Abstract

Defective and fraudulent elections are common in Africa. Although there has been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent. Where elections have been assailed with anomalies and results are disputed, as is often the case in Africa, aggrieved parties have looked to the judiciary as an institution of last hope to seek redress. The judiciary has, however, almost always decided presidential election disputes in common patterns that militate against the growth of democracy on the continent. The common patterns are that all cases are decided in favour of the status quo; many cases are dismissed on flimsy technical and procedural rules without consideration of the merits; there is misuse of the substantial effect rule to uphold defective elections; there are delays in determining cases; and judges refrain from making any reasonable decisions. The judiciary in Africa may, therefore, be fully complicit in the delayed consolidation of electoral democracy on the continent.

Highlights

  • Defective and fraudulent elections are common in Africa.[1]

  • This article looks at how African courts have handled presidential election disputes

  • 3.2.4 Atiku Abubakar & Others v Umaru Musa Yarsa Ya & Others[76]. This is the final case in the list of examples of presidential election disputes dismissed on the basis of procedural technicalities without consideration of the merits of the case

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Summary

Summary

Defective and fraudulent elections are common in Africa. There has been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent. Where elections have been assailed with anomalies and results are disputed, as is often the case in Africa, aggrieved parties have looked to the judiciary as an institution of last hope to seek redress. The judiciary has, almost always decided presidential election disputes in common patterns that militate against the growth of democracy on the continent. The common patterns are that all cases are decided in favour of the status quo; many cases are dismissed on flimsy technical and procedural rules without consideration of the merits; there is misuse of the substantial effect rule to uphold defective elections; there are delays in determining cases; and judges refrain from making any reasonable decisions.

Introduction
Overview of the role of the judiciary in election disputes
EU Election Observation Mission Nigeria Final Report
All judgments are in favour of the status quo
Sacrificing substantive justice for procedural technicalities
Mwai Kibaki v Daniel Toroitichi Arap Moi62
60 JL Mwalusanya ‘Checking the abuse of power in a democracy
Misuse of the substantial effect rule
Kizza Besigye v Yoweri Kaguta Museveni98
Delayed justice
Coming to no decision
Findings
Conclusion
Full Text
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