Africa embraces judiciary as a credible arbiter

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Democracy ought to come with a manual, which should include: the power is in your hands, but the courts rule. Three critical elections in Africa this year ended in litigation. The election in Kenya on August 8 was the first; then Angola on August 23. Now, Liberians will need to wait longer for their run-off elections to pick Madam Ellen Johnson-Sirleaf’s successor. The face-off pitting the Senator of Montserrado County, George Weah, against current vice-president Joe Boakai was meant to happen on November 7 after neither could win an outright majority in October. However, the Supreme Court ordered that the run-off be halted owing to allegations of fraud and irregularities in the first round.

Football ace Weah won 38% of the vote to Boakai’s 29%. It was Charles Brumskine’s Liberty Party, however, that lodged the complaint - having attracted only 10% of the vote.

Although Liberian politicians repeatedly fail to garner more than 50% of the votes to avoid a run-off, as we witnessed before in 2005 and 2011, it is the recurring recourse to the courts by candidates or their supporters that raises questions about whether our electoral system as we know it is sufficiently democratic to help us confer the authority to run the affairs of our countries.

If the court challenge were restricted to Liberia, one would view it as an isolated case.

But Kenya’s election results are equally contested - with intermittent fatal violence.

On September 1 the court ruled that the August 8 polls were too tainted by irregularities, and the rerun took place on October 26.

Curiously, one of the top contenders, Raila Odinga of the National Super Alliance, did not participate and he urged his supporters not to vote.

Incumbent President Uhuru Kenyatta ended up winning over 95% of the vote, albeit the turnout was much smaller than the 76% on August 8.

In Angola, the leader of Unita, Rafael Massanga Savimbi, opted to go to court after his rival, and MPLA candidate, Joao Lourenco had swept 61% of the vote.

Eventually, Lourenco was sworn in anyway; just as Kenyatta will be sworn in for his second term in Kenya. In time we will know the outcome of the Liberian elections, once the courts give the go-ahead.

Run-off elections are not an African peculiarity.

What appears to be an African tendency, though, is the failure of losing candidates to accept the outcome of closely fought contests.

Suddenly, they cite irregularities in the same elections they signed up for initially.

As folly as it is to deny the existence of electoral irregularities, it is not sustainable to make the courts our default arbiter.

What is undeniable, still, and what we as Africans must learn, is to protect the sanctity of our institutions rather than manipulate them to suit our ends.

Equally, we must accept that in an election, one must win.

And anyone who is so big on winning should first make sure that they know how to lose; or rather, how to handle defeat.

The saving grace in all these hung elections and accusations of electoral fraud is that more Africans are embracing their judiciary as credible arbiters.

As expensive and as time-consuming as litigation is, we are better off. The alternative used to be violence and civil war, whenever election results were challenged.

Proof of the novelty of this emerging trend is how incumbent politicians display a lack of sophistication when the courts rule against them.

President Kenyatta called the judges all sorts of names when they nullified his electoral victory, but was forced to retract and allow the rerun.

The judiciary is asserting itself more, even in South Africa, as the ultimate protector of human rights and defenders of justice.

When the judges break rank - as they did in the 1960s when the judge decided not to sentence the Rivonia triallists to death - the writing is on the wall for the politically powerful.

Sadly, politicians easily miss or ignore the signs until it is too late.

Luckily for the masses, judges somehow remain sober when it matters most.

* Kgomoeswana is the author of Africa is Open for Business, a media commentator and public speaker on African business affairs - Twitter handle: @VictorAfrica

** The views expressed here are not necessarily those of Independent Media.