On 1 September 2017, the Supreme Court of Kenya defied popular expectations by declaring null and void the Kenyan presidential elections of 8 August 2017 in which the Independent Electoral and Borders Commission (IEBC) declared incumbent President Uhuru Kenyatta the winner. The decision gave African opposition politicians, who have long sought justice through the courts but failed against ruling parties that allegedly rig or steal elections, renewed optimism. Before the September 2017 ruling, landmark contests against outcomes of presidential elections accused of being fraudulent had failed in Uganda (2016), Ghana (2012), and Nigeria (2007).  

Three months after the ruling of the Supreme Court of Kenya, the Supreme Court of Liberia rejected a petition filed by four political parties, and ruled to uphold the outcome of the first round of the presidential election held on 10 October 2017.

The political reaction to the intervention of the two courts has been concerning. In Kenya, the judges were threatened by President Uhuru Kenyatta and labelled as “crooks”; while in Liberia – after the first ruling by the Court on 6 November 2017 prohibiting a run-off election before the parties’ complaints were adjudged by the National Elections Commission (NEC) – outgoing President Ellen Johnson-Sirleaf praised the parties for consistently seeking redress through the rule of law, but lamented that the country’s democracy was under assault, an apparent reference to the Stay Order imposed by the court. While the judgements of the courts epitomise the growing independence of the judiciary, the reactions of the two presidents symbolise the resentment of politicians to such independence, and their ever-present desire to cow and manipulate the judiciary.

Crying foul: Fraud, irregularity and illegality 

The complaints of the parties in Kenya and Liberia were based on the same fundamental principles: irregularity, illegality, and electoral fraud. Interestingly, in the case of Liberia, the ruling Unity Party was a part of those alleging fraud, a strange phenomenon in an African context.

In Kenya the opposition petitioned the court for the third consecutive election, claiming that the electronic system set up to transmit results from the polling stations to the tally centres was hacked in favour of Uhuru Kenyatta and his Jubilee Party. Several claims of irregularity and illegality were also filed on grounds that the IEBC proceeded with the process without following laid down rules in the constitution and electoral laws. For example they argued that during the final tally the IEBC admitted some unstamped result forms (34A) and this impacted the overall total. The opposition’s petition followed a marathon of court cases before the election, including an unsuccessful legal challenge against the IEBC on procurement practices, and acrimonious exchanges among the political actors in Kenya that involved violent clashes.

In the end, the Supreme Court ruled that the IEBC did not conduct the election in accordance with the “dictates of the constitution and the applicable principles”. The court found no evidence of fraud, but by failing to comply with the constitution, the opposition’s argument of illegality and irregularity was accepted and the election therefore was an illegal election, thus rendering it “invalid, null and void”.

In Liberia, when the complaining parties lost their petition for a rerun at both stages of the adjudication process at the NEC, they filed an appeal to the Supreme Court accusing the former of “violations of the constitution and election law, fraudulent acts and gross irregularities during the 10 October 2017 elections”. The ruling of the Supreme Court of Liberia, like that of Kenya, was equally stunning but in a different way. The Supreme Court of Liberia indeed found that there were irregularities, fraud, and violations of the election law, but denied the petition for a rerun of the entire election on grounds that the complainants “failed to show, however, that the evidence pervaded the entire spectrum of the elections throughout or in a considerably wide or most parts of the country”.

Fraud, irregularity and illegality: How much is too much?

By their rulings, the two Supreme Courts have brought into sharp focus the question of the overall validity of an election: what constitutes fraud, irregularity, and illegality; and what degree or threshold of fraud, irregularity or illegality is sufficient to question the credibility of an electoral process and its outcome, or to nullify it entirely. The ruling by the Liberian Supreme Court, in particular, has given more salience to the latter question. 

In a number of reports, observer groups including the African Union, recognise these issues of irregularity and illegality in some cases, but consider them as isolated challenges that are inconsequential when compared to the total number of votes.

But for the United States Supreme Court, voter fraud, when identified and proven, “demonstrates that not only is the risk of voter fraud real but that it could affect the outcome of a close election.” Regardless of their spread or magnitude, a single incident, in the opinion of the US Supreme Court, is sufficient to sway the outcome of the votes in a closely contested election.

Election umpires

Equally important alongside these developments is the fact that the electoral cases in Kenya and Liberia have brought to the fore more pointedly, the salience of the role of a credible electoral management body in managing polls. Unlike the institutional arrangements in other countries where a separate national institution, such as a constitutional court (eg. Mali, Niger), an election tribunal (Nigeria) or a Supreme Court (Kenya) is tasked with arbitrating electoral disputes, in Liberia the electoral commission –in addition to being an election management body – is the ‘court’ of first instance, presiding over cases in which it is often the primary defendant.  An aggrieved party in a Liberian election must seek redress first from the electoral commission before it can file an appeal to the Supreme Court – in the case of unsatisfactory ruling against a party – where final arbitration is done. This dual responsibility not only compromises justice, but strains the capacity of the electoral commission to properly fulfil its responsibilities of organising, managing and delivering credible elections.

While the courts in Kenya and Liberia have projected sufficient independence and demonstrated the relevance of the judiciary in electoral matters, they have exposed lapses in the electoral management bodies, particularly with the introduction of new technologies (software for transmitting results and electronic databases of the voter register), which became central to the disputes in both countries. Better electoral management, and greater transparency of the electoral cycle, including access to all systems and processes for all parties would enhance the credibility of elections and perhaps limit the need for parties to seek interventions from the courts.

*Ibrahim Al-bakri Nyei is a policy and political analyst. He can be reached at: [email protected]