Electoral Politics, Laws and Ethnicity in Africa 303134135X, 9783031341359

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Electoral Politics, Laws and Ethnicity in Africa Emmanuel Saffa Abdulai

Electoral Politics, Laws and Ethnicity in Africa “This groundbreaking book is well-written, meticulously researched, and is a landmark contribution to the comparative literature on elections, ethnicity, and laws in Africa. The author draws on years of practical and academic legal experience to interrogate African electoral systems, focusing on Sierra Leone, Nigeria, South Africa, Kenya, and Ghana. Sub-themes such as youths, gender, and violence are covered in detail in the trajectory of African elections.” —Dr. Alusine Jalloh, Professor and Head of the Department of History and African Studies, Fourah Bay College, University of Sierra Leone “This is the most daunting compilation on electoral politics, laws, and ethnicity in Africa, a steely and comprehensive searchlight of a range of horrible facts about African politics. Emmanuel Saffa Abdulai reveals the core issues at the heart of the conduct of elections in Africa. The book is well-written, stimulating, and thoughtprovoking. Each chapter is comprehensively researched and discussed….contains excellent critical material that readers would otherwise not come across without spending some time in the library. The style is engaging with impressive coverage. It bridges the knowledge gap in conducting elections in Africa, the various legal instruments in International Law, and ethnicity in African electoral politics. The book should be a companion not only to politics and legal students but also lecturers handling this discipline, lawyers in whatever practice, and judges.” —John Abdul Kargbo, Associate Professor and Dean, Faculty of Communication, Media and Information Studies, Fourah Bay College, University of Sierra Leone

Emmanuel Saffa Abdulai

Electoral Politics, Laws and Ethnicity in Africa

Emmanuel Saffa Abdulai Department of Legal Studies Faculty of Law Fourah Bay College University of Sierra Leone Freetown, Sierra Leone

ISBN 978-3-031-34135-9 ISBN 978-3-031-34136-6 (eBook) https://doi.org/10.1007/978-3-031-34136-6 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

To Nyaliima and Daniel, my two children Josepine Barrere, my eldest daughter, who accuses of less love for not acknowledging her in my Phd Dissertation.

Preface

Two books!! Yes, you heard me right. In just under two years, my second book is in print. It took me ten years to get the first out; the publication Freedom of Information: The Curse of Corruption in Sierra Leone has ushered in a renewed sense of vigour and commitment to academic publishing. I have always been thrilled by socio-legal theories and fascinated by the interconnectedness of politics, history, and other social sciences. I am underpinning my research interest in the contours, intricacies, and beauty of the relationship between law and politics, economics, history, and many more. Recently, I consulted for the Electoral Commission in Sierra Leone (EC-SL) and the Political Parties Registration Commission. I advised various, sometimes contentious, legal and institutional reforms for both institutions. The consultancy led to a permanent legal retainer with the EC-SL, giving me the unique opportunity of informing the Commission on legal issues touching on events leading up to the June 2023 elections in Sierra Leone. This recent stint with electoral management bodies has piqued my interest in digging deeper into the laws, institutions, and issues that impact elections, not only in my native Sierra Leone but generally in Africa. Organizing elections in Africa has become a do-or-die battle. Politics and the rise to power still appear to be the only path to economic prosperity, given the entrenched corruption and an unabated sense of

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impunity in many African societies. During elections, politicians often exhaust all their resources in effort to get elected into public office with the hope of amassing greater wealth through ill-gotten means. The road to getting elected to public office is often rough, dangerous, and vicious. Tribalism, violence, exclusion, and abuse of youth and women are all tools in the arsenal of unscrupulous individuals parading as aspiring leaders. As such, everyone in the electoral ecosystem is suspicious of the other. In a dog-eat-dog world, every step taken by electoral bodies is scrutinized and questioned. Vigilance has certainly served as deterrence in many instances. However, there are other instances when electoral management bodies seem to lean towards one side, mainly towards the ruling party. These instances that belie a lack of neutrality frequently spur heightened suspicion, deepen existing rivalries, provide an avenue for a clash of egos, and unleash violence. In January, I represented the Electoral Commission at the Supreme Court to argue against a motion brought before the Constitutional Court against proportional representation. I was privileged to participate in a highly legal debate that shaped the political future of Sierra Leone. The divide of politics is mainly tribal and regional, as such it remains a fractured space for the brutal show of force. Going to the Court to settle disagreements signals a recognition of an alternative avenue to take disagreements. This is not to say the opposition trusts the judiciary, but at least testing the Court and seeking remedy before it gives hope of using democratic avenues to settle democratic disputes. Apart from the fact that the case tested a governance institution in the Supreme Court, the intensity of the research, the brilliance of the debate, and the national interests at stake reinforced the allure and possibilities of resolving electoral disputes through more modern, democratic means. In the last fifteen years, I have engaged with various election issues and participated in electoral debates in Sierra Leone and other parts of Africa. In Sierra Leone, I founded two major national coalitions on election: the Independent Electoral Monitoring Group, hatched in 2006 but died a natural death, and Strengthening Electoral Accountability and Governance, a civil society pioneered in 2017, which is still in operation. Both institutions provide a broad coalition of civil society organizations to engage in electoral issues and monitor polling. In between, I monitored elections in several African countries, including but not limited to Nigeria, Ghana, Kenya, South Africa, Liberia, South Sudan, Ethiopia, etc. All the elections I observed have produced a

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series of recommendations for reform in all spheres—legal, institutional, tribal, or ethnic, and those related to violence. The recommendations are not always—or even usually—implemented before another election is held. Sometimes, the electoral observer mission recommendations are deliberately ignored. Other times there is a lack of resource and expertise to take them forward, and most times, reforms lack political will for genuine transformation. It is my intention in this book to compare Ghana, Kenya, Nigeria, Sierra Leone, and South Africa on several fronts. To my knowledge, this may be the first time such an ambitious comparison has been undertaken. This book provides an excellent resource for academics, students, practitioners, lawyers, and judges in these countries, at minimum, for simply having a codified comparison of the legal instruments governing elections in each place. Unlike my first book, in which I bade farewell to freedom of Information and its advocacy, I believe this book is just the beginning of many years to come of my engagement with electoral-related issues in Africa. Freetown, Sierra Leone

Emmanuel Saffa Abdulai, Ph.D.

Contents

1

Introduction

1

Part I International and Constitutional, Legislative and Institutional Frame on Elections in Africa 2 3 4 5

International and Regional Legal Instruments on Elections

15

Comparative Constitutional Framework on Elections in Africa

35

Electoral Commissions—Models and Roles and Responsibilities

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Political Parties Regulation in a Comparative Perspective: Sierra Leone, Ghana, Nigeria, and Kenya

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Part II Political Party Financing, Code of Conduct and Judicalization in Election in Africa 97

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Political Party Financing

7

Codes of Conduct for Political Parties

117

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Judicialization of Elections

141

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CONTENTS

Part III Politics, Citizenship, Ethnicity and Violence in Election in Africa 9

Ethnicity and Election in Africa

165

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Citizenship and Election in Africa

191

11

Women and Youth in Elections

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12

Electoral Violence

233

Part IV Conclusions 13

Conclusion

Index

251 261

List of Figures

Fig. 9.1 Fig. 9.2 Fig. 9.3 Fig. 9.4 Fig. 10.1

Distribution of ethnic groups in Nigeria (Source Sasu, 2022) Regional presidential elections results in Ghana 2016 (Source Ayee, 2017) A voting result of Nigeria in 2019 (Source Onimisi & Tinuola, 2019) A voting result of Kenya based on ethnic group (Source Ferree et al., 2014) Contact rate due to bribery (Source UNODC, 2023)

177 182 183 184 195

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List of Tables

Table 5.1 Table 9.1

Political Parties that have won the General Elections since 1961 Regions in Ghana and corresponding seats in parliament

78 172

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CHAPTER 1

Introduction

1.1

Background of Elections in Africa

While much has been written on elections in a broad sense, in academia the definition of the term “election” is narrower. Warshaw (2019) defines it as “a formal process by which a person is selected for a public office or by which a political proposition is accepted or rejected by voting”. According to Wesonga et al. (2014), election is “a means through which the citizenry in a country exercise their democratic right by voting their preferred leaders in a democracy that is representative”. The election may therefore be defined as a process formally provided for by law through which people in a given state chose their representative(s) for public office(s), or express their acceptance or rejection of political proposition by voting. The African continent comprises 54 countries, of which five, Egypt, Libya, Tunisia, Morocco, and Algeria, are located in North Africa. The remaining 48 states are commonly referred to as sub-Saharan Africa. The history of elections in these countries differs in many respects. Compared to Latin America and Southern Europe, the literature on contemporary elections and democratization in Africa is still relatively thin. According to Hyden et al. (2002), Africa had its first wave of democratization in the late 1950s as countries engaged in struggles for national independence. However, the history of elections in Africa started even before that.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_1

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Starting in 1848, a few “assimilated” Africans in Senegal were able to vote for a député, a parliamentary representative to the French national assembly (Hayward, 1987). A study by Ruth Collier (1982) shows that the few elections held before 1945 were highly exclusive affairs conducted among small elites in a few major cities. British colonies, including Kenya, Ghana, Nigeria, Zambia and Sierra Leone, held their first elections to legislative councils in the 1920s (Jordan, 1969). It was not until the 1950s that elections were held in Uganda, Malawi, and Tanzania, (Collier, 1982). This differed from the practice in the French colonies. With the exception of Senegal, these were administered as a group and, following the recommendations of the 1944 Brazzaville Conference, were legislatively to be one with France. So self-governance was dismissed even as a possibility in the distant future (Morgenthau, 1964). Nevertheless, from 1946, Africans in the French colonies were able to vote in assemblies and in local government council elections in France, subject to restrictive eligibility criteria. The French colonies held approximately seven territory-wide elections before universal suffrage was introduced, while in the same time period the majority of the British colonies had conducted only one or two elections, respectively. Countries in both French and British colonies conducted their national elections on the basis of universal suffrage even prior to independence. French colonies held two such elections, while a majority of British and other colonies held just one (Collier, 1982). Only Guinea and Gabon were left out. These pre-independence efforts for competitive elections were undertaken under the patronage of colonial powers that put the education of Africans as a precondition for independence. However, African pre-independence leaders such as Julius Nyerere, Kwame Nkrumah, Leopold Senghor, Kenneth Kaunda, and Jomo Kenyatta, resisted the extended timetable for learning that the colonial powers had proposed and forced an acceleration of the process, resulting in national elections being held earlier than had originally been anticipated. These initial elections were generally held in a very peaceful manner: they were fairly free and fair, and the outcomes were never generally disputed. The majority were characterized by universal suffrage with no restrictions on candidature or party (Cowen & Laakso, 1979). The first generation of African nationalists was proud to declare their legitimacy of having been duly elected through a competitive elections process. The elections were transitional in the sense that a new system of government and administration was being founded, an element that contributed to

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a new legitimacy in the eyes of both the colonialists and the African nationalists (MacKenzie & Robinson, 1960). However, this first wave of electoral democracy in sub-Saharan Africa was short-lived. Once the leaders occupied the new national offices, in their bid to achieve national development and national integration they embraced a model of national uniformity, which unfortunately negated the democratic gains made and instead leaned towards autocracy across the continent, a condition which lasted for almost 30 years. There was an extreme case for Uganda, the only post-independence civilian government that suspended elections altogether. In certain countries, such as Mali, Ivory Coast, Guinea, and Rwanda, only one-party elections were held, due to de facto. In other countries, for example, Ghana, Chad, Benin, Gabon, Niger, and Congo, one-party rule was enforced, leading to the countries’ instability (Collier & Adcock, 1999). Ogendo (1999) in his study findings observed that hard-line autocrats tried to use the country’s Constitution to legitimize their takeover of power, and although the laws of the nations were not completely suspended, the affected countries ended up with “constitutions without constitutionalism”. In many African countries, constitutions were regarded as instruments with no actual commitment to them as ends in themselves. Election mergers were rapidly employed in forming over 20 one-party regimes across Africa. This took the form of mergers, by-elections, or coercion. In addition, the era of military coups originated with the 1960 Democratic Republic of Congo (DRC) coup (Collier, 1982, 104–105). African elections in the 1960s and 1970s were often characterized by regime breakdown. For instance, the 1966 Ghanaian coup that ousted President Kwame Nkrumah from power was in part a response to the manipulation of elections which had influenced his monopolization of power (Austin, 1975, 4). The 1965 elections in Burundi which handed over victory to the Hutu, was followed by three coup attempts within 18 months (Lemarchand, 1970). Similar developments took place in countries like DRC (Young, 1965) and Nigeria (O’Connell, 1970). Within a short time, the majority of African nations were being ruled by authoritarian governments, a situation that prevailed until the early 1990s. Despite reversing the gains of the first wave of multiparty elections, the nationalist leaders had a varied approach to governance, with experimentation on how political competition could be combined with aspirations for national unity within a single-party system. A multiparty election, in this case, implies an election system that has more than one party

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competing to elect candidates to public offices (Malachova, 2012). On this front, Tanzania’s president, Julius Nyerere, was a forerunner. The then ruling party, the Tanganyika African National Union (TANU) had won all seats in the pre-independence election of 1960, causing the first parliament to lack official opposition. In 1964, a constitutional review committee was established to come up with recommendations to parliament for authorizing a one-party system and achieving competitive elections, which was to take place a year later. The first national election to be conducted under this new formula in 1965 was largely met with enthusiasm and satisfaction (Cliffe, 1967). This semi-competitive approach to legislative elections approved by the ruling party, in which voters were allowed to choose among several candidates, was later introduced in several other African countries: Kenya (1969), Zambia (1973), (Nohlen et al., 1999, 6), Sudan (1974), Zaire (1977 and 1987), Mali (1979), Malawi (1978), Ivory Coast (1980), Togo (1985), Sierra Leone (1982), Ethiopia (1987), Central African Republic (1987), Cameroon (1987), and Comoros (1987). During this period only a few countries such as Botswana, Mauritius, and Senegal conducted multiparty elections beginning from independence. These states were selected because they represented similar democratic periods. According to Hayward (1987), the one-party rule political approach was a functional response to the challenges of political development in the African context. One-party rule is a political approach where the government of a given state is formed by only one political party, often based on the Constitution (Roberts et al., 2012). The rule of the Committee of Union and Progress (CUP) in the Ottoman Empire (in the presentday Turkey) following the Ottoman -945351846 coup d’etat in 1913, is believed to be the first use of one-party rule globally (Hamit, 2019). In Africa, the era of the one-party rule was mostly in the immediate postindependence era. As Gunn notes, some African countries, upon gaining independence, adopted the one-party rule approach as a political method of state governance (Gunn, 2018). Naomi Chazan (1979) referred to this model of elections as an “African-derived formula for constructive popular representation.” Chazan postulates this model of elections was ideal for countries that lacked opposition parties but needed to achieve the threshold of competition and accountability. Sisk and Reynolds (1998), in her findings, indicated a positive correlation between semi-competitive, one-party elections and more competitive political systems. However, and Ansprenger (1997), discredited the elections because they never realized

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the results promised by their advocates. For example, voters were never allowed to choose who should rule or influence national policy directions. The system was also criticized for being used by the government to manipulate the electoral processes in West Africa (Zolberg, 1966). Nevertheless, the prevalence of the semi-competitive election approach cannot be dismissed on the assertion that it’s an elite formula for staying in power, because these were not merely “plebiscitary” events by which elites recreated the existing order. The semi-competitive approach is seen where dominant-party regimes permit the opposition to compete in multiparty elections that usually do not allow alternation of political power (Levitsky & Way, 2002). Using pseudo-democratic institutions, including parties and legislatures, the semi-competitive approach can give voice to groups within society, bargain with opponents, and make policy concessions to address their demands. By allowing non-regimesponsored parties to access the legislature, the semi-competitive approach can provide some means for advancement into political office and for limited policy influence. However, in selectively co-opting the opposition and manipulating electoral laws, the semi-competitive approach can create divided oppositions and increase coordination costs for their opponents. In nations like Kenya and Tanzania, the electorate used this approach to oust those leaders who either had failed to deliver to their constituents or had breached their trust. While the formula worked to legitimize those in power, the voters managed to vote in their preferred candidates 945351841 at the capital in a persuasive manner, resulting in the voters securing their benefits. Voting was meaningful to the voters, at least to some extent. Despite the introduction of multiparty elections in the 1990s, the semi-competitive elections approach did not change. Studies on voters’ motivations suggested that people’s votes were still based on their area of residence rather than on policy preferences. A study by Barkan’s (1995) showed a positive relationship between an agrarian society and the geographic concentration of the vote. Rural voters, for instance, seem to select representatives based on how well they perform as “patrons” of their respective constituents. Empirical studies carried out on multiparty elections of the 1990s revealed the existence of personalized patron–client relations in the electoral politics of Africa (Lindberg, 2003; Wantchekon, 2003). There is, however, a lack of clarity on how much of this preference for patron over policy at the electorate level affects issues of national

