A scholarly piece by Kenyan JUSTICE (RTD) WILLY MUTUNGA AT THE MALAWI LAW SOCIETY ANNUAL CONFERENCE, NKOPOLA, MANGOCHI, MALAWI, 22ND FEBRUARY 2019.
AFRICA’S ELECTORAL CONDITION: THE JUDICIARY AS AN INSTITUTIONAL AND POLITICAL ACTOR FOR DEMOCRACIES IN TRANSITION
If elections changed anything, they would have abolished them.
Every five years the English bourgeois political parties ask the proletariat to choose which party they would like to oppress them for the next five years!
It is indisputable that law has its economic, social, cultural, and political foundations in the broader power and property relations in society. However, electoral disputes, ipso facto, provide a very direct and immediate interface between politics and law. Few disputes insert the Judiciary in the front door furnace of politics than election petitions – and so does this paper.
Electoral litigation are sui generis in character, both in regularity and regulations or rules. Consequently, many jurisdictions, Kenya included, 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. A few questions linger with respect to electoral disputes: One, should courts even entertain them, or do they fall within the purview of the political and policy questions which are not justiciable, and to which, therefore, courts should be restrained? Two, can African courts adjudicate electoral disputes, particularly presidential ones, and institutionally survive the corrosive effect of African politics? Three, what is the emerging body of jurisprudence and what is their real jurisprudential and juridical value? What is the role of the Bar? What is the place of electoral management agency, the political parties and citizens? These are some of the issues that this presentation addresses.
Elections are an important pillar of any democracy. The right to vote must not be taken lightly. The duty to protect that vote is also an important democratic imperative. As Francis Fukuyama, in tracing the origins of political order in society has noted, ‘[T]oday the dominant form of procedural accountability is elections, preferably multi-party elections with universal adult suffrage’. When, as Chief Justice, I presided over the swearing in of Kenya’s electoral commission members on 14th November 2011, I spoke at length on the importance of elections, and essentially said that subverting sovereign will of a people is a crime more serious than treason, as it is a crime against society as against the state. I 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’.
However, there is an emerging – and a rapidly entrenching – notion in Africa, that electors or voters no longer decide who their leaders are – whether in party primaries or the general election itself. That leaders are decided either by unaccountable party barons, or by manipulated electoral management agencies, or by the security forces, or by technology and data companies, or by the courts. In this continent (and, admittedly, America is beginning to show these signs too), there is a widening chasm between voting and counting – a strange paradox of inverse literacy, where peasants and workers (most voters) know how to peacefully cast their ballots during the day on Election Day, but graduates and computers (technologically-aided presiding and returning officers) ‘forget’ how to count on election night. There is urgency in changing this perception and/or reality and reclaim and reaffirm public faith in electoral politics.
The struggle for political pluralism in Africa in the 1980s and 1990s was predicated on the assumption that more political parties would precipitate more competition in the political marketplace, resulting in better governance outcomes. This promise was anchored on the historical reality of the failure of one party dictatorships, a veritable triumph of belief over hope. And whereas the African embrace for pluralism was not driven by Panglosian optimism, three decades and five to six elections later, we are beginning to see worrying signs. Is democracy flailing and failing in Africa? Why are multiparty elections becoming a strain and stain on African societies, threatening their very stability and entrenching feelings of exclusion? Is the question Prof Claude Ake, one of Africa’s foremost political thinkers posed, ‘Is democracy feasible in Africa?’ ultimately finding an uncomfortable answer?
The crisis facing elections in Africa must be seen within the broader context of the crisis of liberal democracy. Many African countries, Kenya included, suffer from a variant of what some scholars have referred to as “illiberal democracy”. In other words, on the surface, Africa’s political environment is replete with the nominal features of a liberal democracy. However, beneath this façade is a major democratic deficit. Africa’s democracy is quintessentially ephemeral in character, existing more in form rather than substance. By that I mean, all the formalistic tenets of a liberal democracy obtain: a free press, a vibrant civil society, many political parties, constitutionally-designed independent judiciary, regular and periodic elections, informed and engaged citizenry and so on. However, in substance, the democratic dividend is still small, and the gap between democratic form and content is evident in the inherent contradictions on these tenets.
