When elections are judicialized in Africa, national courts overwhelmingly legitimize incumbent electoral victories. When opposition candidates lose in high stakes presidential and gubernatorial elections, they seldom concede defeat with- out legal challenges. Claims of electoral irregularities, fraud, incompetence of electoral bodies, violence, and an unequal playing field, among other factors, transform these cases into highly contested mega-political disputes when they are judicialized.
Rather than creating new political equilibria, judicialization in national courts often results in the hegemonic preservation of incumbents. Though opposition politicians and political parties know this, they nonetheless resort to international courts in Africa, in part, because they see the courts as being at least one-step removed from a national context overwhelmingly controlled by incumbent political parties and politicians. Even though international court cases do not challenge or undermine incumbency, opposition politicians and political parties nevertheless bring these cases. This is because for opposition politicians and political parties, the utility of these courts lies in the indirect benefits that these cases give them. These benefits include giving them the opportunity to air their grievances, to galvanize their supporters and to expose electoral malpractices in a forum that incumbents do not control. This article assesses what benefit losers of high-stakes national elections think they will get from petitioning international courts in Africa. We seek to establish how judicial intervention differs before an election when there is a risk of an international law violation, versus after an election has occurred and the result is viewed as flawed. We address these questions by drawing on a set of disputes decided by international courts in Africa in the African Court, the Economic Community of West African States (“ECOWAS”) Community Court of Justice, and the East African Court of Justice. We supplement our analysis by discussing two important mega-political electoral disputes at the national level. Together, all the cases we analyze involve deeply divisive disputes surrounding competitive presidential, gubernatorial, and legislative elections that had significant political consequences.
Our argument is that opposition politicians judicialize presidential or gubernatorial elections in international courts to turn up the political stakes that preceded the filing of the case in court. In doing so, litigants raise awareness of elec- toral injustices in ways that are often foreclosed by domestic institutions. Although these international courts were not designed to deal with electoral cases or to overturn electoral results, complainants have used them to air their electoral grievances and to advance their causes. From this perspective, it is not surprising that litigants are not primarily aiming to overturn electoral losses, but rather to amplify and extend the contestation against incumbent politicians and political parties who have a stranglehold over the electoral machinery. Perhaps these litigants realize that their litigation efforts today put incumbents on notice that their future electoral misconduct will not go unchallenged.
James Thuo Gathii & Olabisi D. Akinkugbe, Judicialization of Election Disputes in Africa's International Courts, 84 LAW & CONTEMP. Probs. 181 (2021).