CISD Yearbook of Global Studies Volume 6 August 2019 0 CISD Yearbook of Global Studies Volume 6 August 2019 The Nullification of the 2017 Presidential Election in Kenya – Advancing the Rule of Law? A Legal and Political Analysis Liza Micke 2 Africa-EU Relations: A Partnership of Equals? Angelique Umugwaneza 39 Grey Zones of Law and War: Assessing the Applicability of the Principle of Distinction to Cyber-Warfare Isabella Steel 68 Reassessing Success and Failure of Social Movements: the 2014 Hong Kong Umbrella Movement Florence Woodrow 115 Most Things Are North: Norwegian identity in foreign policy discourse and cooperation with Russia in the Artic Linn Vardheim 155 Changing Perceptions and Ideology: the Role of Epistemic Communities of Museum Professionals in Cultural Diplomacy Eloisa Romani 191 1 The Nullification of the 2017 Presidential Election in Kenya – Advancing the Rule of Law? A Legal and Political Analysis Liza Micke Abstract: This dissertation analyses whether Raila Odinga v IEBC 2017, the judgement with which the Supreme Court nullified the result of the 2017 Presidential Election in Kenya, advanced the rule of law in the country. Raila Odinga v IEBC 2017 was the second judgement on a petition challenging the result of a Presidential Election – Raila Odinga v IEBC 2013, with which the result of the 2013 Presidential Election was upheld, beingthe first – since the promulgation of the Constitution, 2010. It was also the second opportunity for the judiciary to implement the constitutional dispensation established under the Constitution, 2010, thereby, advancing the rule of law in the country, after it had failed to do so in Raila Odinga v IEBC 2013. This dissertation critically analyses Raila Odinga v IEBC 2017 by comparing it to Raila Odinga v IEBC 2013. It argues that Raila Odinga v IEBC 2017 initially indicated an advancement of the rule of law in Kenya, that such advancement, however, was reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the 2017 repeat Presidential Election in John Mwau v IEBC 2017. It further argues that the political reactions to Raila Odinga v IEBC 2017 reveal a lack of respect for the rule of law. Indeed, the political reactions indicate interests vested in undermining the continued consolidation of the constitution, which, overall, leads to the conclusion that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country. 2 Introduction Presidential Elections were held in Kenya on 8th August 2017. According to the result released incumbent president Uhuru Kenyatta was re-elected with 54% of the vote. His opponent Raila Odinga refused to accept the results and filed a petition challenging the result of the election in the Supreme Court, which came to the conclusion that: “The Presidential Election held on 8th August 2017 [in Kenya] was not conducted in accordance with the Constitution [of the Republic of Kenya] and the applicable law rendering the declared result invalid, null and void; […] An Order is hereby issued directing the [Independent Electoral and Boundaries Commission (IEBC)] to organize and conduct a fresh Presidential Election in strict conformity with the Constitution and the applicable election laws within 60 days of the determination of 1st September 2017 under Article 140(3) of the Constitution [of the Republic of Kenya].” (Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others 2017; hereinafter: Raila Odinga v IEBC 2017, 405) These are the words of the Supreme Court of the Republic of Kenya, as read by Chief Justice (CJ) David Maraga, nullifying the result of the 2017 Presidential Election and the re-election of incumbent President Uhuru Kenyatta. Raila Odinga v IEBC 2017 was the second judgement on a petition challenging the result of a Presidential Election – Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & 3 others 2013; hereinafter: Raila Odinga v IEBC 2013, with which the result of the 2013 Presidential Election was upheld, being the first – since the promulgation of the Constitution of Kenya, 2010 (hereinafter: the Constitution, 2010). It was also the second opportunity for the judiciary to implement the transformative constitutional dispensation established under the Constitution, 2010, thereby advancing the rule of law in the country, after it had failed to do so in Raila Odinga v IEBC 2013. The Constitution, 2010, aspires to end the centralisation of power in the presidency which was experienced in Kenya under the Constitution of Kenya, 1963 (hereinafter: the Constitution, 1963). With the centralisation of power in the president and the correlative erosion of the independence of the judiciary, no one could ensure the rule of law. The Constitution, 2010, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary that controls presidential power. The aspiration to implement the transformative constitutional dispensation established under the Constitution, 2010, was given weight in Raila Odinga v IEBC 2017. Against this