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policy, which were also increasingly affected by the donor community and international financial institutions. This voting behaviour explains the electoral logic of national elections being primarily about policy choices. The voting style affects the propagation of small political parties, making it very difficult for the opposition to unite against the state party during elections. In this voting style, each constituency in which politicians vie for a seat, is treated as an independent base, with little consideration given to the happenings in other constituencies or at the national level. The political parties were seldom used as personal vehicles pursuing clientelistic platforms (Monga, 1995, 365; Wantchekon, 2003). More emphasis was on the person over the party, which resulted in the prevalence of political parties that were one-person operations in a number of African countries. The number of parties is usually higher in competitive elections in present-day Africa. However, the numbers do not represent the “effective number of parties” (Laakso & Taagepera, 1979) nor do they indicate “relevant parties”. Instead, they show the registered number for contesting in the elections and lack important information on competitiveness and the kind of party system in these countries. They may, however, provide some information on the political context in Africa. The emphasis on person over party in African elections offers an explanation as to why so many elected autocrats succeeded in staying in power in the 1990s. By 1997, approximately 50% of the 48 autocrats from pre-1990 Africa were still occupying executive offices due to some form of elections (Baker, 1998). Although these leaders were elected by the people, they were not at all interested in transforming the old structures, because their survival depended on these old structures which were, in most cases, clientelism structures of governance. Consequently, the credibility and functionality of competitive elections in the contemporary African context are still uncertain. 1.1.1

Women Participation in Politics

In the past years, there have been serious gender gaps in political participation in Africa. Women have not heard equal participation rights with men; therefore, they have not been participating in political activities due to hindrance, fear, and lack of support. Women’s participation in politics in Africa has been very minimal. Women political activism has been growing in Africa, especially from 1990 to 2010. The number of women in legislative positions in Africa increased from 8 to 18.5%, which

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was lower than the world average of 20.2% (The International Institute for Democracy and Electoral Assistance, 2021). However, in the recent decade, there has been a remarkable increase in women participation in political leadership positions, especially women representation in parliament. Consequently, the African Agenda seeks to improve women’s political participation in politics by 2063 by engaging women to participate in governance, democracy, and human rights (The International Institute for Democracy and Electoral Assistance, 2021). According to the United Nations Goal of Sustainable Development Goal 5, gender equality should be achieved to ensure that women have the same and equal participation with men in political decision-making (United Nations, 2015). The U.N. seeks to achieve gender equality of women in politics by 2030. There are several political-institutional factors, including gender quotas, proportional representational electoral systems, and multiparty elections. Women participation in politics indispensable because women not only advocate for women’s welfare, but they advocate for the implementation of public policies (Tripp, 2017). Women participation in politics is also critical because they oppose corrupt and oppressive regimes, facilitating democracy in Africa. Women’s participation in African politics has further enabled the shifting percentage of country budgets, which have been mainly spent on social and economic policies (Cheeseman et al., 2013). However, the participation of women in politics has not gained momentum in the entire African continent. Women participation in politics has gained traction in Sub-Saharan Africa (Barnes & Burchard, 2013). Rwanda, has been on the spotlight for promoting women’s leadership in the political space. For instance, women’s participation in politics in Rwanda increased from 25.7% to 48.8% in 2003. This representation by women politicians in Sub-Saharan Africa compared to other Africans in the region, such as South Africa, Uganda, Tanzania, Mozambique, Angola, and Burundi, which wholly comprised approximately of 30% of women participating in the political space.

1.2

Main Objective of the Manuscript

Electoral democracy in Africa has posed a challenge, especially for most African countries. Most African countries face significant challenges in competition in the political field (Omondi, 2021). African challenges experience issues in conducting credible and peaceful elections.

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For instance, Burundi and Uganda incumbents used movement restrictions to curtain free movement, which prevented their opponents from campaigning in different parts of the country. On the other hand, countries, such as Ethiopia postponed elections due to the fear of the defeat of the incumbent. The electoral body restricted competition during the general elections, which curtailed free and fair elections. Generally, most African countries, particularly in Sub-Saharan Africa experience a lack of democracy. Regrettably, women and youths have been affected by the lack of electoral democracy. Women are excluded from participating in elections, especially in West African countries, where there is no gender parity in the political space. The lack of a fair political ground has led to injustices to women and youth.

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Rosenstone, S., & Hansen, J. M. (1993). Mobilization, participation and democracy in America. Macmillan. Sisk, T. D., & Reynolds, A. (1998). Elections and electoral systems: Implications for conflict management. In A. Reynolds & T. E. Sisk (Eds.), Elections and conflict management in Africa. United States Institute of Peace Press. The International Institute for Democracy and Electoral Assistance. (2021). Women’s Political Participation. International IDEA. https://www.idea.int/ sites/default/files/publications/womens-political-participation-africa-barome ter-2021.pdf Tripp, A. M. (2017). Women and politics in Africa. Oxford University Press. United Nations. (2015, July 26). The sustainable development agenda. United Nations Sustainable Development. https://www.un.org/sustainabledevelop ment/development-agenda/ Verba, S., Nie, N., & Kim, J. O. (1978). Participation and political equality. University of Chicago Press. Verba, S., Schlozman, K. L., & Brady, H. (1995). Voice and equality: Civic voluntarism in American politics. Harvard University. Wantchekon, L. (2003). Clientelism and voting behavior: A field experiment in Benin. World Politics, 54, 399–422. Warshaw, C. (2019). Local elections and representation in the United States. Annual Review of Political Science, 22(1), 461–479. https://doi.org/10. 1146/annurev-polisci-050317-071108 Wesonga, R., Nabugoomu, F., Owino, A., Atuhaire, F., Ssekiboobo, A., Mugisha, X., Ntozi, J., Makumbi, T., Jehopio, P., & Ocaya, B. (2014). On statistical definition of free and fair election: Bivariate normal distribution model. International Journal of Mathematical Research, 3(5), 49–62. Young, C. (1965). Politics in the Congo. Princeton University Press. Zolberg, A. R. (1966). Creating political order: The party states in West Africa. Rand McNally.

PART I

International and Constitutional, Legislative and Institutional Frame on Elections in Africa

CHAPTER 2

International and Regional Legal Instruments on Elections

2.1

Introduction

Elections have been recognized as a crucial part of democratic transitions, decolonalization and execution of peace agreements around the globe. There is compelling evidence of this in the various legal instruments on elections in international law. States, through various international, continental, and regional bodies, have formulated, passed, and subscribed to various declarations, protocols, charters, and treaties/ covenants/agreements that emphasize matters pertaining to elections. These include those formulated by bodies such as the United Nations (UN), the African Union (AU), and regional bodies like the Southern African Development Community (SADC) and the Economic Community of West African States (ECOWAS). This chapter provides a review of various international legal instruments on elections. Most of the international instruments, especially those by the UN, have been reviewed as presented in the work “International Obligations for Election” by Wally et al. (2014), published by the International Institute for Democracy and Electoral Assistance (International IDEA).

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_2

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2.1.1

Universal Declaration of Human Rights (UDHR)

The UDHR presages fundamental rights and freedoms applicable to elections that were later enshrined in the International Covenant on Civil and Political Rights (ICCPR), including the freedom of thought and conscience; freedom of opinion and expression; the right to peaceful assembly and association; the right to an effective remedy, equality before the law and freedom from discrimination; the right to take part in the government of one’s country; and the right to equal access to public service. Most important, the UDHR provides in Article 21(3) that “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”. Already in 1948, the UDHR thus created the blueprint for the election-related provisions of the ICCPR, as well as other UN treaties that guarantee those rights and freedoms to women, racial minorities, migrant workers, and persons with disabilities. Although it is the foundational document of human rights law, the UDHR remains a declaration, and as such lacks binding legal force. It does, however, carry substantial moral and political force. Even though there is no consensus regarding whether all UDHR provisions have hardened into international customary law, numerous national constitutions and regional treaties incorporate UDHR provisions by reference, thus rendering them legally enforceable at the national level. The Guidelines cite the UDHR only on issues that are not explicitly covered by UN treaty law. 2.1.2

International Covenant on Civil and Political Rights (ICPPR)

The State Parties recognize that in harmony with the Universal Declaration of Human Rights, ideal free human beings enjoy civil and political liberty and freedom from fear and want, and this can only be achieved if the state parties create conditions that allow everyone to enjoy their civil and political rights, as well as economic, cultural, and social rights. According to Article 1, all people have the right of self-determination, which allows them to freely decide their political status and also freely pursue their social, economic and cultural development. Provisions of Article 1 give all peoples the right to freely dispose of their natural wealth

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and resources without prejudice to any commitments from the international economic cooperation, which are based on principles of mutual benefit, and international law. Under no circumstances should the people be deprived of their own means of subsistence. The States Parties to the Covenant have a responsibility to administer Non-Self-Governing and Trust Territories in a manner that promotes the fulfillment of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations. In Article 2, each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political, or another opinion, national or social origin, property, birth, or other status. Where not already provided for by existing legislative or other measures, each State Party to the Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures that allow for democratic elections. Article 25 of the ICCPR states: Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: (a) To participate in the conduct of civic affairs either directly or through freely selected representatives; (b) Be involved in voting and or be elected at genuine regular elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the voters; (c) To have access, on general terms of equality, to public service in his country.

These commitments, in addition to other commitments such as freedom of expression, freedom of movement and freedom of gathering and association are used by election observer groups as the basis for their election observation and assessment missions for many years.

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2.1.3

Contrasting UDHR and ICCPR

The ICCPR largely maintains the UDHR’s core provisions that cover the right to participate in the conduct of public affairs. For instance, under Article 21 of the UDHR, (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives; (2) Everyone has the right of equal access to public service in his country, and; (3) The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. On the other hand, Article 25 of ICCPPR provides that every citizen shall have the right and the opportunity, without any distinctions and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and (c) To have access, on general terms of equality, to public service in his country. Nevertheless, the ICCPR dropped the UDHR’s overarching fundamental principle that “the will of the people shall be the basis of the authority of government”, which United Nations General Assembly (UNGA) resolutions on the UN role in elections consistently reiterate. The ICCPR also dilutes the UDHR’s guarantee of equal access to public service by referring to general terms of equality, and does not clarify whether the scope of public service is restricted to public employment or whether it extends to public services.

2.2 General Comments by UN Human Rights Council The UN Human Rights Council has made General Comments (GC) which have been codified on the interpretation of ICCPR. These have also made significant contributions in reflecting international obligations for elections, especially GC 25. These include: . Right and Opportunity to Participate in Public Affairs: In GC 25, the ICCPR defines “public affairs” as “a broad concept, which relates to the exercise of political power, in particular the exercise of

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legislative, executive and administrative powers”. It indicates that the “allocation of powers and the means by which individuals exercise the right to participate in the conduct of public affairs protected by Article 25 should be established by the Constitution and other laws”. . Right and Opportunity to Vote: GC 25 indicates the right to vote (in elections and referendums) must be “established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote”. It also holds that the grounds that might deprive citizens of the right to vote must be “objective” and set out in relevant legislative provisions. GC 25 links a third component of the right and opportunity to vote to the right of electors to cast their vote in an informed manner. GC 25 explains that exercising the right to vote “effectively” entails that “positive measures should be taken to overcome specific difficulties, such as illiteracy, language barriers, poverty or impediments to freedom of movement which prevent persons entitled to vote from exercising their rights effectively. Specific methods, such as photographs and symbols, should be adopted to ensure that illiterate voters have adequate information on which to base their choice”. . GC 25 further stipulates that persons entitled to vote “must be free to vote for any candidate for election and for or against any proposal submitted to referendum or plebiscite, and free to support or to oppose government, without undue influence or coercion of any kind which may distort or inhibit the free expression of the elector’s will. Voters should be able to form opinions independently, free of violence or threat of violence, compulsion, inducement or manipulative interference of any kind”. . Right and Opportunity to Be Elected: GC 25 states that “effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates”. GC 25 stipulates that the right of persons to stand for election “should not be limited unreasonably by requiring candidates to be members of parties or of specific parties”, which protects a citizen’s right to stand independently of party affiliation. The Council states further that “no person should suffer discrimination or disadvantage of any kind because of that person’s candidacy”. The requirement of equal opportunity to be elected for all citizens prohibits legal or de facto discrimination or unreasonable restrictions that could create inequalities. Nevertheless, the right to be elected

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is not an absolute right, and certain restrictions can be imposed. As such, GC 25 does allow for certain incompatibilities to avoid conflicts of interest “if there are reasonable grounds”. Periodic Elections: The Council confirms in GC 25 that “elections must be held at intervals which are not unduly long and which ensure that the authority of government continues to be based on the free expression of the will of electors”. Without providing actionable guidance on the length of these intervals, the Council concludes that such rights “should be guaranteed by law”, fortifying the obligation of periodicity with legal certainty. Universal Suffrage: To give effect to the right to equal participation, States Parties are required to ensure that the right to vote is as inclusive as possible in terms of electors’ eligibility criteria. The right to vote and to be elected in elections that guarantee the free expression of the will of the electors, without discrimination or unreasonable restrictions, echoes universal suffrage. The obligation of universality demands that although every state can determine who is eligible to participate in an electoral process, conditions must be non-discriminatory and as inclusive as possible. GC 25 explains that “conditions which apply to the exercise of the rights protected should be based on objective and reasonable criteria”. It further considers that the exercise of the right to vote “should be available to every adult citizen”, and that the exercise of these rights “may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable”. Equal Suffrage: Given the difficulties of ensuring absolute equality in practice, the interpretation is for every vote to have as equal a weight as possible with all other individual votes, which affects boundary delimitation and seat allocation in the case of multimember electoral districts of varying population size. GC 25 thus determines that “the drawing of electoral boundaries and the method of allocating votes should not distort the distribution of voters or discriminate against any group and should not exclude or restrict unreasonably the right of citizens to choose their representative freely”. Secret Ballot: The interpretation of this obligation prohibits connecting the identity of voters to their electoral choice before, during or after their ballot is cast. Secrecy of the ballot guarantees that voters can cast their vote freely. The continuous nature of the

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right to the secrecy of the vote, even in the run-up to the day of the election, is emphasized in GC 25: voters should be free from any coercion or compulsion to disclose how they “intend to vote or how they voted”. Furthermore, it adds that the voter cannot waive his or her right to a secret vote. In GC 25, the ICCPR calls on states to “take measures to guarantee the requirement of the secrecy of the vote during elections, including absentee voting, where such a system exists”.

2.3 United Nations Convention Against Corruption (UNCAC) UNCAC offers critical safeguards for holding credible and transparent elections, which are beyond the express requirement of earlier treaties but in line with UNGA and UNSC resolution wording. Under UNCAC (Article 5), states parties commit, -2019083637 inter alia, to develop and implement or maintain effective, coordinated, and anti-corruption policies that promote the participation of society and reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability. It also entrusts its State Parties to take such measures as may be necessary to enhance transparency in their public administration (Article 10), which is of critical importance for EMB procedures and practices. UNCAC State Parties commit to adopt, maintain and strengthen systems for recruiting, hiring, retaining, promoting, and retiring civil servants and other non-elected public officials, where appropriate, based on principles of efficiency, transparency and objective criteria such as merit, equity, and aptitude. State Parties are also called upon to include adequate procedures for selecting and training individuals for public positions that are considered especially vulnerable to corruption, and rotating such individuals to other positions, where appropriate (Article 7). UNCAC binds State Parties to adopt appropriate legislative and administrative measures regarding standing for election to public office, and to take appropriate legislative and administrative measures to enhance transparency in the funding of political parties and candidates for elected public office (Article 7). This reference to political finance is the first of its kind in a UN treaty.

