As judicial interest grows in the role that judges and courts should play relative to elections, the president of the African Court on Human and Peoples’ Rights has addressed a conference of the International Commission of Jurists (ICJ), Kenya on the issue. Among other questions, Justice Imani Aboud discussed the contribution that courts can make, through their work as arbiters of the law, that would help assure voters, and politicians, that elections are fair, and thus help reduce the likelihood of violence related to polls.
The president of the African Court on Human and Peoples’ Rights, Imani Aboud, says that courts in Africa are asserting themselves, even ‘venturing into the political space’ in an effort to ensure that electoral disputes are settled quickly and fairly.
Speaking at the annual conference of the International Commission of Jurists, Kenya, Justice Aboud added that the public and politicians were gradually trusting the courts ‘as neutral arbiters in the process’ and that this public confidence was crucial in maintaining their role.
She said the conference offered an opportunity for a useful exchange on what Justice Aboud called ‘one of the most sensitive … important issues shaping the socio-economic and political landscape’ of Africa.
Elections had prompted bitterly fought political battles across the globe and the drama of the 2020 presidential elections in the USA, where former President Donald Trump had still not conceded defeat to President Joe Biden, was still fresh in the minds of many.
Justice Aboud said that many African elections ended up in court, and ‘some of the hot spots and conflicts on the continent today stem from or are related to how elections were managed.’
Violence related to elections was a ‘widespread phenomenon’ on the African continent, but there were many causes for it. Left unaddressed, electoral violence could destabilise states, result in civil conflict and affect regional stability and security.’
The development of multi-party democracy led to periodic elections. But violence usually followed where there was a ‘strong possibility’ of a change to the existing power situation, with the incumbents unwilling to give up power.
Why was this? ‘Many African states still have an intolerant political culture, with different practices employed to manipulate the electoral outcome. Such practices include the use of security forces to harass opponents, bias on the part of electoral management bodies, restriction of movement of political opponents through … “no-go” areas during campaigns, expenditure of public resources to campaign for some parties, and manipulation of ethnic identities.’
It was inevitable that errors would creep into the complex process of elections and this in turn generated protests and objections by competing parties. Electoral processes should thus provide for mechanisms that aggrieved parties could use to redress real or perceived injustices.
Societies where there was a legacy of ‘unequal political representation and developmental disparities’ were particularly vulnerable to violence associated with elections. Where people saw themselves as victims of long periods of political exclusion and economic marginalisation, they could view elections not just as a way to choose the country’s leaders, but also as a ‘tool to overcome their predicament’. And this in turn explained tensions related to the raising of stakes, all of which could led to electoral violence, unless properly managed.
Justice Aboud said that while violence related to elections occurred at the domestic level it had regional implications for peace and security. ‘If left unaddressed, electoral violence has the potential to destabilise states, result in civil conflicts and affect regional stability and security’.
She also pointed to the ‘increasing prevalence of electoral violence’ that highlighted the need to develop ‘institutional mechanisms’ for resolving electoral conflicts at the national, regional and continental levels.
One result was the ‘increasing judicialisation of electoral contests’, something that could be seen in the ‘growing body of electoral jurisprudence developed by constitutional and supreme courts, as well as sub-regional and continental courts across Africa.’
Much of Justice Aboud’s address focused on the growing jurisprudence related to elections that comes from national and regional courts. The increasing body of law on this issue had caused the judiciary to become a major player in the resolution of electoral disputes, she said.
Litigation over elections since 2018 has shown that domestic courts in Africa were ‘increasingly playing an assertive role as an independent and impartial arbiter in democratic politics and in electoral disputes.’
But there were problems. Electoral disputes weren’t always handled quickly enough, while the decisions of domestic courts were sometimes ‘overtaken by events’. Another problem was the perception of judicial bias, sometimes because of the role of corruption, other times due to a lack of judicial independence.
These misgivings about domestic courts and election tribunals had led politicians and voters to look for other ways to remedy what they thought of as electoral injustice. Sometimes dissatisfied litigants would then approach a regional court.
Justice Aboud then discussed some cases, related to election law, decided at the East African Court of Justice and at the Community Court of Justice of the Economic Community of West African States (ECOWAS).
There had also been decisions, relevant to elections, that had come from the African Court, including a finding on independent candidates, for example. The court had decided that to require someone to belong to a political party in order to stand for election was a violation of the right to association. In that case, the court ordered Tanzania to amend its laws to allow independent candidates to contest elections at all levels.
All these examples of decisions related to elections, from national and regional level courts, showed that courts in Africa were ‘asserting themselves and venturing into the political space to ensure that electoral disputes are settled’, fairly and quickly.
The public and politicians were also coming to trust courts as neutral arbiters in the process, and this public confidence was crucial.
Against this background, the courts had to be empowered through training, so that judges could identify and resolve human rights violations that may occur before, during and after elections.
‘If the current trend continues and with support from civil society organisations such as the ICJ, member states and the general public, they courts will become a force to reckon with in promoting effective electoral democracy at national, sub-regional and continental level, and play a meaningful role in the socio-economic and political development of our continent.’