That is, there are more media outlets, but the ownership is highly concentrated – and even patronized and threatened by the political class – thereby drowning out more authentic voices. The civil society suffers from the same social cleavages and divisions that ail the political class. We have more political parties, but they are not only ideologically superficial and indistinguishable, but are also internally undemocratic. We have courts, but their independence is increasingly threatened, and their determination of election outcomes gravely contested and assailed. Elections are periodic and regular, but again their ‘freeness’ and fairness are highly contested. Our citizenry is vastly exposed to large vistas of information/knowledge, but its electoral choices are sectarian and non-ideological, and do not bear a sophistication associated with the knowledge they have. We still have large segments of our population voting in a nativist manner, regardless of their level of education. And, there is a lingering question whether elections have not become an industry in terms of huge investments and theft that follows such investments, well reflected in monumental corruption, the control of the victors by cartels (foreign and local). Are the victors peoples’ representatives, or, are they slaves of foreign and local interests?
Our African political parties are yet to become institutions with think tanks, offices, efficient secretariats, all reflecting democratic institutions. In Kenya, the graveyard of political parties since independence would shock us in terms of names since forgotten, coalitions, manifestos that do not address ideological and politics of the parties. Their continuous and consistent political practice of organizing and mobilizing politics through ethnic, racial, clan, generation, religious, regional, class, homophobia, and xenophobic divisions is legendary. Political leadership in Africa has been described as one of pathological liars that tell the truth by accident. Or as the South African laugh at politicians as a bunch of bananas, all yellow, hung together, and none is straight! It cannot be said that political leadership in Africa loves us. How can we say that when the imperialism of the West and East still exploit and dominate us while our political leadership acts as loyal agents and running dogs of these international forces? How can we say our political leaders love us when they incur huge national sovereign debts that they either steal or waste? How can we say our political leaders love us when they promote counterfeit industries (and other ills such as human trafficking, money laundering, piracy, terrorism, corruption, allowing illegal outflows from our economies etc) and, indeed, supremely qualify as merchants of death? Africa will have to form social movements and political parties that revolutionize this status quo. African citizens will have to, among with other citizens of the world, to imagine freedom, emancipation, and a just, equitable, ecologically safe, peaceful and non-militaristic, planet that is prosperous.
Citizens will have to be the change they wish to see. Politics of division, hatred, and perpetual political distraction will be ended when political movements and parties mobilize citizens on the basis of issues, and the material needs of the people. The narrative that ethnic barons are our perpetual leaders after over 5 decades since independence speaks volumes of how effective ethnic barons and their foreign masters have succeeded in securing a murderous status in our countries. We are thus, back to square one, struggles for an independent, decolonized, de-imperialized, free and prosperous Africa. Our post-colonial states have even betrayed PanAfricanism as an ideology of liberating Africa.
The philosophical logic underpinning political pluralism was that the exercise of free choice in a competition between ideologically distinguishable parties would result in positive governance outcomes. But this assumption would be aided by an axiomatic one: an informed citizenry on the one hand, and a credible electoral process, on the other. Thirty years later, these assumptions have been shaken to the core. Indeed the judicialisation of electoral processes is testimony to this fact. Hirschl has noted that ‘worldwide, the judicialisation of politics has expanded its domain beyond ‘flash rights issues’ to entail what may be called ‘mega politics’ – matters of outright and utmost political significance that often define and divide whole polities’. Among these are judicial oversight of electoral processes with a corresponding expansion of judicial power to scrutinize pre-electoral processes, elections, plebiscite and referenda.
Without undermining the significance of the citizens and political parties, it does appear that rescuing Africa’s democracy will be heavily dependent on two institutions: the electoral management body and the judiciary, a subject which I want to turn to and which African Constitutions of the 1990s has sought to address.