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Finally, UNCAC implicitly criminalizes the illicit use of state resources for campaign purposes, since it commits State Parties to adopt legislative and other measures to establish as criminal offences embezzlement, and the misappropriation or other diversion by a public official for his or her benefit (or for the benefit of another person or entity) of any property, public or private funds, or securities or any other item of value entrusted to the official by virtue of his or her position (Article 17). In sum, UNCAC establishes norms for transparency and the independence of public administration that fill a gap left by human rights treaties. It thus offers a normative reference for the conduct of credible and transparent elections. The Guidelines reference UNCAC provisions in conjunction with the ICCPR obligation to ensure access to information as a fundamental means to combat corruption, the effects of which can harm electoral processes.

2.4

African Charter on Democracy, Elections, and Governance

The African Union objects and values enshrined in the Constitutive Act of the African Union which underscores the significance of good governance, popular participation, human rights and the rule of law (Constitutive Act of AU, July 2020). The objectives of the AU Charter as outlined in Article 2 include promoting adherence by every State Party to the universal values and principles of democracy and veneration for human rights; promotion and enhancement of adherence to the rule of law principle, which is premised upon the respect for, and the supremacy of, the Constitution and constitutional command in the political provisions of the individual State Parties. The AU also advocates the holding of regular free and fair elections so as to institutionalize the legitimate authority of representative government as well as enhancing democracy in the transition of one government to another. The AU, in an effort to deal with unconstitutional change of governments in their Member States, prohibits, condemns, and rejects any unconstitutional transition of governments that poses a serious threat to peace, stability, security and development. It also promotes and protects the independence of the judiciary, and is involved in nurturing, supporting, and consolidating good governance by

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championing a culture of democracy and practice, building and consolidation of governance institutions, and strengthening tolerance and political pluralism. Article 3 of the AU Charter provides guidelines for State Parties to follow in the implementation of the Charter in accordance with these principles: regard for human rights and self-governing values; accessing and exercising of state power in line with the Constitution of the State Party and the code of the rule of law; promoting a representative system of government; conducting regular, free and transparent elections; the separation of powers; and gender equality promotion in both public and private institutions. The Act gives citizens the opportunity to effectively participate in democratic and development processes and in governance of public affairs, guaranteeing openness and fairness in the managing of public dealings. The act also condemns and totally rejects unlawful changes of government, strengthens political pluralism, and recognizes the role, rights and obligations of lawfully constituted political parties, including opposition political parties, which should be given a status under national law. Article 4 of the Charter addresses Democracy, Rule of Law and Human Rights issues. The State Parties are required to make a commitment in promoting democracy, the principle of the rule of law and human rights, and also appreciate popular participation through universal suffrage as the inalienable right of the people. In Article 5, State Parties are required to take appropriate measures in ensuring constitutional rule, especially in regard to constitutional transfer of power. Provisions are made in Article 6 for State Parties to ensure that citizens are guaranteed fundamental freedoms and human rights while taking into consideration that they are universal, interdependent, and indivisible. While Article 7 gives State Parties authority to take all necessary measures to strengthen the Organs of the Union that are mandated to promote and protect human rights and to fight impunity and also to endow them with the necessary resources, Article 8 lays out provisions requiring State Parties to eliminate all forms of discrimination surrounding political opinion, ethnic, gender, religious, and racial grounds, in addition to any other forms of prejudice. Furthermore, State Parties shall take administrative and legislative actions in order to realize the rights of women, people with disabilities, ethnic minorities, migrants, refugees, and displaced persons and other marginalized and or vulnerable social groups. State Parties are called upon to respect

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cultural, ethnic, and religious diversity, elements that assist in strengthening democracy and citizen participation (Constitutive Act of AU, July 2020). The Charter supports the establishment of democratic institutions as articulated in Article 14. In an attempt to ensure the consolidation of democracy and constitutional order, State Parties shall strengthen and institutionalize constitutional civilian control over the armed and security forces. In addition, State Parties shall take legislative and regulatory measures to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law. State Parties are also called upon to cooperate with each other to ensure that those who attempt to remove an elected government through unconstitutional means are dealt with in accordance with the law. In Article 15 State Parties are called upon to establish public institutions that promote democracy and constitutional order. State Parties should also ensure that the autonomy of the said institutions is guaranteed by the Constitution. It’s important for State Parties to ensure that these institutions are answerable to competent national organs; State Parties shall provide the above-mentioned institutions with resources to perform their assigned missions efficiently and effectively. State Parties are committed to cooperating at regional and continental levels in building and consolidating democracy through exchange of experiences. The State Parties in Article 17 re-affirms their resolve to holding transparent, free and fair elections regularly as per the AU’s Declaration on the Principles Governing Democratic Elections in Africa. In this regard, State Parties are required to institute and reinforce impartial and independent national electoral bodies responsible for the management of elections. The State Parties shall establish and strengthen national mechanisms that handle election-related disputes in a timely manner to ensure fair and unbiased access by competing candidates and parties to state-controlled media during elections and safeguard a binding code of conduct to govern legally acclaimed political stakeholders, government and other political actors prior to, during and after elections. The code includes a commitment to accept the election results and or challenge them using exclusively legal channels by political actors. The AU State Parties are committed to creating a favorable environment for sovereign and unbiased national monitoring or observation mechanisms. There are proposed sanctions in cases of unconstitutional changes of government as stipulated in Article 22. The State Parties are

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in agreement that the use of illegal means to access or maintain power constitutes an unconstitutional change of government and shall attract appropriate sanctions by the AU. Such illegal means include coups against constitutionally elected governments, any interventions by mercenaries to take over from a democratically voted government, any replacement whatsoever of a democratically elected government by armed rebels, any denial by any serving government to surrender power to the winning candidate or party after fair, free, and regular elections are held, and any amendment of the Constitution or legal instruments that infringes the principles of democratic transition of government.

2.5 The African Charter on Human and People’s Rights, 1986 The African Charter on Human and People’s Rights, 1986 also makes provisions for elections and rights to vote. Article 13 provides that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law. It further provides that every citizen shall have the right of equal access to the public service of his country and that every individual shall have the right of access to public property and services in strict equality of all persons before the law. Article 19 of the African Charter on Human and People’s Rights promotes equality by providing that nothing shall justify the domination of one people by another. It indicates that all peoples shall be equal, enjoy the same respect and shall have the same rights. Under Article 20 (1), the Charter indicates that all peoples shall have right to existence—They shall have the unquestionable and inalienable right to self-determination; freely determine their political status, and pursue their economic and social development according to the policy they have freely chosen.

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2.6 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa Right to Participation in the Political and Decision-Making Process The State Parties are committed to taking specific positive actions to promote participatory governance and the equal participation of women in the political life of their respective countries through affirmative action, supporting national legislation and other measures to ensure that women are involved in all elections without any discrimination, that women, as well as men, are well represented in all levels of the government electoral processes, that women have opportunities to become equal partners with men at all levels of development and implementation of State policies and development programmes (Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2003). Under this Protocol, State Parties have a responsibility to ensure increased and effective representation and participation of women at all levels of decision-making. The State Parties increased an effective representation (Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa, 2003).

2.7

Guidelines for African Union Electoral Observations and Monitoring Missions

The African Union Declaration on the Principles Governing Democratic Elections in Africa, AHG/Decl.1 (XXXVIII), 2002 provides principles and guidelines to ensure democratic elections in Africa. In the declaration, the Heads of States from member states of the African Union adopted and committed themselves to ensure that various principles are observed in elections. First, they recognized that democratic elections are the basis of the authority of any representative government. They also acknowledged that regular elections constitute a key element of the democratization process and are therefore essential ingredients for good governance, the rule of law, the maintenance and promotion of peace, security, stability, and development. Acknowledging that the holding of democratic elections is an important dimension in conflict prevention, management and resolution, the

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Heads of States committed to principles that would ensure that democratic elections be carried out freely and fairly, under democratic constitutions, and in compliance with supportive legal instruments—in particular, under a system of separation of powers that ensures the independence of the judiciary; that elections be held at regular intervals as provided for in national constitutions, and overseen by impartial, all-inclusive, competent, and accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistics. The Heads of States also reaffirmed several rights pertaining to elections, including among others: . Every citizen shall have the right to participate freely in the government of his or her country, either directly or through freely elected representatives in accordance with the provisions of the law. . Every citizen has the right to fully participate in the electoral processes of the country, including the right to vote or be voted for, according to the laws of the country and as guaranteed by the Constitution, without any kind of discrimination. . All stakeholders in electoral contests shall publicly renounce the practice of granting favours, to the voting public for the purpose of influencing the outcome of elections. . Every individual and political party participating in elections shall recognize the authority of the Electoral Commission or any statutory body empowered to oversee the electoral process and accordingly render full cooperation to such a Commission/Body in order to facilitate their duties. . Every citizen and political party shall accept the results of elections proclaimed to have been free and fair by the competent national bodies as provided for in the Constitution and the electoral laws and accordingly respect the final decision of the competent Electoral Authorities or, challenge the result appropriately according to the law.

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2.8

SADC Charter of Fundamental Social Rights

According to the Southern African Development Community (SADC) Model Law On Elections by the SADC Parliamentary Forum, SADC Heads of State and Governments are mindful and committed to democracy and to the individuals’ indisputable right to be involved in democratic processes in building societies in which they live; and to ensure peace and stability in the SADC region (Draft SADC Model Law on Elections, 2018). The objectives of this Model Law are to help model provisions that support Member States in enacting laws on elections that aim to consolidate electoral democracy in the SADC region by normalizing standards for regulating the conduct of the electoral process, to assist SADC member states in developing electoral laws and domesticating the international guidelines and principals governing democratic elections, and to help align the electoral obligations for SADC Member States. The model law affirms SADC states are committed to holding regular, credible democratic, peaceful and transparent elections that are free and fair, that align with democratic constitutions and supportive legal instruments, that supports the independence of the legislature and judiciary, that are held within a given time frame as stipulated in the country’s Constitution, and are impartial and accountable to electoral institutions.

2.9 SADC Principles and Guidelines Governing Democratic Elections The SADC region has made significant strides in the consolidation of the citizens’ participation in the decision-making processes and consolidation of democratic practice and institutions. They have outlined several principles that SADC Member States have committed to uphold and adhere to in the conduct of democratic elections. These include: . Encouraging full participation of the citizens in democratic and development processes Ensuring that all citizens enjoy fundamental freedoms and human rights, including freedom of association, assembly, and expression; . Ensuring that the date or period of elections is prescribed by law. The date or period of elections shall be based upon the legal framework and applicable constitutional provisions;

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. Taking all necessary measures and precautions to prevent corruption, bribery, favouritism, political violence, intolerance, and intimidation; . Promoting and respecting the values of electoral justice, which include integrity, impartiality, fairness; professionalism, efficiency, and regularity of elections; . Promoting necessary conditions to foster transparency, freedom of the media, access to information by all citizens, and equal opportunities for all candidates and political parties to use the state media; . Guaranteeing an environment of the open contest with no undue exclusion and restrictions on anyone to vote, as well as the right of eligible and qualified citizens to stand as candidates in any election; . Encouraging regular reviews of the participation of citizens in the diaspora in national elections; . Upholding and guaranteeing the impartiality and independence of the Judiciary, the Electoral Management Bodies (EMBs), and all other electoral institutions. . Ensuring that voter education capacitates and empowers all eligible citizens, as well as fostering ownership of the electoral process and the democratic political system; . Ensuring the adherence to a binding Electoral Code of Conduct; . Ensuring the acceptance of the election results by all electoral stakeholders as proclaimed to have been free, fair, transparent, credible, and peaceful by the competent and independent national electoral authorities in accordance with the respective laws of the land; and . Condemning and rejecting unconstitutional changes of government and non-acceptance of results after due process, as announced by the legally competent authorities.

2.10

Jurisprudence on Election: Case Laws

A. Election Case Laws in the SADC Region In 2018, five SADC member states held general elections, and another six held elections the following year. Generally, elections in SADC have been a source of conflict and instability. The track record for the regional body in developing election laws and implementing them in member states has

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been poor. The election in this section was discussed because elections in SADC have always resulted in conflict and instability. B. Zimbabwe’s July 2018 elections case Although elections are not the only measure of democratization, it’s still a key component for measuring the extent to which a country embraces political freedoms and citizen participation. Zimbabwe’s election case was characterized by regular non-compliance and impunity, which exposes institutional weaknesses in SADC. According to the 2013 and 2018 preliminary SEOM reports for Zimbabwe, SADC Principles and Guidelines were rarely implemented, and there was lack of willpower to act on member states’ delinquency. There is also a lack of alignment between SADC as an entity and the desires of individual member states. The failure of SADC to act and enforce its Standards and Guidelines was a setback to the body’s objectives of entrenching democracy among member states and instead promoted a culture of impunity. While Zimbabwe’s elections can be adjudged to have been mostly free, they were not fair or credible. The elections had generated widespread hype, raising expectations for the general population and the international community. The 2018 Zimbabwe election elections were characterized by violations with impunity, and zero-sum politics. SADC never sanctioned nor criticized Zimbabwe for cherry-picking a path of stability and solidarity over democracy. This was evidenced by SADC’s response to Zimbabwe’s violations of its own electoral law, specifically of media access laws and regulations that related to the voters’ roll. The Zimbabwe Electoral Commission (ZEC), the body mandated to manage elections in Zimbabwe, has suffered from credibility and integrity issues for a long time. According to the Afro Barometer pre-election survey, one-third of Zimbabweans believe the Zimbabwean Electoral Commission (ZEC) is biased (Afrobarometer, 2018). This is supported by a pre-election report by the Zimbabwe Council of Churches. Report findings revealed that ZEC is the least trusted government institution, with only 36% of respondents having confidence in ZEC to execute its duties professionally and impartially (Zimbabwe Council of Churches Report, 2018). ZEC failed

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to dispell citizens’ fears in its attempt to build and improve its interaction with voters, and wound up only aggravating the prevailing negative perceptions. There is also a lack of access to the voters roll, a situation that proves Zimbabwe’s non-compliance and SADC’s failure to act over repeated violations. According to Article 9.1.6 of the Principles and Guidelines, there must be free access to the voters’ roll, a key component of the electoral process. Before the 30 July elections, ZEC had not released the draft voters’ roll and had to be compelled through the courts to do so. In addition, it took several court applications before the updated voters’ roll could be released. Even with this pressure, the voter’s roll was only released on the eve of the elections (Jakes, 2018). The 2013 SEOM report recorded a lack of openness and of timely access to an electronic voters’ roll for citizens and parties. ZEC also failed to take action against Zimbabwe Broadcasting Corporation (ZBC) for media bias, according extensive coverage to the Zimbabwe African National Union Patriotic Front (ZANU PF) rallies as “national news” items, in direct violation of the electoral law. This is against national laws and the SADC Principles and Guidelines. C. Constitutional Appeal in Malawi; Saulos Klaus Chilima & Lazarus McCarthy Chakwera v Arthur Peter Mutharika & Electoral Commission, May 2019

In Malawi, rival candidates to President Arthur Peter Mutharika challenged the outcome of the Presidential election of 21 May 2019, alleging irregularities in the manner in which the Commission conducted its elections. In a landmark judgement, The Court nullified the election, and made consequential orders that ordered fresh elections for the office of President, which were to be held within one hundred and fifty days from the date of the judgement. Malawi became the third African country to nullify a presidential election, after Kenya and Côte D’Ivore. The court further ruled that for a correct interpretation of Section 80(2) of Malawi’s Constitution required presidential candidates garner 50% + 1 votes to be duly elected. The ruling set a precedent for the first “past the post system” for presidential elections.

