Should the Judiciary be the Final Arbiter of the People’s Ballot (Part 3)

Introduction 

The last episode of this treatise, we dealt with the sub-themes of the evils of protracted litigation; the effect of strict application of the provisions of Section 135 of the Evidence Act on proof beyond reasonable doubt and INEC’s disobedience of court orders.

Thereafter, we proffered certain solutions including addressing inadequate infrastructure. In today’s piece, we shall review a number of case studies which illuminate judicial aberrations, both in Nigeria and beyond, starting with Kenya. Read on.

Case Studies Illustrating Judicial Aberrations Globally and in Nigeria

The judicial anomalies stemming from Bush v Gore (2000). In Bush v Gore (2000) 531 U.S. 98 (2000) (per curiam), the United States Supreme Court resolved the legal battle over the 2000 Presidential election, effectively granting the Presidency to George W. Bush. In a per curiam opinion supported by five Justices, the Court overturned the ruling delivered on 8th December, 2000, by the Florida Supreme Court that had mandated a manual recount of all “undervoted” ballots in the State. The Court found that the procedures for the manual recount failed to meet the fundamental standard for fair treatment of voters as required by the Equal Protection Clause of the Fourteenth Amendment, resulting in “unequal assessment of ballots” in different ways.

Specifically, the Florida Supreme Court had not established a consistent standard for determining “voter intent”. This led to discrepancies, with some counties manually recounting both overvoted and “undervoted” ballots, while others focused solely on the “undervotes”. Additionally, the certified vote total in at least one county, reflected the outcome of a partially completed manual count. The Court also ruled that under Florida law, no election contest proceedings could continue past December 12, which was six days before the Electoral College convened. Since the Supreme Court delivered its decision at 10 p.m. on December 12, Vice President Gore’s challenge to the certified vote totals could not proceed further, resulting in Florida’s 25 electoral votes being awarded to Bush.

While some commentators have supported the Court’s reasoning, and a few others have backed the final ruling, the majority have criticised the decision as lacking in principles and even being unlawful. The critiques have varied, but many include accusations that the Court acted with hypocrisy. The per curiam opinion introduced an unprecedented use of the Equal Protection Clause to intervene in the established state responsibility of overseeing elections. Additionally, the remedy imposed by the Court—halting the election contest—was rooted in its interpretation of Florida election law, which seemingly overstepped the Florida Supreme Court’s authority to interpret Florida statutes. Nonetheless, the five justices who signed onto that opinion had, in the past, emphasised the need to honour “the autonomy, the decision-making ability, and the sovereign capacity of the States;”(Alden v Maine, 527 U.S. 706, 750 (1999). and had struck down various congressional acts on those grounds. Many critics argue that this election decision’s interference in “functions essential to [the separate] and independent existence” (National League of Cities v Usery, 426 U.S. 833, 845 (1976),  of the States conflicts with the principle that the Rehnquist Court had been built on the foundation of respecting states’ rights, not undermining them.

The Court had rigorously enforced the Constitution’s restrictions on state authority, especially through doctrines like pre-emption and the dormant Commerce Clause, often invalidating state actions within their traditional police powers due to conflicts with national interests. In cases concerning federalism where Congress’s scope of authority wasn’t in question, the Court had typically prioritised federal policy and the national economy over claims of state sovereignty, even while recognising the impact of these rulings on the federal-state dynamic. While the Rehnquist Court’s “federalism revolution” had introduced new constraints on Congressional power and somewhat increased state autonomy, it had not broadly supported state political independence.

The case of Bush v Gore exemplifies this trend. It represents another instance where the Rehnquist Court asserted the Judiciary’s role—or as it put it, its “unsought responsibility”—to address significant constitutional issues instead of deferring to political mechanisms. Had the Court not intervened to settle the election dispute, it seemed probable that Congress would have had to determine whether the manual recount of ‘undervoted’ ballots mandated by the Florida Supreme Court aligned with the Equal Protection Clause and the “Manner directed” Clause of Article II. If Vice President Gore had succeeded in the hand count, the Florida legislature would almost certainly have appointed an alternate set of electors for Bush, leading to both sets of electoral votes being sent to Congress. Congress would then have been tasked, under the procedures of the Electoral Count Act, with deciding which slate of electors was legally appointed. By taking on the case headlong and ruling as it did, the Court affirmed its role as the appropriate body to interpret these significant constitutional questions, by-passing the democratic process.

