matters. The Kriegler
Commission for example states that Kenya
“...adhere[s] to the quaint fiction that judges are generalists who can grasp and deal with
any matter, however esoteric, provided it is competently argued. In the case of electoral
disputes this attitude needs to be re-examined. The principles and practice of electoral
administration have developed exponentially over the last two decades and a substantial
body of international learning has been produced. All of this bears on dispute resolution
and ideally requires specialised judicial attention. Because electoral disputes usually
demand rapid resolution and do not allow time for extensive legal research by the
adjudicating tribunal, familiarity with electoral law and practice is therefore a highly
desirable attribute of such a tribunal.”101
Whilst this might be the case, there are probably measures that the Judiciary can take from within
to address these concerns, for example through adequate training, capacity building and
preparation in the run up to an election as well as the designation of specific judges within the
High Court who will, for the necessary period, exclusively handle election matters and petitions.
There is also widespread disillusionment with the Judiciary informed by both fact and
perception; the argument is that whereas other branches of the government can actively express
opinion, defend decisions and engage the public, the Judiciary cannot. I contend that the
Judiciary can best defend itself through the quality and fairness of its decisions and the efficiency
of the litigation process. However, inter alia, steps have been actively taken to disseminate
judicial materials with the online publishing of decisions as well as the reproduction of selected
judicial arguments in local dailies. Further, there is widespread recognition that the explanation
of the Judiciary’s position and decisions through public relations channels will greatly enhance
public confidence in the institution as what is perceived as continued silence on the part of the
Judiciary belies guilt. Hence, the Judiciary intends to set up a communications department to
disseminate relevant materials in regard to the court processes to stakeholders and the public.
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Election dispute resolution legislation
Where election dispute resolution legislation is unclear and incomplete, contains omissions,
discrepancies or ambiguous language, it is the responsibility of a judicially active court to
endeavour to remedy these faux pas and lacunae through judicial legislation as explained above
in the section on judicial activism. As we noted above, there are many circumstances where the
Judiciary’s hands are tied in regard to express and mandatory provisions within legislation; judges
are however the experts concerning law in practice and have firsthand experience of the failings
and injustices occasioned by certain provisions. It is the duty of the courts to bring these
instances, through comments in their rulings or by any other method, to the attention of the
relevant authority be it the Attorney general or Parliament as well as to the attention of advocates
and litigants. The Kenyan courts are no stranger to judicial legislation and comment: In Election
No. 4 of 2003 Jackson Ekaru Nakusa v. Paul K. Tororei & 2 Others the court laudably tried to
give directions to the Attorney General in regard to the requirement for security deposit in order
to institute an election petition. It stated that the 250,000 required was stifling litigation in the
area of election petitions and the Attorney General ought to look into reducing the amount. This
opinion was given in 2003 and to date the amount remains the same; it is unclear what steps, if
any were taken to address it. The court in Election Petition 2 of 2008 Jayne Njeri Wanjiku
Kihara v. Christopher L. Ajele & 2 Others made comment expressing concern with the routine
striking out of election petitions:
“...[whilst] the courts have routinely struck petitions where it was found that they were in
breach of the particular provisions of the law... pursuant to the inherent powers of the
court to prevent the abuse of the court process and in order to safeguard the ends of
justice. In my humble opinion, it would have been preferable if the Act provided for the
procedure to be followed when striking a petition which is not in compliance with the
particular law or procedure just like detailed procedure is provided for in the civil
procedure rules. By providing the penalty clauses, this procedure will also provide
uniformity, predictability of the law and the courts will be less prone to criticism.”
The Il Chamus case, Rangal Lemeiguran & Others v. Attorney General Misc. Application No.
305 of 2004, further illustrates the ability of courts to ‘step into the void’ and move the law
forward by robustly interpreting the constitution and using the notions of representation,
pluralism, and human rights within the wider framework of democracy to secure the
expectations and aspirations of the citizenry. Technicalities are indeed part of the law; procedure
cannot be sacrificed for substance because this too can and will lead to injustice. However, there
is also injustice where a trend develops whereby the substantive content of a petition consistently
fails to be addressed due to procedural technicalities; and where this injustice is engendered by
legal provision, the courts have a duty to reorient practice towards substance rather than form.
