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

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.