Budding Democracy Or Judicialisation Lessons from Africa’S Emerging Electoral Jurisprudence
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BUDDING DEMOCRACY OR JUDICIALISATION LESSONS FROM AFRICA’S EMERGING ELECTORAL JURISPRUDENCE EDITED BY CHRISTOPHER MBAZIRA MARCH 2021 AFRICA JUDGES AND JURISTS FORUM ACKNOWLEDGEMENTS The Africa Judges and Jurists Forum (AJJF) would like to acknowledge the contributions to this book made by BRIAN PENDUKA VICTORIA SCOTT KATHERINE ELLENA MARTIN OKUMU-MASIGA AJJF would like to extend a special thanks to CHRISTOPHER MBAZIRA for the overall edits and compilation of the book. Without their tireless efforts the production of this book would not have been possible. More significantly, AJJF would like to acknowledge the valiant efforts by all of the contributing authors for drafting their chapters at the onset of a global pandemic, which was threatening every facet of their lives. i COPYRIGHT Copyright © 2021. All rights reserved. Portions of this work may be reproduced and/or translated for non-commercial purposes provided the Africa Judges and Jurists Forum (AJJF) is acknowledged as the source of the material and is sent a copy of any publications with an extract and/or translations. The reproduction or use of all or part of this work for commercial purposes – in any form or by any means, electronic or mechanical, including photocopying, recording, producing derivative works or by any information storage and retrieval system – without the written permission of AJJF is prohibited. Please send all copies and/or requests for permission to: THE AFRICA JUDGES & JURISTS FORUM (AJJF) 158 Jan Smuts Avenue, Rosebank Johannesburg South Africa Email: [email protected] www.africajurists.org ii DISCLAIMER The production of this book is made possible by the generous support of the American people through the United States Agency for International Development (USAID), and in partnership with the International Foundation for Electoral Systems (IFES) and the Consortium for Elections and Political Process Strengthening (CEPPS). The opinions expressed in this publication are those of the authors and do not necessarily reflect the opinions or views of the Africa Judges and Jurists Forum (AJJF), IFES, CEPPS, or USAID. These chapters are presented to advance dialogue and debate on critical issues around electoral justice on the continent. The designations employed in this publication and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the AJJF, IFES, CEPPS, or USAID concerning the legal status of any country, area, or territory, of its authorities, or concerning the conduct of its elections. iii CONTENTS ACKNOWLEDGEMENTS i COPYRIGHT ii DISCLAIMER iii ABOUT THE AUTHORS vi FOREWORD viii 1 INTRODUCTION 1 2 INTERROGATING THE INVOLVEMENT OF TRADITIONAL LEADERS IN ELECTORAL PROCESSES IN ZIMBABWE 7 INTRODUCTION 8 CONCEPTUALISATION AND POLITICAL MANIPULATION IN COLONIAL AND POST-COLONIAL ZIMBABWE 9 LEGISLATIVE FRAMEWORK 12 PRACTICES OF TRADITIONAL LEADERS DURING ELECTIONS 14 JURISPRUDENCE AND COURT CASES 16 CONCLUSION AND POLICY OPTIONS 21 3 PRE-ELECTION DISPUTES THROUGH THE LENSES OF KENYA’S LAW, POLITICS, AND EXPERIENCES 23 INTRODUCTION 24 ROLE OF THE IEBC 26 ROLE OF THE POLITICAL PARTIES DISPUTES TRIBUNAL 30 ROLE OF INTERNAL DISPUTE RESOLUTION MECHANISM 33 EMERGING ISSUES AND THEMES DURING THE IEBC EDR PROCESS 34 LESSONS, CHALLENGES, AND RECOMMENDATIONS 40 CONCLUSION 44 4 PRE-ELECTORAL PERIOD: ELECTION ENVIRONMENT LAW AND PRACTICE FOR RESTORING THE PROMISE OF AFRICAN ELECTIONS 47 INTRODUCTION 48 PRE-ELECTION ENVIRONMENT PILLARS 50 CONCLUSION 61 iv 5 RESOLUTION OF PRE-ELECTION DISPUTES IN KENYA: A REVIEW OF EMERGING JURISPRUDENCE 63 INTRODUCTION 64 LEGAL AND INSTITUTIONAL FRAMEWORK FOR RESOLUTION OF PRE-ELECTION DISPUTES 66 EMERGING JURISPRUDENCE ON PRE-ELECTION DISPUTES 73 CONCLUSION 80 6 NULLIFICATION OF ELECTION RESULTS AND THE STANDARD OF PROOF: EMERGING JURISPRUDENCE IN SELECTED SUB-SAHARAN AFRICA COUNTRIES 83 INTRODUCTION 84 THE NATURE OF ELECTORAL PETITION PROCEEDINGS 87 BURDEN OF PROOF IN ELECTION PETITIONS 90 STANDARD OF PROOF IN ELECTION PETITION PROCEEDINGS 93 CONCLUSION 103 7 AN ANALYSIS OF THE JUDICIAL APPROACH TO THE STANDARD OF PROOF IN ELECTION PETITIONS IN ZIMBABWE AND A SUGGESTION FOR REFORM 105 INTRODUCTION 106 STANDARD OF PROOF: ON A BALANCE OF PROBABILITIES AND BEYOND REASONABLE DOUBT 114 THE “PROOF TO THE SATISFACTION OF THE COURT” DILEMMA 121 THE STANDARD IN ELECTION PETITIONS AND THE WAY FORWARD 123 CONCLUSION 126 8 KENYAN SUPREME COURT APPROACH TO HANDLING ELECTION RELATED DIGITAL THREATS: LESSONS FROM THE 2013 AND 2017 KENYAN ELECTIONS 129 INTRODUCTION 130 DIGITAL TECHNOLOGY AND ELECTIONS 132 BACKDROP OF THE INTEGRATION OF TECHNOLOGY IN KENYA 137 ELECTION TECHNOLOGY AND THE JUDICIARY 141 CONCLUSION AND RECOMMENDATIONS 149 v ABOUT THE AUTHORS CHRISTOPHER MBAZIRA COWEN DZIVA Christopher Mbazira (Editor) is a Professor of Cowen Dziva is a professional development Law and the Acting Principal at the School of practitioner who holds a Doctor of Philosophy in Law, Makerere University. Dr. Mbazira teaches Development Studies from the University