Elections are an indispensable feature of a democratic order. Both the judiciary and the Electoral Management Bodies (EMBs) play a very important role in ensuring that the elections are free and fair – and conducted in accordance with the law.
Article 21 of the Universal Declaration of Human Rights (UDHR), adopted unanimously by the United Nations General Assembly in 1948, proclaims that everyone has the right to take part in the government of his or her country, directly or through freely chosen representatives. The UDHR also emphasises that the will of the people shall be the basis of the authority of government – and further that this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and held by secret ballot.
Free and fair elections and the Judiciary
Free and fair elections are the foundation of democracy and allow for the free and just societies we want to live in. We all want to have a voice in determining the future of our country and in shaping the lives we live under. And we want our voice to count the same as that of everyone else.
It is generally accepted that the judiciary plays a pivotal role in ensuring free, fair and credible elections by upholding the rule of law, the right to vote, and equality before the law. Petitions against election results represent an important redress mechanism that is indispensable in a democratic order.
Bearing in mind that electoral disputes being essentially political in nature, the courts are often compelled to consider which approach may be appropriate between a restrained and a proactive one, having regard to the nature of the judiciary as an independent third arm of the state.
It may thus be said that a fair and transparent redress mechanism, which commands the respect of the people, lends legitimacy and credibility to the election and serves as a peaceful alternative to violent post-election responses. On the other hand, a failure to put in place an effective electoral dispute mechanism can seriously undermine the legitimacy of an entire electoral process.
Electoral disputes and politics
Electoral disputes provide a very direct and immediate interface between politics and law.
Few disputes catapult the judiciary into the furnace of politics than election petitions – and quite often litigation on election disputes is politically charged. Electoral litigation is sui generis in character. Consequently, many jurisdictions recognize that they do not strictly fall within the ambit of conventional civil law, and therefore require different sets of regulations and rules to guide their determination.
Given the political nature of electoral disputes, it is thus important that the courts must not only be independent and impartial but must be seen to be so. It is only when the people have full confidence in the independence and impartiality of the judiciary that they would accept the verdict of the courts. It is even more important, in my view, that the loser of the court case, although unhappy, should understand why he or she lost.
In many countries, violence has erupted following the decision of the courts on contested elections, mainly because the people believed the courts were not independent and impartial. The courts should be assisted in coming to a correct determination on the law and facts of each case by an independent bar.
The Sacred Vote
The vote is sacred. It is important that the preference of the voter should be freely expressed, recorded and announced. To interfere with the expression of the people is akin to high treason.
Willy Mutunga, former Chief Justice of Kenya, was correct when he stated that:
‘[T]here is no higher crime an individual, an institution, or a group of people can commit than one that subverts the sovereign will of the people, or whether through incompetence, negligence, or design make the expression of that will inarticulate’.
In some jurisdictions, such as Kenya, election disputes are time bound. And because of their time-bound nature, according to the law, election petitions are not supposed to take long to resolve.
Consequently, the hearing of these election disputes displaces other ordinary business of the courts, thus prejudicing litigants of other cases. In most election cases, magistrates and judges must be moved around, thus affecting their case lists in their ordinary resident jurisdictions.
It might thus be seen from the above that judiciaries have become an institutional political actor in the politics of Africa, and by extension the judges have become political actors of a sort, not in the partisan sense – but in the sense of mediating on what is fair or unfair, which may at times entail a value judgment.
To achieve social respect and authority as an independent and impartial institutions, courts need to be constituted by men and women of great learning, experience, integrity and a track record that is un-assailable on matters of law.
They must be intentional in developing cutting-edge jurisprudence that can stand scrutiny by the best in the legal fraternity. Certainly, the idea that even an obviously ‘sham’ election should be allowed to stand because mathematically it is not possible to show that the malpractice complained of would affect the elections result, should be avoided. The same applies to resorting to technicalities to avoid dealing with the substantive merits of a case.
Courts should never be intimidated by the fact that election disputes are often politically charged involving high emotions. Rather, courts must bring their sober, balanced view that looks at the facts and the law only to bear on the national discourse. Justice David Neuberger, former President of the Supreme Court of the United Kingdom, once said:
“The justices of the court are of course aware of the strong feelings associated with the many wider political questions surrounding the United Kingdom’s departure from the European Union. However, as will be apparent from the arguments before us, those wider political arguments are not the subject of the appeal. This appeal is concerned with legal issues and as judges, our duty is to consider those issues impartially and to decide the case according to the law. That is what we shall do.”
Indeed, in their scrutiny of election disputes our courts must ensure that every vote counts, and as Justice Paul Stevens of the Supreme Court of the United States, said in his dissenting judgment in Bush v Gore: “counting every legally cast vote cannot constitute irreparable harm.” Bush v Gore 531 US 98 (2000)
As anyone familiar with electoral adjudication well knows, it is difficult to please all because participants and stakeholders are often highly emotionally invested and can hardly be objective.
It follows therefore that regardless of what the evidence – even if objectively assessed – says, the losing party will never be happy with the outcome. Sometimes even the justices themselves feel that the decision of the Court was unjust. In Bush v Gore, Justice Stevens who dissented from the judgment of the majority stated that:
“It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is ... clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
The growing power of courts in determining final electoral outcomes has often made the political class restless and uncomfortable.
Some jurisdictions, realising the sheer judicial power the judiciary has, have attempted to pass legislation to constrain the judiciary in what it can or cannot do; others have simply interfered in the administration of justice.
