The judicial nullification of presidential election petitions in Kenya and Malawi in 2017 and 2019, respectively, have been widely recognized as towering precedents. However, it is important to point out that prior to these pro-democratic rulings there had been many unsuccessful ones.
These two rulings, though significant, are unlikely to change the tide as positive court rulings remain unlikely even when elections are fraught with huge irregularities. For instance, the Ugandan Supreme Court dismissed an application for amendment of Robert Kyagulanyi’s (Bobi Wine) election petition even before he subsequently withdrew the application.
This blog offers a snapshot of unsuccessful presidential petitions followed by a comparative vignette on successful petitions that brings important nuances to the fore, helping to explain when courts are – and are not – likely to play a positive role in protecting electoral integrity.
Unsuccessful Presidential Petitions: Ghana and Zambia
The vast majority of election petitions in African states are brought by opposition parties or civil society groups and fail.
Ghana saw a formal presidential petition to its apex court by then opposition leader Nana Akuffo-Addo of the New Patriotic Party (NPP) in 2012. The NPP rejected the 7 December 2012 election results alleging fraud. Then Electoral Commissioner of Ghana indicated that Mr. John Mahama of National Democratic Congress (NDC) had secured enough votes to avoid a run-off. The Supreme Court ruled after an eight-month legal battle that Mr. Mahama had been validly elected. Fast-forward to 2020 and Mr. Mahama and the NDC would likewise petition the Supreme Court to reject the December 2020 elections, with the same outcome: in March 2021 (roughly three months after petition filing) the Supreme Court ruled that “they had no reason to order a re-run of the December 2020 elections, the petition was accordingly dismissed”.
Similarly, in Zambia’s 2016 presidential elections the United Party for National Development (UPND) under its leader Hakainde Hichilema petitioned the country’s Constitutional Court to contest the victory of President Edgar Lungu of the Patriotic Front’s (PF). The petition, filed on 19 August 2016, sought to nullify Lungu’s victory due to instances of fraud. The Constitutional Court ruled on 5 September 2016, causing great controversy by curtailing the process on the basis that the stipulated 14 day period had been exhausted, even though it had previously indicated that the hearing could continue. The fact that the petition was vetoed on a technically rather than on its merits led to widespread accusations that the Court was bias in favour of the ruling party and undermined the legitimacy of the legal process.
Other unsuccessful election petitions that are often overlooked include Kenya in 2013, the Democratic Republic of Congo, Nigeria, Madagascar, and Botswana – in all of these cases the courts upheld the original results.
Successful Presidential Petitions: Kenya and Malawi
The two recent succesful petitions need to be understood against this backdrop: they are the exceptions that prove the rule.
Kenya’s Supreme Court nullified the country’s 2017 presidential elections and ordered a re-run after the opposition leader Raila Odinga challenged that the process had suffered from a number of limitations including the failure of digital election technology intended to act as a check on rigging. To the surprise of many observers, the Court ordered a re-run of elections within 60 days after about a month of legal battle. It did so by taking a different approach to its predecessor in 2013 – when the petition against Kenyatta’s win was rejected – arguing that key legal requirements had been flouted and so the election had been illegal, and that this was sufficient to invalidate the process even if it could not be proved that there was sufficient manipulation to change the result.
Similarly, the Malawian Constitutional Court nullified the country’s May 2019 presidential elections and ordered a re-run within 150 days – a decision that was subsequently upheld by the Supreme Court on appeal. The elections had been dubbed “Tipp-Ex elections” after the use of correction fluid to change election results sheets after the fact, and had triggered mass protests from civil society groups including the Human Rights Defenders Coalition. Significantly, the Malawian Courts followed the example of their Kenyan counterparts – and explicitly cited the Kenyan judgement as precedent to justify doing so – arguing that President Peter Mutharika’s victory was invalid due to the number of processes that were inadequately followed, even if it was not clear exactly how many votes had been manipulated.
This was the second time the Malawian courts had played a critical role in an election – the first being in 2014, when judges ruled that President Joyce Banda could not nullify the country’s election results, having been defeated.
The cases of Kenya and Malawi therefore demonstrate the significance of precedent at both the domestic and international level.
Until the recent judgements in Kenya and Malawi, there were no successful petitions and rulings in Africa that judges could look to as examples. Now that Malawi’s Courts have drawn on Kenya as an inspiration, it will be even easier for other Courts to look to Malawi and Kenya as a precedent.
This does not mean that we should expect a lot more elections to be invalidated, however. In many countries the courts do not have the necessary political independence from the executive to invalidate their victories, even if there is legal precedent that can be invoked.
It is also important to think about the impact of judicial decisions on elections. The need to hold “fresh” elections immediately places electoral commissions under great pressure given the short time frame for doing so. Kenya’s 60-day window saw the opposition boycotting the new polls, in part because there was not enough time for necessary reforms to be enacted. Malawi’s 150-day window seems to have worked. much better, but many countries have constitutions or legal regulations that allow for much less time than this. This is problematic, as holding elections too quickly is only likely to result in imperfect polls and further controversy.
This is especially the case given that succesful petitions undermine trust in electoral bodies. For example, in both Kenya and Malawi the judgements put the spotlight on senior electoral officials, leading to further accusations and, especially in the Kenyan case, infighting. In the absence of trust, it becomes even harder to foster consensus around re-run elections, and to ensure that they are not disputed.
Moreover, if the public and opposition parties have lost faith in the electoral commission it may be necessary to make personnel changes, and to make structural changes to the way that commissioners and the secretariat are selected. Yet this often takes many months – making a swift move to “fresh” even more challenging.
These teething problems are significant, but of course do not mean that recent trends are not to be celebrated. The judgements in Kenya and Malawi will encourage opposition parties to take their complaints to the courts rather than the streets, reducing the prospects for election violence and instability. And the more countries in which courts defend elections, the stronger democratic culture – and the willingness of judges to uphold constitutionalism – will become.
Michael Asiedu (@michasiedu) is a doctoral researcher at the University of St. Gallen.
A Judicial System to be effective in rendering rulings grounded only in epistemic legal principles implies the presumption the Court System inclusive in Judges is independent from any/all external suaision/intimidation regardless!