The challenges of adjudicating presidential election disputes in Africa : exploring the viability of establishing an African supranational elections tribunal

Abstract

In a democracy it is the citizens who choose their leaders. Through elections, the people constitute government to preside over public affairs. However, in several African countries the quality of the elections has been vitiated by fraud, incompetence, unequal playing field and violence. Part of the problem is historical. Within the first decade of attaining independence in the 1950s and 1960s, many African regimes rapidly descended into autocracy and many countries formally recognised one-party regimes. Despite many one-party regimes having been abolished after the democratisation wave of the late 1980s and early 1990s, challenges of holding free and fair elections persist. Several elections held since this democratic wave were generally not considered by independent observers as free and fair. Indeed Africa has become well known for flawed elections, such as was the case in the 2007 elections in Kenya, the 2008 elections in Zimbabwe and the 2010 elections in Ivory Coast. Due to the stifled democratic climate, where even elections had a predetermined outcome, coups became a common and regular method of showing discontent or removing government. While the phenomenon of problematic elections is going on, at the continental level, Africa seems to be making renewed commitment towards democratic governance. With the transformation of the Organisation of African Unity (OAU) into the African Union (AU) through the adoption of the Constitutive Act of the African Union in 2000, the AU, inter alia, committed to promoting “democratic principles and institutions, popular participation and good governance” and seems determined to depart from the legacy of poor governance. It is in view of the foregoing background that this research sought to investigate the challenges the judiciary in Africa has faced in adjudicating presidential election disputes. And, in light of the growing trend towards establishing common African democratic standards and seeking collective solutions, the research also sought to explore the viability of establishing a continental supranational mechanism for resolving disputed presidential elections through adjudication.