It should be obvious that the extent to which people may accept the verdict of the court, is a function of the integrity and incorruptible nature of the court – and of course the judges’ knowledge. This means that the selection of judges in any jurisdiction must be beyond reproach, in effect insulating the recruitment of judges from the machinations of the political class. It also requires having judges who are faithful to their oath of office, a vibrant civil society that can hold the executive accountable, as well as an independent bar that can work well with the judiciary to deliver electoral justice.
It is important to note that the judiciary would not be trusted simply because it was correct on the law. To be correct on the law is important but not enough. More importance, perhaps, should be placed on the judiciary’s conduct, reputation and jurisdictional rigour, as well as the credibility of the judges themselves.
Electoral Management Bodies (EMBs)
The election management bodies (EMBs) are primarily responsible for implementing the legislative framework regarding election competition, voting, counting procedures and processes, and the announcement of election results. EMBs worldwide have participated in and benefited from international, continental and regional norm-making initiatives for democratic elections and the introduction of democracy and electoral assistance programmes in their quest to improve their performance and conduct credible elections.
For instance, the existence of the African continental and subregional democracy instruments has provided an opportunity for supranational accountability. Although these efforts have served as vehicles for norm diffusion, especially since the late 1980s and early 1990s, the historical, political, and socioeconomic peculiarities of countries have led to a mixed bag in terms of the value addition of elections to democracy and peace, and development.
It is very important that electoral management bodies must assert their independence and conduct themselves in a professional and competent manner. It must be said that where the conduct of the electoral management body is clearly and deliberately improper, the courts must not hesitate to say so. The electoral management agencies need to win and cultivate public confidence in their operations.
It undermines confidence when the behaviour of EMBs is suspect, such as when they are shown to be colluding with some participants to rig or cheat in elections or when they unreasonably withhold vital information to the public or stakeholders, such as the voters roll.
Nothing could be more corrosive of public confidence than a body that runs elections that is not trusted by the people, or that people consider rogue. Nothing undermines democracy more than an electoral management body that is considered an extension of incumbents’ parties or that is infected with bias and incompetency.
In 2020, the Malawi constitutional court in the case of Saulos Chilima and Lazarus Chakwera v Peter Mutharika and Electoral Commission (Constitutional Reference No. 1 of 2019), nullified elections that were marred by massive irregularities that involved the use of tippex (correctional fluid) and lack of signatures in some result sheets. Some of the findings of the court such as the use of tippex directly implicated the credibility of the election management body in Malawi.
Immediately after the court delivered its judgment calls grew for the dismissal of senior members of the electoral body as they were no longer trusted.
Democratic recession and EMBs
The deterioration of democracy in a jurisdiction has a direct impact on the EMB’s ability to deliver a free and fair election. Such deterioration may entail constriction of the opposition’s access to mass media and campaign finance; lack of voting inclusiveness; erosion of political accountability, transparency, and the rule of law; increase of rampant corruption; violation of human rights; and emergence of populism and extremist movements, and disinformation.
The International Institute for Democracy and Electoral Assistance (IDEA) Global Report on the State of Democracy (GSoD) released in 2021 propounds the notion of democratic backsliding, describing it as “sustained and deliberate process of subversion of basic democratic tenets by political actors and governments.”
According to this Report, authoritarian systems capitalise on democratic backslides to entrench themselves and subvert civil liberties.
The last decade has witnessed very high and unprecedented democratic backsliding affecting the regional geopolitical and economic powers.
By size, the democratically backsliding countries represent more than 30 per cent of the world’s population. Consequently, 70 per cent of the global population may be said to live either in non-democratic regimes or democratically backsliding countries.
More attention should thus be paid to the impact of the democratic recession on the EMBs and electoral processes. Democratic recession not only diminishes the scope for enjoyment of fundamental rights but also constricts access to citizen participation with far-reaching implications for elections and electoral processes. Constrained citizen participation and engagement under a democratic recession impacts the ability of the EMBs to deliver elections and meet the expectations of the normative regimes in election administration and management.
Consequently, the electoral environment in most countries has become more complex amidst high demands from citizens for greater participation and accountable governance. In their constant search for alternative leaders to deliver the social and economic dividends of governance, citizens and civil society organisations have increased their demands on EMBs to be more open and transparent in managing electoral processes. The requests have created new dynamics for EMBs globally in their ultimate bid to organise elections that result in credible outcomes.
Technology and elections
The implementation of technology in elections has its advantages and disadvantages. The advantages are that if technology is not manipulated and is under the control of professional and independent body it can deliver fast results.
However, the science and integrity of technology itself may become contested. Even technology experts cannot agree on their own science. Technology can also be prone to manipulation.
It is therefore important to be careful in embracing technology unless we can find a way to insulate it from being hacked or manipulated. Embracing technology without the necessary safeguard to ensure complete reliability risks handing over the election of the political leadership to machines.
Conclusion
At the centre of electoral justice issues in a constitutional democracy lies independent and impartial judiciary and EMBs. An independent judiciary is an indispensable aspect of a well-functioning democracy. It is the last frontier between a peaceful and orderly society and a conflict-ridden one characterised by violence and military coups. The judiciary should partner with an independent and professional bar when available in advancing electoral justice and the rule of law.
Similarly, the EMBs must be independent and refuse to take instructions from any person.
The personnel that run the elections must be composed of men and women of integrity.
They should be transparent in their operations and earn the trust of all political players and members of the public. It is unpardonable for the EMBs to engage in conduct that is suspect or amounts to collusion to cheat elections.
* Hon. Justice Professor OBK Dingake is a Justice of the National and Supreme Courts of Papua New Guinea