The introduction of Second Generation constitutions in Africa has not only resulted in the expansion of the democratic space generally, but also created courts that, by constitutional design, are more independent than the judiciaries that were inherited at independence. The conferment of adjudicatory jurisdiction of electoral disputes, particularly at the presidential level, has been one of the new notable features of this constitutional outlook. In Kenya, whereas the determination of different types of election disputes repose with different levels of courts, Article 163(3) (a) grants the Supreme Court ‘exclusive original jurisdiction to hear and determine disputes relating to the elections of the office of the President….’, and which it has to decide within 14 days.
The new Constitutions have, through self-affirming provisions of constitutional sovereignty, or through expanded Bill of Rights or expanded judicial review powers, have created judiciaries that are bound to be interventionist in character. Judiciaries, therefore, have been thrust into the political arena in a manner that has been unprecedented. One would even say – given their legal training, historical paeans to the Executive, and absence in constitution-making struggles – in a manner that they were ill prepared for.
The burgeoning number of electoral disputes places considerable political, jurisprudential and logistical burden on Africa’s Judiciaries, a development so significant that it forced me, as Chief Justice, to set up a special Joint Working Committee on Elections Petitions (later Judiciary Committee on Elections) to help manage the training, rule development, communication and logistical aspects of this challenge. And because of their time-bound nature (in Kenya, according to the law, petitions are not supposed to take longer than 6 months), the hearing of these disputes displace other ordinary business of the courts thus prejudicing other litigants. In most cases, magistrates and judges have to be moved around thus affecting their cause list in their ordinary resident jurisdictions.
The increasing judicialisation of electoral politics is evidenced by the following facts on Kenya’s last two general elections: in the 2013 general elections, 188 petitions were filed while in 2017 the number stood at 388. This is apart from the 50 procurement related cases that were filed against the Electoral Commission in the run up to the elections. Within sixty days that a fresh presidential petition was to be held, five constitutional petitions were filed challenging various aspects of the re-run.
This means that the judiciaries have become an institutional political actor in Africa’s politics, and there is nothing wrong with this development as the Judiciary must assert its place as a co-equal arm of government, and, more importantly, as a vital custodian of Africa’s constitutionalism. In Kenya, since 2010 when the new Constitution was promulgated, all the three presidential elections have been litigated at the Supreme Court. The issues that the Court has dealt with are wide and varied, and in six short years, the Court has developed a large but still evolving jurisprudence on several electoral themes. These include: election date, scrutiny and recount, partial scrutiny, timelines for the initiation and pursuit of electoral causes, human error and election irregularities, fairness and finality in electoral dispute resolution processes, qualifications, withdrawal of a presidential candidate, jurisdiction of Supreme Court on election appeals, the burden and standard of proof, verifiability of results, and costs.
The court has had to deal with issues of electoral processes as well as mathematical computation, and whether the inappropriate interplay between the electoral process and the result should have a bearing on the judicial outcome. Article 86 of the Constitution imposes an obligation on the Independent Electoral and Boundaries Commission to ‘ensure that whatever voting method is used, the system is simple, accurate, verifiable, secure, accountable and transparent’ and the Court has had to weigh in on what exactly these words mean.
The Court has also been forced to apply its mind to what some might think are arcane juridical questions including the meaning of 50 per cent plus one; the difference between ‘votes’ cast and ‘valid votes’ cast; the relevance of ‘spoilt votes’ and ‘rejected votes’. Indeed, the era of computational or mathematical jurisprudence is here, and lawyers must revisit their legendary antipathy to arithmetic!
In order to grow its social respect and authority as a vital final voice on contested electoral matters, African courts need to settle and stabilize their electoral jurisprudence on firmer grounds, as a necessary condition for stabilizing the continent’s own democracy. The courts must expunge the notion – and the Constitutions already provide for this – that the election of African executives are ‘bullet-proofed’ or inured from judicial inquiry or constitutional accountability.
