Budding Democracy or Judicialisation: Lessons from Africa’s Emerging Electoral Jurisprudence

This latest publication from the Africa Judges and Jurists Forum discusses the various approaches adopted by different countries in managing elections, which are a key democratic process. The role of technology in managing elections and the role of traditional leaders in electoral processes are also probed.

Interrogating the role of traditional leaders in electoral processes in Zimbabwe

The partisan conduct of traditional leaders during electoral process contravenes national law and has been a source of electoral disputes in Zimbabwe. However, there remains a dearth of legal studies, with a nuanced analysis of cases regarding this conduct. Using court cases, extant literature and election reports, and this chapter explores the legal expectations for the role and conduct of traditional leaders during electoral processes. The chapter argues that the Constitution and relevant legislation clearly and unambiguously define the role of the institution of traditional leadership in electoral processes. Moreover, the chapter argues that despite being rigid in their application of procedural rules, Zimbabwean courts have made some key judgements against the partisan conduct of traditional leaders. The challenge, however, remains that of traditional leaders who defy court orders. The chapter vouches for relaxation of court rules and procedures and demands respect for and enforcement of court judgements.

Pre-Election Disputes Through the Lenses of Kenya’s Law, Politics, and Experiences

Resolution of pre-election disputes is among the bridges towards a free and fair election. as it offers an initial avenue for aggrieved parties to seek redress. Free and fair election is understood to include a process devoid of violence and an environment that facilitates the exercise of political rights. Kenya’s law bestows the jurisdiction of settling pre-election disputes on the Independent Electoral and Boundaries Commission (IEBC), among other bodies. This chapter finds that the Electoral Dispute Resolution (EDR) framework is central to electoral integrity under the Kenyan framework. The discussion in this chapter looks at the laws for resolution of disputes and the experiences drawn from the pre-electoral period of the 2017 general election. The sufficiency of laws and political parties’ internal democracy is examined. This chapter also discusses proposals, where practical, and poses questions that require further discourse. The salient themes include operational setting, Electoral Code of Conduct, nomination rules, party primaries, allocation of special seats by use of party lists, independent candidates, and registration of candidates for elections. As illustrated in Kenya’s post 2007 election, the lack of an effective and trusted EDR system contributes to electoral violence. Its importance notwithstanding, use of EDR alone cannot solve the problem of election violence. Conduct of EDR in strict compliance with existing laws, continued capacity building of EMBs and courts, timely review of laws, demilitarisation of elections, and voter education are just but some of the factors that must be given life.

Pre-Electoral Period: Election Environment Law and Practice for Restoring the Promise of African Elections

Elections are supposed to be empowering. They must be a tool that enables hopeful participation in the creation of a world of humanity’s dreams. The reality in most African countries is that elections are a nightmare, usually associated with violence and fraud. They become a breeding ground for conflicts that will take decades to resolve. The human and economic cost is devastating. Restoring the promise of elections in Africa is an exercise that requires deep structural changes. At the centre of these processes are core principles, values, and virtues that accompany a democratic process. To unpack these matters, this chapter seeks to analyse jurisprudence and best practice on pre-election period and the election environment. The chapter looks at the role of the courts in election dispute resolution, the question of political violence, and its impact on participation. This is followed by an analysis of the rationale of such frameworks and any supporting mechanism. Mainly Zimbabwean and South African cases are used, mapping out the best practices and understanding their impact on elections. The chapter analyses the link between the pre-election environment and election outcomes. It discusses the infrastructure for promotion of a credible election, which includes peaceful dispute resolution. Particular attention is given to the judiciary and the role of information in activating participation especially of marginalised groups in Africa. The chapter concludes by making a set of recommendations aimed at bridging the gaps in law and practice in relation to the creation of a conducive pre-election environment.

Read the full publication here (802KB PDF)

Source: Africa Judges and Jurists Forum