By Joseph G. Akech, Juba, South Sudan
March 27, 2017 (SSB) —- Elections are an important part of democratic governance around the world. They should be free and fair and held periodically for the people to choose their own leaders. In democratic governance, elections are a fulfillment of a universal adult suffrage and in conformity with the Constitution and the law. When there is an election dispute as to whether someone was validly elected, courts would be called upon to determine the rightful winner of an election. The petitioner must lodge his or her petition before competent court within prescribed time and rules. Such petitions are determined using enabling laws (usually the Constitution, the Presidential Elections Act, Rules of Procedure and the case law).
To determine the rightful winner of an election, courts are enjoined to consider the facts giving rise to an election dispute and apply the laws applicable. To do this, court must consider who has the burden to prove certain facts and to what extend before pronouncing itself on the dispute before it. The challenge however arises as to what constitutes free and fair elections and to what extend can an election malpractice and or irregularity be condoned by the courts of judicature. Courts are mandated to interpret the relevant laws applicable in election disputes and to reflect the ‘will of the people’ in their decisions. In other words, the decision of the court should not depart from the will of the people as to amount to injustice to peoples’ aspirations upon which courts derive their power.
Democratic governance requires that government organize periodic elections in accordance with the Constitution and the law. Such elections must be free and fair. Africa is a young democracy and still struggling with armed insurgencies, poverty, disease and poor infrastructure. Notwithstanding the challenges standing in the way of democratic governance in Africa, considerable achievements have been made to wit constitutional framework allowing for elections to be conducted.
In this paper, I will analyze some selected presidential election disputes in Kenya, Ghana and Uganda. In almost all presidential elections giving rise to election petitions, the courts in Ghana, Kenya and Uganda have consistently applied the principle of substantiality in declining to annul those results. This, I believe, is an ingrained judicial intolerance towards annulment of such elections based on disputes brought before it. Uganda, Kenya and Ghana are not at par when it comes to democratic institutions and constitutionalism notwithstanding their rich jurisprudence on constitutional dispensation. The latter two are somewhat better off in terms of presidential term limits. According to Linda Awuor and Monica Achode in their article entitled ‘comparative analysis of presidential election petitions in Kenya and other jurisdictions’, they state that:
“A presidential election petition is the formal process of challenging the process, the outcome or any aspect of the election of a President. The procedure for challenging an election varies from jurisdiction to jurisdiction but usually starts by way of an election petition complaining of either an undue election or undue return”
Before I discuss what I call the judicial intolerance towards annulment of presidential election results, it is proper to set out what the law is in those three jurisdictions before proceeding to discuss presidential elections petitions and the rule of substantiality as applied in presidential elections. I now proceed below:
Presidential elections disputes: Decisions from Ghana, Kenya and Uganda
The case of Ghana
The leading case is NANA ADDO DANKWA AKUFO-ADDO & 2 OTHERS V JOHN DRAMANI, Presidential Election Petition Writ No.J1/6/2013 tried in the Superior Court of Judicature. In that petition, the petitioners claimed that the election had been marred with irregularities and electoral improprieties such as over voting, lack of signatures on the declaration forms by the presiding officers, lack of biometric verification of voters, and duplicate serial numbers, unknown polling stations and duplicate polling station codes. In resolving the dispute brought before it for determination, the court first laid out the relevant provision of the Ghana Constitution under article 63 (2) which provide that:
“the election of the President shall be on the terms of universal adult suffrage and shall, subject to the provisions of this Constitution, be conducted in accordance with such regulations as may be prescribed by constitutional instrument by the Electoral Commission.” (Emphasis supplied).
As we’re taught at law school, the word shall is mandatory and one that commands compliance. In its final judgment and orders, the Supreme Court of Ghana held interalia that ‘where a party alleges non-conformity with the electoral law; the petitioner must not only prove that there has been noncompliance with the law, but that such failure of compliance did affect the validity of the elections.’ In majority decision of 5 to 4 dismissing the petition, the court held that (if) the elections were conducted substantially in accordance with the principles laid down in the Constitution, and all governing law and there was no breach of law such as to affect the results of the elections, the elections (would have) reflected the will of the Ghanaian people.
It is evidently clear that the law in Ghana is that petitioners must prove that there is noncompliance with electoral laws and that such noncompliance affected the results in substantial manner. The test of substantiality is a key ingredient in presidential election petitions. It is a must be heard or jumped set of test.
The case of Kenya
In Kenya, section 28 of the National Assembly and Presidential Elections Act provides that:
“no election shall be declared to be void by reason of a 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 that written law, or that non-compliance did not affect the result of the election.”
