Presidential Elections in Kenya and the Notion of Accept and Move on

Abstract

This research project paper seeks to assess the effectiveness of the Kenyan electoral laws and institutional frameworks, including identifying any gaps in the laws that hinder the realization of electoral democracy in presidential elections. The paper evaluated the laws applicable, statutes, regulations, electoral policies and the jurisprudence from the Kenyan courts. The study postulates that despite the constitutionalization of electoral principles and emerging jurisprudence from the Supreme Court after the 2013, 2017 and the 2022 presidential election petitions, electoral democracy has still been considered an elusive concept in Kenya. The practice in Kenya was contrasted to the electoral processes and debates in Nigeria and South Africa due to their unique socio-political economy. Although, there are electoral laws and regulations across these states, nevertheless, political players have taken advantage of the weak institutional independence and gaps in these electoral laws to undermine electoral integrity. As a result, this research project seeks to debunk the formalistic conduct of elections by the electoral management bodies and the Judiciary as the arbiter, as pushing citizens to “accept and move on” rather than question the fidelity to electoral law principles. The study therefore makes several important findings. First, the Constitution 2010 and the relevant statutory frameworks are transformative and critical to the realization of electoral democracy. However, the study notes that the lack of good faith among the political elite and key players in the electoral process have been the key agents of reversing the gains made in Kenya’s electoral democracy. Second, that unlike the Judiciary which has played a major role through the growth of landmark electoral jurisprudence, the electoral management body has been a culprit of non-compliance with the law and Constitution 2010. Based on such findings, the research project proposes that electoral technology is necessary and should be integrated in electoral processes. However, transparency and accountability must be upheld to address external interference in electoral processes. Further, the study recommends that there is need for institutional restructuring of the electoral management bodies to ensure public confidence in these institutions. Other key recommendations include effective implementation and fidelity to both substantive and procedural electoral laws and regulations. The study therefore concludes that the challenges facing electoral management are not unique to Kenya based on the findings of the comparative analysis under Chapter 4. Hence, this paper recommends a holistic review of the existing electoral laws, regulations and policies to address the challenges evident locally and the challenges learnt from Nigeria and South Africa.