Democracy in Africa and the dangers of a judicial selectorate

In March 2006, Uganda’s Supreme Court convened to begin adjudication of the disputes over the presidential election that occurred the previous month in the country. Voting took place on 23 February. Two days later, on 25 February, the Electoral Commission announced the results, giving the incumbent, Yoweri Kaguta Museveni, 59.28% of the valid votes cast. In second place, with an award of 37.36% of the votes, the commission announced Kiiza Besigye, a medical doctor whose military career began as part of the bush war that brought Museveni to power 20 years earlier in 1986.

In his petition against the announced result, Col. Besigye argued that the Electoral Commission did not validly declare the results in accordance with the Constitution and the Presidential Elections Act; and that the election was conducted in contravention of the provisions of both. His evidence was compelling.

Yet, the impression that the petition process was a ritual performance with a predetermined outcome pervaded the process. Leading the legal team for the Electoral Commission of Uganda who were defendants in the petition was Lucian Tibaruha, Solicitor-General of Uganda. In reality, he also led the lawyers for the president, also a defendant alongside the Electoral Commission. Handling election petitions for a party political candidate was not supposed to be part of Lucian’s job, but there he was. 

Presiding was Benjamin Josses Odoki, Chief Justice of Uganda since 2001 and the author of the 1995 Constitution that incrementally made Museveni a life president. Idi Amin, Uganda’s infamous military dictator, elevated Odoki to the bench as a 35-year-old in 1978. Amin’s nemesis, Museveni, elevated him to the Supreme Court eight years later and made him Chief Justice in 2001.

Announcing its reasoned judgment in January 2007, the court found that there had been non-compliance with the Constitution of Uganda and the applicable laws in the form of “disenfranchisement of voters by deleting their names from the voters register or denying them the right to vote” as well as “in the counting and tallying of results.” 

The court equally found as a fact that the “principle of free and fair elections was compromised by bribery and intimidation or violence in some areas of the country” and also that “the principles of equal suffrage, transparency of the vote, and secrecy of the ballot were undermined by multiple voting, and vote stuffing in some areas.” 

Despite these findings, Chief Justice Odoki and his court ruled by a majority of four votes to three of Justices of the Supreme Court of Uganda to uphold the election and grant President Museveni another five years in power. Two years after this decision, in 2009, when the Chief Justice’s son, Phillip Odoki, wedded, Museveni’s son, General Muhoozi Kainerugaba, was the best man.

In 2010, it emerged that Chief Justice Odoki never harboured any doubts about the outcome. Questioned about the role of judges in deciding elections in Africa, Odoki, “smiled when commenting that to nullify a presidential election would be suicidal.” He lived to see his peers in Kenya and Malawi do just that in 2017 and 2020, respectively. It proved not to be suicidal.

According to former law teacher, Olu Adediran, the role of judges in these kinds of cases is in reality “a compromise between law and political expediency.” Jude Murison is more direct in calling it “judicial politics.” Judges are not instruments of change or revolution, and when they are called upon to adjudicate between sides in a political dispute, they are more often than not likely to treat that not as an opportunity to change political paymasters, except when the bell has already tolled undisputedly for an incumbent. 

Politicians are supposed to sell themselves to the people through their programmes and through campaigns in a contest of both ideas and vision. In return, the people, through their votes, offer endorsement to the politicians and programmes that they believe best advance their interests. An electoral commission is a referee supposedly engaged and maintained at the public expense to administer this contest. 

This is where things begin to break down. Although engaged in the name of the people, every electoral commission is appointed by people in power who never wish to relinquish it. When a dispute emerges as to the kind of job done by the electoral commission, it ends up before judges. However, the same people who appoint the electoral commission also usually appoint the most senior judges to office. In the maelstrom of party political competition, guardrails break down as politicians struggle to casualise the popular electorate in order to prosper a judicial selectorate.  

The more election disputes end up in court, the more it becomes evident to politicians that it is easier to make deals with the judges. The people are and can be unpredictable, unlike most judges. Increasingly, therefore, politicians seek to judicialise the site of decision-making on elections, relocating that from the polling booth to the courtroom. 

If a politician can get their spouse appointed to become a judge, they can even make the site of decision-making in elections more intimate, relocating it from the courtroom to the bedroom. 

Instead of the usual soapbox, increasingly elections in many countries can be decided by good old pillow-talk. Former federal legislator, Adamu Bulkachuwa, whose wife, Zainab, headed Nigeria’s Court of Appeal for six years until 2020, published the manual on this model of electoral ascendancy in his parliamentary valedictory remarks as a senator in June 2023.

This is why the judicialisation of politics in Africa increasingly represents a huge risk to the popular will as the basis of government. First, it vitiates the right to democratic participation and suppresses the popular will as the foundation for democratic legitimacy. Second, it enables the courts to deprive the people of their democratic rights, accomplishing that under the alluring pretence of rule of law.

Third, it provides perverse incentives for politicians to capture the courts, making the judiciary in many African countries a battleground for the pre-determination of election outcomes. Fourth, it has the capacity to alter the character of the judiciary from an independent institution to a plaything of political insiders.

This trend in consigning elections to the care of a judicial selectorate around Africa now endangers judges and their independence. In Malawi, in 2020, the president attempted to remove the Chief Justice in order to secure a Supreme Court panel more solicitous of his interests in the lead-up to a presidential re-run, following a rigged electoral contest that had been struck down by the courts. 

The following year, in September 2021, the ruling party in Zimbabwe pressured the Constitutional Court to overrule an earlier decision of the High Court that blocked an extension of the tenure of the Chief Justice after he had reached the official retirement age. This allowed the Chief Justice to still serve, but on a contract that made him more subject to presidential whim. Ahead of contentious national elections two years later, the same president decided to advance $400,000 to all serving judges in Zimbabwe in “housing loan” with no repayment obligations. One of the beneficiaries was the chair of the Zimbabwe Electoral Commission (ZEC), herself a serving judge. Unsurprisingly, she announced her benefactor, the incumbent president, as the winner in the ensuing election. 

Even worse, this trend now also endangers entire countries, if not indeed regions. This was evident in April 2020, when Mali’s Constitutional Court overturned the results of 31 parliamentary seats won by the opposition. Its decision to hand these seats over to the ruling party sparked an uprising that led first to the dissolution of the Constitutional Court, and later the overthrow of the government in a military coup. 

Mali’s twin crises of governmental legitimacy and state fragmentation are a tragic reminder of the dangers of judicial overreach in election adjudication. But the crisis in Mali has also become a regional crisis for West Africa. To adapt an expression familiar to new-age Pentecostals in West Africa: what judges cannot do does not exist. 

A lawyer and a teacher, Odinkalu can be reached at [email protected]