In any case, the matter of whether African judiciaries should be involved in electoral disputes is settled by constitutional invitation and, I believe, political necessity. Courts, therefore, cannot shirk or shun this constitutional duty, however unattractive it may appear, or however displeased the political class may be by this new judicial power. Africa’s judiciaries must realize that this is its new civic and constitutional responsibility which, however, it must exercise judiciously and conscientiously. In this regard, it is cognate that the judiciaries pay attention to the exigencies of the political environment in which it operates, while it applies the law and the Constitution faithfully. This is what the UK top judge, Lord Neuberger, referred to when the Courts there faced a similarly charged political moment: “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.” In the African context the supremacy of the Constitution, its theory of interpretation, and attendant political questions must trump anything else.
African Judiciaries should not feel ‘sorry’ for themselves because of this development but should rather seize the constitutional and political moment to grow and stabilize Africa’s constitutional democracy. And the faithful and fair determination of presidential election petitions requires judicial courage from the Bench – a courage and integrity grounded on the oath of office that should see courts staring down at partisan interests including the executive, corporate sector, civil society actors, international actors, media and even family members. Judges must remain committed to determinations firmly moored to the Constitution, law, and evidence presented before the courts.
One of the challenges facing African judiciaries as they take on this new responsibility is whether they can play this role while retaining their institutional security and protecting their social legitimacy, and particularly in ethnically divided polities. Highly charged electoral contests have a tinge of irrationality to them. In politics, they are the equivalent of crimes of passion. The problem this poses to the Judiciary is that, regardless of the jurisprudential potency of their determinations, the losing side – which is nearly always half the population – will see no merit and will condemn the Judiciary anyway. From the Kenyan experience, and even in the US in Gore v. Bush, with presidential petitions, it is difficult to convince or impress the losing side, however persuasive the evidence or solid the jurisprudence is. I doubt that even Solomon would have fared better. And, I daresay, that Artificial Intelligence Judges (AIJ) would not fare any better than Solomon if the current distrust of technology in electoral jurisprudence is anything to go by. Robotic and surveillance capitalism will create more problems in judicial disputes.
Immediately the judgment is delivered, the Judiciary lynch mob menacingly descends with fire and fury, from the candidate on top of the ticket, to the supporters at the base. The Supreme Court of Kenya, which has processed three election petitions in the last six years, has suffered condemnation both from the opposition and ruling regime. The nature and content of the attacks is no respecter of class or profession: indeed, members of the Bar, who should know better, joyfully join in the slugfest of insults and distortions, thereby helping in undermining public faith in the Judiciary, the rule of law and ultimately democracy. Instead of fair and learned discourse on fair jurisprudential points of disagreement, for most part, you end up with a political cacophony. It is the reason that as Chief Justice I decided to handover all the presidential election materials to all law schools in Kenya in an attempt to create a saner environment for a much-needed jurisprudential discourse on electoral petitions.
With the rising power of courts in determining final electoral outcomes have come unease by the political class to continue ‘allowing’ judiciaries to have a voice in presidential election disputes. The political class has growled and snarled at the judiciary, threatening its independence and seeking to control and micro-manage the institution. Few developments bring Africa close to electoral inspired civil war than this new found overreach by the political class. A Judiciary that was perceived as compromised is what led to Kenya’s civil war in 2007/2008.
The political class must know that that problem is not the courts because a dispute mechanism or arena must be created. Even if this jurisdiction were to be migrated from the courts, it has to be located somewhere else. For as long as that ‘somewhere else’ remains captive to the political class, and politics remains victim of ethnic contestations, it ceases to matter who determines the final electoral outcomes. The necessity therefore of a credible electoral dispute management forum demands that African judiciaries invest heavily in their emergence as the forum – and to earn its stripes, as it were. That would mean first, insulating the recruitment of judges from the machinations of the political class; two, having judges who are faithful to their oath of office; three, having a citizenry that possesses high judicial and political literacy – and a tolerant culture – that is able to accept the reasoning behind judicial decisions even when they disagree with those decisions; and four having a Bar that is professional and a reliable and knowledgeable partner of the Bench.
