Can Democratic Principles Protect High Courts from Partisan Backlash? Public Reactions to the Kenyan Supreme Court’s Role in the 2017 Election Crisis

The forthcoming article “Can Democratic Principles Protect High Courts from Partisan Backlash? Public Reactions to the Kenyan Supreme Court’s Role in the 2017 Election Crisis” by Brandon L. Bartels, Jeremy Horowitz and Eric Kramon is summarized by the author(s) below. 

In September 2017, Kenya’s Supreme Court invalidated the country’s presidential election on procedural grounds, ruling that the electoral commission had failed to conduct the race in accordance with constitutional requirements. Elsewhere in Africa, judiciaries are also playing more assertive roles. In a similar case, Malawi’s high court annulled the county’s 2019 election, calling for a re-run in which the incumbent subsequently lost to the opposition candidate. South Africa’s high court ruled in 2017 that the president was not immune from prosecution on corruption charges while in office. And in Kenya, the Supreme Court recently blocked the government’s plans to close two large refugee camps. These rulings reflect the growing independence of African judiciaries on a continent where high courts have traditionally been subservient to powerful executives and provide important precedents for courts struggling to assert their powers throughout the region. 

This paper examines the popular foundations of judicial authority by investigating public reactions to the Kenyan Supreme Court’s 2017 rulings. High courts play an indispensable role in buttressing the rule of law and consolidating democracy, particularly in newer democracies and electoral authoritarian regimes. Yet, rulings on contentious issues risk backlash, which can undermine the public support upon which their power ultimately depends. We leverage data from a multi-wave panel survey conducted in the midst of Kenya’s election crisis to test competing views of public support. Conventional wisdom holds that citizen commitment to democracy and the rule of law sustains public support for high courts, even among those whose partisan or policy interests are harmed by major rulings. This view, however, remains largely untested and has been challenged by those emphasizing the partisan foundations of judicial support.  

The Kenyan Supreme Court’s historic 2017 elections rulings provide an unusual opportunity to test alternative expectations. After annulling the incumbent president’s victory, the Court upheld his controversial repeat-election win. With data from a national panel survey—conducted before and after the repeat election—we find important partisan-based withdrawals/increases in judicial-power support. We find no evidence that democratic principles attenuated partisan backlash; some were associated with its amplification. 

Our results show that partisan reactions can influence diffuse forms of court support, which is significant given the literature’s emphasis on apolitical drivers of diffuse support. The findings complement research showing that citizens often privilege partisan interests over the protection of democratic and rule-of-law institutions. While these results are discouraging in normative terms, we show also that partisan losers maintain moderately high support despite backlash in this case. Finally, the article extends scholarship on public support for judiciaries to Africa by examining one of the most important judicial decisions in Africa’s recent history. Given courts’ increasing role in adjudicating election disputes and these cases’ centrality in battles surrounding democratization, such an analysis is critical to understanding the development of judicial power and democratic consolidation in such contexts. 

About the Author(s): Brandon L. Bartels is Professor, Department of Political Science at George Washington University, Jeremy Horowitz is Assistant Professor, Department of Government at Dartmouth College and Eric Kramon is Associate Professor, Department of Political Science and Elliott School of International Affairs at George Washington University. Their research “Can Democratic Principles Protect High Courts from Partisan Backlash? Public Reactions to the Kenyan Supreme Court’s Role in the 2017 Election Crisis” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science.