The judicialisation of electoral disputes has emerged as an increasingly common phenomenon in a number of African countries. In my chapter contribution to the Routledge Handbook of Election Law titled ‘Contested Elections in Africa: The Role of Courts in Electoral Processes’ 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.’
Facilitating the Independence of Electoral Management Bodies
Considering their centrality to the quest for credible electoral processes in transitional societies and fledling 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.
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 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.
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.