More work needed on Ivory Coast's election commission - African Court

23 July 2020 · Carmel Rickard

For the second time, Ivory Coast has been taken to the African Court on Human and Peoples’ Rights over whether the country’s electoral commission is sufficiently independent and impartial. In 2016, the court found the then electoral commission seriously lacking, and in 2017 it gave a further decision spelling out and interpreting its earlier decision. The commission has been reworked since then but a different group of challengers have tested the new body, claiming it was still not sufficiently independent or impartial. In its decision given last week, the African Court found the applicants had not shown that the new electoral body was made up of members who were not independent and impartial. Nor had they shown that it was clearly balanced in favour of the ruling party. However, there were other issues that needed to be addressed. For example the court found that Ivory Coast had not fully complied with its obligations because of a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party. The court ordered Ivory Coast to take the steps needed to remedy these shortcomings in its electoral commission ‘before any election’ is held. As national presidential elections are scheduled for the end of October this year, the court’s decision means urgent attention will have to be given to the issue or the polls will be susceptible to criticism for non-compliance with this ruling.

Read Ivory Coast judgment

Read Tanzanian judgment

Ivory Coast is one of several African countries to have given notice that they will no longer allow individuals to bring cases against them before the African Court on Human and Peoples’ Rights.

However, a period of notice has to be served and so the court still has jurisdiction to hear such cases against Ivory Coast until the end of April 2021. And, with presidential elections just over three months away this latest challenge, to the newly formulated Independent Electoral Commission, must have caused some anxiety in Yamoussoukro.

In the end, however, the court has given a mixed message: it found it had jurisdiction to hear the case and that the application, brought by members of the opposition, was admissible. However, on key elements the court ruled that the state had not ‘violated its obligation to protect citizens’ rights to participate freely’ in the government of their country.

'Manifest imbalance'

Similarly, it had not violated its commitment to comply with an earlier judgment of the court on a related matter, within the time period stipulated.

But there were still problems: Ivory Coast was found not to have fully complied with its obligation to create ‘an independent and impartial electoral body’ and there was a ‘manifest imbalance’ in the number of chairpersons of the local electoral commissions proposed by the ruling party.

The court therefore ordered Ivory Coast to take the necessary steps ‘before any election’ to ensure these problems were resolved and to report back to the court on the measures taken to achieve these results.

Free participation

One of the interesting features of the case was that the applicants had complained that ‘independent candidates’ had not been given representation on the electoral body, while both the governing party and opposition parties were ‘represented’ in the commission and in the electoral bodies at local level. This infringed the right of independent candidates to free participation in the government as well as their right to have equal access to public services, claimed the applicants.

The court held, however, that the applicants did not show how these rights were affected in the case of independent candidates. The judges also said they were aware of the difficulty involved in identifying and selecting representatives of independent candidates to serve on the commission, before the lists of candidates were finalised.

This was not the only case affecting elections decided by the court last week. It also delivered judgment in a matter brought by Tanzanian lawyer Jebra Kambole, against the Tanzanian government, in which he had contested the validity of a controversial section of that country’s constitution.

Ouster clause

This section bars any Tanzanian court from considering the results of a presidential election once the electoral commission has declared a final outcome. Kambole claimed this violated his right to non-discrimination, to equal protection of the law and to the right to have his cause heard.

The court agreed and found this was an ouster clause that violated the rights of Kambole under the African Charter on Human and Peoples’ Rights. While other litigants could ask the courts of Tanzania to consider any allegation, those wanting to inquire into the election of a president were barred from going to court and were thus treated differently.

Tanzania was ordered to take the steps needed to ensure that the offensive sections of the constitution were ‘aligned’ with the Charter provisions. This was to be done ‘within a reasonable time’, the court said.

Website

In addition, because the matter was one of public interest that could affect others, the court ordered that its judgment should be published on the websites of both Tanzania’s judiciary and of the Ministry for Constitutional and Legal Affairs, and it must stay on these websites for at least a year.

Like Ivory Coast, Tanzania has given formal notice of its withdrawal from an essential aspect of the court’s work and it will no longer allow individuals to bring applications against it in the African Court. Tanzania’s notice period runs out later this year.

Carmel Rickard

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