Courts have come under heavy criticism at the African Judicial Dialogue for
posting poor scorecards in resolving controversial Presidential Election
petitions on the continent
during a plenary discussion on the roles of Judiciary in Africa in managing
election petitions at the ongoing fourth African judicial dialogue taking place
in Speke Resort Munyonyo, Kampala.
The Courts were faulted for placing heavy evidential burdens over petitioners,
making election petitions almost untenable for opposition candidates seeking
Felix Ohiambo Owuor, the Executive Director Electoral Law and Governance
Institute of Africa says most Courts over depend on the doctrine of Substantial
Effects to overrule electoral irregularities and illegalities on the continent.
The doctrine requires that for an election result to be invalidated, the
irregularities and illegalities must be substantial enough to affect the final
Owuor said many African Courts are contravening the political rights to good
governance as well as the right to vote by insisting on the doctrine of
He cited the 2006 Uganda Presidential Election Petition filed by Dr Kiiza
Besigye against the election of incumbent Yoweri Museveni which was never
invalidated despite successful proves of substantial irregularities.
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Owuor urged the Courts to strike a balance between the burden of proof,
standard of proof as well as the civil and criminal elements like bribery and
fraud which could have been committed in those elections.
He observed that the will of the people is violated the most in
management and declarations of electoral results as noted in most election
observation reports across the continent.
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Owuor was presenting a paper on the roles of Judiciary in adjudicating
Election Petitions and Human Rights in Africa during a panel discussion. Other
panellists criticized the Courts for failing to award costs to losing
presidential petitioners saying it dents the confidence of voters in running to
Dr Adem Kassie Abebe, the African Union Advisor on governance and democracy in
Africa said improper management of Presidential Election Petitions in Africa
manifest bigger disputes rather than the electoral disputes themselves.
Dr Adem said elections must be thought of broadly through problem
mapping to clearly understand the underlying disputes, their root causes and
the nature of their disagreements for holistic solutions focusing beyond the
narrow grounds defined by electoral laws.
He said “all election disputes are human rights disputes by
default depending on how petitioners formulate their cases” adding that some
countries have challenged electoral laws on term limits for violating human
rights of candidates in creative ways to defeat human rights rather than
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Ambassador Salah Sidding Hammad, the Director of the Department for Political
Affairs of the African Union Commission said failures to think about election
petitions and grievances mapping is the sole reason why Courts in Africa
deliver their decisions without resolving their controversies.
Ambassador Salah said the African Courts need to focus before
maintaining status quo and peace to cementing the will of the people. He urged
the courts to overcome the harsh claws of state capture in adjudicating
The plenary discussion moderated by Supreme Court Justice Jotham Tumwesigye was
attended by other high profile Ugandan judges of the High Court, Justices of
Constitutional and Supreme Courts, the Principal Judge Dr. Yorokamu Bamwine and
the Chief Justice Bart Katureebe among others as Justice David Maraga, the
Chief Justice of Kenya enjoyed glowing tribute for invalidating the 2017 Kenya
Presidential Election Results.
Throughout the plenary, the Ugandan Court officials never contributed a single
point to the discussion. However, Justice Bart Katureebe was observed listening
keenly and taking notes despite the numerous reference to the 2006 and 2016
Presidential Election Petitions.