The presidential victor in Africa in 2016: Is it the people, courts or army?

In 2016, three of Africa’s highest courts have been faced with inconclusive presidential elections where the result has been challenged in the highest court of the land. In March 2016, the Supreme Court of Uganda heard and dismissed the petition filed by Amama Mbabazi a distant third in February’s presidential election.

Mr Mbabazi’s petition failed among other things for failing to bring enough evidence to show that the anomalies in the election “substantially” affected the outcome of the election.

The Supreme Court heard and disposed of the petition while the runner up Kizza Besigye was effectively incarcerated at his home after attempting then failing to file a petition in his own name.

The Supreme Court got away with this major miscarriage of justice diminishing an en banc opportunity to “duly inquire” into why this and prior elections remain heavily contested by the losers against the victor.

In the same year, the Republic of Gabon had an unusually close presidential election. President Ali Bongo son of former president Omar Bongo prevailed by a whisker against his in-law former Foreign Minister Jean Ping by a percentage of a point 49.8 per cent versus 49.7 per cent.

The August election eventually came before the Constitutional Court in September which upheld Mr Bongo’s victory upping his final victory to 50.3 per cent to Mr Jean Ping’s 47.24 per cent effectively a tie.

Gabon’s election result left supporters of Mr Ping inflamed setting off riots that shattered the image of sleepy Gabon as a haven of peace. The election further highlighted the closed aperture that defines entrance into Gabon’s political circles.

Everyone of noteworthy is related to the Bongo family that has been in power since Gabon’s independence including the president of Gabon’s constitutional court.

In December 2016, Gambians went to the polls for the fourth time since president Yahya Jammeh’s ascent to power in 1994. In a political first, Mr Jammeh the incumbent conceded defeat to his opponent Mr Adam Barrow.

Gambia which houses the African People’s Court on Human Rights went into weeks of uncertainty before Ecowas stepped in reading the Riot Act to Mr Jammeh.

In Gambia, Mr Jammeh’s election petition filed as an afterthought could not take off because the part-time supreme court staffed by Nigerian judges refused to convene to hear the petition within the time mandated by the Constitution.

Stacked with the president’s supporters the parliament passed a resolution extending the president’s tenure accordingly by three months.

Ecowas wary of a bloodbath quickly stepped in. A Senegalese force crossed the border and faced with a credible use of force; president Jammeh relented and flew out of the country with most of his and his country’s possessions to exile in Equatorial Guinea.

These tests have many other parallels in Africa with a few exceptions. In Kenya, the fallout from the 2013 supreme court presidential petition decision continues.

In an underreported skirmish, part of the anxiety who became Chief Justice after the retirement of Willy Mutunga last year was whether the new chief would form a new majority that would block Mr Kenyatta from returning to power.

That silent war did not end well as the warring factions run the clock out on themselves leading to a retirement of three Justices at the same time.

Kenya produced a well-written decision but in certain ways it seems to have papered over some of the facts.

Close elections predictably produced charged outcomes often promoting opponents to go to court. Ghana successfully resolved the petition between the current president Nana Akufo Addo in 2012 against the former president John Mahama whom he eventually defeated in 2016.

But after the Gambia twist, the old adage has come back. Even the most democratic of institutions rely on credible use of force to enforce outcomes. After Jammeh’s Army commander developed wobbly feet, he was left naked.

In Gabon, the political first-family feud did not spill into the army. In Uganda, the old man with the hat has spent three months just working out extensive changes in the army after studying the intelligence from 2016.
Mr Ssemogerere is an Attorney-at-Law
and an Advocate. [email protected]