WEBINAR 4: MIDDLE EAST & AFRICA - Unpacking the Normative Roles of Courts in Electoral Processes
Ugochukwu EZEH
16 November 2020
Courts, pro-democracy activists, and other politico-constitutional actors in a range of African jurisdictions have sought – with varying degrees of success and failure – to invoke judicial power as a remedial mechanism against the onslaught of electoral malpractices and other patterns of democratic decline. This blogpost uses a series of vignettes from several African presidential election petitions to frame several discussion points, insights, and key questions on democratic decline and the role of municipal courts in the electoral processes of nascent democracies. The blogpost highlights three normative functions courts may fulfil in such contexts. Within the limits of judicial authority, courts may: invalidate electoral malpractices; facilitate the institutional empowerment of core democratic institutions (such as electoral commissions); and edify democratising polities by disseminating constitutional values and democratic norms.
Judicial Invalidation of Electoral Malpractices
Courts can exercise practical remedial functions by refusing to sanction irregularities and malpractices that compromise the integrity of the electoral process. In exceptional cases, this may entail judicial invalidation of sham elections. To discharge this normative function, courts may need to evolve progressive interpretations of the prevalent ‘substantial effects’ doctrine applied in election petitions.
In basic terms, African courts confronted with the task of determining election petitions have grappled with tensions between qualitative and quantitative standards of validity under the overarching rubric of the substantial effects doctrine. Qualitative standards emphasise the substantive quality and credibility of the electoral process and insist on meaningful compliance with applicable constitutional and statutory frameworks. In contrast, the quantitative standard generally upholds a presumption of validity in favour of impugned elections unless petitioners establish that electoral irregularities have substantially affected the numerical results of an impugned election. Although the distinction between both standards of validity seems artificial, it has nonetheless served as a useful heuristic device in several election petitions.
The prevalent adjudicatory approach has been to treat both standards as a conjunctive two-pronged test although the quantitative standard has generally been regarded as the determining factor. As such, petitioners have been required to establish, first, that an impugned election was not conducted in accordance with relevant electoral rules and, second, that the non-compliance substantially affected the numerical election results.
In some variants of the substantial effects doctrine, encapsulated by the old Nigerian case of Awolowo v Shagari (1979) petitioners were required to further establish that they would have won the impugned election ‘but for’ substantial noncompliance with applicable electoral rules. Although the prevalent approach is not without its merits, it imposes onerous evidentiary burdens on petitioners in circumstances that often shield deficient and fraudulent elections from effective legal scrutiny.
Insights From Recent Cases
Within the limits of judicial authority, courts may draw inspiration from progressive adjudicatory approaches adopted in recent cases from Kenya and Malawi. In Raila Odinga & Anor. v Independent Electoral and Boundaries Commission & Ors. (Presidential Petition No. 1 of 2017), the majority decision of Supreme Court of Kenya nullified the disputed August 2017 presidential elections for substantial non-compliance with the Constitution and applicable statutory frameworks.
The majority opinion in Odinga tempered the rigour of the substantial effects doctrine by decoupling the two standards of validity. On the disjunctive test applied by the Court, it was sufficient for the petitioner to establish that ‘the conduct of the election violated the principles in [the] Constitution’ and other applicable electoral laws - although the majority opinion held obiter that the noncompliance had, in any case, also affected the election results. With respect to its democratic legitimacy to determine the case, the Court stated that its judicial powers - ‘including that of invalidating a presidential election’ - were neither ‘self-given nor forcefully taken’ but flowed from the authority of the Kenyan Constitution.
In justifying its decision to order fresh presidential elections, the Court further emphasised its constitutional obligations to ensure that the democratic will of the Kenyan people was not subverted through elections conducted in sheer violation of the electoral principles enshrined in the constitutional text.
