In of election quality based on more specific indicators

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 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 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).

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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 is 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).”

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 judicial intervention
in the management of election petitions and other 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 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 electoral
process 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 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 boarder 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