Voter and Civic Education
The Judiciary can play a central role in educating the voters and the wider public on the election
dispute process including the rights citizens enjoy, how they can be protected and how the courts
go about resolving disputes. In his statement to the Waki Commission, the Registrar of the High
Court explained that amongst other reforms the Judiciary was establishing Court User
Committees where all actors in the criminal justice system meet and resolve operational
difficulties; customer care desks to address public concerns; holding an annual open day sessions
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for interaction with consumers of justice; and publicising the judicial service charter for
education of the public. The modalities of these programmes need to be enhanced and
strengthened. As is repeatedly mentioned, a justified negative public image haunts the judiciary;
and as with any other institution, outreach, engagement with the public and relevant public
relations exercises can go some way to addressing these perceptions.
Jurisdiction
“It is absolutely essential that checks and balances exist within an [election dispute resolution]
system;”102 In regard to the current regime, the High Court has sole jurisdiction over election
matters with the petitioners, electoral commission and attorney general all having to approach
the High Court for relief. This has been criticised with many suggesting that the electoral
commission be vested with powers to apply sanctions with leave of appeal and review to the
High Court. Another suggestion is the removal of the exclusive right to institute proceedings
vested in the Attorney General and their extension to the electoral commission and perhaps
members of the public with standing. What these recommendations suggest is that the various
institutions are not undertaking their tasks: The Electoral commission is not actively monitoring
election candidates, their agents and supporters during the election process and bringing any
offences to the attention of the High Court; the Attorney General is not ready to institute
proceedings for offences committed by members of the Electoral Commission or any others
under the relevant act. The method of adversarial litigation used in Kenya means that the courts
can only sit and wait until a matter is brought up before them; and since the abovementioned
mandated institutions refuse and/or fail to bring matters before the High Court, the public must
wait until after an election in order to seek redress for offences committed throughout the
process. Further, the relationship between the court of appeal and the high court must be
critically constructive. Puisne judges have suggested that they are reluctant to be ‘activist’ if this
only means that their decisions and judgements will be reversed and condemned on appeal. As
we outlined above, whilst the Judiciary is the principal adjudicating organ, the frustrations in the
election dispute litigation process cannot exclusively be placed at the door of the judiciary.
Nevertheless, the Judiciary is obligated to ensure that it maintains constructive and productive
partnerships with the electoral commission, the law society of Kenya, political parties, the
Attorney General’s Chambers and any other relevant organisations in order to maximise its
purpose; the delivery of justice.
Timely resolution of electoral disputes
Many complain that “...owing to the inefficiency in the judiciary, election petitions in Kenya are
sometimes determined well after the end of the five years electoral terms for MPs.” 103 For
example in Simon Kuria Kanyingi v. George Boniface Njau Mbugua Nyanja & 2 Others [2007]
eKLR Civil Appeal 168 of 2003 and Ntoitha M’mithiaru v. Richard Maoka Maore & 3 Others
Civil Appeal 272 of 2003 [2007] eKLR the election petitions were not concluded before the next
general election. In an ultimatum made in March 2008, the Attorney General directed that all
petitions and matters relating thereto be concluded before the end of 2008.104 This, of course,
was/is not the case further adding to the frustrations of the citizenry denting public confidence
in the Judiciary as an avenue for redress in general and in regard to election petitions. Though
there is a marked improvement in the processing of election petitions after the 2007 election,
many petitions remain pending in the courts two years after they were instituted. Addressing the
Page 34 of 38
matter of duration ties in with the themes of judicial reform and jurisdiction mentioned above;
the Judiciary ought to be prepared for election petitions and prioritise them accordingly within its
operations. The matter of jurisdiction between the High Court and the Court of Appeal also
needs to be addressed for numerous appeals from the High Court on matters of procedure cause
significant delays as well as frustrate the hearing of petitions on substance and merit. Litigants
have numerous time constraints; for example, the duty to file and serve within 28 days,
restriction of amendments to the pleadings to this period. 3 days after filing to pay the security
for costs; to produce the affidavits of each witness not less than 48 hours before the hearing. It is
not acceptable that there are no similar restrictions on the courts in terms when the matter
should be set down for hearing and how soon after that the court must make its decision. All the
time limits seem to be on the petitioner, and none on the bench. Should the High Court selfregulate on these matters through a directive or guideline, the confidence of the litigants as well
as the public would be significantly boosted. These guidelines and directives ought to extend
onto the time within which the Chief Justice must appoint a judge to hear a petition or to replace
another judge. Further, there ought to be sanction on the transfer of judges during the hearing of
the petition as this could be used as a device to frustrate and delay the election petition process.