background, the nullification of the 2017 Presidential Election was celebrated as an advancement for the rule of law in the country (Binyon, The Times 2017; Maina, The Japan Times 2017; Opalo, The Washington Post 2017) in Kenya, Africa and around the world. For the first time in African history, an African court nullified the re-election of an incumbent president (Freytas-Tamura, New York Times 2017; Dörries, Süddeutsche Zeitung 2017; Bröll, Frankfurter Allgemeine Zeitung 2017; Putsch, Die Welt 2017). Reflecting on the celebration, the aim of this dissertation is to analyse whether the nullification of the 2017 Presidential Election in Kenya indeed advanced the rule of law in the country. I argue that Raila Odinga v IEBC 2017 initially indicated an 3 advancement of the rule of law in Kenya. While – in contrast to the Raila Odinga v IEBC 2013 reasoning – the reasoning in Raila Odinga v IEBC 2017 shows fidelity to the Constitution and its purposes and principles, thus indicating an advancement of the rule of law, such advancement was reversed when the Supreme Court returned to Raila Odinga v IEBC 2013 in its judgement upholding the result of the repeat 26th October 2017 Presidential Election (John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others 2017, hereinafter: John Mwau v IEBC 2017). I further argue that the political reactions to the nullification of the 2017 Presidential Election reveal a lack of respect for the rule of law, the separation of power and the independence of the judiciary. Indeed, the political reactions indicate interests vested in undermining the continued consolidation of the constitution, which, overall, leads to the conclusion that the nullification of the 2017 Kenyan Presidential Election did not advance the rule of law in the country. This dissertation is divided into three chapters. The first chapter (I.) seeks to introduce the theoretical framework. In its first part (1.) it defines and conceptualizes the rule of law and identifies the separation of power and the independence of the judiciary as essential elements thereof. In its second part (2.) and third part (3.) it discusses the concepts of separation of powers and judicial independence and their interrelation with the rule of law. The second chapter (II.) seeks to apply the theoretical framework by analysing the reality of the rule of law in Kenya within its historical context. It outlines in its first part (1.) how under the Constitution, 1963, power was centralised in the president and how this resulted in the correlative erosion of the separation of power and the independence of the judiciary. With neither the separation of power nor an independent judiciary, no one could ensure the rule of law in the country. In the second part (2.) it outlines how the aspiration to end the centralisation of power in the president was given normative weight by the Constitution, 2010, which, aiming to ensure the rule of law, establishes the separation of power and an independent judiciary that controls presidential power. The chapter engages in this discourse on the premise of the framework developed in the first chapter. The historical context outlined in the second chapter provides the essential guide for the third chapter (III.), which asks whether the reality of the rule of law in Kenya advanced through the nullification of the 2017 Presidential Election. In its first part (1.) it analyses the judgement with which the 2017 Presidential Election was nullified and in its second part (2.) the political reactions to it with regard to the question whether the nullification advanced the rule of law in Kenya. The legal and political analysis is the focus of this dissertation. Methodology The first and the second chapter rely on the collection of data through critically analysed secondary scholarly sources from books, book chapters and academic journal articles. In order to collect data for the third chapter, this dissertation relies on an integrated approach of critically analysed primary and secondary sources from constitutions, legislation and cases as well as books, book chapters, academic journal articles and newspaper articles. Additionally, it relies on collected primary data in the form of individual expert interviews. The collection of primary data in the form of interviews was chosen as a data collection method to complement the existing secondary source data. 4 The strength of the collection of primary data in the form of interviews is the close engagement of the experts with the rule of law in Kenya and their ability to elaborate with insight on the events surrounding the nullification of the 2017 Presidential Election and on whether such events advanced the rule of law in the country. However, the data collected represents insights of the experts only. A thorough review of the existing secondary sources helped to identify a framework for the questions for the interviews which complements the secondary source data.