Restoring Leviathan? The Kenyan Supreme Court, constitutional transformation, and the presidential election of 2013

This paper analyzes the Kenya Supreme Court's ruling in Odinga v IEBC, a petition challenging the declared outcome of the 2013 presidential election. The case was immediately significant given the hope that recourse to the courts would help to avoid widespread civil unrest which had followed the disputed presidential election of 2007. It was also a crucial test for the new dispensation established under the 2010 Constitution widely held to have broken with the authoritarian and unaccountable regimes which dominated Kenya both under colonialism and after independence. The paper critically reviews the reasoning of the Supreme Court on six key issues raised in the petition attending to the broader normative and political implications of the judgment. We argue that both in its substantive conclusions and in the style of reasoning adopted, Odinga v IEBC is inconsistent with the transformative ambitions underpinning the new constitution. Through its emphasis on evidential and procedural rules, rather than principled analysis, the judgment tends to reinforce the powers of the executive and the model of a unitary state beyond the reach of the law.