Enforcement and prosecution
I interpret this requirement to mean that the court has a duty towards ensuring that the outcome
of the litigation process is fair and just. The adversarial legal system requires the Judge to be the
impartial arbiter in regard to election disputes brought before him. Under this system, the judge
can only rule and make a decisions upon the issues alleged by the parties. However, my argument
is that an election is not a breach of contract proceeding between two companies; the interest
herein is a very public interest, the public good and more particularly that of the constituents
directly affected. Whilst the petitioner might bring the matter before the court, if his allegations
challenge the propriety of the election, then the matter goes beyond his personal interest and
becomes that of all Kenyans. In these circumstances, I contend, what is required of the judge
changes from adversarial towards inquisitorial. Though Rule 5 of the rules states that a request
for particulars can only be made after application by the respondent, section 23(1) allows the
court to “compel the attendance of any person as a witness who appears to the court to have
been concerned in the election” and further allows the court to “examine a witness so compelled
to attend or any person in court, although the witness is not called and examined by a party to
the petition”. This constitutes express sanction for the courts to take up a more active stance to
ensure that an election was free and fair. In this way the court could encourage other candidates
and members of the public to become involved determining whether there ballot was respected.
The difficulty herein of course is whether the court can afford to bring witnesses to the court
and the criteria the court uses in selecting which witnesses shall be called; the latter could lead to
injustice in itself and illustrates the quandary in a court adopting an overtly investigatory position.
An active court can take a leaf out of the ground-breaking Jain Hawala case before the Supreme
Court in India. In this case two journalists brought a public interest litigation cause before the
Supreme Court alleging a massive cover-up of corruption. The application sought the court 's
intervention to ensure that the politicians and bureaucrats involved were not let off the hook due
to the intentional or otherwise inaction by the Central Bureau of Investigation (CBI). The court
then compelled the CBI to carry out the investigations and monitored the same over a three
Page 35 of 38
month period resulting in the production of chargesheets and the arrest of seven high profile
bureaucrats, three ministers and the leader of the opposition. Though in different circumstances,
an example of where this approach might be enlightening is in regards to the high Court
compelling the Electoral Commission or the Attorney General to carry out their monitoring
duties, to take cognizance of complaints made to them and to institute proceedings as is required
under the Act.
Transparency
Transparency involves open and accountable procedures; all processes are available to the full
scrutiny of the public as well as stakeholders and other institutions. Election petition proceedings
are relatively transparent however more can be done especially to ensure that the public
understands ‘the manner in which the system functions in reality’. Observers could be invited to
witness all election complaint hearings and lobbied to subsequently disseminate related materials.
Election proceedings can be heavily publicised; through the print media as well as radio and
television in the form of press conferences and status updates. The publication of rulings
throughout the litigation process and judgements should be prioritised by the Judiciary. Each
decision should be published as it occurs including a summary of the ruling and ratio for the less
legal mind. Shako further stresses that statistics, in regard to the number of cases filed, the
number heard, those resolves and those pending ought to be published and availed to public
audit.

Masha Baraza is a consultant and doctoral candidate at the University of Warwick. He holds a Bachelor of laws
(LLB) from the University of Sheffield, Diploma from the Kenya School of Law and Masters of Law (LLM) from
the University of Warwick. His doctoral research investigates the plurality of socio-legal responses to group conflicts
in Northwest Kenya. Having interned at the Kenya National Commission on Human Rights, the United Nations
Department of Economic and Social Affairs in New York and the International Criminal tribunal for the Former
Yugoslavia at The Hague, he is currently the substantive editor of the Law, Social Justice and Global Development
Electronic Law Journal at the University of Warwick. He has published in the area of transitional justice and regional
legal mechanisms.
Centre for Human Rights (1994) Human Rights and Elections: A Handbook on the Legal, Technical and Human Rights
Aspects of Elections (United Nations: Geneva) at p. v.
2 Shako, R. K. (2009) ‘International Electoral Dispute Standards’, in Kibwana, K. And Sainna, E. (eds.) Towards an
Election Dispute Resolution Model for Kenya: A Best Practices Comparative Approach (Nairobi: The Kenya Section of the
International Commission of Jurists) pp. 57-81 at p. 57
3 Ibid at p. 59
4 Commission on Human Rights (2003) ‘Interdependence between Democracy and Human Rights’, Resolution
2003/36 paras. 2-5.