In the famous case of RAILA ODINGA V THE INDEPENDENT ELECTORAL & BOUNDARIES COMMISSION & 3 OTHERS  KLR, the petitioner, long time opposition leader Hon. Raila Odinga challenged the results of the presidential elections in which the Independent Electoral and Boundaries Commission (IEBC) declared Uhuru Kenyatta as the winner of presidential polls of 2013. In resolving the two issues framed for determination, the Supreme Court of Kenya interalia held:
“where a party alleges non-conformity with the electoral law, the Petitioner must not only prove that there had been non-compliance with the law, but that such failure of compliance had affected the validity of the elections …” (my emphasis).
The court further held that “although there were many irregularities in the data and information capture during the registration process, they were not so substantial as to affect the credibility of the electoral process…” It further went on to state that the petitioners did not adduce credible evidence to show that such irregularities were premeditated and introduced by the 1st respondent (IEBC) for the purpose of causing prejudice to any particular candidate.
Again, the Supreme Court of Kenya, drawing inspiration from other comparative jurisprudence, upheld the results as announced. Some claimed that the test adopted by courts is far too high a standard to be met by petitioners considering the many circumstances that surround election process. It would be surprising if any Supreme Court would depart from this highly settled principle of substantiality in presidential election petitions unless of course the results were considerably marred with irregularities as to be a true will of the people (voters).
The case of Uganda
In Uganda, the country’s Constitution under Article 104 (9) authorizes Parliament to make laws for the conduct and annulment of Presidential election. Pursuant to such authority, the Parliament enacted the Presidential Elections Act. Under that Act, the parliament outlined the grounds for annulling presidential elections. Section 59(6) (a) of the Presidential Elections Act provides thus:
“(a) non-compliance with the provisions of this Act, if the court is satisfied that the election was not conducted in accordance with the principles laid down in those provisions and that the non-compliance affected the result of the election in a substantial manner”
The leading presidential election petition is the case of KIZZA BESIGYE V ELECTORAL COMMISSION & KAGUTA MUSEVENI 2006 and subsequent petitions by the same petitioner, the long timer rival of President Museveni, Dr. Kizza Besigye. In 2006 presidential election, the petitioner sought annulment of results announced by the Electoral Commission in favour of Yoweri Kaguta Museveni. The petition was based on allegations of non-compliance with electoral law among other irregularities.
The Justices of the Supreme Court made unanimous finding that some voters had been disenfranchised by the deletion of their names from the voters register and that furthermore the counting and at some polling stations, tallying of results had been marred by irregularities. Despite Supreme court’s findings and acknowledge of non-compliance with provisions of the Constitution, the Presidential Elections Act and the Electoral Commission Act, the court was inclined to uphold the results as announced and held by a majority of 4 to 3 that:
“it had not been proved by the petitioner that the failure to comply with the provisions and principles enunciated above affected the results of the election in a substantial manner.” (emphasised).
Having reviewed, briefly the comparative decisions in Ghana, Kenya and Uganda on presidential election petitions, it can be rightly concluded that the law is now long settled that courts would not rush to disturb the results of any presidential elections unless there is overwhelming evidence to show that there was noncompliance and that such noncompliance affected the results in a substantial manner. It is not clear whether court consider the external factors such as socio-economic and political ramifications that would ensue if results were annulled. As most elections are conducted in atmosphere of fear and intimidation, it may be that courts find it reasonable to not disturb the results if the evil that would result is far too great then the evil before them. I will however now discuss some of the other challenges which face courts in presidential election petitions and which have a bearing in their Lordships’ decisions.
The standard and burden of proof in presidential elections
Analysis of presidential election laws, Constitution and the case law of the three jurisdictions above demonstrates clearly that courts require very high standard to prove noncompliance before their Lordships may be persuaded to annul presidential elections results. What then is the standard and burden of proof in presidential elections? In Besigy’s case (supra), their Lordships stated that “it must always be remembered, that an election petition tribunal is not an all intend purposes court that must entertain all matters, it is created for an election petition only.”
There is an abundant jurisprudence on whose onus it is to prove the allegations so complained of in presidential election. It is however a settled principle of law that he who alleges should prove although there may be difference in strict liability cases and where the statute giving rise to alleged offence states otherwise. In ABUBAKAR V YAR’ ADUA  ALL FWLR (PT.457) 1 SC; BUHARI VS OBASANJO (2005) CLR 7 (k), the Supreme Court of Nigeria held that:
“the burden is on the petitioner to prove not only non-compliance with the election law, but also that the non-compliance affected the results of the election.”
