baulch1_AMOS GUMULIRAAFP via Getty Images_malawiprotestselections Amos Gumulira/AFP via Getty Images

Africa’s Litigated Democracy

The fact that African opposition parties increasingly turn to the courts when they lose elections indicates that perceptions of judicial independence are improving. But frequent recourse to the courts can undermine trust in the electoral process and indicates that basic democratic mechanisms are not functioning properly.

LILONGWE/WASHINGTON, DC – On February 12, the Malawi High Court upheld its original decision to nullify the country’s May 2019 presidential election, and decreed that the poll must be rerun within 150 days. Malawi has thus become only the second African country, after Kenya in 2017, to have had a presidential election annulled by the courts. But although the High Court’s ruling is a promising sign of judicial independence in one of the world’s poorest countries, the experience of Kenya suggests that rerunning elections may not necessarily restore faith in fragile democracies.

Malawi’s one-round presidential election was essentially a three-horse race, won by the incumbent Peter Mutharika with 38.6% of the vote. The result prompted widespread protests and a nine-month court case led by the opposition, which alleged that there had been massive irregularities, including the use of Tipp-Ex correction fluid to alter the results sheets.

The High Court’s annulment of the election nonetheless surprised many observers. Since 2016, opposition parties in Nigeria, Madagascar, the Democratic Republic of the Congo, and Zambia have challenged election results in court, citing alleged irregularities. And even in Botswana, one of Africa’s most well-consolidated democracies, former President Ian Khama supported an opposition petition to the high court to overturn the result of the 2019 election that returned the incumbent Botswana Democratic Party to office. But in all these cases, the courts upheld the original result.

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