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The Electoral Commission had declared on 27 May 2019 the reelection of President Mutharika in the strongly contested election with 38% of the vote, followed closely by Lazarus Chakwera of MCP (Malawi Congress Party) with 35% and Saulos Chilima with 20% of the votes. In the aftermath of the election results, Chakwera and Chilima had failed to get a ballot recount. They had petitioned for the court in terms of Section 100 of the Parliamentary and Presidential Elections Act (PPEA) to review the constitutionality of the elections. In the meantime, Peter Mutharika held his inauguration and began what he claimed to be his second term as president of the country since May 2019. According to the ruling, the Electoral Commission was found to have violated Sections 40(3), 76(2)(d), and Section 77(6) of the Constitution, as well as having breached Sections 93–97, and 119 of the PPEA. The court further held that the true meaning of ascribing to Section 80(2) requirement that a “president be elected by a majority” mandates that presidential candidates garner 50% + 1 vote to be duly elected. The court further directed Parliament to give effect to the provisions of Section 80(2) properly construed (Jiyani, 2019). This High Court’s ruling was a victory for the millions of Malawi citizens who had excitedly followed the 10-hour reading of the decision on the radio both from within the country and the diaspora. The citizens praised the integrity and fairness of the judiciary, particularly in light of the reported attempts of judicial bribery and enticement. The decision was hailed by many as a victory for African democracy. It’s also worth noting that international observers have been accused of bias by Malawian and Kenyan domestic courts. The domestic courts have put in place more stringent standards for the fairness of their elections than the international observers.

2.11

ECOWAS Protocol on Democracy and Good Governance (2001)

ECOWAS also has significant instruments that have made major contributions in the promotion of democratic elections. The Protocol on Democracy and Good Governance (2001) is a major tool for the promotion of democracy. The Protocol has several Articles on elections, as follows: Article 2 provides that in every ECOWAS member state, no substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority

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of political actors. It also provides that all the elections shall be organized on the dates or at periods fixed by the Constitution or the electoral laws, and that the member States shall take all appropriate measures to ensure that women have equal rights with men to vote and be voted for in elections, to participate in the formulation of government policies and the implementation thereof, and to hold public offices and perform public functions at all levels of governance. Article 3 advocates that the bodies responsible for organizing the elections be independent or neutral and have the confidence of all the political actors. It further stipulates that where necessary, appropriate national consultations be organized to determine the nature and the structure of the bodies. In Article 4, requires member States to cooperate with a view to exchanging experiences and, where necessary, provide technical assistance to each other in the production of reliable voters’ lists. Article 5 reinforces this, and requires that the voters’ lists be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters, who may have access to them whenever the need arises. Article 6 requires that the preparation and conduct of elections, and the announcement of results, be done in a transparent manner. In addition, the Protocol in Article 7 requires that adequate arrangements be made to hear and dispose of all petitions relating to the conduct of elections and the announcement of results. In Article 8, member states should commit to using the services of civil society organizations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence. In Article 9, the Protocol requires that in every member state of ECOWAS, the party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law. Moreover, as provided in Article 10, all holders of power at all levels are required to refrain from acts of intimidation or harassment against defeated candidates or their supporters in the election.

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References Afrobarometer. (2018, June/July). Findings from a pre-election survey in Zimbabwe. http://afrobarometer.org/sites/default/files/zim_r7_presentat ion_pre_election_survey_2018_20072018.pdf. Constitutive Act of the African Union, July 2020 Draft SADC model law on elections by SADC Parliamentary Forum, 2018 International covenant on civil and political rights. Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A, (XXI) of 16 December 1966, entry into force 23 March 1976. Jakes, S. (2018, July 30). Court orders ZEC to release updated final voters’ roll to CSU. Bulawayo 24 News. Available at: https://bulawayo24.com/index-idnews-sc-national-byo-141862.html Jiyani, M. (2020, January 5). The High Court of Malawi nullifies May 2019 presidential election in landmark judgment (OxHRH Blog). https://ohrh. law.ox.ac.uk/the-high-court-of-malawi-nullifies-may-2019-presidential-ele ction-in-landmark-judgment [15 February 2022]. Protocol A/SP/1/12/01 on Democracy and Good Governance. Adopted by ECOWAS in 2001. Available at: http://www.internationaldemocracywatch. org/index.php/economic-community-of-west-african-states-treaties-and-pro tocols/350-protocol-on-democracy-and-good-governance-2001 Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa. Adopted by the 2nd Ordinary Session of the Assembly of the Union Maputo, Mozambique 11 July 2003. Universal Declaration (UDHR); European Convention (ECHR); American Convention (ACHR); CIS Convention (CIS); Copenhagen document; the African Union Declaration on Democratic Elections and the Inter-American Democratic Charter (IADC). Domenico Tuccinardi, Manuel Wally, Leandro Nagore de Sousa, Martina Garbuglia Ron Gould. 2014. International Obligations for Election: Guidelines for Legal Frameworks, IDEA Publications, Sweden, 2014. Metin içerisinde “Tuccinardi ve di˘gerleri” olarak kısaltılacaktır. Zimbabwe Council of Churches. (2018). Harmonized elections: Prospects for democratic transition in Zimbabwe. Zimbabwe Council of Churches.

CHAPTER 3

Comparative Constitutional Framework on Elections in Africa

3.1

Introduction

Constitutional provisions on elections are mostly geared towards conferring that they are seen as legitimate and ensuring representation of the voters. However, it is important to note that elections and their functions vary from one country to another. In another perspective, one election in the same country may have different functions. Interrogating and understanding these dynamics based on the constitutional provisions for elections is fundamental to the design of appropriate political settlement processes with respect to timing, sequencing, and interaction of election with Constitution building. This is the gist of this chapter focusing on constitutional provisions on elections in South Africa, Kenya, Ghana, and Sierra Leone.

3.2 Constitutional Provisions on Elections in South Africa The Constitution of South Africa in Chapter 1, Section 1(d) recognizes having regular elections as one of the founding values of the Republic of South Africa. Under the Constitution, three types of elections are conducted: national elections, provincial elections, and municipal elections. Section 190 in Chapter 9 of the South African Constitution provides that the management and control of the three types of elections © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_3

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be undertaken by the Electoral Commission of South Africa. However, the Constitution having mandated the national legislation to govern the conduct of the elections subject to the constitutional provisions, the Electoral Act, 1998 contains the provisions guiding the various activities in an election. Under the Bill of Rights in Chapter 2, the South African Constitution grants every citizen the right to free, fair, and regular elections (Section 2). However, the constitutional right to vote and to be voted for when seeking a public office in an election as articulated in Section 3(a) and 3(b) is granted to adult citizens. In essence, one who has attained the age of 16 years is allowed to register as a voter, but only those who have attained the age of 18 years are allowed to vote in an election. It is however important to note that South Africa has a hybrid of both a presidential and parliamentary system of government. In this hybrid system, political parties have a critical influence on how the government is composed (a person cannot be a member of parliament unless he/she is a member of a political party) and the executive power is vested upon the president and the cabinet (Mhlongo, 2020). 3.2.1

Election of the National Assembly

National and provincial elections in South Africa are held in the same year, while municipal elections are held two years later. During the national elections, the National Assembly is elected. Section 45 of the Constitution sets the term for the National Assembly at 5 years. Section 46 of the Constitution provides that the number of members elected to the National Assembly should be between 350 and 400. For a person to be eligible to be a member of the National Assembly, he/she must be qualified to vote. Section 47 further requires that one must not be in the service of the state for which he/she is receiving remuneration (except the president, deputy president, ministers and deputy ministers, and other office bearers whose functions have been declared compatible with those of a member of the Assembly by national legislation). Moreover, a permanent delegate to the National Council of Provinces or a member of the provincial legislature of the municipal council, anyone of unsound mind, unrehabilitated insolvent, and anyone convicted of an offence and sentenced to more than 12 months imprisonment are not eligible to be elected as members of the National Assembly.

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The Electoral Commission is required under Section 190(c) of the Constitution to declare the results of the elections within the shortest reasonable time possible as prescribed by national legislation. In this case, the national legislation has prescribed that the declaration of the results of an election must be within seven days after the voting day, and not sooner than 21:00 of the second day after the voting day (Section 57 of the Electoral Act, 1998). 3.2.2

Election of the President

Section 86 of the Constitution stipulates that the President be elected by the National Assembly at its first sitting after its election (and whenever it is necessary to fill a vacancy) where the members of the National Assembly elect a man or a woman from among themselves to be the President. The Chief Justice determines the date and time for presidential election, which must be within 30 days after a vacancy occurs. This election of the President by the National Assembly is presided over by the Chief Justice or another Judge that may be designated by the Chief Justice as set out in Section 86(2). Schedule 3 of the Constitution sets out the procedure for electing the President as follows: . The Chief Justice prescribes the procedure for meeting, the duties of any person to preside in the meeting as well as the duties of his/her assistant, the form on which the nominations are to be submitted, and the manner in which voting is to be conducted. . The person presiding in the meeting calls for the nomination of candidates at the meeting. The nomination must be on the prescribed form and must be signed by two members of the National Assembly. . The person nominated must confirm their acceptance of the nomination by signing the nomination form or any other form of written confirmation. . The person presiding at the meeting announces the name(s) of the person(s) nominated as candidate(s) but may not permit any debate. . If only one candidate is nominated, the person presiding declares the candidate the president-elect. . If two or more candidates have been nominated, each member present must vote by secret ballot, where each member casts one vote.

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. The person presiding at the meeting then declares the candidate who receives majority of the votes, president-elect. Item 7 of Schedule 3 directs that in the event no candidate receives a majority of votes, the candidate that received the least votes be eliminated and a further vote be taken on the remaining candidates. This is repeated until there is a candidate who gets a majority of the votes. Schedule 3 7(2) provides that in case two or more candidates have the least number of votes, a separate vote be taken on them and be repeated as often as necessary to determine the candidate to be eliminated. In item 8 of Schedule 3, the Constitution provides that if there are only two candidates nominated or remaining after applying the elimination procedure, and they receive an equal number of votes, a further meeting be held at a time prescribed by the person presiding at the meeting, which must be within seven days. The election procedure is then applied as if it were the first meeting to elect the president. The person elected president ceases to be a member of the National Assembly and is required under Section 87 of the Constitution to assume office within five days from his/her election by swearing or affirming faithfulness to the Republic and obedience to the Constitution. Section 88 provides that a person that is elected to the office of the president can only serve as a president for two terms. The term of office for the president as provided in the Constitution begins when the president assumes office and ends when a vacancy occurs in the office or when the person next elected president assumes office. However, if a person is elected to fill a vacancy that occurred in the office of the president before the tenure of another was over, the Constitution does not regard the period from when the person started to serve until the next election as a term. 3.2.3

Provincial Elections

In Chapter 6 of the Constitution, Section 105 indicates that the provincial legislature is composed of 30–80 elected members who must be elected in terms of the electoral system proposed by the national legislation, based on each province’s segment of national common voters roll, eventually resulting in proportional representation of the provinces. The Constitution in Section 103(1) lists the provinces, which are nine in total. Every

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province is headed by a Premier who is elected by the Provincial Legislature. However, the number of members in a provincial legislature may differ among the provinces. The number is determined in terms of a formula prescribed by national legislation—in this case, Schedule 3(2) of the Electoral Act of 1998 provides a representation of one seat for every 100,000 of the population whose ordinary residence is within that province. The provincial legislature is elected for a term of five years. Every citizen who is qualified to vote for the National Assembly also qualifies to be a member of the provincial legislature. However, Section 106 requires that one must not be in the service of the state for which he/ she is receiving remuneration (except the Premier and other members of the Executive Council of a province). Other persons who the Constitution disqualifies as ineligible to be elected as members of the National Assembly are also disqualified from being elected to a provincial legislature. As highlighted earlier in the case of the National Assembly, the results of the elections should be declared within seven days after the voting day and not sooner than 21:00 on the second day after the voting day. However, under Section 108(3), if the result of a provincial legislature election is not declared within the stipulated period or if the election is annulled by a court, the President has to call and set dates for another election which must be within 90 days of the expiry of that period or of the date the election was annulled. Section 128 of the Constitution provides that at the first sitting of a provincial legislature after its election and whenever necessary to fill a vacancy of a Premier of the province, the legislature must elect one person among its members to be the Premier of the province. In this case, Section 128(2) stipulates that the Chief Justice designates a judge to preside over the election of the Premier. The procedure followed by a Provincial Legislature to elect the Premier is similar to the one followed by the National Assembly to elect the President except that in electing the Premier, the nomination form must be signed by two members of the respective provincial legislature. Moreover, the assumption of office and the term of office are similar to those of the president elect (Section 129; Section 130).

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3.2.4

Municipal Elections

Municipal elections in South Africa entail the election of members to a Municipal Council in accordance with national legislation. The national legislation in this case as directed in Section 157 of the Constitution must prescribe a system of proportional representation based on that municipality’s segment of the national common voters roll, and which provides for the election of members from lists of party candidates drawn up in a party’s order of preference; or of this proportional representation combined with a system of ward representation based on that municipality’s segment of the national common voters roll. Section 157(5) provides that for a person to vote in a municipality, the person must be registered on the national common voters roll of that municipality segment. Under Section 158, the persons eligible for membership of a Municipal Council include every citizen who is qualified to vote for a Municipal Council. However, the Section provides that the following are not eligible for membership of a Municipal Council: anyone appointed by, or is in the service of, the municipality or the state in another sphere and receives remuneration for that appointment or service; anyone disqualified from voting for the National Assembly; a member of the National Assembly, a member of the provincial legislature, a delegate to the National Council of Provinces a member of the National Assembly, or a delegate to the National Council of Provinces, or a member of a provincial legislature (but this does not include members of a Municipal Council representing the local government in the National Council); and a member of another Municipal Council (except members of a municipal council representing that council in another Municipal Council of a different category). Section 159(1) of the Constitution provides that the term for a Municipal Council may not be more than five years. If a Municipal Council is dissolved or its term expires, Section 159(2) stipulates that an election must be held within 90 days of the date of its expiry or dissolution. A Municipal Council, other than a Council that has been dissolved by the intervention of a provincial council, Section 159(3) provides that a Municipal Council remains competent to function from the time it is dissolved or its term expires until the newly elected Council has been declared elected.

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Recent Jurisprudence

In August 2021, the Electoral Commission of South Africa went to court seeking to postpone the date for elections arguing that with the COVID-19 conditions, it would be unable to organize the elections constitutionally within the set 90 days of the expiry of the council in the Constitution—which required the elections to be held on 1 November 2021. The Commission sought to have the date postponed to 22 February 2022. However, the Constitutional Court of South Africa declined to postpone the date arguing that the Commission had a duty to conduct the elections within the constitutional time limit and ensure they are free and fair as reasonably as possible. In the ruling, the court also noted that the principle that the law did not compel the impossible did not excuse the commission from complying with the constitutional duty. The judgement came as a major setback for the ruling Africa National Congress (ANC) which by then was yet to register candidates in 35 municipalities within the timeline set by the Electoral Commission. The party had filed a lawsuit to have the registration process reopened but had withdrawn the case pending the ruling by the Constitutional Court on the postponement of the elections. Even so, after the court’s ruling the Electoral Commission reopened the registration process but the opposition party—the Democratic Alliance (DA)—went to the Constitutional Court to prevent the Electoral Commission from reopening the candidate registration process. In their application, the DA wanted the Electoral Commission’s decision to be declared invalid and unlawful by the court. However, the court in a unanimous judgement dismissed the DA’s argument that its earlier ruling on the postponement of the election date prohibited the reopening of the candidate registration. The DA had alleged that the Commission’s decision was biased. According to Gerber (2021), the court in its judgement ruled that: This judgment does not detract from the importance of adherence to deadlines imposed by election timetables. Our decision is concerned with the commission’s power to amend timetables in terms of Section 11(2). When that power is lawfully exercised, it inevitably changes the deadlines, in which event there must be compliance with the amended deadlines.

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Self-evidently, it would be improper for the commission to exercise its power of amendment in order to favour one particular party, but on the papers we cannot find that the Commission’s proposed amendment will be vitiated on this basis.

