Disputed elections in Africa and the role of courts
The involvement of courts in electoral disputes has emerged as an increasingly common phenomenon in Africa, writes Ugochukwu Ezeh
After an anxious and prolonged period of vote-tallying, the results of the August 9 presidential election in Kenya were finally released last week - to both popular acclaim and condemnation across the country.
Raila Odinga, the runner-up presidential candidate, pointedly rejected the decision of Kenya’s Independent Electoral and Boundaries Commission (IEBC) chairman to declare William Ruto as president-elect, and has just filed a petition in court in a bid to overturn the election result. With barely a fortnight to deliver its verdict on the electoral dispute, the eyes of the nation and the world are now trained on the judges of Kenya’s Supreme Court. The judicialisation of electoral disputes has indeed emerged as an increasingly common phenomenon in a number of African countries.
In my chapter contribution to the recently published Routledge Handbook of Election Law, edited by David Schultz & Jurij Toplak, I discuss three key normative roles that courts can play within the electoral processes of nascent democracies and transitional societies on the African continent. Accordingly, I argue that courts - within the context of electoral dispute resolution - may help promote democratic renewal by: invalidating electoral malpractices and irregularities; facilitating the independence of core democratic institutions (such as electoral management bodies); and disseminating democratic values and constitutional norms.
Invalidating electoral malpractices and irregularities
In exceptional cases involving sham elections that evidently subvert the democratic will of the electorate, courts may provide practical remedies by invalidating electoral malpractices and other salient forms of electoral irregularities. Recent examples of this pattern of judicial intervention include the historic decision of the majority judges in the Supreme Court of Kenya to overturn the presidential election results in 2017 and order a re-run. This precedent was reprised in Malawi in 2020, when the Supreme Court of Appeal, in a celebrated judgement, nullified former President Mutharika’s controversial re-election.
However - given its discernibly heightened and far-reaching implications - this category of judicial intervention is best restricted to exceptional cases involving salient violations of applicable constitutional and statutory frameworks in the electoral spehere as well as significant forms of electoral malpractice. Conversely, less activist forms of judicial review may be more appropriate in cases where alleged electoral irregularities have negligible effects on the credibility of the electoral process. Thus, in dismissing an election petition which sought to nullify the results of Nigeria’s contested presidential election in 1979, Justice Obaseki of the Nigerian Supreme Court aptly remarked that ‘no tribunal in any petition by a weak presidential opponent, can justifiably invalidate any election for non-compliance on a minimal scale.’
Objections may also be raised in relation to the democratic legitimacy of courts to invalidate contested election results. While this point is well taken, courts may be less vulnerable to such criticisms in jurisdictions where they are able to find principled and cogent justification, within applicable constitutional and statutory frameworks, for their decisions to invalidate impugned elections. With respect to the aforementioned judicial invalidation of the Kenyan presidential polls in August 2017, for instance, the majority Supreme Court anticipated such criticisms by plausibly anchoring its decision on the provisions of the Kenyan constitutional text and other relevant legal frameworks. As the majority court memorably put it, the judicial power to invalidate the disputed election result was neither ‘self given nor forcefully taken’ but stemmed from the authority of Kenya’s 2010 Constitution.
Facilitating the independence of electoral management bodies
Considering their centrality to the quest for credible electoral processes in transitional societies and fledgling democracies, the autonomy and institutional independence of electoral management bodies can hardly be overemphasised. Accordingly, courts, through the exercise of their judicial review powers, may contribute towards facilitating the autonomy of electoral institutions. In this connection, courts may leverage, for instance, adjudicative opportunities presented by high-profile election petitions to affirm constitutional and statutory provisions guaranteeing the independence of electoral management bodies. In discharging their electoral dispute resolution functions, courts may also help resolve complex legal issues; highlight deficiencies in legislative and regulatory frameworks; and make appropriate recommendations for institutional reforms. Furthermore, courts may contribute towards safeguarding the jurisdiction of electoral officials and institutions from unconstitutional encroachment and illegal interference by other political actors.
Disseminating democratic values
Within the context of electoral dispute resolution, courts may also contribute towards advancing the cause of democratisation by disseminating constitutional norms and democratic values. For instance, courts, in some jurisdictions, such as Ghana, have sought to signal the importance of transparency as a key democratic value in the course of determining election petitions. It is instructive that the Ghanaian Supreme Court permitted public broadcasts of the judicial proceedings arising from the country’s contested presidential election in 2012. The strategic adoption of transparent adjudicative procedures was aimed at facilitating greater civic engagement with the judicial process and building public trust in the system of electoral dispute resolution.
The need to inspire public confidence in peaceful and constitutional channels for resolving political conflicts can hardly be overemphasised given the particularly fractious and volatile nature of electoral disputes in transitional societies and fledgling democracies. Adjudicative transparency may also serve to diffuse post-election tensions and foster a sense of inclusion in the dispute resolution process among the citizenry.
The limits of judicial remedies
Notwithstanding the foregoing, the capacity of courts to facilitate democratic consolidation in transitional societies and nascent democracies should not be overstated. Judicial invalidation of salient electoral malpractices and irregularities may not always be a viable option - particularly in jurisdictions where the political context is repressive or otherwise unconducive to intrepid assertions of judicial independence. In some other cases, election petitions may flounder if opposition groups and unsuccessful election candidates adduce unsatisfactory evidence or otherwise fail to substantiate their claims in the court. By the same token, the sustainability and relevance of judicial resolution of electoral conflicts may also rest on the readiness of aggrieved litigants and other political actors to accept democratic outcomes and principled judicial decisions in good faith.
Furthermore, the efficacy of judicial efforts to foster the autonomy of election management bodies cannot always be guaranteed. Such efforts may fail to address the complex structural factors that often underpin the deficiencies of electoral institutions. In this regard, the (un)satisfactory performance of electoral management bodies in fledgling democracies and transitional societies, may be conditioned by multifaceted factors such as poor funding, relatively inexperienced or inadequately trained personnel, or widespread public mistrust in the electoral process. The relationship between courts and electoral management bodies may also assume conflictual and counterproductive dimensions if judicial actors and electoral officials regard themselves as rival stakeholders, rather than collaborative partners, within the broader electoral process.
Beyond leveraging transparent procedures in resolving electoral disputes, courts would also be well advised not to lose sight of other complex factors that shape public confidence in the judicial process. Accordingly, the substantive judicial decision to either uphold or dismiss a given election petition may also be evaluated, inter alia, on the basis of the quality of the judicial reasoning; public perceptions concerning the impartiality and independence of the courts; the extent to which courts succeed in according principled and even-handed consideration to concerns raised by petitioners; and the ability of judicial actors to render judgements in ways that are accessible and intelligible to the broader public.
The struggle to consolidate democratic governance in several transitional societies and fledgling democracies across the continent must be regarded as a collaborative and long-term process. Beyond the courtroom, this struggle will ultimately be sustained - or negated - by the collective enterprise of all democratic stakeholders including the citizenry, constitutional and electoral institutions, pro-democracy activists, the press, the intelligentsia, and civil society groups, among others.
Ugochukwu Ezeh, a doctoral researcher in the Law Faculty of the University of Oxford, is the author of the chapter entitled ‘Contested Elections in Africa: The Role of Courts in Electoral Processes’ in the recently published Routledge Handbook of Election Law (edited by David Schultz & Jurij Toplak).