5 Independent Review Commission [Kriegler Commission] (2008) Report of the Independent Review Commission on the
General Elections held in Kenya on 27 December 2007 http://www.dialoguekenya.org/report.aspx Accessed on 2
February 2010 at p. 142
6 Ibid at p. 56.
7 Ibid at p. 127.
8 Ndung’u C. G. (2009) ‘Kenya’s Election petition Experience’, in Kibwana, K. And Sainna, E. (eds) Towards an
Election Dispute Resolution Model for Kenya: A Best Practices Comparative Approach (Nairobi: The Kenya Section of the
International Commission of Jurists) pp. 5-21 at p. 15.
9 USAID p. 37
10 The Judiciary of Kenya (2008) ‘Strategic Plan 2009 – 2012’,
http://www.judiciary.go.ke/judiciary/index.php?option=com_phocadownload&view=category&id=1:strategicplan&Itemid=1 4 March 2010 at p. ix.
11 Mutua, M. (2001) ‘Justice under Siege: The Rule of Law and Judicial Subservience in Kenya’, Human Rights
Quarterly 23(1), pp. 96- 118 quoted in Kenya National Commission on Human Rights (2008) ‘On the Brink of the
1
Page 36 of 38
Precipice: A Human Rights Account of Kenya’s Post 2007 Election Violence’
http://www.knchr.org/dmdocuments/KNCHR%20doc.pdf accessed on 2 February 2010 at p. 22. “The Kenyan
judiciary was complicit in the execution of the single party repression of the 1980s and many other acts of the denial
of human rights in the 1990s. Moreover, there is no shortage of examples of the executive’s incursions into judicial
independence. In 1993 and 1994, two High Court judges on contract, Justice Edward Torgbor and Justice A. J.
Couldrey who ruled that a petition against the election of President Moi had been properly filed had their contracts
terminated...Justice Couldrey’s contract was not renewed in 1993 while Justice Torgbor’s was terminated in 1994.”
Kenya National Commission on Human Rights (2008) ‘On the Brink of the Precipice: A Human Rights Account of
Kenya’s Post 2007 Election Violence’ at p. 22
12 Commission of Inquiry into Post-Election Violence [CIPEV] (2008) Report of the Commission of Inquiry into
Post-Election Violence (The Waki Report) http://www.standardmedia.co.ke/downloads/Waki_Report.pdf
accessed 2 February 2010 at p. 28. Numerous reports have documented these failures: See the 1998 Report of the
Committee on the Administration of Justice (Kwach report); the 2002 Constitution of Kenya Review Commission
Report of the Advisory Panel of Eminent Commonwealth Judicial Experts; The 2003 Integrity and Anti-Corruption
Committee of the Judiciary in Kenya Report (the Ringera Report) in 2003 as well as numerous reports from civil
society including the ICJ, Transparency International and the Kenya National Commission on Human Rights.
13 See CIPEV (2008) Report of the Commission of Inquiry into Post-Election Violence (The Waki Report) at p. 443
and Chapter 12.
14 United Nations Human Rights Council (2009) ‘Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions Mr. Philip Alston: Mission to Kenya’ A/HRC/11/2/Add.6 at p. 20.
15 See Ibid at p. 43.
16 Statement dated 28 August 2008. See Report of the Commission of Inquiry into Post-Election Violence (The
Waki Report) at p. 460.
17 Ibid at p. 461.
18 Reviewed by the Committee of Experts on Constitutional Review, pursuant to section 32(1)(c) of the Constitution
of Kenya Review Act, 2008 and presented to the Parliamentary Select Committee on Constitutional Review on 8th
January 2010.
19 Ndung’u C. G. (2009) ‘Kenya’s Election petition Experience’, at p. 15.
20 Government of Kenya (2007) ‘Kenya Vision 2030’, http://hdwgkenya.com.s83469.gridserver.com/new/index.php?option=com_docman&task=doc_download&gid=411&Itemid=
70 4 February 2010.
21 Ibid at p. 12.
22 Independent Review Commission [Kriegler Commission] (2008) at p. 127.
23 Onalo vs. Ludeki & 2 others (No.3) [2008] 3 KLR (EP) 614
24
The reform of legislative provisions is therefore paramount and the process has already been initiated with the
drafting of the Elections Bill and the Electoral Commission of Kenya Bill.
