The experience of Kenya and Malawi is inspiring but also sobering — judges can’t save democracy on their own. (Paul Botes/M&G)
Africa’s courts have been making history. Despite having a reputation for doing the bidding of their respective governing parties, in the past few years judges have grabbed the headlines by refusing to accept poor quality elections. First in Kenya in 2017, and then again in Malawi this year, courts nullified presidential polls that contravened basic constitutional principles and legal guidelines.
These acts of judicial defiance have cast the courts in a new light. Africa is now seen as a leader when it comes to this form of judicial review. Some analysts have even gone as far as to suggest that the courts might be the saviour of democracy in countries where elections are routinely rigged.
This optimism is understandable, but needs to be tempered. The courts were ultimately unable to resolve the controversy in either Kenya or Malawi. Because judges lack the power to draft legislation and enforce changes, democratic reform is impossible unless presidents and electoral commissions also play their part.
As a result, judges can’t save democracy on their own.
Opposition challenges
Governments in many new democracies have figured out how to manipulate the electoral process in ways that are difficult to detect. When rigging is more subtle, opposition parties can be left convinced that they have been cheated but struggling to prove it. This is important, because the courts and international election observers are unlikely to intervene in an election if it is not clear that fraud actually changed the result.
There are four reasons why proving this is particularly difficult. First, comprehensively covering all polling stations — there may be more than 40 000 — is a huge logistical effort, especially when opposition party agents face intimidation in government strongholds. Second, most constitutions give losing parties a very small time period — often just two weeks — to build and lodge their case. Third, in countries such as Uganda and Zimbabwe this time is further reduced by deliberate government efforts to disrupt the opposition’s preparations by confiscating materials and arresting leaders. Fourth, the judges that hear election cases are often handpicked by the president and often take any opportunity to reject the opposition’s complaints.
Taken together, these barriers help to explain why, until 2017, no presidential election in Africa had ever been overturned.
Courting controversy
The breakthroughs in Kenya and Malawi occurred because judges were willing to look at election petitions in a very different way. Instead of focusing solely on the numbers, the Kenyan Supreme Court argued that an election could be nullified on procedural grounds if constitutional principles and legal regulations are contravened to such an extent that the whole process can be considered illegal. The court was, therefore, able to declare the election “null and void” without needing to demonstrate that the government had successfully rigged it.
https://www.youtube.com/watch?v=yI-j7zrl8JY
In Malawi, the Constitutional Court followed the precedent set in Kenya, and explicitly cited that case as a justification for taking into account both “qualitative and quantitative” evidence. This was critical to the court’s final decision, because although its 500 page judgement discusses the number of votes involved in instances in which the counting procedure was questionable, it does not explicitly state that fraud changed the outcome of the contest. Instead, the court’s main criticism of the electoral commission was that it failed to follow the proper procedures.
By evaluating electoral petitions against a broader set of criteria, the two courts were able to correct for the system’s inherent bias in favour of governing parties and make history. In the process, they set a much higher bar for an election to be considered acceptable and legal. Yes despite this, neither judgment has yet generated a more credible electoral system.
The short arm of the courts
The supreme court’s verdict was rightly celebrated in Kenya. But the celebrations didn’t last long. Although the court mandated a “fresh” election, it was not able to stipulate exactly what should happen to the discredited electoral commission, nor how the election should be run.
Judges can usually order officials to amend a law to make it consistent with the constitution, but not determine exactly how this should be achieved. Under the separation of powers, the right to pass legislation is reserved for Parliament. The problem in Kenya was that Parliament was controlled by the governing party. Instead of using its influence to respond constructively to the Court’s decision, the government passed legislation that attempted to curb the powers of the court itself.
The response of other parts of the political system was even more problematic. Although President Uhuru Kenyatta initially stated that he would respect the verdict, in later speech he referred to the judges as “crooks” and threatened to “fix” the Court. The electoral commission proved to be equally problematic, as disagreements about how to respond to the court’s criticisms between commissioners — and between the chair and the chief executive — further undermined public confidence.
Amid growing criticism and confusion, the main opposition leader, Raila Odinga, announced that he would boycott the polls. As a result, Kenya’s second election of 2017 was no less controversial than the first.
Take two
History appears to be repeating itself in Malawi. Having learned from the Kenyan experience, the Constitutional Court took steps to give its judgment added bite. First, the Court allowed 150 days for the “fresh” election to take place, giving the electoral commission the necessary time to get its house in order. Second, the court mandated that Parliament should consider the competence of the members of the electoral commission, and pass any necessary legislation within 21 days.
The government criticised these measures, arguing that they “over-reached” the court’s jurisdiction. However, they were really just a creative attempt to prevent one electoral crisis from leading to another. To an extent, the court’s gambit worked. The threat of being held in contempt of court spurred legislators to pass bills to reform the electoral system and replace the leadership of the electoral commission.
Legislation does not become law, however, until it is assented to by the president. This is a major problem, as President Peter Mutharika faces a struggle to hold on to power. Now that the two main opposition parties — who between them won 55% of the vote in the first poll — have formed a coalition, he is no longer the favourite. It was, therefore, hardly surprising that Mutharika refused to assent to legislation that could create a more independent electoral commission.
Indeed, after the arrest of civil society leaders and the firing of the head of the military — which is said to be sympathetic to the protesters — it appears that Malawi’s political crisis is growing deeper.
Judging the judges
None of these challenges should be interpreted as a criticism of the courts. In both cases, they acted bravely in defence of democratic principles. In Kenya, Supreme Court judges received death threats before and during the case. Malawian judges have also come under intense pressure from all sides — and this is only likely to escalate when an appeal against the verdict of the Constitutional Court is heard by the Supreme Court in April.
This bravery has not been in vain. The Kenyan judgment inspired judges in Malawi. The Malawian verdict may yet inspire judges in another country where there is a degree of judicial independence. The courts have also set a new standard for elections — one that will force electoral commissions to up their game and election observers to rethink their approach.
But the experience of Kenya and Malawi is also sobering — judges can’t save democracy on their own.