When judges defied power: The African courts that toppled presidential victories
…Petitioning fraudulent presidential election declarations in Africa: Precedents in jurisprudence from Kenya and Malawi
By Professor Munyonzwe Hamalengwa
THE Supreme Court of Kenya became the first judiciary in Africa to annul a presidential election declaration on September 1, 2017, followed by the Malawian judiciary in 2020.
This submission discusses how the Kenyan judiciary through their Supreme Court did this unprecedented precedential jurisprudential step. Could this be the precedent, already followed by Malawi that Africa has been looking for? Or will they be aberrations that may never be repeated mainly because of the character of African political systems and the nature of African judiciaries?
The background
With minor exceptions, Africa had been ruled by one party state colonial dictatorships (from late 19th century), and military or civilian one party state systems since the dawn of independence in the 1960s until the cessation of these military and one party state dictatorships in the late 1980s and early 1990s. True multiparty democracy was short lived and in very few countries only.
The collapse of these regimes and emergence of democratic governance, was a worldwide phenomenon as the same unravelling was happening in Eastern Europe, the former Soviet Union and Latin and Central America. In Africa, democratic consolidation was threatened by fraudulent elections in which incumbent presidents rigged the elections and clung to power.
Throughout Africa, judiciaries were incapable of annulling these fraudulent elections whenever petitioned and there were many petitions across the continent.
The Kenyan precedent
As a result of the experienced or perceived rigged election in Kenya in 2007, riots and near civil war broke out in 2007/8 which prompted the country to embark on far-reaching constitutional, electoral and judicial reforms that came into being in 2010. These reforms have been heralded as the triggers that led the Kenyan judiciary to be the first judiciary to annul a declared presidential victory of an incumbent in 2017.
The reforms brought in a New Dawn kind of judiciary that was fearless and had the backing of the majority population. The 2013 disputed election outcome in Kenya should have gone the other way but the Kenyan judiciary had no precedent to anchor its decision on.
The presidential election petitions of 2017 and 2019
The losing candidate Mr Raila Odinga brought a petition alleging that the conduct of the election was unconstitutional, just as he had alleged in 2013 but lost in 2013.
The refuge of African judiciaries in refusing to annul fraudulent elections has always been that no matter what the irregularities may have been (qualitative issue), the ultimate result was not affected in terms of numbers (Quantitative analysis).
In any election petition litigation there is always plenty of qualitative and quantitative analysis and a lot was done in the two petitions here: both courts concluded that the quality of the elections left much to be desired and ultimately the quality affected directly or indirectly the quantity of votes that the opposition petitioners garnered or could have garnered.
Where there was no direct evidence, the courts, especially the Kenyan one, imputed circumstantial evidence that the quality of the election affected the outcome of the election.
The two courts surveyed and quoted a lot of helpful jurisprudence from around the world which would be difficult for any future properly constituted judiciary in any African country to ignore.
While the two courts disagreed on the standard of proof in proving election irregularities, the Kenyan one deploying the median standard between balance of probabilities and beyond reasonable doubt, the Malawian Court stuck to the known and proven standard of balance of probabilities in order not to put undue burden on the vulnerable in society including the petitioners.
The Kenyan court reasoned that an election petition is an extraordinary sui generis (unique) application beyond a mere ordinary civil case and because this litigation exists in a complicated constitutional matrix, the standard of proof should be raised. The Malawian court rejected that elevated standard.
The courts were, however, agreed that the initial legal burden remains with the petitioner but once the petitioner satisfies the prima facie qualitative or quantitative showing, the evidentiary burden shifts to the respondents.
The Kenyan court was emphatic that the qualitative and quantitative demonstration need not be conjunctive, meaning you don’t have to prove both that the qualitative and quantitative aspects have been satisfied though it is difficult to distinguish any circumstances when the two tests would be disjunctive.
The Kenyan court derived the disjunction from the wording of Article 83 of the Elections Act which states: “No election shall be declared to be void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law or that the non-compliance did not affect the result of the election”. The “or” spells disjunction.
The Kenyan and Malawian courts have set African precedents on election petitions. Judges and lawyers, pay heed. There will be a number of elections in Africa this year. Inevitably there will be election petitions. And there are precedents to guide the stakeholders, especially the judiciary.