The example set in Odinga was recently followed in the celebrated case of Peter Mutharika & Electoral Commission v Lazarus Chakwera & Saulos Chilima, decided in May 2020. There the Malawian Supreme Court of Appeal declared that Peter Mutharika had not been duly elected as President of Malawi and affirmed the decision of the Constitutional Court to order fresh elections. The Court faulted previous adjudicatory approaches for emphasising the quantitative standard and relegating concerns about the integrity of the electoral process. The Court reasoned that such quantitative conceptions of elections had unwittingly reinforced ‘increased electoral malpractices over the years’ resulting in ‘the focus being on maximizing the numbers [of votes] by whatever means, without complying with the law.’
Echoing the principle earlier enunciated in Odinga, the Court rejected the notion that a presidential election was a mere ‘event’ or a simple numerical exercise in vote counting. Such a notion, the Court reasoned, would not adequately address cases where the numerical results may have been affected by ‘inaccurate counting, intimidation, fraud or corruption’ and other forms of electoral malpractice. In the final analysis, the Court held that a sound adjudicatory approach would be to focus on the electoral process and evaluate its quality by reference to its substantive (non)compliance with applicable constitutional and statutory rules.
Discussion Points And Key Questions
As is well known, the Kenyan and Malawian courts faced political backlash in the aftermath of their assertive interventions into the volatile sphere of electoral politics. African judicial actors thus seem trapped within an adjudicatory dilemma: courts seriously undermine their legitimacy when they validate sham elections, yet they risk significant political backlash if they make assertive interventions in the electoral process. In what ways should African courts seek to resolve this dilemma? What accounts for differences in outcome in the jurisdictions - Kenya and Malawi provide an interesting contrast - where courts have chosen to intervene? What patterns of political backlash will judicial activism engender? What strategies of survival should courts adopt?
Courts and Core Democratic Institutions – The Case of Electoral Management Bodies
In response to patterns of democratic decline, courts can help open up juridical space for core democratic institutions, like electoral management bodies, to assert their independence with a view to strengthening the democratic process. As institutions vested with crucial functions of electoral administration, election management bodies are central to the consolidation of democratic governance and the development of credible electoral processes in transitional societies. Yet, as Omotola has rightly observed, the ‘weak institutionalization of core institutions in the governance of electoral processes’ militates against democratisation in such societies. The need to facilitate institutional empowerment of electoral management bodies thus assumes material significance.
Courts may strategically utilise opportunities presented by election petitions to uphold constitutional provisions guaranteeing the institutional independence of electoral bodies. Within the context of electoral dispute resolution, courts may also resolve complex legal issues; highlight defects in regulatory frameworks applicable to electoral bodies; and make recommendations for institutional reforms. Courts may also contribute to the institutional empowerment of electoral bodies by safeguarding their jurisdictional spheres from encroachment by other politico-constitutional actors.
Discussion Points And Key Questions
An important issue for further discussion would be to interrogate the extent to which courts have actually discharged these functions in the African electoral jurisprudence. How have courts defined their relationships with electoral management bodies? The facts of Odinga may provide some interesting points of departure. In the course of litigation, tensions arose between the Supreme Court and the Independent Electoral and Boundaries Commission (IEBC), when the latter failed to comply with court orders to grant independent experts access to its ICT logs and servers for the purpose of verifying the petitioners’ claims about a major breach of the IEBC’s IT system. The Supreme Court famously decried the ‘contumacious disobedience’ of IEBC officials and made adverse inferences against the electoral body concerning the particular facts in issue.
Consider also an important issue which arose in Mutharika v Chakwera concerning the Malawi Electoral Commission’s establishment of Constituency Tally Centres (CTCs) in the absence of express statutory authorisation. From the facts of the case, stakeholders had designed the CTCs to transmit results to the National Tally Centre ‘in a bid to improve the conduct of the elections.’ Although the Supreme Court of Appeal conceded that the CTCs ‘were created to enhance operational efficiency’, the Court reasoned that they were nonetheless illegal. The Court framed the CTCs as a usurpation of legislative authority to alter the organisational structures of the Malawian electoral system and held that the functions performed by the CTCs were unlawful ‘as no effectual delegation could have been made to an illegal entity.’