25
The Government appointed a multi-disciplinary Task Force on the 29th of May 2009 to look into the ways of
accelerating judicial reforms. The Task Force presented an interim report on 29 th June 2009 and a final report on the
10th of August 2009. It is currently before the Cabinet for approval; once approved a bill will be presented to
Parliament for approval. See Government of Kenya (2009) ‘Press Statement on Agenda 4 Reforms Meeting by
President Mwai Kibaki & Prime Minister Raila Odinga, October 5 2009’
http://www.communication.go.ke/media.asp?id=992 14 March 2010.
26 Ndung’u C. G. (ed.) (n.d.) Election Petition Digest (Nairobi: The Kenya Section of the International Commission
of Jurists) at p. 128.
27
See Daily Nation (2010) ‘Plea to dismiss poll petition rejected’, http://www.nation.co.ke/News/politics//1064/847692/-/wsc43mz/-/index.html February 4 2010 and Daily Nation (2009) ‘Kajwang’ loses bid to deport
poll petitioner’, http://www.nation.co.ke/News/politics/-/1064/671602/-/xtr516z/-/index.html February 4 2010.
28
See Mbaru, M. (2006) ‘Cancellation of the Swearing-in Ceremony for High Court Judges’, http://www.icjkenya.org/index.php?option=com_content&task=view&id=204&Itemid=70 4 February 2010 and Mars Group
(2007) ‘Why Kibaki Turned Away Three New Judges’, 9 February 2007
http://www.marsgroupkenya.org/multimedia/?StoryID=163345&storydate=2007-02-09&page=3 4 February 2010.
29
See Daily nation (2009) ‘Kilonzo seeks removal of Kenya judges’, August 22 2009
http://www.nation.co.ke/News/-/1056/643750/-/um6ery/-/index.html 4 February 2010 and Daily Nation (2009)
‘Why Martha Karua walked away’, April 6 2009 http://www.nation.co.ke/News/-/1056/557874/-/item/1//qms29pz/-/index.html 4 February 2010.
30 Article 21(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the
Page 37 of 38
people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine
elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting
31 Article 25 Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through
freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c)
To have access, on general terms of equality, to public service in his country.
32 Easterbrook, F. H. (2002) ‘Do Liberals and Conservatives Differ in Judicial Activism?’, University of Colorado Law
Review 73 at p. 1401 in Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, California Law
Review 92(5), pp. 1441-1477 at p. 1442.
33 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at p. 1443
34 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, Commonwealth Law Bulletin 18, pp. 1262-1267 at p. 1262
35 Cohn, M. (2007) ‘Judicial activism in the House of Lords: a Composite Constitutionalist Approach’, Public Law 1,
pp. 95-115 at p. 96.
36 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1265
37 Fitzpatrick, P (2001) Modernism and the Grounds of Law (Cambridge: Cambridge University Press) at p. 18
38 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at pp. 1444-5
39 Ibid at p. 1446
40 Ibid at pp. 1446-7.
41 Ibid at p. 1447.
42 Ibid at p. 1447.
43 Kirby, M. D. (1997) ‘Judicial Activism’, Commonwealth Law Bulletin 23, pp. 1224-1237 at p. 1234.
44 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at p. 1447.
45 Ibid at p. 1448. “The Champions of Judicial Restraint, according to Schlesinger, understand the judicial role [as
such] ‘If the legislature makes mistakes, it is up to the legislature to remedy them. Any other course will sap the vigor
of our democracy by encouraging legislatures in an irresponsibility based on an expectation that the courts will
backstop their wild pitches.’”
46 Ibid at p. 1448.
47 Ibid at p. 1449.
48 Ibid at p. 1473.
49 Rogers, J. R. & Vanberg, G. (2007) ‘Resurrecting Lochner: a Defense of Unprincipled Judicial Activism’, Journal of
Law, Economics & Organization 23(2), pp. 442-468.
50 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1234. “The judges’ boldest ambitions are held in check by
opportunity, need, inclination and the judicial method.”
51 Ibid at p. 1232.
52 Ibid at p. 1233.
53 Ibid at p. 1233.
54 Ibid at p. 1234.
55 Ibid at p. 1234.
56 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at pp. 1444.
57 Jones, G. (2002) ‘Proper Judicial Activism’, Regent U. L. Rev. 14, at p. 143.
58 Graglia, L. A. (1996) ‘It's Not Constitutionalism, It's Judicial Activism’, Harvard Journal of Law and Public Policy 19,
at p. 296.