3.3

Constitutional Provisions on Elections in Kenya

Constitutional provisions on elections in Kenya are generally contained in Chapter seven of the Constitution which is about the representation of the people. In Article 81(e), the Constitution provides for free and fair elections as part of the general principles for the electoral system. The Constitution in Article 88 establishes an Independent Electoral and Boundaries Commission (IEBC) to be responsible for conducting elections to any elective office or body established by the Constitution, and other elections that may be prescribed by an Act of Parliament. It is important to note that while the Constitution provides the general principles for the electoral system, it requires parliament to enact legislation to provide for the conduct and supervision of elections, including the nomination of candidates. Generally, the Constitution provides that general elections be held on the second Tuesday of August in every fifth year. Article 1 of the Constitution provides that all the sovereign power belongs to the people. It further stipulates that the people exercise their sovereign power directly or through their democratically elected representatives, which is exercised at the national level and the county level. In this regard, during the general elections, the Constitution provides that the people elect candidates into elective offices in the two levels of government established by the Constitution including the national government and the county governments. Under Article 83, the Constitution provides that for a person to qualify to register as a voter at elections, he/she must be an adult of sound mind who has not been convicted of an election offence during the preceding five years. The Constitution further stipulates that administrative arrangements be put in place to ensure that eligible citizens are not denied the right to vote or stand for election. The Constitution allows an eligible person to stand for election for any elective office as a candidate who is a

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member of a political party or stand for election as an independent candidate (with no membership to any political party). However, for one to stand for election as an independent candidate, Article 85 provides that the person must not be a member of a registered political party and must not have been a member for at least three months immediately preceding the date of the election. 3.3.1

Election for the Legislature

This section involves the election of members to the Parliament, which consists of the National Assembly and the Senate as provided in Article 93(1) of the Constitution. The National Assembly represents the people of the constituencies and special interests (Article 95), while the Senate represents and serves to protect the interests of the counties and their governments (Article 96). As articulated in Article 97, elected membership of the National Assembly consists of 290 members elected by registered voters in the respective member constituencies, and 47 women representatives who are elected by registered voters of counties where each county elects one women representative. Elected members of the Senate (Senators) number 47 members elected by registered voters of counties where each county elects one Senator (Article 98). Article 101(1) of the Constitution provides that a general election of members of Parliament be held on the second Tuesday in August of every 5th year. The qualifications to stand for election to Parliament, in Article 99, stipulates that a person must be a registered voter who must also satisfy moral, educational and ethical requirements prescribed by the Constitution or by an Act of parliament. For an independent candidate, he/she must also have the support of at least 1000 registered voters in the case of an election to the National Assembly, or at least 2000 registered voters in the case of an election to the Senate. Under Article 99(2), a person is disqualified from being elected a member of parliament if he/ she: . is a state officer or other public officer, other than a member of parliament; . has served as a member of IEBC within the five years immediately preceding the election date; . has not been a Kenyan citizen for at least ten years immediately preceding the election date;

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. is a member of a County Assembly; . is of unsound mind, undercharged bankrupt, or is subject to an imprisonment sentence of at least six months as at the date of registration as a candidate or at the date of election. The term of Parliament as stipulated in Article 102 expires on the date of the next general election except when Kenya is at war, in which case Parliament by a resolution supported by at least two-thirds of the members of each House may extend the term of Parliament by a period of not more than six months at a time, for a total of not more than twelve months. Article 101 provides that when a vacancy occurs in the office of an elected Member of Parliament, the Speaker of the respective house is required to give written notice of the vacancy to the IEBC, and the political party on whose list the member was elected. A by-election to fill the vacancy is then supposed to be held within 90 days of the vacancy occurring. However, the vacancy cannot be filled within three months immediately before a general election. 3.3.2

Election for the President and Deputy President

In Article 136(2)(a), the election of President is held the same day as the general election of Members of Parliament. Article 148 stipulates that each candidate for president must nominate a person to be elected as Deputy President. The Constitution sets out the same qualifications for one to be elected as President or Deputy President. In this regard, Article 137 stipulates that for a person to qualify for election to the office of the President, the person must be a Kenyan citizen by birth, must be qualified to be elected as a Member of Parliament, must be nominated by a political party, or is an independent candidate and is nominated by at least 2000 registered voters from a majority of the counties. If it is only one candidate that has been nominated for President in an election, the Constitution under Article 138(1) stipulates that the person be declared elected. This means there will be no voting. However, Article 138 further stipulates that when two or more candidates have been nominated to be elected as President, an election must be held in every constituency where all registered voters shall vote by secret ballot. The votes are counted in the polling stations and, after tallying and verifying the vote count, IEBC declares the results. The candidate declared President-elect must have received more than 50% of the votes cast in the

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election and at least 25% of the votes cast in each of more than 50% of the counties. If no candidate achieves the threshold of votes to be declared president, Article 138(5) directs that a fresh election be held within 30 days after the previous election, where the only candidates in the fresh election are the candidate who received the largest number of votes and the candidate(s) who received the second largest number of votes. Where more than one candidate received the greatest number of votes, these will be the only ones that will be in the fresh election. The candidate who receives the majority votes in the fresh election will be declared President-elect. Article 141 provides that on the first Tuesday following the 14th day after the date of declaration of the presidential election results, the President-elect must be sworn in the public before the Chief Justice or, in the absence of the Chief Justice, the Deputy Chief Justice, if no petition has been filed against the election. In case there is a petition and the court declares the election valid, the swearing-in of the President should take place on the seventh day following the date on which the court makes the ruling. The President-elect assumes office by taking and subscribing to the oath of allegiance and the oath of execution of the functions of the office of the President as prescribed in the Constitution. In case a President-elect dies before being declared President, Article 139 directs that the Deputy President-elect be sworn in as acting President on the date that the President-elect would have been sworn in, and a fresh election to the office of the President be held within 60 days after the death of the President-elect. If the Deputy President-elect dies before they assume office, the office of the Deputy President will be declared vacant upon the assumption of office by the President. In the event that both the President-elect and Deputy President-elect die before assuming office, the Speaker of the National Assembly shall be the acting president from the date that the President-elect would have been sworn in, and a fresh election be held within 60 days after the second death. Article 142 stipulates that a person shall hold the office of the president for a maximum of two terms. Similarly, the Constitution provides that a person cannot hold the office of Deputy President for more than two terms. The term for the president begins on the day the President was sworn in and ends when the next person elected President is sworn in.

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3.3.3

Election for the County Government

The election for the county governments is held on the same day as the general election of Members of Parliament—that is, the second Tuesday in August of every fifth year. The County Government election involves the election of Members of the County Assembly for every County and the County Governor together with the Deputy County Governor. As set out in Article 177, elected members of a County Assembly include members elected by registered voters in every ward in a County where each ward elects one Member of the County Assembly (MCA). Article 177(4) provides that the term for a County Assembly is five years. As stipulated in Article 180, the County Governor is elected directly by the voters registered in the respective County. For a person to be eligible for election as a County Governor, the person must be qualified to be elected as a Member of the County Assembly. In an election, if only one candidate is nominated for a County Governor in a particular County, the candidate is declared elected. When two or more candidates are nominated for a County Governor, an election is held in the County and the candidate that receives the highest number of votes is declared elected. There is no separate election for Deputy County Governor. Instead, Article 180(5) provides that every candidate for election as a County Governor must nominate a person as a candidate for Deputy County Governor. A candidate nominated for Deputy County Governor must have the qualification to be elected as a County Governor. IEBC is required to declare the candidate nominated by the person elected County Governor as the Deputy Governor elected. As per Article 180(7), a person can only serve as a County Governor or Deputy County Governor for a maximum of two terms. However, as provided in Article 182, in the event that a vacancy occurs in the office of the County Governor, the Deputy County Governor shall assume office as the County Governor for the remaining term of the Governor. In case the remaining term for which the Deputy County Governor serves as a County Governor is more than two and a half years to the next scheduled general election, the Deputy County Governor will be considered to have served for a full term. When a vacancy occurs in the office of County Governor and that of Deputy County Governor, or in case the Deputy County Governor is unable to act, the Constitution provides that the Speaker of the County Assembly assume the office of the County Governor and hold office, and an election to the

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office of County Governor is held within 60 days from when the Speaker assumes the office of County Governor. A person who assumes office of the County Governor as per the Constitution holds office until the newly elected County Governor assumes office following the next election held. 3.3.4

Recent Jurisprudence

Major recent jurisprudence on elections in Kenya since the promulgation of the Constitution (2010) include the presidential election petitions of 2013 (the case Raila Odinga v Independent Electoral and Boundaries Commission & 3 Others ) and the presidential election petition 01 of 2017 (the case of Raila Odinga & another v Independent Electoral and Boundaries Commission & 2 others ). The major substance of the two petitions was on presidential elections where the petitioners argued that the elections were not conducted in a free, fair, transparent and credible manner in compliance with the constitutional provisions and all relevant legal provisions, and consequently Uhuru Kenyatta and William Ruto had not been validly elected and declared president and deputy president elect (Kenya Law, 2013, 2017(a)). It should be noted that a major issue that the Constitution (2010) sought to cure was the use of procedural technicalities to undermine petitions as had been experienced in the pre-2010 period. The Constitution sought to cure it by introducing Article 159(2)(d) which requires courts to administer justice without undue regard to technicalities in procedure. In the 2013 presidential electoral petition, the Supreme Court was faced with the same issue: the petitioners introduced an affidavit after the initial petition which contained comprehensive details of substantial irregularities across the country. However, the court rejected the affidavit, citing Article 140 which sets time limits for presidential election petitions. In this case, where eventually the judges upheld the election of the president and the deputy president, the court seems to have given way to expediency as opposed to substantive matters. Moreover, the court also held that the petitioners must bear the burden of proving that there were substantial irregularities, and that the irregularities affected the election results. However, in the presidential electoral petition 01 of 2017, the court reversed its earlier position that the petitioner needs to prove that substantial irregularities were present in the elections and the irregularities affected the election outcome. The court, in presidential petition 01 of

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2017, ruled that a petitioner only needs to prove that substantial irregularities were present without necessarily proving that they affected the election results. Eventually in this petition, the court ruled that the presidential election of 8 August 2017 had not been conducted in compliance with the Constitution and the applicable law, hence nullifying the results, and directed the IEBC to conduct fresh presidential elections within 60 days. It is interesting however to note when another presidential electoral petition was filed after the fresh presidential elections held on 26 October 2017 (Kenya Law, 2017(b)), the court further changed its position on the burden and standard of proof. In this petition (presidential electoral petition 02 of 2017—John Harun Mwau & 2 others v IEBC and 3 others ), the question of whether the fresh presidential elections were conducted in a free, fair and transparent manner and in compliance with the Constitution and the relevant laws was still a major substantive matter. In this petition where the court upheld the election results, the court maintained that the legal position on the effect of irregularities remains the same as in presidential election petition 01 of 2017. Interestingly however, the court changed its earlier position, indicating that the irregularities that a petitioner complains to have occurred in the elections should be of such profound nature as to affect the outcome of the election for the court to nullify the election outcome.

3.4

Constitutional Provisions on Elections in Ghana

The Constitution of Ghana in Chapter 7 provides for the representation of the people through public elections. In Article 42, the Constitution provides that every citizen of Ghana that has attained the age of 18 years and is of sound mind has the right to be registered as a voter for the purpose of public elections. The Constitution in Article 43 establishes the Electoral Commission, part of whose functions as set out in Article 45 is to conduct and supervise all public elections. Article 49(1) stipulates that during any public election, voting must be by secret ballot. If two or more candidates are nominated for the purpose of a public election but at the close of nominations and on the day before the election only one candidate stands nominated, the Constitution in Article 50(2) provides that a period of ten days be allowed for the further nomination of candidates whereby any candidate nominated within the period of

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ten days cannot withdraw their nomination. If at the end of the ten days extended for nominations, only one candidate stands nominated, Article 50(3) provides that no election shall be held and instead, that candidate shall be declared elected. In the case that one of the nominated candidates dies at the close of nominations but before the election, Article 50(4) provides that a further period of ten days shall be added for nominations. However, if the death occurs within 25 days before an election, the election has to be postponed for 21 days. In the event that two or more candidates have been nominated for a public election by the close of nominations and on the day before the election, the Constitution provides in Article 50(1) that the election be held and the candidate who receives the highest number of votes be declared elected. However, in case only one candidate is nominated at the close of nominations and on the day before the public election, the election shall not be held and the candidate shall be declared elected. The Constitution of Ghana contains provisions for Presidential elections, Parliamentary elections, and Local Government elections. 3.4.1

Presidential Election

For a person to be eligible for election as President of Ghana, Article 62 directs that he must be a citizen of Ghana by birth, must have attained the age of 40 years and must be a person qualified to be elected as a Member of Parliament. Constitutional provisions for the election process for the President of Ghana are contained in Article 63 of the Constitution. The Article provides that a person that seeks to be elected president must be nominated for the election by a document signed by the person and other two persons registered as voters who are residents in the area of authority of each district assembly. The document must be delivered to the Electoral Commission on or before the set day for nomination for the election, and it must also designate the person to serve as the vice president. Pertaining to the period as to when the election is to be held, Article 63(2) stipulates that if a President is in office, the election be held not earlier than four months and not later than one month to the expiry of his term. But if the office of the President is already vacant, election is to be held within a period of three months from when the office of the President became vacant. For a candidate to be declared elected President in a Presidential election, the person is required under Article 63(3), to have received more than 50% of the total valid votes cast in

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his favour. If there are two or more candidates in a presidential election and no candidate receives more than 50% of the total valid votes cast, the Constitution requires that another election be held within 21 days after the previous election, where the only candidates will be the candidates who obtained the two highest numbers of votes in the previous election. If in the second election there are two candidates, and they obtain an equal number of votes, the Constitution provides that another election be held within 21 days after that election, where the two will be the only candidates, and the same process is continued until a president is elected. When a person is elected president, Article 60(4) directs that the candidate the person had designated as a candidate for election to the office of Vice President is considered duly elected as Vice President. Article 66 provides that a person elected President shall hold office for a term of four years commencing from the date he is sworn in as the President. The Constitution provides that a person cannot be elected to hold office as President of Ghana for more than two terms. In the event that the Speaker of Parliament has assumed the office of the President due to death, resignation or removal of both the President and the Vice President, the Constitution in Article 60(13) stipulates that a presidential election be held within three months after the date that the Speaker assumes the office of President. 3.4.2

Parliamentary and Local Government Elections

In line with Article 93(1), the number of members elected to Parliament of Ghana must not be fewer than 140. A person only qualifies to be a Member of Parliament if he is a citizen of Ghana who has attained the age of 21 years, has paid all his taxes, and is a registered voter who is also resident in the constituency for which he is seeking to be elected Member of Parliament. Under Article 100(1), a Member of Parliament is required, prior to taking his seat in Parliament, to take and subscribe the oath of allegiance and the oath of a Member of Parliament before the Speaker and in the presence of the Members of Parliament. The term for a Parliament is set out in Article 113(1) at four years from its first sitting after its election, after which it stands dissolved. The Constitution in Article 112(5) also provides that if a vacancy occurs in Parliament, the Clerk of Parliament must notify in writing the Electoral Commission within seven days after he is aware that the vacancy has occurred, and a by-election be held within

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30 days from when the vacancy occurred. However, in case the vacancy occurred due to the death of a Member of Parliament, the by-election is to be held within 60 days after the day that the vacancy occurred. In the event that the vacancy occurred within the period of three months immediately preceding the date set for the general election, a by-election shall not be held. Local government elections involve the election of one person from each local government electoral area within the district elected by universal adult suffrage into the District Assemblies. In Article 246(1), elections to District Assemblies are held every four years, just like the Parliamentary elections, except that the elections to District Assemblies and elections to Parliament are held at least six months apart. The Constitution largely does not address local government elections. Instead, Article 247 provides that, subject to the Constitution, qualifications for membership to the District Assembly, its procedures as well as for other Local Government units lower than a District Assembly that may be established be provided for by law. 3.4.3

Recent Jurisprudence

Major recent jurisprudence on elections in Ghana is contained in the 2013 and 2021 presidential election petitions. The 2013 election petition was filed at Ghana’s Supreme Court by Nana Akufo Addo, the thenpresidential candidate of the New Patriotic Party (NPP), his running mate Mahamadu Bawumia, and Jake Obetsebi Lamptey, the party’s chairman. The petitioners asked the court to nullify the election of John Mahama of the National Democratic Congress as president-elect during the election held on 7 December 2012, citing several irregularities in the elections which were against the provisions of the Constitution and the relevant laws of the country. The court dismissed the petition and ruled that John Mahama was validly elected as president (Debrah, 2015). Nevertheless, the court investigated nearly all the concerns raised and acknowledged major challenges and flaws that were exposed in the electoral processes, and made extensive recommendations for electoral reforms. The presidential election petition of 2021 was filed by the former president John Mahama to the Supreme Court. Part of the substantive matter in the petition was that there was vote padding and other irregularities in the conduct of presidential elections held on 7 December 2020, and the

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declaration of the election results in which Nana Akufo Addo of the New Patriotic Party was declared the president-elect. However, unlike in the 2013 petition, the judges of the Supreme Court unanimously dismissed the petition as being without merit. In the judgement, the court indicated that the impact of the alleged vote padding, even if proven, was insignificant and would not have substantially affected the outcome of the election (Modern Ghana, 2021). However, in the 2021 petition, unlike in the 2013 petition, the court, despite the consensus that the election had challenges and flaws, did not consider investigating them. This implies that the court’s standpoint was the same as in Kenya’s presidential election petition 02 of 2017—that a petition alleging irregularities and flaws must prove that the irregularities were there and prove that they were of such nature that they affected the election outcome for the election to be nullified.

