Judicial Review and Presidential Elections in Africa
Forthcoming in Cristina Fasone, Edmondo Mostacci and Graziella Romeo (eds), Judicial Review and Electoral Law in a Global Perspective (Hart Publishing)
Faculty of Laws University College London Law Research Paper No. 17/2023
28 Pages Posted: 19 Sep 2023
Date Written: September 5, 2023
Abstract
The popular election of presidents is one of the hallmarks of democracy in many presidential systems. But increasingly courts in Africa have been called upon to decide on the validity of such elections. Thus far, courts have used two major doctrines for adjudicating presidential election disputes. The first is the substantive impact doctrine where a disputed presidential election would be annulled only if the violations of electoral laws and regulations would substantively affect the electoral process and the electoral result. The second is what I called the process-outcome doctrine where such elections would be annulled either because the violations of electoral laws and regulations have negatively impacted the integrity of the electoral process, or they have affected the electoral result. While both doctrines are legally defensible, the decision to apply one or the other doctrine gives some indication of how the court may decide the case from the outset. Given presidential contestants’ capacity and willingness to both advance and hinder democracy, including the role of the judiciary in it, this chapter suggests that courts should adopt a more dynamic judicial doctrine rather than a mechanical application of the abovementioned doctrines. Emanating from African courts’ double role of judging and facilitating democracy, such doctrine involves a two-tiered adjudicatory process that aims to maintain and enhance their institutional security and legitimacy and sustain the democratic trajectory of their respective states.
Keywords: judicial review, presidential elections, courts, democracy, Africa, substantive impact doctrine, process-outcome doctrine, Kenya, Malawi, Namibia, Ghana
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