Adjudicating Presidential Election Disputes in Africa: The Emerging Challenge of Election Technology

• Author: O'Brien Kaaba,Babatunde Fagbayibo
• DOI: 10.25159/2522-6800/8092
• Published date: 01 December 2021
• Date: 01 December 2021
• Pages: 1-21

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/8092

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

Volume 36 | Number 1 | 2021 | #8092 | 21 pages

© Unisa Press 2021

Adjudicating Presidential Election Disputes in

Africa: The Emerging Challenge of Election

Technology

O'Brien Kaaba

University of Zambia

okaaba@yahoo.com

Babatunde Fagbayibo

https://orcid.org/0000-0002-6391-4112

University of South Africa

fagbabo@unisa.ac.za

Abstract

Challenging the results of presidential elections in courts in many African

countries is largely a phenomenon that accompanied the fall of dictatorships and

one-party regimes across Africa in the late 1980s and early 1990s. The

reintroduction of multiparty democracy entailed that elections would be

genuinely contested between several candidates, with the possibility that

opposition leaders could wrestle power from the incumbent leaders. Many

constitutions or electoral laws adopted following this wind of change provide

for the possibility of aggrieved individuals and/or entities to seek legal redress

in courts of law or other quasi-judicial bodies, usually on specified grounds.

This phenomenon is now compounded by the increased use of Information

Communication Technology (ICT) in the electoral process. In the last ten years,

almost all presidential election disputes in Africa have revolved around failure

or alleged tampering with the ICT facilities in the electoral process. It would,

therefore, seem that ICTs, although helpful in increasing efficiency in the

electoral process, provide possible new and cleaner ways of stealing elections.

This new development presents new challenges to courts as ICTs are often

adopted by Electoral Management Bodies (EMBs) without appropriate changes

to the electoral laws to enhance transparency and accountability. This article

analyses how the courts are facing the challenge of increased use of technology

in elections and explores the way forward in terms of progressive interpretation

and proactive adjudication of election matters.

Keywords: Africa; electoral disputes; information and communication technology;

presidential elections; democracy; national courts.

Kaaba and Fagbayibo

2

Introduction

Challenging the results of presidential elections in courts in many African countries is

largely a phenomenon that accompanied the fall of dictatorships and one-party regimes

across Africa in the late 1980s and early 1990s. The reintroduction of multiparty

democracy entailed that elections were going to be genuinely contested between several

candidates, with the possibility that opposition leaders could wrestle power from the

incumbent leaders. Many constitutions or electoral laws adopted following this wind of

change provide for the possibility of aggrieved individuals and/or entities to seek legal

redress in courts of law or other quasi-judicial bodies, usually on specified grounds.

This process has now come to characterise the resolution of electoral disputes in Africa.

Although the mechanism is widely used in Africa, only the Kenyan Supreme Court in

2017 and the Malawian Constitutional Court in 2020 have overturned a presidential

election result. It is contended that by confirming questionable election results, courts

have in effect, been giving a veneer of legitimacy to fraudulent electoral victories.

This phenomenon is now compounded by the increased use of Information

Communication Technology (ICT) in the electoral process. In the last ten years, almost

all presidential election disputes in Africa have revolved around failure or alleged

tampering with the ICT facilities in the electoral process. It would, therefore, seem that

ICTs, although helpful in increasing efficiency in the electoral process, provide new and

cleaner ways of stealing elections. This new development presents new challenges to

courts as often ICTs are adopted by Election Management Bodies (EMBs) without

appropriate changes to the electoral laws to enhance transparency and accountability.

This article analyses how the courts are facing the challenge of the increased use of

technology in elections. It starts with an overview discussion of the use of technology

in African elections. This is followed by a discussion of how the courts have adjudicated

allegations of the manipulation of technology in presidential election disputes in Africa.

It concludes with exploring the way forward in terms of progressive interpretation and

proactive adjudication of election matters. It is important to emphasise that although the

article focuses on selected countries, the increasing similarity of problems emanating

with electoral disputes ensure that the recommendations made here can also apply to

other African Union (AU) member states.

The Use of Technology in African Elections: A Critical Overview

We now live in a digital age, where computers have in replaced human beings in

performing several tasks in many areas. It is hard to imagine a sector of modern human

activity which has not been computerised to some degree. Many routine tasks such as

paying for goods and services, packaging goods, and looking for directions are

automated. The consequence of this has generally been efficiency and precision in the

provision of services. As a result, the use of computers has become part of the global