However the judiciary will not emerge as the social acceptable and respectable forum for dispute resolution in electoral contests simply by dint of constitutional provision. Perhaps even the more important determinants will be conduct, the reputation, the mannerisms, the values, the jurisprudential rigour, and credibility of the judges and the courts themselves. One of the threats to the emergence of the judiciary as the neutral arbiter is judges who act as viceroys of various interests – including the executive, private or social sector interests. The hearing, determination and communication of electoral disputes need to be handled in a transparent manner. It is the reason that in Kenya, I decided that the presidential petitions are aired on live television as a way of the Court trying to level up with the populace.
Let me just say something brief on the role of the electoral management agency. The judicialisation of politics will only recede if two conditions are met. First, Africa needs to create inclusive political systems that would then reduce tensions and eliminate desperate scorched earth politics. As I said last week when launching Kenya’s Electoral Commission’s report of the 2017 General Elections:
We need to cure the continent of the strong scorched-earth electoral culture. We shed too much blood, damage too many properties, steal too many votes, rupture too many friendships, destroy too many institutions, throw too many ethnic insults, worship too many false gods, spend too much money during our electoral contests. Elections have become corrosive and divisive in a manner that hemorrhages the continent in an eminently destructive way. They have become existential rather than civil contests between ideas and policy choices. This absolutist view of elections is what has led to the over judicialization of politics and securitization of politics, thereby giving courts (and security agencies) power to determine who the leaders are, and not the citizens. I believe that if the IEBC [Independent Electoral and Boundaries Commission] were to assert its authority and competently and fairly manage the electoral process, the social costs of elections would considerably go down. Similarly, if leaders put national interests first, then the fear of exclusion that drives this desperation would evaporate.
Second, and relatedly, the electoral management agency must assert its independence and conduct itself in a professional and competent manner. The Supreme Court in Kenya has had to deal with the conduct of the electoral body and the emerging jurisprudence there is worthy of attention. I think that in cases where the conduct of the electoral management body is clearly and deliberately improper, the courts need to increasingly find against the electoral agencies and hold individuals directly accountable. The electoral management agencies need to win and cultivate public confidence in its operations. In my Concurring Opinion in Petition 2B of 2014 (commonly referred to as Munya II) I addressed the issue of electoral management and cautioned that ‘nothing could imperil our democracy more than an electoral agency that is contaminated by bias, infected with incompetence, and afflicted by a virulent virus of minimal public accountability. Arguably, Kenya can do with one or two indolent political parties ,but she cannot afford an electoral management agency that exhibits these weaknesses…the IEBC must demonstrate competence, impartiality, , fairness, and a remarkably high sense of accountability to the public, and the parties who are its primary customers. It must embrace high disclosure standards, and must avoid conduct such as hoarding of information and data that the public has a right to, both as a matter of course, and also as a matter of Article 35 of the Constitution. Materials that are in the possession of IEBC are not private property ; they are public resources…the IEBC, therefore, must demonstrate an instant readiness to respond to public concerns, whenever these are raised, and to maintain a public accountability posture at all times.’
Lastly, the role of technology and technology companies in Africa’s elections also need urgent examination. The emergence of ‘IT Vendor Democracy’ is directly undermining the constitutional and operational independence of the electoral agencies and through their acts of nefarious data manipulation, the technology companies are determining electoral outcomes. The science and integrity of technology has become contested, and if technology experts cannot even agree on their own science, one can imagine the difficulties that that places the judges in. Technology is supposed to an exact science but increasingly, just like law, answers to technological results questions begin with ‘it depends’. Two IT experts can give two different interpretations to the same exhibit! Even though most jurisdictions have by law provided for use of technology in electoral systems, its increasing manipulation by international players risks us handing over the election of our leaders not to voters, parties or courts but to technology and data management companies.
In conclusion: if the political class, political parties, the bureaucratic elite, the military, the church and even international capital have had their say in decisively but ruinously shaping Africa’s governance and development trajectory in the years past, it would appear that the natural evolution of Africa’s constitutional and political order has created this historical moment for the Judiciary to have its turn and say in determining Africa’s democratic path. It is an opportunity for the Judiciary, acting as an agent for societal transformation, to fortify Africa’s democracy, rule of law and accountability, and, to markedly improve on the governance record of other state institutions and actors that have, sometimes unconstitutionally, intervened in electoral processes. The Judiciary has a historic obligation to acquit itself well and earn public respect as the last frontier or custodian of Africa’s democratic development. It is the Judiciary’s tryst with Africa’s democratic and developmental destiny.
