In recent years the courts have been increasingly involvedin resolving electoral disputes in many countries across the globe.
This ispart of the direct involvement of the Supreme Courts in electoral process andshaping political contests. The facts are, (the members of the court areintegral elements of the larger political setting” (Hirschl, 2006, p. 721).
Existing literature has offered several explanations on theroles of Supreme Court in electoral process; first is the constitutional powerof the court, which places on the courts all the powers and sanctions of acourt of law and makes the courts arbiter in all disputes (Hirschl, 2006; Bork,2002). Ely (1980) refers to court’s power of arbiter as a means to ensure thatelected leaders or representatives of various seats are not “choking off thechannels of political change to ensure that they will stay in and the out willstay out” (Ely, 1980 cited in Gloppen, 2004, p.4). For example the Supreme Court of India is the guardian andinterpreter of the constitution.
It does not allow the executive or theparliament to violet any provision of the constitution; India’s highest courtbanned political candidates from seeking election on the basis of religion casteor language.Second, court involvement is an essential element of theentire electoral cycle. The courts “ensure that each action, procedures anddecision related to the electoral process is in line with the law”(International IDEA, 2010, P.1). Von Doepp (2009) supports this by stating thatvibrant and autonomous judiciaries are central means to democracy, and”represent key ingredients for democratic consolidation (p. 1).
“Third is the competitive nature of most presidentialelections. In a presidential democracy, the president wields substantialpowers, and the influence that comes with the office makes it very attractive.The consequence is that election rigging becomes commonplace in mostpresidential democracies. Under these circumstances, candidates or politicalparties disadvantaged by the process usually approach the Supreme Courts forelectoral justices.
Supreme Courts have been involved in judicial interventionin the management of election petitions and other related electoral process.Supreme Court is the highest court with jurisdiction to here and determineselection petitions, is the process-based approach of election quality (Van Ham,2012). This involves examination of overall judgment of election quality basedon more specific indicators of irregularities before, during and afterelection-day. For example Article 163 ofthe Constitution of Kenya establishes and bestows upon the Supreme Court ofKenya (SCoK) exclusive and original jurisdiction to hear and determine disputesrelating to the elections of the office of the president.
This means that theSupreme Court of Kenya (SCoK) has the power to adjudicate on presidentialelection disputes to the exclusion of all other courts. The puzzle is to understand how the courts have performedalong these three explanatory variables. Given that, post-electoral challengesare almost never successful in changing election results (Hernandez Huerta,2015). More importantly, when most involvements of the courts in electoralprocess lead to unprecedented constitutional crisis such as in America(Hirschl, 2006) or “further undermine democracy as is the case in Nigeria(Omenma, 2015, p. 1). Despite these reservations, there are strong belief thatthe judiciary “cannot be a passive on-looker” in the democratic process(Muhammad, 2012, p. 41); that courts’ “interventions in the electoral processeshave gone a long way to deepen our democratic system.
Judicial Intervention Judicialintervention in the management of election petitions and other relatedpolitical matters has greatly expanded in the last decade (Rares, 2011;Gloppwn, 2004; Ugochukwu, 2009). In fact, courts have been involved in widerange of issues that boarder on national and international politicalimportance. Rares (2011, p. 1) notes that the “Judicial system is a publicresource that must be managed so as to ensure that the right of the public tohave access to a court to resolve their disputes is not empty rhetoric”.
Ellett(2008) argues that in Africa “the new leaders of the continent … are systematicallyobstructing the liberalization of the political system in an effort to remainin power as long as possible…” thereby “choking off the channels of thepolitical change…” which is necessary for development (Ely, 1980 cited inGloppen, 2004. P. 4). The consideration, therefore, is not only on theconstitutional role of the Supreme Courts to resolve electoral disputes, buthow the court confines itself to “the application of legal principles” (Okoye,2009, p. 128) without empty rhetoric
