The Challenges of Judicial Determination of Presidential Election Disputes in Domestic Courts 

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Chapter Three The Challenges of Judicial Determination of Presidential Election Disputes in Domestic Courts

Introduction

Where elections have been vitiated by anomalies and results are disputed, as is often the case in Africa, aggrieved parties have looked to the judiciary as an institution of last hope to seek redress. The judiciary is thus faced with the unenviable task of determining the ultimate outcome of the poll. Consequently, in order to protect the right to choose in an election, and to promote and safeguard democracy, the judiciary must be competent, honest, learned and independent.414 Such a judiciary plays a transformative role in democracy as an impartial referee or umpire in the democratic game.415
This chapter looks at how African courts have handled presidential election disputes. It first presents an overview of the role of the judiciary in Africa in resolving disputed presidential elections. It identifies common patterns that characterise how the courts dispose of disputed presidential elections in Africa, all of which are dissatisfactory and a disincentive for the further growth and consolidation of democracy. The chapter further looks at the likely causes of judges rendering such decisions and the consequences of those decisions

Overview of the Role of Judiciary in Election Disputes

Elections affirm the sovereignty of the people. Through elections, people constitute government and hold government accountable. But as seen, the history of elections in Africa has been disappointing. Democratic elections have been rare and disputed elections have been the norm.
Although there have been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent. In Nigeria, for example, all presidential elections since the return to civilian rule in 1999 have been disputed. The EU observer mission to Nigeria, for instance, condemned the 2007 Nigerian elections in the following terms:
The 2007 state and federal elections fell far short of basic international and regional standards for democratic elections. They were marred by very poor organisation, of essential transparency, widespread procedural irregularities, substantial evidence of fraud, widespread voter disenfranchisement at different stages of the process, lack of equal conditions for political parties and candidates and numerous incidents of violence. As a result the process cannot be considered to have been credible.416
In a similar fashion, all election observer missions to Zambia’s 2001 elections, both local and international, concluded that the elections were far from being free and fair.417 The EU in fact took a rare stand to waive the immunity of the head of the observer mission, Michael Meadowcroft, to testify for the opposition in the ensuing election petition.418
Steve Huefner categorises causes of disputed or failed elections into two: fraud and mistake.419 Fraud means the deliberate manipulation of the system unfairly, often by parties, candidates or their supporters.420 On the other hand, mistake is the unintentional disturbance of the election process, usually caused by those administering the election.”421 Whether by mistake or fraud, failed elections deny the people their right to constitute government according to their will in a transparent way. Distinguished Nigerian law scholar, Ben Nwabueze, considers this as “robbery of the right of the people to participate in their own government” and “therefore the greatest offence that can be committed against the constitution and the people.”422 This is a correct observation because failed elections have the effect of taking away the consent of the people as the basis of the right to govern.
Almost all African constitutions or electoral laws recognise that things can go wrong with elections and provide for the possibility of redress. This is because election wrongs or allegations of wrongs often have a bearing on the legitimacy of the electoral process. A fair and transparent redress mechanism, which commands respect of the people lends legitimacy and credibility to the election and “serves as a peaceful alternative to violent post-election responses.”423 On the other hand, failure to put in place an effective electoral dispute mechanism “can seriously undermine the legitimacy of an entire electoral process.”424
This chapter focuses on the post-election redress mechanisms available in the case of disputed presidential elections. It discusses how courts have handled complaints that seek to correct election results (in whole or in part) or indeed to void the whole election. In almost all African countries, this is a task entrusted to the judiciary. The difference only seems to be at what stage in the judicial hierarchy the litigation is commenced. In countries such as Nigeria,425 Namibia,426 and Kenya427 (prior to the adoption of the 2010 constitution) cases begin in lower courts and appealed ultimately to the Supreme Court. In other countries such as Ghana,428 Zambia,429 Kenya430 (since 2010), and Uganda431 presidential election petitions are tried directly by the Supreme Court, allowing for no appeal.
Tanzania seems to be the only African country with a constitutional provision that ousts the jurisdiction of the judiciary from hearing challenges to presidential elections. The Tanzanian constitution categorically states:
When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this Article, then, no court of law shall have any jurisdiction to inquire into the election of that candidate.432
Such a provision can only assume that elections will always be impeccable, something which is of course at variance with the African experience. This is a blatant denial of the possibility of seeking judicial redress in case of a grievance. Even where grievances may be ill-founded, the offer of a possible judicial remedy provides a peaceful means of venting frustration instead of resorting to violent protests.
Adjudication or judicial determination of election disputes, in order to be of any significance, must offer aggrieved persons a genuine possibility of redress for their grievances. In order to do this, Huefer identifies at least three factors that need to be embedded in the adjudication process. First of all, the process must be fair and perceived as fair by litigants and the public.433 This requires that the process treats the parties to a dispute equally and offers them an equal opportunity to present their cases. It also requires that the process awards resolutions impartially and meritoriously. A process that only decides in favour of the incumbent or incumbent party, whatever the strength of evidence presented against it cannot be considered to be fair. Second, the process must be transparent, that is, when an election is disputed and a court adjudicates on the dispute, it must do so in a way that is understandable (based on prior existing rules) and fair analysis of evidence as relates to the competing claims.434 Finally, the process must be prompt and determine cases with finality.435 As is often said, justice delayed is justice denied.
Before moving to the next session, which looks at the challenges associated with adjudication of presidential election disputes in Africa, the art of adjudication will be briefly discussed. The traditional view of adjudication has been that judges simply re-state the law as enacted by the legislature and exercise no discretion. Their decisions, therefore, are nothing more than a discovery of the intention of the legislature.436 This, however, is now recognised as an oversimplification as the adjudication process is inherently imbued with discretion.
Hart, for example, considers the law to be open textured.437 This means that that, “when a judge confronts a rule he is not met by a bloodless category but by a living organism which contains within itself value choices.”438 Hart offers at least three reasons for this discretion: first, that it is due to indeterminacy or ambiguity of language or words; second, that rules usually use only general standards (e.g., “reasonableness,” and “just”) which need to be related to or distinguished from specific circumstances; and third, the indeterminacy inherent in the doctrine of precedents where judges have to relate current decisions with prior decisions.439
Although Ronald Dworkin has virulently criticized Hart’s theory of adjudication, for purposes of this research it is sufficient to note that Dworkin still recognises that there is discretion in adjudication, albeit constrained by law. What Dworkin does is to distinguish between “weak” and “strong” discretion.440 Strong discretion is where one is not bound by any standards set by the authority in question, while weak discretion is constrained by standards.441 Dworkin gives as an example the differences between a sergeant who is ordered to pick five men for patrol and another sergeant who is ordered to simply select his five most experienced men for patrol. The sergeant who is ordered to simply select five men for patrol is considered to have strong discretion compared to the one who has to choose five most experience men as this is weak discretion.442 As can be seen, Dworkin considers that judges only have weak discretion as they are constrained by law.
The point is that adjudication is a value laden process and judges have to choose between competing claims and values. As shall be seen in the next section, African judges have almost unanimously chosen to undermine democracy, or in the telling words of Muhammadu Buhari, have chosen to “stunt the growth of democracy.”44

