ANALYSIS Laura Radzey 13 November 2020
The right to vote is fundamental for any democratic state. Yet simply holding elections is not sufficient if the standards of free, fair and democratic elections are not implemented. The consequences of electoral manipulation can be very well seen in the cases of the presidential elections in Kenya (2017) and Malawi (2019). They will be examined in this article to conduct 3 key lessons that can be learned from them.
What happened in Kenya?
In August 2017, a highly contested election was held in Kenya: The incumbent president Uhuru Kenyatta won by a narrow majority against his opponent Raila Odinga. However, Odinga did not accept his loss and filed the presidential petition, which later became the first one to ever be successful on the entire continent and resulted in the nullification of the election. He was referring to the failure of the electoral commission (IEBC) to comply with the electoral law, as well as the quantity of discovered irregularities, such as missing security features on the ballot papers including serial numbers, official stamps and signatures.
Even though the Kenyan Court has been confronted with alleged ballot rigging cases before, this was the first time it ruled in favor of the petitioner in this historic judgement. The Supreme Court judges conclude the ruling with the following words “the illegalities and irregularities committed […] were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC can, in good conscience, declare that they do not matter, and that the will of the people was expressed nonetheless”.
The Background of the Malawian Presidential Petition
Two years later, in May 2019, Peter Mutharika was reelected president of the Republic of Malawi. Afterwards his opponents Lazarus Chakwera and Saulos Chilima failed to get a ballot recount and consequently filed a petition to challenge the election result. In February 2020, the High Court ruled in favor of the petitioners, thereby being only the second court after Kenya, and annulled the election. They concluded their historic ruling by stating that “[…] the irregularities and anomalies have been so widespread, systematic and grave such that the integrity of the results has been seriously compromised. The results […] cannot be trusted as a true reflection of the will of the voters as expressed through their votes […].” Irregularities in Malawi included people voting more than once as well as erased and manually amended ballot papers.
What consequences can be drawn from these precedents? Is there a need for the electoral to be amended?
If an election is rigged, one might think that this is due to incomplete legal framework. Yet both Malawi and Kenya have signed the Universal Declaration of Human Rights (UDHR) and therefore ratified the core principles of free and fair elections according to Article 21 UDHR. Additionally, each country laid down further electoral law in the constitution, making the legal framework quite comprehensive.
Despite those international and national legal frameworks setting the standards for election, ballot rigging happens frequently. This is, as the Kenyan court stated above, mostly due to the electoral commissions’ failure to implement the law, resulting in an enormous discrepancy between elections’ nominal and actual condition.
Based on these finding there is not necessarily a need for amendments in the electoral law, rather a need for amendments in the way the commissions are working. This, however, is solely possible if there are more supervisions, checks and sanctions by authorities and courts, because after all, misconduct is met with according consequences.
The importance of the electoral process
Furthermore, both courts highlighted the importance of the electoral process. Elections are not restricted to the mere numeric outcome, rather the word “election” includes the entire process with its numerous stages like voter registration, the declaration of the result as well as the right to challenge the result.
By deciding to choose the intermediated standard of proof and on the balance of probabilities, rather than beyond reasonable doubt, the courts contributed to improving the chances of success for presidential petitions.
In how far have the judgements impacted the role of courts?
Finally, one can learn a lesson about the role of the court and how the judgement changed it. By nullifying the Malawian presidential election, the High Court made a bold decision, which was later appealed by Mutharika. The Supreme Court dismissed the appeal and reaffirmed the High Court’s judgement. Described as a win for Malawians and their democratic rights the judiciary expressed its willingness to decide against the executive’s will and is not going to be influenced in any way. Consequently, it made it very clear that any misbehavior will have consequences and that the court itself does not only have the authority to step in but will do so every time the citizens’ right to vote is violated. Thereby it raised the democratic standard of Malawian elections.
In Kenya, however, the impact was different. The re-election of Kenyatta in August 2017 was followed by vast and violent protest, which continued even after the nullification of the election. Odinga ended up boycotting the new election, because no changes were made to the electoral law afterwards. This resulted in Kenyatta being elected by 98% of the votes and him changing the electoral law, after his inauguration, in a way that made it harder to nullify elections in the future. Even though this amendment was later declared unconstitutional, it can be seen that the judgement did not initiate the hoped-for changes. Nevertheless, the nullification was at least a spark of judicial independence and inspired and encouraged other courts, like the Malawi High Court, to follow their example.
Overall, the lesson learned is that the nullification of a presidential election can have huge potential to strengthen the acceptance of the court as well as the trust in its independence and therefore a functioning supervisory authority. However, in the end the aftermath decides whether or not the citizen see the verdict as something that made a difference. In conclusion the annulment does not have the power to change the political system, yet it is an important step in the right direction and towards free, fair and democratic elections.
Laura Radzey is a student of law at the University of Bayreuth. She is studying in her fifth semester and participated in seminars offered by the chair of African Legal Studies.
 Gadjanova (2017), Kenya’s 2017 election and its aftermath, Max Planck Gesellschaft, https://www.mpg.de/11436923/elections-kenya, 07-06-2020.
 Odinga & another v IEBC & 2 other [2017
 Burke/ Pensulo (2020), Malawi court annuls 2019 election results and calls for new ballot, The Guardian, https://www.theguardian.com/world/2020/feb/03/malawi-court-annuls-2019-election-results-calls-new-ballot, 07-06-2020.
 Chilima and Another v Mutharika and Others , .
 Fabricius (2020), Malawi’s court gives electoral justice in Africa a much-needed boost, Institute for security studies, https://issafrica.org/iss-today/malawis-court-gives-electoral-justice-in-africa-a-much-needed-boost. 07-06-2020