Linda Awuor et al in their article on ‘comparative analysis of presidential elections in Kenya and other jurisdictions’ observed that an electoral cause was established much in the same way as a civil cause where the legal burden rest on the petitioner, but depending on the effectiveness with which the petitioner discharged the burden, the evidential burden could keep shifting. Ultimately, it was upon the court to determine whether a firm and unanswered case had been made. Once the court is satisfied that the party has made his case, it may require the other party to respond. Court is said to be satisfied if the facts constituting the allegations (facts in issue) are proved in accordance to the set standards.
Attorney General Mr. Muigai in Raila’s case above, acting as amicus curiae in that presidential election petition, advised court as a friend on the evidential threshold in determination of validity or invalidity of the presidential election. He cited numerous cases from Nigeria and Gambia and stated that:
“the supreme court must prima facie determine that it has jurisdiction to hear the petition brought before it. The petitioner bears two separate burdens of proofs (i) was there compliance? and (ii) did the non-compliance affect the result in a substantial manner? It is submitted that burden of proof is to the effect that the court has to determine whose duty is it to place before the court, the evidence to prove his case. As regard the burden of proof, the burden will shift to respondent to prove that though there is noncompliance; such noncompliance did not affect the results in a substantial manner.
In requiring petitioner to prove his or her petition that the alleged malpractice or non-compliance affected the results in a substantial manner is to require a very high standard that is not a mere balance of probabilities. It is my view that given the foregoing cases and pattern demonstrated by Supreme courts’ decisions in Ghana, Kenya and Uganda, that the standard is higher above balance of probabilities.
The principle of substantiality in presidential elections
Cancelling presidential election is very rare. Only Ivory Coast and Ukraine are the only few known countries which annul presidential elections and ordered fresh polls. The principle of substantiality has been discussed by the Supreme Court in Uganda on several occasions. We shall borrow a lot from such rich jurisprudence. In the case of Kizza Besigye (supra), the Supreme Court expounded on what “substantial” is and what it means. Hon. Justice Bart Katureebe observed that, the framers of the Constitution could not have intended that even the slightest non-compliance should result in annulling a presidential election.
He continued to state that it was for that reason that they provided in Article 104 (9) that Parliament shall provide grounds upon which a presidential election shall be annulled and Parliament did so in Section 59(6)(a) of the Presidential Election Act. Justice Tsekooko further stated in Kizza Besigye, that Section 59 (6)(a) of Presidential Election Petitions Act (which provides for the grounds of annulment and states the principle of substantiality) “…appears to imply a license to a candidate to cheat or violate the law but do it in such a way that the cheating ought not to be so much as to amount to creating a substantial effect on the result…” This view was welcomed by the public who seem to think that the courts are simply acting in favour of the ruling party when the uphold elections even if there had been malpractice as long as such did not affect the results in a substantial manner.
Let it not be misunderstood that courts are wholly intolerant to annulment of presidential elections. They just can’t declare presidential elections results null and void on a mere malpractice that is unavoidable in any elections and which did not affect the results in substantial manner. In the well-reasoned judgment of Hon. Justice Prof. Lillian Tibatemwa JA/JCC in the case of COL. DR. KIZZABESIGYE V THE ATTORNEY GENERAL CONSTITUTIONAL PETITION NUMBER 0013 OF 2009, the lady Justice cautioned that “…officers in charge and other actors are not permitted to so violate constitutional imperatives and to so poorly mishandle the process that the outcome can only be described as a sham, a mere imitation. If there was no legitimate election, the court would be able to declare the outcome null and void. Therefore, if the process is conducted substantially outside the principles of the constitution, in my opinion, such is no election.”
Despite court’s consistent requirement of substantiality, it is not a free card for candidates to rig elections and expect court to uphold the results in their favour. However political candidates offering themselves for elections should embrace fair play and not rig elections and expect to hide behind the curtains of justice. In Raila’s case above, senior counsel Ngalia for the 2nd respondent (Uhuru Kenyatta) made submissions as regards the conduct expected of politicians aspiring for elected positions. He stated that it is the duty of a candidate to offer himself for elections and it is a duty of the duly registered voters to elect a leader of their choice. The Electoral Commission has the sole duty to organize elections and declare results. If there is any dispute, it is the court’s duty to determine such dispute and dispose of it. Politicians are therefore reminded that they can only offer themselves for elections as candidates and ensure fair play in the conduct of elections
The author, Joseph G. Akech, a South Sudanese lawyer and a human rights activist, blogs on human rights constituency and have written several articles on constitutional law, human rights and criminal law. He can be reached via his email: firstname.lastname@example.org
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