3.5 Constitutional Provisions on Elections in Sierra Leone The provision for elections, and their importance in the Constitution of Sierra Leone, is first enshrined in Chapter 4 of the Constitution. In Section 31, the Constitution gives every citizen of Sierra Leone who is of sound mind and has attained the age of 18 years the right to be registered as a voter and to vote in public elections. The Constitution established the Electoral Commission for Sierra Leone in Section 32, which is responsible for the conduct and supervision of registration of voters and public elections as set out in Section 33. Basically in Sierra Leone, there are constitutional provisions for two major public elections, including the Presidential elections and Parliamentary elections, but there is no constitutional provision for local government elections. The main legal framework for the local councils is the Local Government Act 2004. However, under Section 33, the Constitution gives the Electoral Commission the power to conduct and supervise the Presidential, Parliamentary, and Local Government elections. In Section 36, the Constitution stipulates that voting at any public election must be by secret ballot.

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Presidential Election

For a person to qualify for election as President of Sierra Leone, Section 41 of the Constitution provides requires that the person must be a Sierra Leone citizen, be a member of a political party, have attained the age of 40 years, and be qualified to be elected as a Member of Parliament. In a presidential election, a political party nominates presidential candidate. Section 42(2) sets out the provisions that shall apply in the Presidential election as follows: a. all registered voters in Sierra Leone for the purpose of election to Parliament are entitled to vote; b. voting during the election is by a secret ballot on such day(s) at such a time and in such a manner prescribed by an Act of Parliament; c. where only one candidate has been nominated for election to the office of the President after close of nomination, the candidate is deemed to be duly elected President; d. in case of death, incapacitation or disqualification of a candidate nominated for election to the office of the president, the party that had nominated him must nominate another candidate within seven days of the occurrence; e. a candidate shall be declared elected President only if the person has received at least 55% of the valid votes; f. in case no candidate receives at least 55% of the valid votes so as to be declared elected President, another election is held within 14 days of the announcement of results of the previous election, in which case only the two candidates with the largest number(s) of votes shall be the candidates to be voted for, and the candidate that receives the highest number of votes is declared President. A candidate elected President assumes office on the day he/she is declared elected President by the Returning Officer (who in this case is the Chief Electoral Commissioner as per Section 45(1), or upon the expiry of the term of the outgoing president, whichever is the latter. Upon assuming office, the President is required under Section 46(4) to take and subscribe to the oath for the due execution of the office of the President as set out in the Constitution. The aforesaid oath is administered by the Chief Justice of Sierra Leone or the person appointed to exercise the functions of the Chief Justice during that time. In line with Section 54(2), a presidential

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candidate must have designated a candidate who is qualified to be elected as President of Sierra Leone, for the office of the Vice President before the presidential election. If a person is duly elected President, the candidate that the person had nominated to be his/her vice president shall be considered duly elected as the Vice President. The Vice President must take and subscribe to the oath of office of the Vice President as set out in the Constitution. Under Section 46(1), no person may hold the office of the President of Sierra Leone for more than two terms of five years each, irrespective of whether the terms are consecutive or not. Section 43 provides that the period for holding a presidential election should be within the first three months of the four-month period ending at the date that the office of the President is to become vacant by the expiry of the term for the President holding the office, and the President is in office after the beginning of the four-month period. If the office of the President becomes vacant for a reason different from the expiry of the term for the President in office, a presidential election is to be held within a period of three months from the date the office of the President is declared vacant. In Section 54, when both the President and the Vice President die or they are unable to perform the duties of the office of the President, the Speaker of Parliament is to assume the office of the President, and shall take and subscribe to the oath of office as set out in the Constitution. At that time, a Presidential election must be held within 90 days from when the Speaker assumed the office of the President. 3.5.2

Parliamentary Election

Section 87 provides that a general election for members of parliament be held within a period of not less than 30 days and not more than 90 days after the dissolution of parliament. In this case, the Constitution stipulates that nominations for the elections must not be closed within 14 days after dissolution. As provided in Section 38, the Parliamentary elections are conducted in every established constituency in Sierra Leone where each constituency elects one Member of Parliament. Under Section 75, for a person to qualify for election as a Member of Parliament, the person must be a citizen of Sierra Leone (but not by naturalization), must have attained the age of 21 years, must be registered as an elector, and must be fluent in written and spoken English with such a level of proficiency

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that enables the person to actively participate in the proceedings of parliament. Section 75 further provides that a person that is a citizen of Sierra Leone by registration by law may be qualified for election as a Member of Parliament if the person has been resident in Sierra Leone for a continuous period of at least 25 years after such registration, or has continuously served in the Civil or Regular Armed Services of Sierra Leone for at least 25 years. Under Section 76, the following are disqualified from being eligible for election as a Member of Parliament: a naturalized citizen of Sierra Leone or one who is a citizen of a country other than Sierra Leone, a member of a constitutionally established Commission, a member of the Armed Forces of the Republic, an employee of a public corporation established by an Act of Parliament, or one who has been such a member, officer or employee within the twelve-month period immediately preceding the date of the election in which they want to be elected. Additionally, the following are also disqualified from being elected as a member of parliament: a person of unsound mind, or of an offence involving fraud and dishonesty, a person sentenced to death by the court, a professional who has been personally disqualified by a competent authority from practising his/her profession in Sierra Leone within the five years period immediately preceding the date of the election, and a person who for the time being is a Deputy Minister, a Minister, the Vice President, or the President under the provisions of the Constitution. The election for Members of Parliament is supervised and conducted by the Electoral Commission. A Member of Parliament for a constituency is elected by the registered voters in the constituency and voting is by secret ballot as stipulated in Section 74(3). For the purpose of registration of voters and the conduct of elections in the constituencies, the Electoral Commission is required under Section 37(8) to review and revise the register of voters at least once in every three years. In Section 38(4), the Constitution also gives power to the Electoral Commission to review the division of Sierra Leone into constituencies in intervals of at least five years but not more than seven years, and the Commission may alter the constituencies as it may consider necessary in 665279218 alteration of the number of Members of Parliament. However, Section 74(2) of the Constitution stipulates that the total number of Members of Parliament elected must be at least 60. The tenure of parliament as provided in Section 85(1) is five years from the date of its first sitting after a general election.

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3.5.3

Recent Jurisprudence

Two major petitions are analysed with respect to Sierra Leone, including the presidential election petition of 2012 and the presidential election petition of 2018. The 2012 petition was filed at the Supreme Court of Sierra Leone by John Opong Benjamin and other opposition members against the election and declaration of Ernest Bai Koroma as President during the 17 November 2012 elections. In its ruling, the court dismissed the petition on the grounds of non-compliance with the time limit set for filing petitions. The Constitution in Article 55(1) provides that any person having a grievance in a presidential election should file a petition at the Supreme Court within seven days from the date the election results were declared. In this case, the election results were declared on 23 November 2012 and the petition by John Opong Benjamin and other opposition members against the election of Ernest Bai Koroma was filed on 30 November— the seventh day after the declaration of the results. The rules of the court also require that petitioners leave their advocates’ names at the court registry in a separate notice, and make payment for security of costs within five days from when the petition is filed. The petitioners’ advocates had indicated their contact details by endorsing the same on the petition, although this was not in a separate notice, and made payment for security of costs on fifth December. The court indicated that the petition was filed out of time because of the delayed payment for costs and for non-compliance with the requirement to provide advocates’ details in a separate notice (Kaaba, 2015). It is apparent in this petition, the court sacrificed substantive matters for technicalities in the procedure. However, technical rules ought to be instruments enabling the judiciary to effectively and efficiently render substantive justice and not be considered as ends themselves. The presidential election petition of 2018 was filed by Dr. Sylvia Byden, Dr. Samura Kamara and Osman Yansaneh. They were challenging the election and declaration of Julius Maada Bio of the Sierra Leone Peoples Party (SLPP) as the President of Sierra Leone in the general elections held in March 2018. The petitioners argued that the elections were not properly conducted in compliance with the constitutional requirements and the Public Elections Act No. 2 of 2012, citing various irregularities and harassment of the All Peoples Congress (APC) party in polling stations. Like the 2012 presidential election petition, the Supreme

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Court dismissed this petition too. However, in this case where the petition did not have flaws on procedural technicalities, the Supreme Court ruled that the petitioners “failed, refused or neglected to produce any evidence” to invalidate the election and declaration of Julius Maada Bio as the President of Sierra Leone (Gleaner, 2021).

3.6

Conclusion

From the constitutional provisions on elections reviewed above for these countries, the U.S Constitution is better than the rest of the constitutions reviewed for African counties in terms of the provisions for elections. This is mainly because the Constitution has been able to close the lacunas in the provisions for the electoral process and system that were in the original draft of the Constitution through the various amendments incorporated over time, as discussed in the review. However, the constitutions for the reviewed African countries, particularly Kenya, Ghana, and Sierra Leone, give the people a better opportunity to exercise their democratic right to vote for their preferred leaders, particularly, the president. This is because in these countries their respective constitutions give the people the right to directly elect their most preferred president, unlike in the U.S where the citizens vote for “electors” who in turn elect the president through an “Electoral College”, or in South Africa, where the President is elected by the National Assembly. In this case, electors in a given state may not necessarily represent the absolute will of all the people on their preferred candidate unlike where every citizen directly votes for their preferred candidate. The Kenyan and South African constitutions provide a better representation of the people through elected leaders than the Ghanaian and Sierra Leonean constitutions. The Kenyan Constitution in particular establishes a more devolved system of government for enhanced representation of the people through elected leaders, which somewhat mirrors the one for the U.S. The Kenyan Constitution establishes a Parliament consisting of the National Assembly and the Senate, with members of both elected directly by citizens. In addition, it establishes the county government executive (governor) who is also directly elected by the people in each county, and the members of the county assembly, who are elected directly by the people in each ward of the county. In South Africa on the other hand, the Constitution establishes the National Assembly, the Provincial Legislature, and the local government (Municipal Councils) whose members are all directly elected by the people.

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In contrast, the Ghanaian and Sierra Leonean constitutions are quite wanting in terms of establishing an adequate representation of the people through elected leaders. Unlike Kenya and South Africa where the constitution establishes more than two leadership offices (besides the presidency) whose occupants are directly elected by the populace, Ghana and Sierra Leone have only two established leadership offices besides the presidency who are elected by the populace—members of parliament and members of local governments. Moreover, unlike the case of the U.S., South Africa, and Kenya, the constitutions of Ghana and Sierra Leone are also wanting in terms of adequacy of constitutional provisions for parliamentary and local government elections. In Ghana, the Constitution does not have many provisions on local government elections, while in Sierra Leone there is no constitutional provision for local government elections. The main legal framework for the local councils in Sierra Leone is the Local Government Act 2004. One thing that is apparent in the constitutional provisions on elections in the African countries reviewed is the fundamental role of political parties in elections. Apart from Kenya, where the Constitution allows a person to vie for election as an independent candidate, for the other countries, a person intending to be elected to one of the various positions usually requires membership in a political party. In Sierra Leone for instance, the Constitution is categorical that one of the qualifications to be elected as president is that one must be a member of a political party. Even in Kenya, where the Constitution allows for independent candidates in elections, the majority of those elected are members of political parties. Regulation of political parties is therefore vital in electoral processes and systems. In this regard, the next chapter assesses the regulation of political parties in detail.

References Constitution of Kenya. (2010). http://www.parliament.go.ke/sites/default/ files/2017-05/The_Constitution_of_Kenya_2010.pdf. Accessed 21 Feb 2022. Constitution of the Fourth Republic of Ghana (Promulgation) Law. (1992). https://constitutionnet.org/sites/default/files/Ghana%20Constitution.pdf. Accessed 24 Feb 2022. Debrah, E. (2015). Reforming Ghana’s electoral process: Lessons and the way forward. Journal of Politics and Law, 8(1), 1–13.

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Gerber, J. (2021, September 20). ConCourt dismisses DA’s application to set aside reopening of candidate registration. News24. https://www.news24.com/new s24/southafrica/news/breaking-concourt-dismisses-das-application-to-setaside-reopening-of-candidate-registration-20210920. Accessed 16 Mar 2022. Gleaner. (2021, April 20). Supreme Court strikes out 2018 elections petition case. Gleaner Newspaper. https://gleanersl.com/supreme-court-strikes-out2018-elections-petition-case/. Accessed 18 Mar 2022. Kaaba, B. (2015). The challenges of adjudicating presidential election disputes in domestic courts in Africa. African Human Rights Law Journal, 15(2), 329–354. Kenya Law. (2013). Petition 5, 3 & 4 of 2013. http://kenyalaw.org/caselaw/ cases/view/87380/. Accessed 17 Mar 2022. Kenya Law. (2017a). Presidential Petition No. 1 of 2017 . http://kenyalaw.org/ caselaw/cases/view/140716/. Accessed 17 Mar 2022. Kenya Law. (2017b). Presidential Election Petition 2 & 4 of 2017 (Consolidated). http://kenyalaw.org/caselaw/cases/view/143813. Accessed 17 Mar 2022. Mhlongo, L. (2020). A critical analysis of South Africa’s system of government: From a disjunctive system to a synergistic system of government. http://www.sci elo.org.za/scielo.php?script=sci_arttext&pid=S1682-58532020000200004. Accessed 10 Mar 2022. Modern Ghana. (2021). Full Judgement: 2020 Election Petition Ruling. https:/ /www.modernghana.com/news/1065819/full-judgement-2020-election-pet ition-ruling.html. Accessed 14 Mar 2021. Morley, M. T., & Tolson, F. (n.d). Elections clause. https://constitutioncenter. org/interactive-constitutionConstitution/interpretation/articleArticle-i/cla uses/750. Accessed 18 Feb 2022. Republic of South Africa, Electoral Act. (1998). https://www.gov.za/sites/def ault/files/gcis_document/201409/act73of1998.pdf. Accessed 21 Feb 2022. Sierra Leone’s Constitution of 1991, Reinstated in 1996, with Amendments through 2013. https://www.constituteproject.org/constitutionConstitution/ Sierra_Leone_2013.pdf?lang=en. Accessed 23 Feb 2022. The Constitution of the Republic of South Africa, No. 108 of 1996. https:// www.gov.za/sites/default/files/images/a108-96.pdf. Accessed 19 Feb 2022. The Constitution of the United States of America. (1789). https://www.senate. gov/civics/resources/pdf/US_Constitution-Senate_Publication_103-21.pdf. Accessed 18 Feb 2022.

