FNB Acacia

It is extremely difficult, if not impossible, to win an election petition in Africa

SHARE   |   Monday, 04 November 2019   |   By Adam Phetlhe
ballot box ballot box

The 2019 general election has come and gone and as would be expected, several casualties across the political divide are drowning in sorrow and despair by clutching at every available straw to stay afloat. Casualties from the main opposition bloc, the Umbrella for Democratic (UDC), are crying foul that this election was wrought with several irregularities which according to them, have rendered the 2019 general election neither fair, free nor credible. In these circumstances, the UDC immediately after the election released a press statement in which it stated that it is busy collecting evidence to presumably, launch an election petition at the High Court should such evidence be strong enough to overturn the election. Scholars in politics and international relations with particular interest in African elections and the subsequent petitions, have strongly argued that the bar to petition and subsequently win is very high resulting in slim chances to none to overturn election results. The UDC should be very aware of these realities as presumably, it will be petitioning the High Court to overturn the election results as already said.

Africa is deemed by some that it a continent synonymous with selective justice. This will include the selective application of the Rule of Law, corrupt and executive-minded judiciary where in many instances like in election petitions, such judiciary will more likely rule in favour of the winning party. The judiciary in many jurisdictions including here at home have regularly informed citizens that it is above reproach. It is really a subjective matter. But given these hard to ignore perceptions in the public domain, it is difficult to say whether the judiciary is indeed beyond reproach particularly in jurisdictions where judges are appointed directly by the President. These perceptions are deeply entrenches in the body politic of various jurisdictions and cannot therefore, be ignored. It is against this background that I suggest that it will be extremely difficult, if not impossible, to win an election petition in Africa. The following may give an idea on what scholars in election petition matters say.         

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In a paper published in 2017 and titled “Disputed Elections and the Role of the Court in Emerging Democracies in Africa: The Nigerian Example” by three scholars- J. Tochukwu Omenma of the Department of Politics and International Relations at the University of Johannesburg; Okechukwu O. Ibeanu and Ike E. Onyishi both of the University of Nigeria, they argue that ‘the legal burden of proof required of petitioners is too demanding to be effective’, further that ‘non-compliance with the provisions of the law’ will not ‘substantially affect the results of the election’. In another paper titled “Judicial politics: Election petitions and electoral fraud in Uganda” published online in 2013 by Jane Murison, she argues that “Uganda has the structures and procedures in place to enable election petitions to allow for redress when election malpractice has occurred….By briefly examining the 2001 and 2006 presidential and parliamentary election petitions, the paper shows that the Supreme Court, which hears presidential election petitions, acknowledged voting irregularities, yet was unwilling to rule against the President’.

As far as I can recall, there has never been a major election outcome challenge much as this one is (I stand corrected). A few and far-in-between election outcome challenges have been launched at a single or so parliamentary and council levels. Only the Tshiamo ballot box scandal comes to mind where a re-run was ordered back then resulting in the win for the petitioner. It would appear the UDC in the main is intend on challenging the election outcomes from a sizeable number of both parliamentary and council seats.

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But both the High Court and the Court of Appeal have sent very clear messages to the petitioners with respect to launching petitions to overturn election outcomes. Tebbutt J held in a Court of Appeal judgement to an election petition delivered in July 2001 that:

“….The power of courts to consider the regularity of elections is therefore not derived from                                  inherent jurisdiction nor does it arise from the common law but it is to found within the corners of the electoral statue ie in Botswana in the Electoral Act. In applying the Act the courts must be astute not to disturb an election which on the face of it appears fair and regular….In bringing an election petition, too, a petitioner must ensure that he complies meticulously with the relevant provisions of the Electoral Act….If an election is set aside the whole electorate is affected, business is dislocated, expenses are incurred by the electors going to the poll, the business of hotels and public houses interfered with and generally speaking a number of persons are greatly inconvenienced.” Interestingly, the leader of the UDC Advocate Duma Boko appeared for the Respondents in this matter and who expectedly, will be the appellant in the UDC matter. What a coincidence if that is the case!  Judge Kirby held in another petition matter that those who raise allegations that the election outcomes were irregular “have a democratic right to challenge it but such challenge must not be frivolous, mischievous or ill-founded but be based on substantive grounds.”

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From what I deduce from the preceding paragraph by the learned judges, it would appear that while recognising and appreciating the right of a petitioner to launch an election petition, such petition launch will not be successful even if there are irregularities to overturn it. It is not clear to me what measuring stick is used to judge the freeness and fairness of an election outcome. That is, how much of an irregularity would constitute or render an election outcome grossly irregular to declare it not  free, not fair and not credible.  And this view is borne out of the conclusion that “….the courts must not disturb an election which on the face of it appears fair and regular.” It would appear in my view that “on the face of it appears fair and regular” expression somewhat makes it extremely difficult for petitioners to think of launching an election petition let alone actually doing so. It somewhat places in my view, an unfair advantage on the victors against the vanquished in that even if there could be irregularities, such may not be strong enough to overturn an election result.  It is worth noting that the 2019 general election has so far been declared free and fair by amongst others, the SADC Election Observation Mission preliminary report immediately issued after the results were declared. There is also a general belief that this election was free and fair may be primarily because there were no reported incidents of violence as has become a common feature in other parts of the world after an election.  

Elections by their very nature are run and managed through sets of processes and procedures complemented by the provisions of the Electoral Act. Unavoidably and given the fact that an election process is itself a complex and emotive one (emotive on the side the electorate and those seeking political office) there is bound to be the possibility that processes/procedures and the Electoral Act could be violated in one form or the other, intentionally or unintentionally. It would appear some measure of error is somewhat ‘permissible’ in an election process which error cannot fatally render an election result to be successfully overturned.              

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As the UDC contemplates launching an election petition to overturn the results of the just ended 2019 general election from most of the constituencies with respect to most of the parliamentary and council seats, it bears the onerous task of persuading the courts to agree with it. The task will more likely be determined by the expression that “….on the face it, it appears fair and regular.” It goes without saying that while the UDC is striking while the iron is still hot, would whatever evidence it brings not be regarded as frivolous, mischievous or ill-founded or, will such evidence be grounded on substantive grounds? Only time and the occasion will tell. I am ready to be persuaded as always. Judge for Yourself!

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