Although this decision is defensible, there are good grounds for levelling alternative angles of critique beyond the Court’s legalistic framing of the issues. Do the CTCs raise interesting issues concerning rule adaptation – a significant feature of institutionalisation - on the part of the MEC? This point also maps on to other related lines of inquiry: how should courts define the margin of discretion available to electoral management bodies? In what ways has judicial resolution of electoral disputes facilitated and constrained the institutional development of African electoral management bodies?
The Edificatory Role of Courts: Disseminating Democratic Values
In several African jurisdictions, presidential election petitions have generated considerable public interest in circumstances that often propelled courts to the centre stage of national discourse. In Hakainde Hichilema v Edgar Chagwa Lungu (2016), the majority judgment of the Constitutional Court of Zambia controversially dismissed a petition brought by Hakainde Hichilema, a candidate in the 2016 presidential election, on the grounds that the prescribed timeline for hearing election petitions had lapsed. In the circumstances, the petitioners had been unable to conclude their arguments within the constitutionally stipulated 14-day period for hearing election petitions in the Constitutional Court.
In a trenchant dissenting judgment, Justice Munalula faulted the majority opinion for failing to adopt a purposive and holistic reading of the Zambian constitution. Justice Munalula reasoned that, in failing to decide the petition on the merits, the Court had missed an invaluable opportunity to edify the polity by affirming the cardinal principle of fair hearing enshrined in the constitution. ‘The issue of a presidential election petition’, she declared, ‘is too heavy for a mechanical response by the Court and a well reasoned decision would have helped to heal this nation.’
Disseminating Norms of Judicial Transparency
Beyond its nebulous aspects - it is unclear how judicial review would have healed the polity - Justice Munalula’s dictum nonetheless suggests that judicial resolution of electoral disputes may involve certain edificatory functions. In some jurisdictions, courts have strategically mobilised election petitions as platforms for disseminating constitutional norms and democratic values. In recent cases, courts have signalled the importance of norms of transparency by opening up the proceedings of presidential election petitions to the public. This was illustrated by the decision of Chief Justice Georgina Wood to permit live radio and television broadcasts of the proceedings of Ghana’s historic presidential election petition in 2013. The broadcast of judicial proceedings in Akufo-Addo & Ors v Mahama & Anor was unprecedented in Ghana at the time, and served to underscore the significance of normative principles of probity and accountability in the Ghanaian constitutional order.
In Chamisa v Mnangagwa (2018) the normative significance of judicial decisions to permit live streaming of courts proceedings was considered by the Constitutional Court of Zimbabwe in its recent judgment on the 2018 presidential election petition. In its extensive discussion of this issue, the Court reasoned that live streaming of court proceedings provided a valuable basis to foreground the rights to freedom of expression and access to information as well as other constitutional values such as transparency, accountability, justice, responsiveness, and public confidence in the judicial process. According to the Court, live broadcasts were further justified due to the constitutional importance of presidential election petitions which raise polycentric issues implicating the rights of all citizens to a credible electoral process.
Discussion Points And Key Questions
Taking the cases from Ghana and Zimbabwe as points of departure, is there an emerging norm of judicial transparency in the African electoral jurisprudence? What implications might this have for democratisation on the continent? What does this norm of transparency mean in challenging contexts that place serious constraints on the rule of law and judicial independence? If courts play edificatory roles in election petition cases, do they possess related obligations to render their decisions and proceedings in more intelligible forms? In what ways should they do so?
Ugochukwu Ezeh is a Lecturer in the Faculty of Law of the University of Lagos. He was previously an Oxford Human Rights Hub Research Fellow (Comparative Public Law) at Rhodes University, South Africa.