CHAPTER 4

Electoral Commissions—Models and Roles and Responsibilities

4.1

Introduction

From the discussion in the previous chapters, it is apparent that electoral systems are considered a major channel for choice and representational governance, which is the core of democracy. Electoral commissions are mandated with the management of elections, and are therefore a fundamental component in electoral systems, especially in Africa. This chapter interrogates electoral commissions—different models of electoral commissions, their establishment, roles, and responsibilities. It also provides a benchmark for electoral commissions and the standard characteristics required for independent commissions.

4.2

Models of Electoral Commissions

By definition, an electoral commission is a body or an organization which has the exclusive authority and responsibility for managing elections in which the people’s representatives are chosen in a credible way on the basis of the principles of independence, professionalism, integrity, transparency, impartiality and efficiency and voters’ serviceoriented (Wall & IDEA, 2006). Gabie (2019) defined it as an institution that has been mandated to manage elements related to the conduct of elections and referendums which include, among others, determining

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citizens’ eligibility to vote, receiving and validating nominations of electoral candidates, conducting polling, and the counting and tabulating the votes. Gabie (2019) further notes that election management bodies in different countries may also carry out other non-electoral functions such as boundary delimitation, procurement of electoral materials, voter education, overseeing campaign financing, electoral dispute resolution and media monitoring. The concept of electoral commissions is often used interchangeably with election management bodies, especially in political science. Both terms are generally used to refer to the body in a particular country that is mandated to manage elections and hold elections (Rafael-Lopez, 2000). This is evident in the different names of electoral management bodies of different countries. For example, in the U.S. it is called the Federal Electoral Commission, in Mexico it is the Federal Electoral Institute, in Russia it is the Central Election Commission, in Paraguay it is the Supreme Tribunal of Electoral Justice, in Honduras it is the National Electoral Tribunal, and in South Africa it is the Electoral Commission (Nugroho, 2017). Basically, electoral commissions are the bodies responsible for the management of elections, which are quite costly events that call for proper preparation and planning. Election management entails selection of the appropriate system for given circumstances. As such, there are various models of electoral commissions. However, there is some difference in the categorization of the models. A study commissioned by the UNDP which was conducted by Rafael-Lopez (2000) categorized electoral commission into five models: a. An independent electoral commission which is fully responsible for conducting and managing elections without any influence or interference of the executive. It is common in new democracies. b. An electoral commission where the elections are managed by the government, assisted by an oversight body comprising judges and legal professionals, or representatives of political parties, or a combination of both. This model is often referred to as the “French model”, and it has supervisory, regulatory and judicial capacities. c. An electoral commission where the government fully manages elections in their entirety.

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d. Different bodies independent of the executive have the responsibility to manage elections. Usually in this model there are two bodies, where one is responsible for the administration of the election while the other is responsible for the supervisory and regulatory functions. e. A highly decentralized elections management system, where a national authority that is either from a professional body, governmental or independent only has limited supervision and coordination of elections. In a different perspective that is mostly cited in the literature, the Wall and International Institute for Democracy and Electoral Justice (IDEA) argued that the electoral management model for a country results from the holistic design process, hence they categorized the electoral management models into three broad models (Wall & IDEA, 2006): independent model, governmental model and mixed model. (I) Independent Model—This model entails having an established election management body which organizes and manages elections as an institution that is independent from the executive branch of the government. Examples of countries with this model of election management bodies include Kenya, Nigeria, Ghana, Sierra Leone, Liberia, Burkina Faso, South Africa, and Mauritius. (II) Governmental Model—In this model, organization and management of elections is done by the executive branch of government through a ministry (e.g. the Ministry of Interior) and or through local authorities. This model is mostly used in countries outside Africa (for example the U.S.A, Denmark, Switzerland, New Zealand, United Kingdom (except for referenda), and Singapore. (III) The Mixed Model—In this model, the election management body has a dual structure with two components, namely a supervisory/ monitoring or policy component, and an implementation component which is often within a state department and or local government. Examples of countries using the mixed model of electoral management models include Spain, Japan, France, and many African countries that were former French colonies such as Mali, Togo and Senegal. It is important to note that all the countries under review in this work (South Africa, Kenya, Ghana and Sierra Leone) have been established on the basis of the independent model. According to Lekorwe (n.d.), a country chooses a particular model depending on the country’s

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culture and history, its political situation and the standard of education of its people, its financial status and complexity of the country’s administration. The next Section reviews the establishment, structure, roles and responsibilities of the electoral commissions, especially in African countries. 4.2.1

Establishment, Roles, and Responsibilities of Electoral Commissions

In Africa, there have been major electoral reforms since the 1993 seminar on “Strengthening Electoral Administration in Africa” that was held in Accra, Ghana. The seminar report recommended the following as far as African electoral administration is concerned (African Association for Public Administration and Management—2019068984 [AAPAM], 1993): . Establishment of permanent, independent and credible electoral agencies to organize and conduct periodic elections that are free and fair; . Have the Constitution define the mandate for electoral agencies, which should entail the procedure for conducting the elections, voter and other civic education, delimitation of constituencies, voter registration, party and candidate registration, electoral policies formulation, and settlement of electoral disputes; . The composition of an electoral agency has a reasonable number of members who should be non-partisan, appointed by the head of state, be approved by parliament and have security of tenure; . Adequate funding of electoral agency with all its expenses directly charged on the Consolidated Fund, and be granted the independence of establishing its own accounting procedures with greater flexibility in procurement procedures than the government bureaucracy; and . Legal provisions be made allowing electoral agency mobilize additional staffs and other resources when elections are to be conducted. Subsequently, electoral commissions have been established in African countries trying as much as possible to reflect these recommendations. In

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line with this, many electoral commissions are established by the respective Constitution of their countries. In Kenya for instance, Article 88(1) of the Constitution establishes the Independent Electoral and Boundaries Commission (IEBC). Its role as set out in Article 88(4) include conducting and supervising referenda and elections to any constitutionally elective body or office, and any other election that may be prescribed by an Act of Parliament. In particular, its responsibilities include: . . . . . . . .

Continuous voters registration, Regular revision of voters roll, Delimitation of constituencies and wards, Regulating parties’ candidate’s nomination process, Candidates registration for elections, Educating voters, Facilitating elections’ observation, monitoring, and evaluation, Regulating the amount of money a candidate can spend or may be spent on their behalf in respect to any election, . Developing a code of conduct for candidates and parties vying for elections, . Settling of electoral disputes including disputes related to parties’ nominations of candidates but excluding election petitions and disputes subsequent to election results declaration, . Monitoring parties’ compliance with legislation pertaining to nomination of candidates. However, the Constitution does not provide for the composition of the Commission. Rather, the composition is provided for in the national legislation (Independent Electoral and Boundaries Commission Act of 2011). Article 5(1) of the Act provides that the Commission consist of seven members—a chairperson and six other members. The Constitution contributes to the formation of the structure of the Commission through Article 250, which requires members of a commission (including the electoral commission) to elect a vice chairperson from among themselves who must not be of the same gender as the chairperson and also to appoint a secretary to serve as a Chief Executive Officer of the Commission. Having the composition established in national legislation as opposed to having it in the Constitution provides an advantage of flexibility, whereby in case change is necessary in the number of commissioners, it is easier to amend

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the legislation to incorporate the change, unlike with the Constitution, which would be a difficult and more expensive task since it would call for a referendum to change the Constitution. It is also the Independent Electoral and Boundaries Commission Act that sets out the qualifications for election and appointment of the members, as well as the procedure for their appointment. The chairperson and the members of the Commission are appointed by a Selection Panel of seven persons appointed by the President—two men and two women nominated by the Parliamentary Service Commission (PSC), one person nominated by the Law Society of Kenya, and two persons nominated by the Inter-Religious Council of Kenya. Since the president does not directly handpick the members of the Selection Panel, but receives the nominees to appoint from different independent bodies including non-state bodies, this helps to prevent the president from using his appointing authority to interfere with the independence of the Commission by appointing based on his personal interest. Nevertheless, since the PSC nominates the highest number (4) of the members of the Selection Panel, this is a loophole that the president may use since the ruling party under Article 127 of the Constitution nominates the highest number of persons in the formation of the PSC. This implies that the PSC can easily collaborate with the president to nominate members into the Selection Panel based on the president’s or the ruling party’s interests, which in turn would interfere with the independence of the selection process of the commissioners of the Electoral Commission, and consequently the independence of the Commission. In Ghana, the electoral commission is established by Section 43(1). The responsibilities for the Electoral Commission of Ghana as set out in Section 45 of the Constitution include: . Compilation of the voters register and revising it at such periods as the law may determine, . Demarcating electoral boundaries for local and national government elections, . Conducting and supervising all public referenda and elections, . Educating people on the electoral process and its purpose, . Undertaking programmes for voters registration expansion,

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. Performing other functions as the law may prescribe. Unlike in the Kenyan case, the Constitution of Ghana also provides for the composition and the structure of the Electoral Commission. Section 43(1) of the Constitution further indicates that the Commission consists of seven members—a chairman, two deputy chairmen, and four other members. The Constitution in Article 44 further provides the qualifications for appointment to be a member of the Commission. Section 70(2) of the Constitution provides that the chairman, deputy chairmen, and the other members of the Commission are appointed by the president acting on the advice of the Council of State. The Council of State in this case as established in Section 89 of the Constitution consists of: (1) three persons appointed by the president in consultation with parliament—one who has previously served as a Chief Justice, one who has previously served as Chief of Defence Staff of the Armed Forces of Ghana, and one who has previously served as an Inspector General of Police; (2) the president of the National House of Chiefs; (3) one recommended the following as far members appointed by the President. In Sierra Leone, the Electoral Commission is established by Section 32 of the Constitution. Its responsibilities as set out in Section 33 of the Constitution include: . Conducting and supervising voters’ registration for and of all public referenda and elections; . Making regulations for voters registration and conduct of local, parliamentary and presidential elections and referenda by statutory instrument, and . Other matters related therewith include regulations for voting by proxy. Like in Ghana, the composition and structure of the Electoral Commission of Sierra Leone is provided in the Constitution. Section 32(2) of the Constitution of Sierra Leone provides that the Electoral Commission of Sierra Leone shall consist of five members—a Chief Electoral Commissioner, who is also the chairman of the Commission, and four other members to be called Electoral Commissioners. The president appoints the members of the Commission in consultation with the leaders of all registered political parties and with the approval of Parliament. The

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Constitution also highlights the qualifications for one to be appointed a member of the Electoral Commission of Sierra Leone. In some countries like South Africa, the Electoral Commission is established by an Act of Parliament (Electoral Commission Act of 1996) but recognized in the Constitution (Chapter 9, on constitutional institutions). The South African Constitution sets out three main functions of the Commission in Section 190 (1) under Chapter Nine as follows: (i) managing legislative bodies elections, provincial and national elections in line with the national legislation; (ii) declaring the elections’ results within a period which must be prescribed by national legislation and which is short as reasonably possible; and (iii) ensuring that elections are free and fair. However, although ensuring that elections are free and fair is set out in the Constitution, it is normally expected that every election should be free and fair, and rules put in place to regulate every element pertaining to the election to ensure the same is achieved. Nonetheless, having it mentioned once in the Constitution as well as in the national legislation is an indication of the emphasis that South Africa places on free and fair elections. The national legislation in this case is the Electoral Commission Act, where Article 5(1) of the Act sets out the detailed duties and functions of the Commission. They include: . Managing any election, . Ensuring every election is free and fair, and promoting conditions that are conducive for the same to be achieved, . Promoting knowledge of sound and democratic electoral processes, . Compiling and maintaining voters’ roll through a system for registration of eligible voters that utilizes data available in government sources as well as information provided by the voters, . Compiling and maintaining parties’ registers as well as establishing and maintaining liaison and cooperation with the parties, . Undertaking and promoting research on electoral matters, . Developing and promoting electoral technology and expertise development across all the government sections, . Continuously reviewing electoral legislation, including proposed legislation on electoral matters, and giving recommendations on the same, . Promoting voter education,

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. Promoting cooperation with and between people, governments, institutions and administrations for the accomplishment of its objectives, . Demarcating wards in the local government sphere or causing their demarcation, . Declaring municipal legislative bodies’ election results as well as provincial and national election results within days after the elections, . Adjudicating administrative disputes arising from elections administration, organization or conduct, and . Appointing appropriate public administration in any administration in any government sphere to conduct elections when required. As for the composition of the Commission, Article 6(1) of the Electoral Commission Act provides that it consists of five members, where one of them must be a judge appointed by the president. The members of the commission are nominated by a committee of the National Assembly, proportionally comprised of members of all parties represented.

4.3 Standard Characteristics for Independent Commission As highlighted in the previous section, a major recommendation in the 1993 report by AAPAM on Strengthening Electoral Administration in Africa was the establishment of permanent, independent and credible electoral agencies to organize and conduct periodic elections that are free and fair. Although African countries established Electoral Commissions, the fundamental question is “are these Commissions independent?” To answer the question, it is important to understand the typical defining characteristics of an independent electoral commission. It is important to first conceptualize the phrase “independence” in the context of an electoral commission. According to Fuh (2010), independence of an electoral commission is conceptualized in two facets: institutional/formal independence and substantive/practical independence. Institutional independence is anchored on the legal basis/instrument establishing the electoral commission, and covers aspects like appointment of members of the Commission, their tenure, terms and conditions of office and funding of the Commission. On the other hand, substantive/ practical independence examines the degree to which the independence

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conferred on the Commission by legislative provisions has been put into action in reality. An electoral commission must be actually seen as one that exercises its independence in its operations and not one that just possess independence in the text. As Fuh (2010) indicates, a Commission that is considered as biased usually has a hard time convincing the stakeholders to accept the election outcome. An electoral commission’s independence is a vital driver of the public perception on the integrity of elections. When the independence of an electoral commission is not evident, the result of any election it conducts is likely to be criticized and doubted, even if it was accurate. Different authors have highlighted several facets of independence of an electoral commission. According to Cheeseman and Elklit (2020), critical aspects for the independence of an electoral commission has to do with whether the commission is insulated from politics by a strong legal foundation, has appointing procedures that guarantee that only individuals of high credibility are appointed as commissioners and not just representatives of one party or another, has security of tenure for commissioners to enable them to make unpopular decisions without any fear of job loss, has autonomous decision-making on major areas like staff recruitment, budget and procurement of materials for the conducting of elections such as ballot papers, and has the right to announce the results of an election without any other institution having to sign first. According to Fuh (2010), there must be clear provisions established in legislation for the commission, including the mode of appointment and the terms of service for the commissioners, insulating them from government interference. He also advised that having the electoral commission entrenched in the Constitution is critical, since the Constitution, being the supreme law of the land, cannot be easily altered via common legislative procedures. The law establishing the electoral commission must therefore ensure the Commission’s independence by ensuring that there are provisions preventing any arm of the government, political parties or organized groups which control or influence the Commission in exercising its functions. According to Sesa (2014), the independence of electoral commissions is anchored on the following pillars: financial autonomy, permanence, appointment of the commissioners and composition of the commission, and operational and administrative autonomy. An ideal independent electoral commission, according to Sesa, must be permanently established by the national Constitution or legislation providing its powers. Having