of South Public International Law and International and Africa, and an MA and BA in Development Studies Regional Human Rights Law. His areas of research from Midlands State University, Zimbabwe. He is a interest include economic, social and cultural lecturer at the Julius Nyerere School of Social Sciences rights, children’s rights, the right of persons with at Great Zimbabwe University, Masvingo Province. disabilities, governance and democratisation in Africa, and international criminal justice. Assoc. Prof. GODFREY MUPANGA Mbazira has published widely on these subjects. He is the author of a book titled: Litigating Socio- Godfrey Mupanga teaches undergraduate courses Economic Rights in South Africa: A Choice Between in the Faculty of Law at the University of Zimbabwe Corrective and Distributive Justice (2009) Pretoria and runs the human rights practice of the law firm University Law Press. that he set up with a colleague in 2012 named Mupanga Bhatasara Attorneys in Harare. Previously, DZIKAMAI BERE he served in various positions as Consultant, Director and Chief of Party for programmes on human rights, Dzikamai Bere is currently the National Director access to justice, rule of law and protection in for the Zimbabwe Human Rights Association countries that include Sudan — Darfur, South Sudan, (ZimRights). He holds a Master’s in Conflict Ethiopia, Kenya, and Somaliland. He holds degrees Transformation from Swisspeace Academy, a in law that include a Doctor of Laws (LLD) from the Bachelor of Laws from the University of South University of Fort Hare, Master of Laws (LLM) from The Africa, and a Bachelor of Arts in History from Solusi University of Leeds, and Bachelor of Laws Honours University. Bere is a Transitional Justice Fellow (LLB (Hons)) from the University of Zimbabwe. with the Institute for Justice and Reconciliation, a Leading Public Life Fellow with the Mandela School MURIUKI MURIUNGI in Cape Town, and a Mandela Washington Fellow on Civic Leadership with the Presidential Precinct in Muriuki Muriungi is Partner at Kosgei, Muriuki & the USA. Koome Advocates in Nairobi, Kenya and Lecturer at the School of Law, University of Nairobi. He read BRIAN DUBE for a Master of Science in Law and Finance at St. Peter’s College, University of Oxford, UK, where Brian Dube is a legal practitioner and award- he was a Standard Bank Africa Chairman’s Scholar. winning human rights lawyer. He holds a Master He also holds a Master of Law in Public Finance of Law in International Criminal Justice from The and Financial Services Law (LL.M) and a Bachelor Open University of Tanzania and Bachelor of Laws of Laws (LLB) from the University of Nairobi and a Honours Degree from University of Zimbabwe. postgraduate diploma in legal practice from the He is currently a Member of Parliament for Gweru Kenya School of Law. An Advocate of the High Urban and Acting Director of Heal Africa Trust. Court of Kenya, Muriuki is a doctoral candidate in law at the University of Nairobi inquiring into the role of central banks in mobilising climate finance. vi TARISAI MUTANGI LINET SITHOLE Tarisai Mutangi holds a Doctorate and Master’s Linet Sithole is a doctoral student at the University Degrees in International Human Rights Law and an of Cape Town. She holds an MA in Human Rights LLM from the University of Pretoria with focus on Law and LLB degrees from University of Fort Hare, domestic implementation of international human South Africa. She is a lawyer by profession currently rights standards. He teaches law at the Faculty of employed as a Law Lecturer at the Midlands State Law, University of Zimbabwe. His areas of research University in Zimbabwe. interest include International Human Rights Law, Constitutional Law, Electoral Law, International WAFULA WAKOKO Refugee Law, and Research Methodology. Tarisai is the current Head of Department of Procedural Wafula Wakoko is a writer and an Advocate of the Law and Co-ordinator of Masters Programmes. High Court of Kenya whose areas of focus include He is a registered attorney and practices law at governance and democracy. He holds a Bachelor DNM Attorneys based in Harare, Zimbabwe. His of Laws (Hons) from the University of Nairobi particular areas of practice include real estate law, (UoN), a Post-Graduate Diploma in Law from the constitutional law, and electoral law. He is also Kenya School of Law, and is pursuing a Master admitted as Counsel before the African Court on of Laws in Law, Governance, and Democracy at Human and Peoples’ Rights and other treaty bodies the UoN. He has previously worked with and for before which he has filed and prosecuted human the Human Rights Watch, Independent Electoral rights cases. Tarisai is also a consulting researcher and Boundaries Commission, the United Nations and trainer for local line ministries, UN agencies, Development Program under the Support to and African Union institutions, primarily in the areas Electoral Processes in Kenya (SEPK) Project, and of state party reporting. the Electoral Law & Governance Institute for Africa. He is currently conducting research on Intraparty MARYSTELLA AUMA SIMIYU Democracy in Kenya.