By Monday Ubani
The various electoral laws in Africa have provisions that make the judiciary have the final say on both Pre and Post Election conflicts. No one should be in doubt as to the competence or capacity of the Judiciary in the continent to adjudicate on election issues whether it concerns pre-election or post-election disagreements.
The only snag and if you like, call it alarm is that judges that preside over these cases are not Almighty God, they are humans and susceptible to manipulations and inducements by desperate politicians who seek for political powers in Africa.
Ascension to power in any African State comes with so many perks of office that it becomes a matter of life and death when the opportunity for election presents itself. Sadly, only a few countries in Africa can boast of a free and fair electoral process; as a matter of fact, they can easily be counted. Regrettably, the majority are in the negative.
Whenever the political class loses an election in the already flawed process, they all look towards the court for adjudication. The court is expected to make good what has been ‘damaged from the foundation’.
At this juncture, desperation sets in and the judiciary and judicial officers are ‘placed on high jump’ to satisfy the ultimate desire of declaring parties as winners even when some of them know that they did not win. In such situations, anxiety sets in and there are allegations that monetary inducements become the order of the day.
Some of the judges being human do succumb and alter the mandate of the electorate. It is not a general phenomenon but evidence abounds here and there in the continent that such things do exist. However, there are judges who remain upright and cannot succumb to any human pressure or inducement. The number of such upright and forthright judges remains a matter of conjecture.
What is worrisome is that the statistics of lower and appellate courts often departing from laid down judicial precedents on electoral matters is frightening and alarming.
Litigating election disputes we all agree is contentious, complex, and excessively technical. The technicality of electoral dispute litigation is fueled by the strict requirements of the Electoral Act, coupled with judicial attitudes developed over the years. The complex and technical nature of election petitions is largely responsible for the failure of election tribunals and courts in Africa to address the grievances of litigants despite efforts at resolving such election disputes.
Take for example a particular case of interest that was decided recently by the Supreme Court of Nigeria. It was a case involving Machina V Lawan, former Senate President. Ahmed Lawan ran for the office of President in the primary election of the All Progressive Congress (APC) in 2022. It was reported that he did not participate in the INEC-supervised senatorial primary for his re-election as a Senator. As a result, one Bashir Machina who participated in the Yobe East Senatorial Primary Election was returned unopposed
When Ahmed Lawan lost his presidential bid, he ran back to pressurise Bashir Machina to surrender his primary win and Machina refused. Lawan mobilised the whole apparatus of his party in a bid to take the ticket from Machina. The APC subsequently submitted Lawan’s name as its senatorial candidate even though he did not participate in the primary. Machina went to court alleging fraud. He started his litigation against Lawan alleging fraud (a crime) by way of ‘Originating Summons’ instead of ‘Writ of Summons.’
And for that error which we call ‘technicality,’ the Supreme Court of Nigeria ignored the evidence, facts, and common sense and gave the senatorial ticket to the person who did not participate in the primary against the person who did and won by the votes of his people.
A newspaper columnist, Mr Castro Ginigeme a lawyer and former Adjunct Law Professor in the United States of America had this to say concerning that judgement. He said and I quote him “Increasingly, Nigeria’s courts have become courts of technicality rather than courts of justice. Technical legal rules are supposed to be made a guide to justice, not a tool to thwart justice”.
In all these let us remind ourselves of this everlasting truism stated by Associate Justice Robert H. Jackson of the US Supreme Court who was the US Special Prosecutor at Nuremberg in 1945 who uttered these words “We are not final because we are infallible, but we are infallible only because we are final”.
What this means is that decisions of Tribunals or courts are given by human beings with flesh and blood and they are susceptible to human errors as the judges are not the Almighty, the Supreme Being.
However, two countries in Africa have ignited the light of departure and stubbornly stuck to addressing the grievances of the petitioners without paying attention to an excessive technicality, fear of the incumbent, or undue consideration of the political consequences of nullifying an improperly organised electoral process. The first country was Kenya followed subsequently and swiftly by Malawi. Kudos to African Bar Association as we have held our Annual Conferences in these two great countries. The last conference was in Malawi last year.
The story of Kenya and court’s intervention
In August 2017, a highly contested election was held in Kenya: The incumbent president Uhuru Kenyatta won by a narrow majority against his opponent Raila Odinga. However, Odinga did not accept his loss and filed the presidential petition, which later became the first one to ever be successful on the entire continent and resulted in the nullification of the election. He was referring to the failure of the electoral commission (IEBC) to comply with the electoral law, as well as the quantity of discovered irregularities, such as missing security features on the ballot papers including serial numbers, official stamps, and signatures.
Even though the Kenyan Court has been confronted with alleged ballot rigging cases before, this was the first time it ruled in favor of the petitioner in this historic judgment. The Supreme Court judges conclude the ruling with the following words “the illegalities and irregularities committed were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC can, in good conscience, declare that they do not matter, and that the will of the people was expressed nonetheless”
The story of Malawi and the intervention of the judiciary
Two years later, in May 2019, Peter Mutharika was re-elected president of the Republic of Malawi. Afterward, his opponents Lazarus Chakwera and Saulos Chilima failed to get a ballot recount and consequently filed a petition to challenge the election result. In February 2020, the High Court ruled in favor of the petitioners, thereby being only the second court after Kenya, and annulled the election. They concluded their historic ruling by stating that “the irregularities and anomalies have been so widespread, systematic and grave such that the integrity of the results has been seriously compromised. The results cannot be trusted as a true reflection of the will of the voters as expressed through their votes.” Irregularities in Malawi included people voting more than once as well as erasing manually amended ballot papers.
The beauty of these two decisions from the continent of Africa where some people think or say we cannot get good things is that the judgment was very much interested in probing whether the mandate of the majority was thwarted warranting the nullification of the process and decreeing a re-run in both countries.
Allowing the courts to intervene in an electoral process means that there is a purpose for the said intervention. It is to ensure that the process is free, fair, and credible. It is not for the courts to substitute the will of the majority with that of the minority that the courts represent.
Most times the court has created chaos and caused more damage than what the extant laws provide for them to achieve. Again let us go back to Nigeria, the giant of Africa.
To be continued tomorrow
- Dr. Ubani is the current chairman of Election Reform Commission of African Bar Association (AFBA).
The Guardian
