Statement of the Problem.
Elections in Africa have been faced and still
continue to be faced with various problems and challenges ranging from legal
frameworks to institutional frameworks that have not been carefully drafted to
promote the rule of law or be consistent with regional and international
frameworks and standards. Electoral management systems such as voter
registration, and counting are usually not conducted in an ethical manner,
which leads to malpractice, abuse of state resources, and violence between
people. All of these outcomes have happened in almost all elections that have
been conducted in the African region in recent years. This raises serious
questions as to the manner in which elections are conducted in Africa and by
extension the role in which the courts can correct these irregularities.
In order to understand how elections play a
vital role in attaining democracy and the rule of law, it is important to give
credit to the positive changes that election that are conducted free and fair have
given. Conducting elections gives power to the people to have their say as to
how they want their country to be governed. If not for anything, power belongs
to the people. Countries in Africa have taken adequate measures in
constitutional and electoral reforms with the primary aim of improving their
legal and institutional frameworks with which elections are conducted and which
also bring about a fair equilibrium in certainty of the process.
As a continent, Africa has also taken steps
to ensure legal and institutional frameworks in the electoral process that have
given the standard of how elections should be conducted. For instance, The
African Charter on Democracy, Elections and Governance (ACDEG), which came into
force in 2012 to quash the unconstitutional changes of government and employed
its member states to conduct free and fair elections. The African (AU), as well
as the regional economic communities such as ECOWAS, EAC, and SADC, continue to
be engaged in the electoral process in Africa through their observer missions.
There has been a lot of voter turnouts in Africa in recent years.
Another important development in the
electoral process in Africa is that civil society organisations have taken up
roles and responsibilities in the conduct of elections in Africa. This ensures
domestic observer status apart from the observer status given by the regional
economic communities as mentioned above.
It also ensures and promotes civic education and advocacy for electoral
reforms. The use of social media and technologies in the electoral process has
also been another interesting development.
But back to the problem of electoral process
in Africa. Have all these recent and interesting developments delivered
democratic outcomes in Africa? They are good developments but a lot still needs
to be conducted to ensure the integrity and purpose of elections. It is well
known that the judiciary plays the role of an overseer over other arms of
government and ensures that the will of the people are respected. The 2017
Kenyan Presidential elections have also shown that the judiciary has a role to
play in the electoral process if it maintains its independence and it is not
politically influenced. Given the positive outcome of the decision of the
Supreme Court, it is important that courts in other jurisdictions in Africa
emulate the practice of the Supreme Court of Kenya in annulling elections are
conducted unfairly and unconstitutionally. Most importantly, it is important
for courts to stay away from focusing on the technicalities and examine
election petitions based on the law and facts. It is trite law that
technicalities sway away the possibility of attaining justice in any matter.