No Court has Ever Overturned Incumbent’s Victory

Today is going to be a big day for Kenya as it awaits Supreme Court ruling in a petition that was filed by NASA, challenging the declaration of President Uhuru as the winner. Uhuru Kenyatta was declared the winner after he defeated Raila with more than 1.44 million votes. Raila, on the other hand, claims that the election was never free and fair due to massive irregularities that characterized 2017 election. Even though Kenyans are hopeful that the Supreme Court is going to be fair, impartial, and upholds justice, it is not likely that it is going overturn Uhuru’s victory.

History confirms that no court has ever overturned presidential election, especially when the incumbent is declared the winner. This explains why challengers rarely contest election results when the incumbent is declared the winner. Court ruling always favors the incumbent or presumptive winner. Without quoting international examples, Kenya is a good example that shows that it is extremely hard for a court to overturn incumbent’s victory. In a petition pitting Kibaki against Moi in 1997, the case was thrown away by court simply because the former never served the latter with petition papers. Kibaki complained that Moi was ringed with security officers, making it impossible to personally serve the former president with papers. However, the court heard none of this. In 2013, Raila challenged the victory of Uhuru in the Supreme Court. As was expected, the court led by Dr. Mutunga upheld the victory of Uhuru after delivery shoddy ruling that lasted only three minutes.

The same trend has been seen in different parts of the world such as Besigye Vs Museveni in Uganda, Mazoka Vs Mwanawasa in Zambia, and Akufo-Addo Vs Mahama in Ghana. The most controversial presidential petition was witnessed in Gambia in 2016 when the Supreme Court judges declined to rule on the presidential petition that was filed by the incumbent Yahya Jammeh to overturn his defeat, even after it was clear that he was defeated by Adama Barrow, the then opposition leader. This problem is not only in Africa, but also in developed countries. For instance, in 2000, the US Supreme Court declared Bush the winner, even after massive election irregularities that were witnessed in Florida. Some people are likely to argue that Austria court recently overturned presidential election in the country after it was marked by a lot of irregularities. However, it is interesting to note that Austrian president mainly plays ceremonial role, which may not attract much power.

The main argument used by many judges when deciding presidential petition is that elections are complex process. As a result, flimsy mistakes, error omission, and error of commission are not enough evidence to overturn presidential election results so long as there is overall fairness in the whole process. Petitioners are not only required to prove that there were massive irregularities in the election process, but also that the irregularities seriously affected the outcome.

The evidence that was presented by NASA sufficiently proves that there were a lot of irregularities in the 2017 general election. However, I am afraid it may not prove that the irregularities seriously affected election outcome.