Judicial Review and Presidential Elections in Africa

The popular election of presidents is one of the hallmarks of democracy in many presidential systems. But increasingly, as elsewhere, courts in Africa have been called upon to decide on the validity of elections and election results. In 2017, the Supreme Court of Kenya nullified the presidential election result when incumbent President Uhuru Kenyatta was declared the winner. In 2020, the Supreme Court of Malawi also affirmed the nullification of a presidential election decided by the High Court. There are also several cases where courts affirmed a contested presidential election, for example, in Ghana, Namibia, Zambia, and Zimbabwe, just to mention a few. In addition, in several cases courts have struck down electoral petitions on procedural grounds, without considering the merits. This paper will explore and examine three interrelated themes related to the judicial review of presidential elections in Africa. First, on what grounds do courts determine presidential election disputes? Second, how does the court’s “idea of democracy” build on and/or depart from the “law of democracy”? Third, what is the implication of judicial review of presidential elections for constitutionalism and democratic consolidation in the region? The paper concludes by suggesting that a dynamic judicial doctrine is necessary for adjudication of presidential election disputes for both the self-preservation of the judiciary and the maintenance of political and institutional stability necessary for sustainable constitutional democracy.