Judicial Resistance and the Trajectory of Democracy: Evidence from Kenya and Malawi

In the age of contested elections, African courts are emerging as unexpected sites of resistance. This talk will explore why judges in Kenya and Malawi defied the odds to annul presidential elections and what enables judicial courage when institutions are under pressure.

Since the introduction of multiparty elections, African elections have become political moments where incumbents have increasingly relied on courts and lawfare to manipulate the electoral process. With only five African states categorised as democratic by Freedom House, most African courts operate in a hostile environment. Because of the role they play in the electoral process, courts are particularly under threat during that period. As such, the literature on political institutions assumed that courts would remain captured by the executive branch (Boix, 1999). Recent empirical evidence suggests a different picture. In Kenya and Malawi, for instance, courts annulled the election of the presidential incumbent despite the pressure they were under in the 2017 and 2019 elections. Because dominant theoretical frameworks cannot explain these African cases, this project seeks to identify the conditions under which courts will engage in judicial resistance during electoral disputes. I argue that courts will engage in judicial resistance when the institutional framework enables judicial support networks to mobilise and create incentives for judges to denounce electoral irregularities. To test my theory, I leverage original data from Kenya and Malawi using hand-coded electoral dispute judgments and interviews with key stakeholders to understand the process through which judicial resistance occurred in both countries.