Africa and the need for alternative electoral justice

Solly Rakgomo | Monday November 11, 2024 15:32

In extreme instances, such as in Gabon and Niger, electoral discontent has even led to military coups, starkly illustrating the fragility of democratic institutions in the region.

These disputes are an inevitable by product of the intense competition for power in democratic systems. Candidates invest substantial resources and emotions into their campaigns, with incumbents fighting to retain their positions and challengers striving to unseat them. This charged atmosphere creates fertile ground for disagreements. When disputes arise, they often strike at the heart of democratic principles, such as the peaceful transfer of power and public trust in institutions, raising the stakes to extraordinary levels with potentially far-reaching consequences for the political landscape. Conflicts are not confined to a single moment but can arise throughout the entire election cycle. From pre-registration and campaigning to voting day and post-election phases, disputes can occur at any stage. Common flashpoints include disruptions during campaign periods, controversies over boundary delimitation, and irregularities in voter registration. Additionally, disputes often arise over candidate nominations, disagreements about voting procedures, and challenges to the acceptance of final results.

Electoral disputes can have a profound impact on voter turnout and participation, with the effects varying depending on the context and severity of the disputes. In countries plagued by high levels of corruption, the perception of electoral irregularities often leads to a decrease in voter turnout as citizens become disillusioned with the democratic process. Tambe and Monyake have demonstrated that individuals who hold more negative views of corruption are less inclined to cast their votes, particularly in environments where corruption is rampant. Conversely, Tambe and Monyake further argue that in countries with relatively low corruption, increased perceptions of electoral disputes can sometimes mobilise voters, motivating them to participate in order to “kick the rascals out”.

In some cases, particularly in poorer countries, experiences with electoral clientelism (such as vote buying) have been associated with higher turnout. However, in extreme situations, electoral disputes can escalate to violence, resulting in direct suppression of participation through intimidation, coercion, and physical attacks that prevent citizens from accessing polling places or participating freely. Over time, repeated electoral disputes and conflicts can erode public confidence in the integrity of elections, potentially leading to voter apathy and decreased participation in future elections. However, in extreme situations, electoral disputes can escalate to violence, resulting in direct suppression of participation through intimidation, coercion, and physical attacks that prevent citizens from accessing polling places or participating freely.

To address these challenges, a multi-pronged approach is employed, leveraging both formal and informal dispute resolution mechanisms. Alternative Election Dispute Resolution (AEDR) plays a crucial role in resolving election conflicts aside the courtroom. They offer parties involved in an election dispute flexible, non-adjudicative methods to reach an agreement outside of the courts. This includes negotiation, mediation, fact-finding, and arbitration. Such approaches aim to find solutions that satisfy both sides, often faster and more cost-effective than traditional litigation.

It’s important to note that AEDR doesn’t replace formal processes, rather, it complements them. By providing an alternative avenue for dispute resolution, AEDR helps to streamline the system, ensuring swifter justice and reducing the burden on formal courts. One key advantage of AEDR in electoral disputes is its flexibility and speed, offering quicker resolutions compared to the often glacial pace of formal court systems.

Accessibility refers to the ease with which aggrieved parties can file complaints. Factors like legal standing, complexity of the system, language barriers, gender disparities, and physical location of forums all impact accessibility. For example, establishing local “election conflict management communities” in countries like South Africa, Zambia, and Malawi has proven effective in resolving local disputes and preventing politically motivated violence. AEDR is typically more affordable than traditional litigation, which can incur exorbitant expenses due to court fees, lawyers’ fees, and evidence collection.

Beyond accessibility, AEDR boasts significant flexibility, offering distinct advantages over traditional court systems. Unlike rigid court schedules, AEDR allows for mutually convenient proceedings, accelerating conflict resolution and easing the burden on the formal system. This flexibility extends to tailored remedies, including agreements unenforceable by courts, such as adjustments to campaign routes or venue usage.

While AEDR offers numerous advantages, some limitations hamper its effectiveness. AEDR may not be suitable for every dispute, for example, if the dispute involves a matter of public interest, it may be more appropriate to have a court judgment to set a precedent. Cases of a criminal nature, such as violence and theft, will require the involvement of law enforcement agents and formal criminal court systems. Mediators may lack specialised knowledge of electoral laws and intricacies, potentially hindering their ability to handle complex disputes effectively. This lack of expertise can lead to misunderstandings, unfair outcomes, and a loss of trust in the AEDR process.

Central to the success of AEDR mechanisms is the presence of specialised mediators. Targeted training in electoral law and dispute resolution skills for mediators and presiding officers is crucial, equipping them with the necessary knowledge and expertise to handle complex cases fairly and efficiently. The tight window before elections often leaves inadequate time for thorough preparation and robust dispute resolution processes. With limited time, mediators may not be able to fully investigate the facts, gather evidence, and hear from all parties involved. This can lead to rushed decisions and a higher chance of errors. Perhaps the greatest challenge of AEDRs is its limited enforcement powers. Some agreements made at AEDR may not be as easy to enforce as a court order. The lack of authority to enforce agreements reached through AEDR can undermine its efficacy in resolving contentious disputes.

To maximise the potential of AEDR mechanisms and ensure their successful implementation, several key challenges must be addressed through crucial interventions. Establishing AEDR mechanisms well in advance of elections and equipping them with clear operational guidelines and accessibility protocols is essential. This proactive approach ensures transparency and readiness to handle disputes promptly and effectively. Simultaneously, electoral actors and Electoral Management Bodies (EMBs) must conduct public education campaigns about the existence, mandate, and role of AEDR mechanisms, empowering voters and stakeholders to utilise these avenues for dispute resolution and thereby increasing their legitimacy and effectiveness. Central to the success of AEDR mechanisms is the presence of specialised mediators. Targeted training in electoral law and dispute resolution skills for mediators and presiding officers is crucial, equipping them with the necessary knowledge and expertise to handle complex cases fairly and efficiently. Furthermore, fostering collaboration between AEDR and the judicial systems is vital, with judges being made aware of AEDR mechanisms and their potential to alleviate court caseloads by effectively resolving certain electoral disputes. Equally important is the implementation of robust data collection and evaluation systems to track AEDR caseloads, outcomes, and impact. This data provides valuable insights for continuous improvement and ensures accountability within the mechanisms. AEDR mechanisms undoubtedly play a vital role in resolving electoral disputes at the local level, offering quicker, more accessible, and cost-effective resolutions compared to formal court systems. Their importance in ensuring free and credible elections cannot be overstated. To maximise their effectiveness and sustain this valuable tool, it is paramount to invest resources in their development and ongoing support.