59 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at pp. 1467.
60 Ibid at pp. 1467.
61 Ibid at pp. 1467-9.
62 Vikram, D. A. (2003) ‘Some Final Thoughts on the Affirmative Action Ruling, and Reliance in a Changing Legal
World’, Findlaw’s Writ http://writ.news.findlaw.com/amar/200301 10.html cited in Kmiec, K. D. (2004) ‘The
Origin and Current Meanings of ‘Judicial Activism’’, at pp. 1468.
63 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1234.
64 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1262. He cites a number of reasons for this stance: “...to insulate judges against vulnerability to
public criticism and to preserve their image of neutrality which is regarded as necessary for enhancing their
credibility...helps the judges escape accountability...because they can always plead helplessness...by saying that it is
the law made by the legislature and they have no choice but to give effect to it.”
65 Ndung’u C. G. (2009) ‘Kenya’s Election petition Experience’, at p. 16.
66 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1265.
Page 38 of 38
Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at pp. 1465-6.
Cited in Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1226.
69 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1263.
70 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1234.
71 Judge Diarmuid O’Scannlian’s definition in Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial
Activism’’, at p. 1476.
72 See for example the decision in the Lochner v. New York case.
73 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1228.
74 Ibid at p. 1235.
75 Ibid at p. 1228.
76 Ibid at p. 1225.
77 Ibid at p. 1227.
78 Ibid at p. 1228.
79 Maneka Gandhi v. Union of India (UOI) and Another AIR 1978 SC 597
80 Motilal Padampat Sugar Mills Co. Ltd. vs. State of UP AIR 1979 SC 621
81 Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489
82 Keshavananda Bharati v. State of Kerala AIR 1973 SC 1461 “...the Court was called upon to interpret Art 368 of
the Indian Constitution which confers power on Parliament to amend the Constitution. The Supreme Court of
India refused to accept narrow textual interpretation and held that the power to amend the constitution was not an
unlimited power, but it was restricted by the basic structure doctrine and it was not competent to parliament to
amend the Constitution so as to affect any of its basic features...This judicial activism was intended to protect the
citizen against any drastic or draconian amendments which may be made by the ruling party by reason of its brute
majority in Parliament.” Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing
Activism and Judicial Restraint’, Commonwealth Law Bulletin 18, pp. 1262-1267 at p. 1265.
83 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1265.
84 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1226. For example “The right to life and personal liberty enshrined in
Art 21 of the Indian Constitution was converted de facto and de jure into a procedural due process clause contrary
to the intention of the makers of the Constitution.” The right was expanded through judicial interpretation to
encompass the right to bail, the right to speedy trial, the right to dignified treatment in custodial institutions, the
right to legal aid in criminal proceedings, the right to live with basic human dignity, the right to livelihood and the
right to a healthy environment.
85 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1266.
86 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1226.
87 Bhagwati, P. N. (1992) ‘The Role of the Judiciary in the Democratic Process: Balancing Activism and Judicial
Restraint’, at p. 1262.
88 Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at p. 1441.
89 Cohn, M. (2007) ‘Judicial activism in the House of Lords: a Composite Constitutionalist Approach’, at p. 96.
90 Ibid at p. 97.
91 Table adopted from Cohn, M. (2007) ibid at pp. 100-102.
92 Ibid at p. 98.
93 Ibid at p. 106.
94 Ibid at p. 105.
95 Ibid at p. 108.
96
Kmiec, K. D. (2004) ‘The Origin and Current Meanings of ‘Judicial Activism’’, at p. 1444.
97 Kirby, M. D. (1997) ‘Judicial Activism’, at p. 1226.
98 Ibid at p. 1234.
99 Ndung’u C. G. (2009) ‘Kenya’s Election petition Experience’, at p. 15.
100 Shako, R. K. (2009) ‘International Electoral Dispute Standards’, at p. 57.
101 Independent Review Commission [Kriegler Commission] (2008) at pp. 141-142
102 Shako, R. K. (2009) ‘International Electoral Dispute Standards’, at p. 71.
103 Kenya National Commission on Human Rights (2008) ‘On the Brink of the Precipice: A Human Rights Account
of Kenya’s Post 2007 Election Violence’ at p. 22.
104 Machuka, M. (2008) ‘Wako - Election Petition Cases Must Be Concluded This Year’, East African Standard 16
March 2008.
67
68