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In recent years the courts have been increasingly involved in resolving electoral disputes in many countries across the globe. This is part of the direct involvement of the Supreme Courts in the electoral process and shaping political contests. The facts are, (the members of the court are integral elements of the larger political setting” (Hirschl, 2006, p. 721).
Existing literature has offered several explanations on the roles of Supreme Court in the electoral process; first is the constitutional power of the court, which places on the courts all the powers and sanctions of a court 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 that elected leaders or representatives of various seats are not “choking off the channels of political change to ensure that they will stay in and the out will stay out” (Ely, 1980 cited in Gloppen, 2004, p.4).
For example, the Supreme Court of India is the guardian and interpreter of the constitution. It does not allow the executive or the parliament to violet any provision of the constitution; India’s highest court banned political candidates from seeking election on the basis of religion caste or language.
Second, court involvement is an essential element of the entire electoral cycle. The courts “ensure that each action, procedures, and decision-related to the electoral process are in line with the law” (International IDEA, 2010, P.1). Von Doepp (2009) supports this by stating that vibrant and autonomous judiciaries are central means to democracy, and “represent key ingredients for democratic consolidation (p. 1).”
The third is the competitive nature of most presidential elections. In a presidential democracy, the president wields substantial powers, and the influence that comes with the office makes it very attractive. The consequence is that election rigging becomes commonplace in most presidential democracies. Under these circumstances, candidates or political parties disadvantaged by the process usually approach the Supreme Courts for electoral justices. Supreme Courts have been involved in the judicial intervention in the management of election petitions and another related electoral process. Supreme Court is the highest court with jurisdiction to here and determines election petitions, is the process-based approach of election quality (Van Ham, 2012). This involves examination of the overall judgment of election quality based on more specific indicators of irregularities before, during and after election day. For example, Article 163 of the Constitution of Kenya establishes and bestows upon the Supreme Court of Kenya (SCoK) exclusive and original jurisdiction to hear and determine disputes relating to the elections of the office of the president. This means that the Supreme Court of Kenya (SCoK) has the power to adjudicate on presidential election disputes to the exclusion of all other courts.
The puzzle is to understand how the courts have performed along these three explanatory variables. Given that, post-electoral challenges are almost never successful in changing election results (Hernandez Huerta, 2015). More importantly, when most involvements of the courts in the electoral process leading to an 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 is strong belief that the judiciary “cannot be a passive on-looker” in the democratic process (Muhammad, 2012, p. 41); that courts’ “interventions in the electoral processes have gone a long way to deepen our democratic system. Judicial Intervention
Judicial intervention in the management of election petitions and other related political matters has greatly expanded in the last decade (Rares, 2011; Gloppwn, 2004; Ugochukwu, 2009). In fact, courts have been involved in wide range of issues that border on national and international political importance. Rares (2011, p. 1) notes that the “Judicial system is a public resource that must be managed so as to ensure that the right of the public to have 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 systematically obstructing the liberalization of the political system in an effort to remain in power as long as possible…” thereby “choking off the channels of the political change…” which is necessary for development (Ely, 1980 cited in Gloppen, 2004. P. 4). The consideration, therefore, is not only on the constitutional role of the Supreme Courts to resolve electoral disputes, but how the court confines itself to “the application of legal principles” (Okoye, 2009, p. 128) without empty rhetoric
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