The Independence of the Judiciary in Kenya: An Analysis of Presidential Election Petitions Pre and Post 2010

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Abstract:

In a historic and first of its kind ruling, the Supreme Court of Kenya showed the fortitude and courage of the judiciary by nullifying the August 8th 2017 presidential election that had been tainted by irregularities. This sent word to the country that the Kenyan Judiciary is not an institution to be taken for granted and can be counted upon to uphold the rights of the people irrespective of their position within the spectrum of power. The independence of the judiciary is critical to the functioning of any democracy, as such, evidenced by its incorporation into the structure of Kenya’s government established by the Constitution of Kenya, 2010. This research examines the independence of the judiciary in regard to presidential election petitions, exploring the extent to which the Constitution of Kenya, 2010 guarantees the independence of the judiciary, the effect that politics has had on judicial decisions and the independence of the Kenyan judiciary and further investigating the influence of the executive’s powers in politically charged cases. Adopting constitutionalism, realism and rational choice institutionalism as theoretical frameworks of analysis of the topic, data collected from interviews and secondary sources primarily from books, journals, constitutions and their provisions and case law were analyzed and used to draw substantive conclusions and recommendations regarding the independence of the judiciary in Kenya. This thesis concludes by providing specific recommendations such as the amendment of some constitutional provisions as well as finding the legislature as an emerging nemesis to the independence of the Kenyan judiciary.

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The Independence of the Judiciary in Kenya: An Analysis of Presidential Election Petitions Pre and Post 2010

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