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Challenges Associated With Domestic Adjudication of Presidential Elections Disputes in Africa

This section discusses the record of African courts in adjudicating disputed presidential elections. Sifting through the judgements, common threads or patterns emerge that disappointingly negate the advancement of democracy. The four patterns discussed here are:

  • All cases are decided in favour of the incumbent candidate, candidate sponsored by the ruling party, or the presumptive winner;
  • Many cases are dismissed on minor procedural technicalities without consideration of merits or there is a misapplication of the substantial effect rule;
  • In some countries resolution of disputes is inordinately delayed so as to render the whole process nugatory; and
  • Judges simply fail to address the issues presented before them by constraining themselves from making appropriate decisions.

All Judgments go in favour of the status quo

One of the most notable trends in decisions on disputed presidential elections is that all decisions of the courts tend to serve one purpose that is, maintaining the status quo. The decisions are always given in favour of the incumbent, the candidate sponsored by the incumbent party or the presumptive winner of the election. This seems, inter alia, to stem from judges’ misconstrued understanding of their role as that of ensuring political stability than deciding cases fairly, according to the facts presented to them, in line with the applicable law. This seems to be the overriding driving force in adjudication, impelling judges to uphold all elections that are brought in litigation for their determination. Judges have often categorically stated this, without the slightest remorse. For example, in the judgement following the petition to Ghana’s December 2012 elections, the Supreme Court stated:
For starters, I would state that the judiciary in Ghana, like its counterparts in other jurisdictions, does not readily invalidate a public election but often strives in public interest, to sustain it.444
As can be seen, “striving” to uphold an election is not a judicial role but a political decision. This means, even before the case is presented, the judiciary is only prepared to preserve the election results that have been announced. As a result, any discrepancies are most likely to be explained away as inconsequential or, as discussed below, “not substantial.” It is, therefore, hardly surprising that despite the African continent being replete with sham elections, the judiciary, when called upon to adjudicate, has always (except for the Ivory Coast’s Constitutional Council in 2011 discussed further below) upheld these disputed elections, as the table below indicates

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Dedication 
Declaration 
Acknowledgments 
Chapter One 
1.1 Background
1.2 Statement of the Problem
1.3 Research Methodology
1.4 Objectives of the Study
1.5 Overview of Chapters
Chapter Two Theoretical Framework of Concepts and General Context .
2.1 Introduction
2.2 Theoretical Discussion of Concepts: Regionalism, Supranationalism and Elections
2.3 Historical Context of Democracy in Africa
2.4 Presidential Elections in Africa: Theoretical and Practical Issues
2.5 Common Causes of Flawed Elections in Africa
2.6 Summary
Chapter Three The Challenges of Judicial Determination of Presidential Election Disputes in Domestic Courts 
3.1 Introduction
3.2 Overview of the Role of Judiciary in Election Disputes
3.3 Challenges Associated With Domestic Adjudication of Presidential Elections Disputes in Africa
3.4 Possible Explanations for such Court Decisions
3.5 Consequences of Judicial Decisions in Presidential Election Disputes
3.6 Summary
Chapter Four Transnational Approach to Democratic Elections: An Overview of African Normative Frameworks 
4.1 Introduction
4.2 The OAU Legacy
4.3 A New Dawn With the African Union
4.4 An Overview of Sub-Regional Normative Frameworks on Democratic Elections
4.5 The Challenge of Enforcing AU Democratic Norms in Relation to Disputed Presidential Elections
4.6 Summary
Chapter Five Exploring the Viability of Establishing an African Elections Supranational Court
5.1 Introduction
5.2 The Value of Supranational Adjudication
5.3 Building on the Experiences of Current African Sub-Regional Courts
5.4 The Viability of An Elections Supranational Tribunal Emerging From the Review of SubRegional Courts
5.5 Integrating the Elections Supranational Court Into the AU Judicial Framework
5.6 Possible Relationships with Other AU Organs
5.7 Criticism Against Supranational Adjudication
5.8 Summary
Chapter Six  General Conclusion and Recommendations 
6.1 Introduction
6.2 Summary of Key Finding
6.3 Key Recommendations
6.4 Contributions to Practice
Selected Bibliography
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