Kenya

The Groundbreaking Electoral Reforms in Kenya’s Election Cycles

Kenya’s highly contested 2022 Presidential election thrust the Judiciary’s role in adjudicating significant political disputes into the spotlight. This was not an isolated incident of political turmoil in the nation, nor was it the first time the Supreme Court intervened to resolve such contentions. On August 15, 2022, the Independent Electoral and Boundaries Commission (IEBC) of Kenya declared Deputy President William Ruto the victor of the Presidential race, having secured 50.5% of the vote over his rival, Raila Odinga. This proclamation, however, was met with considerable controversy, as the IEBC’s Vice-Chair and three other Commissioners publicly denounced the outcome. On August 22, 2022, Odinga formally lodged a petition with the Kenyan Supreme Court, challenging the election results proclaimed by the IEBC Chair. Given the escalating uncertainty and the potential for the Supreme Court to invalidate the election, which could precipitate significant instability in a nation with a history of election-related violence, the court dismissed the petition and affirmed Ruto’s victory. This was not the inaugural instance in which the Kenyan Supreme Court had adjudicated a presidential election dispute, as it had addressed similar cases in 2013 and 2017. To fully comprehend the Supreme Court’s role in safeguarding the legitimacy of presidential elections, it is imperative to reflect on the 2007–2008 Kenyan Crisis, a period of intense political, economic, and humanitarian turmoil that engulfed the nation following the announcement of former President Mwai Kibaki as the victor of the December 27, 2007, presidential election.

The Independent Review Commission (IREC), alternatively known as the Kriegler Commission, was constituted with the mandate to scrutinise, inter alia, the inadequacies within the constitutional and legal frameworks governing presidential elections in the nation. In October, 2008, the Kriegler Commission disseminated its findings. One key conclusion reached by the Commission was that “a material contributor to the tension …was the absence of an effective electoral dispute resolution (EDR) mechanism to resolve the mounting challenges to the integrity of the [presidential] results”.  The Independent Review and Evaluation Commission (IREC) proposed the enactment of a specific law establishing a dedicated Electoral Dispute Resolution Court to handle appeal cases stemming from initial dispute resolution stages conducted by the Electoral Commission of Kenya. Nevertheless, the framers of Kenya’s 2010 Constitution declined this proposal, choosing instead to vest exclusive jurisdiction over presidential election disputes in the Supreme Court.The Supreme Court encountered its first significant test in 2013, when a challenge to the presidential election results was lodged by Odinga against the then-President-elect, Uhuru Kenyatta. The ruling was eagerly awaited by both Kenyan citizens and the international community, with a sense of considerable apprehension. On March 30, 2013, the Court issued a unanimous verdict, confirming that the administration of the presidential election complied with both constitutional and legal stipulations. This judgment marked an extraordinary achievement for the Court, as the candidates recognised its jurisdiction and accepted the ruling.

In August 2017, the Supreme Court of Kenya once again adjudicated a dispute arising from a presidential election. The officially declared results indicated that the incumbent, President Kenyatta, had secured re-election with 54% of the vote. Initially, opposition leader, Raila Odinga, declined to initiate a legal challenge to the election’s integrity. However, shortly before the filing deadline, Odinga submitted a petition contesting the veracity of the results. In a landmark ruling on September 1, 2017, the Supreme Court annulled the 2017 presidential election results, citing a failure of the electoral process to adhere to constitutional standards mandating elections to be “simple, secure, transparent, and verifiable”. Nonetheless, contrary to Odinga’s assertions, the Court found no corroborating evidence of fraud, hacking, or misconduct. Despite pervasive doubts regarding the credibility of a rerun, a fresh presidential election was conducted on October 26, 2017, in which President Kenyatta was re-elected with 98.3% of the votes. The Supreme Court’s unprecedented decision garnered significant international acclaim and support, with notable voices such as the head of the 2017 European Union Election Observation Mission in Kenya, commending the Court for its resilience in the face of substantial pressure, intimidation, and contestation surrounding the presidential election dispute. She noted that the ruling exemplified the Judiciary’s capacity to act autonomously by delivering a judgement unfavourable to the ruling party.” 

This familiarity with the resolution of presidential election disputes enabled the Court to provide stability during the profound uncertainty following the 2022 elections. Kenyan journalist Patrick Gathara observed that “Kenya has gradually and deliberately been reshaping its identity and democratic framework”. The willingness of candidates to address their political and legal disputes through legal channels, rather than resorting to violence, reflects the growing trust placed in the Judiciary, particularly the Supreme Court especially. Although “doubts over the independence of Kenya’s Judiciary persist”, recent Supreme Court decisions opposing government interests have significantly mitigated these concerns. For instance, the unanimous pronouncement in May, 2021, by a five-Judge Panel of the High Court in Nairobi that the Constitution of Kenya (Amendment) Bill, 2020, was unconstitutional represents a pivotal judicial decision. Journalist and commentator, Ferdinand Omondi, contended that this ruling is “arguably the most consequential judgement by Kenyan courts since the nullification of President Uhuru Kenyatta’s election victory in 2017.” In an era when judicial independence across East Africa faces increasing challenges, Kenya’s recent trajectory illustrates the critical role that judicial capacity-building plays in fostering democratic consolidation and mitigating the risk of future conflict. In the eyes of the populace, the Kenyan Supreme Court is a reliable final arbiter in dispensing justice in the determination of election petitions, as they have proven to be an independent body that adjudicates such sensitive cases based on their merits, especially electoral disputes. (To be continued)

THOUGHT FOR THE WEEK

“The rule of law and the independence of the judiciary underpin our democracy and lie at the heart of our way of life. They are the very cornerstone of our freedoms”. (David Lidington)