African judiciaries and authoritarianism: Rethinking standards of proof in presidential election petitions

African judiciaries, as virtually all judiciaries, have one fundamental duty; to be the guardians of constitutionalism, yet in practice they sometimes entrench authoritarian tendencies knowingly and sometimes unknowingly by conjuring unnecessary evidentiary barriers that frustrate democratic accountability. Nowhere is this more evident than in presidential election petitions, where courts such as the Supreme Court of Kenya have adopted an “intermediate” standard of proof that departs from the civil law principle of balance of probabilities. This judicial innovation, lacking clear justification, elevates an unyielding burden on petitioners and risks shielding electoral irregularities from meaningful scrutiny. By situating Kenya’s jurisprudence within comparative civil law experiences from Canada, Mauritius and the United Kingdom, this paper offers a perspective that presidential election disputes are civil in nature and should be adjudicated on the ordinary civil threshold. Although the intermediate standard threshold seems to have been largely influenced by the Supreme Court decisions of Zambia and India in Lewanika and others v Chiluba (1999) 1LRC 138 and Shri Kirpal Singh v Shri VV Giri (1970) INSC 191: AIR 1970 SC 2097; 1971(2) SCR 197; 1970(2) SCC 567 respectively, comparative traditions suggest election petitions are civil matters, hence there is a real risk of isolating the country from best global constitutional practice. It is argued that settling for an intermediate standard in presidential election petitions depicts the court as an enabler in chief of authoritarianism. The continued insistence on this standard, for almost a decade, justifies the notion that courts have and continue to engage in abusive judicial review which rubberstamp democratic erosion in the would-be democratic states. By oscillating from weird standards of proof threshold for annulling elections, the Supreme Court has made it virtually impossible to achieve electoral justice even in the presence of the most glaring constitutional and statutory electoral violations in the conduct of presidential elections. Therefore, rethinking the standard of proof is a constitutional imperative not only to restore coherence in electoral justice but also to prevent the court from becoming an inadvertent agent of authoritarian consolidation within the Kenyan state. Ultimately, the paper calls for reclaiming judicial legitimacy by restoring the civil character of election petitions, aligning evidentiary standards with constitutional principles and ensuring that the Supreme Court remains a vigilant guardian of free and fair elections and not authoritarian consolidation. This perspective aims to stimulate further scholarly debate on the subject.

1.0 Introduction

Disputes involving the presidential elections are not a new phenomenon in Kenya. Kenya witnessed similar cases after the general elections of 1992, 1997, 2013, 2017 and 2022. Six petitions were filed in the High Court in 1992 after the late President Daniel Arap Moi was declared winner in the polls.2 The court struck five out of six petitions on procedural grounds even before the hearing commenced. Kenneth Matiba’s case was the only one heard but the court of Appeal later dismissed it too because he did not sign the petition himself as required under the then Rule 4(3) of the National Assembly Elections (Election Petition) Rules 1993.3 It bears recalling that Kenneth Matiba became sickly and physically incapacitated after suffering a stroke during his detention without trial and thus gave his wife the power of attorney to sign the court papers in 1993.4 While the High Court, sitting as an election court, breathed life into the petition, the Court of Appeal (JM Gachuhi, AM Cockar & RSC Omolo, JJA) declared the petition was incompetent ab-inito. In the words of AM Cockar, “It was still born. Mr Kariuki, understandably and commendably, made read more...