The Judiciary, then, is the last frontier between a united, democratic and peaceful Africa and a violent, unstable, conflict-wracked Africa. If the judiciaries fail, then very ripe conditions for conflict, military coups, and hegemonic international interventions that may even acquire a regional character – and which may even lead ineluctably and inexorably to the dismemberment of African states – may be created. That’s why the Judiciary and judges need to take their work seriously recognise that they are institutional political actors with a capacity to put Africa on the right path. Hence the words of Nyerere on the role of judges in preserving democracy, are quite apt:Unless judges perform their work properly, none of the objectives of a democratic society can be met.
The Judiciary and the Bar are judicial twins joined at the hip. The independence of the bar is as important as the independence of the Judiciary. The role I have given the Judiciary is premised on a bar that shuns politics of division in favour of politics of democracy and humanity. The bar must help develop electoral jurisprudence and democracy that I envision in this address. The Judiciary, the bar, and public intellectuals in the academy are collectively the crucible for progressive PanAfrican Jurisprudence that can liberate Africa. But the Bar needs to be professional and guide their clients properly. If a presidential candidate has no case, please don’t just urge him on to file one for your professional fees and benefit. From my vantage point on the Bench, I have been surprised by the conduct of some of the advocates who ignore points of law or existing obvious authorities that would advance their cases. My hypothesis is that this manufactured incompetence is induced and advocates get compromised by the other side to present weaker cases. The emergence of Manchurian advocates is a phenomenon that the African Bar needs to deal with and eliminate.
 Dr Justice Willy Mutunga served as Kenya’s first Chief Justice under the new Constitution of Kenya 2010. He served from 2011 to 206.
 Street grafitti, Florence City, Italy.
 Paraphrasing Karl Marx.
 Francis Fukuyama, The Origins of Political Order: From Prehuman Times to the French Farrar, Straus and Giroux: New York., 2011. p. 322.
 Claude Ake, The Feasibility of Democracy in Africa, CODESRIA, Dakar, 2003., p.127
 Fareed Zakaria, ‘The Rise of Illiberal Democracy’, Foreign Affairs, November/December 1997
 Ran Hirschl, ‘The Judicialisation of Mega-Politics and the Rise of Political Courts’ (2008)11Annual Review of Political Science 93-118.
 See ICJ-Kenya, Reflections on the 2017 Elections in Kenya: Paper Series on Emerging Judicial Philosophy in Kenya., ICJ, Kenya, Nairobi, 2017. See Part One Chapters by Walter Khobe Ochieng, Chege Waitara and Duncan Okubasu Munabi.
 Constitution of Kenya, 2010, See Chapter Ten (Articles 159 to 173).
 Constitution of Kenya, Article 140 (2).
 ICJ Kenya, Compendium of 2013 Election Petitions: A Case Digest on the Law, the Practice and the Jurisprudence around the 2013 General Election In Kenya, ICJ,Kenya,Nairobi
 My scholarly writings, concurring and dissenting judgements have addressed this issue. See Willy Mutunga, “The 2010 Constitution of Kenya and its Interpretation: Reflections from Supreme Court Decisions” in SPECULUM JURIS Volume 29 PART 1 2015, 1; Willy Mutunga, “Human Rights States and Societies Under Transformative Constitutionalism; A Reflection from Kenya in Ed; Eunice N Sahle, Human Rights in Africa: Contemporary Debates and Struggles (New York: Palgrave Macmillan, 2019), 19-57.
 Julius Nyerere, Freedom and Socialism, Oxford University Press Dar es Salam,1968, p 110.
 Willy Mutunga, “PanAfrican Jurisprudence for the Liberation of Africa” Lecture Delivered at the Institute of African Studies, University of Ghana, in Accra on June 27, 2018[The Lecture is on the Website of the Institute.]