African courts grapple with reality of electoral rule

Thursday August 22 2019

By Karoli Ssemogerere

In SADC, a five-judge bench is hearing a presidential election petition challenging the re-election of Malawi President Peter Mutharika in a controversial election in April.

The High Court fixed 12 days to hear the petition by the two runner ups, allocating six days to hear the evidence in chief and six more days to respond. The Malawi Attorney General saw his earlier application to dismiss the petition entirely dismissed by the Supreme Court of Appeal, and a further case seeking to halt demonstrations, which have rocked the country equally dismissed.

Malawians seem to have taken to their radio sets to listen to live feeds broadcasting the petition. The court order allowing broadcast of the court proceedings permitted only live audio perhaps to constrain the dramatisation of proceedings. Uganda has allowed live broadcast of similar court proceedings for years now, including the most recent 2016 presidential election petition.

The Kenyan petition of 2017 that resulted in cancellation of the result last year was a riveting legal drama where lawyers for the Kenyan Electoral Commission were taken aback by sharply tongued barbs from the Justices of the Supreme Court for routine, but major non-compliance with the law relating to the handling of the voter kits to report final election results.

In fact, Philomena Mwilu, the Deputy Chief Justice, set in stone a cardinal principle that once non-compliance with the letter was established, there was no other requirement to annul an election. This “convent rule” will make the 2022 election in Kenya even more interesting.

In Malawi, Mr Mutharika, a lawyer took the presidential oath but did not easily arrive at the podium to swear in for a second five-year term. First, he had to prevail in an application for an injunction that sought to delay his oath taking ceremony while allegations for voter fraud in 10 out of the 28 districts were being verified.

In Tanzania, no judicial review rule contained in Article 41(7) of the Constitution bars courts from hearing any challenge to a presidential election. Tanzania’s election vests the final authority on presidential elections with the Electoral Commission, they can’t be subject to an election petition. It is possibly the only country with such a rule. In 2015-2017, the courts heard and disposed of 250 election petitions for parliament and local governments (a record).

The Malawi decision is eagerly anticipated because of its unique path. In Malawi, both the government and the Opposition filed substantial challenges against each other in the courts. The Opposition won the election of Speaker of the 193-member national assembly. In Nigeria, the presidential petition challenging the re-election of Gen Muhammadu Buhari is still pending more than eight months after votes were cast in December 2018. The president is accused of lying about his qualifications and former vice president Akbar Atiku alleges he came ahead in the vote tally.
In Gabon, the Constitutional Court confirmed Mr Ali Omar Bongo’s re-election before he was immobilised by a massive stroke earlier this year. Slowing economic growth, rising populations have numbed the “authoritarian” edge in most countries. Populist movements in Sudan and elsewhere have shown the limits use of force.

Instant media has also reduced deliberation time for government to make many decisions, including covering its tracks when caught off-guard. There are strategic benefits of this state of affairs.

In Kenya, incumbent Uhuru Kenyatta realised it may not be possible anymore to lock out one part of the country from power, pushing him into an uneasy cohabitation with the second and third largest political parties in the country - ODM and Wiper Movement without a formal coalition but a “handshake”. More to be seen.

Mr Ssemogerere is an Attorney-at-Law and an Advocate.
kssemoge@gmail.com