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the commission established by law not only guarantees its independence but also provides it with legal powers and functions which insulate it from sudden changes. However, insulation against sudden changes is best possible where the commission is established by the Constitution which cannot be easily altered as opposed to national legislation which as articulated in Fuh (2010) can be easily altered. Financial autonomy, according to Sesa (2014), is the Commission’s ability to access reasonable funds needed for the Commission to dispense their duties as required in law. According to Makulilo (2009), the basic characteristics for the independence of an electoral commission include fiscal independence, a constitutionally protected durable tenure of office for the commissioners, a structure that is independent of the government and political parties, fairness, inclusive procedures for appointing the members of the commission in consultation with different stakeholders, professionally competent staff, transparent decision-making processes and capacity to make and enforce decisions. While the constitutions of different countries establish and confer independence on their respective electoral commissions, Olaniyi (2017) indicates that over the years, the independence is often interfered with due to various external interests. For instance, in East African countries, Makulilo et al. (2016) explain that the electoral commissions as constitutionally established are independent of the legislature and the executive, but their independence in reality is yet to be achieved. They argue that even where elaborate and clear processes exist, the role of the executive in the appointment of the members of the commissions is often exploited to manipulate the commissions. In Kenya for instance, as reviewed in 5.2 above, the appointment of the commissioners of IEBC is a very elaborate process that parliament must scrutinize and approve. Nevertheless, this has not insulated the commission from being politically manipulated (Makulilo et al., 2016). After Kenya’s 2013 elections, for instance, the IEBC was constantly criticized by the opposition members who protested, demanding its disbandment and accusing it of lacking impartiality. As articulated by Musau (2016), the opposition wanted the composition of the IEBC changed, partly because of the role of the president of appointing the commissioners which they felt had contributed to lack of impartiality in the IEBC. The opposition, led by the former country’s Prime Minister Raila Odinga, maintained that 2013 was shrouded with irregularities, bias and corruption despite constant calls by the chairman of the IEBC then, Issack

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Hassan to substantiate their allegations with evidence (Gathii, 2020). However, after a series of protests by the opposition, parliament in a bi-partisan approach disbanded the IEBC prematurely. In Rwanda, the president appoints seven members of the electoral commission via an order that is prepared by the cabinet which the president signs. Consequently, there is no clarity on the criteria through which the appointed commissioners are identified and selected, which questions the independence of the electoral commission (Makulilo et al., 2016). In Nigeria, the lack of independence in the electoral commission was also evident in their 2015 elections. The Independent National Electoral Commission (INEC) of Nigeria was mandated to conduct the elections where the presidential election was a strong contest between the then-incumbent president Goodluck Jonathan of the People’s Democratic Party, and his major opponent of the All Progressives Congress, Muhammadu Buhari, a former military ruler. Politicians had put a lot of pressure on the INEC chairperson, Attahiru Jega, to resign, but he stood up to them and refused. He was still forced to postpone the elections for six weeks (Musau, 2016). This trend has been common in many nations in Africa where elections have been often characterized by intimidation of the members of electoral commissions, violence and vote-rigging allegations, where all the blame is often placed the electoral commissions. Based on the review of the perspectives of the various scholars on the independence of electoral commissions and the trends in African elections, the following may be considered the fundamental standard attributes for an independent electoral commission: 1. Independence in decision-making—The commission must be established in such a manner that its making of decisions will not seem to be influenced by those who contributed to the appointment of its officials. To achieve this, it is important but not sufficient to have the commission established by Constitution. The commissioners or officials need to be appointed in a credible manner by an independent body that is politically neutral in its composition, comprised of individuals of proven high integrity who also reflect the diversity of the country’s population. The individuals to be appointed as commissioners in the electoral commission, upon vetting and approval by this body, should be recommended to

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parliament for parliament to vote to reject or accept each of them individually as commissioners. For one to be appointed, they should obtain an approval of at least a two-thirds majority of the parliament in a quorum of at least 75% of the entire house. The names of the individuals who are successfully voted as approved by parliament in line with this standard should then be forwarded to the president to officially appoint them as commissioners. Those who are not voted as approved by parliament in line with the standard must not be appointed, and the independent appointing body must search for fresh individuals to replace those rejected. The Constitution should designate a process for the appointment of the commissioners of electoral commissions and set out the tenure of office of the commissioners, including the only grounds for which a commissioner can be removed and how. The removal of a commissioner must also be approved by parliament. This will enable the commission to perform its duties independently, without the commissioners fearing that they might lose their jobs or without any feeling that a particular person appointed them and so they are obliged to please the person in decision-making. 2. Sufficient financial resources and flexible financial management—The commission’s expenses should be directly charged to the Consolidated Fund and the commission be given flexibility in procurement procedures. Moreover, the commission should be allowed to establish independent accounting procedures and manage their expenditures without undue influence by the government of the day or political parties. This will help to ensure that the commission procures election materials and spends on election-related activities without unnecessary influence that could otherwise compromise the commission’s decision-making and hence the credibility of the results of the elections they conduct. 3. Institutional independence in performing its functions without government interfering unduly—This can be achieved by ensuring that there is national legislation that protects the commission’s operations from interference by politicians or the executive in any way. This should be provided both for the period before, during and after elections. Hefty fines and penalties should be set out for those who break the law to interfere with the commission’s operations. In addition, the commission should be granted the autonomy to make rules

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that contestants in elections and members of political parties must abide by in order to ensure free and fair elections. The commission should also have the autonomy to investigate and resolve disputes that arise over elections or election results but there should also be an opportunity for any aggrieved who is dissatisfied with the commission’s handling of a particular dispute to appeal through the courts. 4. Adequate staff who are professionally competent and skilled in managing elections—This can be achieved by ensuring that the commission has the freedom or is allowed by law to determine its administrative and clerical staffing needs, and to recruit accordingly. The commission should be able to recruit periodically during public elections and occasionally as it may consider necessary for the effective and efficient execution of its duties. This should also be factored into the commission’s budget, to ensure that there is no shortage of staff in the commission for the undertaking of the commission’s functions. 5. Systems of accountability—The commission should also have systems of accountability in place. This should be enabled by the commission’s internal controls as well as the external accountability controls. However, the external accountability should not be via any political bodies or arm of the government, but it should be via an independent body established for such purpose, such as the office of the auditor general, anti-corruption and integrity office, among others. However, any appraisal on accountability of the commission must not abrogate the constitutionally established procedure proposed in (1) above for the removal of any commissioner from the commission.

4.4

Conclusion

From the review in this chapter, electoral commissions are a fundamental component in electoral systems. As such, in every country the electoral commission as an institution mandated to manage elements related to the conduct of elections must have both institutional and substantive independence. Institutional independence reflects on the legal basis/instrument establishing the electoral commission in aspects like the appointment of members of the Commission, their tenure, terms and

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conditions of office, and funding of the Commission. On the other hand, substantive/practical independence is reflected in the degree to which the independence conferred on the Commission by legislative provisions is put into action in reality. An electoral commission must be seen as exercising its independence in its operations and not one that just possesses theoretical independence in text. While many African countries, as reflected in the countries reviewed, have adopted the independent model of electoral management as opposed to government or mixed model, they mostly enjoy institutional independence but not substantive/practical independence. Any commission whose independence has been compromised may not be positioned to conduct and manage with credibility, free and fair elections. Thus, it is important that every electoral commission have the standard attributes fundamental for their independence. This means they must have independence in decision-making by being established in such a manner that the making of decisions of the commission will not seem to be influenced by those who contributed to the appointment of its officials. The commission must also have sufficient financial resources and flexible financial management as well as institutional independence in performing its functions without government interfering unduly. Again, they need to have systems of accountability in place and have adequate professionally competent and skilled staff available to manage elections.

References African Association for Public Administration and Management (AAPAM). (1993). Report of the senior policy seminar on strengthening electoral administration in Africa. AAPAM. Cheeseman, N., & Elklit, J. (2020). Understanding and assessing electoral commission independence: A new framework. Westminster Foundation for Democracy (WFD). Fuh, M. (2010). Election management in Cameroon: Can Elections Cameroon (Elecam) turn the tide of flawed elections? [Master’s thesis]. Centre for Human rights, university of Pretoria, Pretoria. Gabie, C. T. (2019). An assessment of the level of independence of electoral management bodies and their effects on democratisation in Africa: The case of Ghana and the Democratic Republic of Congo [Masters of Arts Thesis]. University of South Africa, Pretoria. Gathii, J. T. 2020. The Performance Of Africa’s International Courts: Using Litigation For Political. Legal and social change.

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Lekorwe, M. H. (n.d.). The role and status of the independent electoral commission. Journal of African Elections, 5(2), 62–80. Makulilo, B. (2009). Independent electoral commission in Tanzania: A false debate? Representation, 45(4), 435–453. Makulilo, B., Ntaganda, E., Ang’ila, A., Sekaggya, M., & Osodo, P. (2016). Election management bodies in East Africa: A comparative study of the contribution of electoral commissions to the strengthening of democracy. A review by AfriMAP and the Open Society Initiative for Eastern Africa. Nairobi, Kenya. Musau, Z. (2016). The art of mid-wifing elections in Africa. Africa Renewal. Nugroho, K. (2017). Electoral malpractice, integrity of the election management bodies: A case of 2015 simultaneous elections in East Java. In Proceedings of the 1st International Conference on Social and Political Development (ICOSOP 2016). Olaniyi, J. O. (2017). State Independent Electoral Commissions and local government elections in Nigeria. Africa’s Public Service Delivery and Performance Review, 5(1), 133. Rafael-Lopez, P. (2000). Electoral management bodies as institutions of governance. UNDP-IFES. Sesa, L. (2014). A comparative study of the challenge of being independent: Case studies (Botswana independent electoral commission and electoral commission of Zambia). South Africa Journal for Political Science and Public Administration, 33(3), 6–19. Wall, A., & International Institute for Democracy and Electoral Assistance (Eds.). (2006). Electoral management design: The International IDEA handbook. International IDEA.

CHAPTER 5

Political Parties Regulation in a Comparative Perspective: Sierra Leone, Ghana, Nigeria, and Kenya

The world has in recent years witnessed the increased capacity of illegal networks that are a threat to the legitimacy of democratic institutions and political processes in both emerging and established democracies. These networks use violence and bullying to contest and challenge state institutions. They also employ more subtle methods like falsifying strategic links with politicians and political parties through funding political campaigns, involving campaigns in money laundering ploys, creating new political parties and movements, and participating in economic endeavours and/or legitimate businesses with the intention of manipulating political processes. Therefore, efforts have been made to regulate political party activities around the world, and this includes constitutional provisions, detailed legislation in some countries, and mere regulations in other countries. This chapter will review and analyse political party regulations in Sierra Leone, Ghana, Kenya, and Nigeria and conclude as to which are the best means of governing political parties in the four countries under review in Africa.

5.1

Political Parties Regulation in Sierra Leone

Despite Sierra Leone experiencing a decade of civil war from 1991 to 2002, and putting in place several peace agreements (Aning & Atuobi, 2012), the country has emerged as a functional but fragile democratic © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_5

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state. Since the end of its civil war, Sierra Leone has held three successive multiparty competitive elections. Significant progress has been made in consolidating and deepening the post-conflict peace and security environment through the rebuilding of government institutions. The political history of the country reveals a vibrant political system that confronted colonialism to gain independence. However, the collective fight for an independent Sierra Leone was quickly overtaken by an acrimonious political environment which over time degenerated into an exclusivist, abusive, and corrupt system of governance which eventually resulted in a civil war. Sierra Leone has a three-tier system of government, with the national government comprising an elected president, an independent judiciary, and an elected parliament (Castillejo, 2009). Furthermore, there exists a formal local government structure made up of district councils as well as customary chiefdom structures that are semiregulated under national legislation (Atuobi, 2009). Politicians and political parties play a crucial role in all three levels of government. Since independence, several political parties have been formed. However, the most dominant parties are the Sierra Leone Peoples’ Party (SLPP) and the All Peoples Congress (APC). Table 5.1 provides an outline of political parties that have won the various general (presidential and parliamentary) elections in Sierra Leone since 1961. Despite making modest gains, Sierra Leone still faces election-related youth violence (Abdullah, 1998), high cases of widespread corruption (Dumbuya, 2011), and has increasingly become a centre of drug-related money laundering activities (Sierra Leone Daily Mail, 2012). Table 5.1 Political Parties that have won the General Elections since 1961

Year

Political party

1961 1967 1996 2002 2007 2012 2018

Sierra Leone Peoples’ Party (SLPP) All Peoples Congress (APC) Sierra Leone Peoples’ Party (SLPP) Sierra Leone Peoples’ Party (SLPP) All Peoples Congress (APC) All Peoples Congress (APC) Sierra Leone Peoples’ Party (SLPP)

Source Authors’ compilation (2022)

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Political Parties Regulation

Political parties are required by the country’s Constitution, which is the highest law of the land, making them a constitutional creation. Section 34 of the 1991 Constitution established the Political Party Registration Commission (PPRC), the regulatory body for political parties in the country. This must have been in recognition of the importance to regulate the political parties in the country. Section 34(4) provides that “the Commission shall be responsible for the registration of all political parties and for that purpose may make such regulations as may be necessary for the discharge of its responsibilities under this Constitution”. The Constitution also grants the Commission independence in delivering its duties. This is evident in Section 34(5), which provides that “In the exercise of any functions vested in it by this Constitution, the Commission shall not be subject to the direction or control of any person or authority, save only as regards the right to appeal contained in Section 35”. Section 35 of the Constitution contains the provisions for the registration and conduct of political parties. To further enhance the regulation of political parties, Sierra Leone, in addition to the constitutional provision for political parties’ regulation, has enacted the Political Parties Act 2002. Moreover, Sierra Leone is party to a number of international legal frameworks on freedom of association. These include the New Partnership for Africa Development (NEPAD), the International Covenant on Civil and Political Rights, the African Charter for Population Participation in Development and Transformation, and the Conference on Security, Stability, Development, and Cooperation in Africa (CSSDCA). The Political Parties Act, 2002, provides legislation on running the operations of PPRC as well as its functions. This legislation is handy in complementing the Constitutional provisions on the regulation of political parties which is mostly contained in Section 35. Based on the provisions of Sections 34 and 35 of the Constitution and the Political Parties Act 2002, the PPRC was established not just to register political parties but also to oversee their operations by way of supervising, monitoring, and offering mediation during moments of disputes between or among their leadership. The Commission, which is made up of four members, is responsible for the registration of all political parties. To achieve this, the Commission has provisions for establishing regulations that may be necessary for the discharge of its responsibilities

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under the Constitution (Republic of Sierra Leone, 1991). Section 35(6) of the 1991 Constitution empowers the Commission to regulate political party behaviour. However, Parliament may make laws regulating the registration, functions, and operations of political parties’ (Republic of Sierra Leone, 1991). Political parties are required to follow the democratic principles of participation, rule of law, free choice, political tolerance, and transparency. However, support for parties is polarized. Electoral support is most effectively mobilized using ethnic and regional identities. In addition, women—especially in rural areas—were prevented from participating in the political process (Abdullah, 2010). This is greatly changing, with more efforts and strategies being employed by donors and women’s rights organizations working to increase women’s participation in elections. Membership of political parties is frequently based on promises of jobs, money, and services. Politicians usually use their offices and state resources to recompense supporters for party loyalty (Abdullah, 2010). This is contrary to Section 35(1) of the 1991 Constitution, which gives power to political parties to participate in influencing the political will of the people only through the diffusion of information on social, political, and economic programmes of a national appeal, in addition to sponsoring candidates for Presidential, Parliamentary, or Local Government elections. Consequently, Section 35(5) outlines requirements for the registration of associations that, if the Political Parties Registration Commission (PPRC) is not satisfied they have met the requirements, may refuse to register them: a. membership or leadership of the party is restricted to members of a particular tribal or ethnic group or religious faith; or b. the name, symbol, colour, or motto of the party has exclusive or particular significance or connotation to members of any particular tribal or ethnic group or religious faith; or c. the party is formed for the sole purpose of securing or advancing the interests and welfare of a particular tribal or ethnic group, community, geographical area, or religious faith; or d. the party does not have a registered office in each of the Provincial Headquarters towns and the Western Area.

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The PPRC, under Section 10 of the Political Parties Act 2002, has sole responsibility and powers to enforce laws relating to the formation and funding of political parties. Consequently, Section 10 of the Political Parties Act states that “any person who deliberately hinders or otherwise interferes with either the Commission or its members or officers in the discharge of the Commission functions under this Act commits an offense and shall be liable on conviction to a fine not exceeding Le 500,000.00 [USD 115] or to a term of imprisonment not exceeding one year, or to both”. However, these fines are rarely enforced. Article 35(3) of the 1991 Constitution requires political parties to submit annually a statement of their sources of income and their audited accounts with a statement of their assets and liabilities, to the Political Parties Registration Commission. In addition, Section 20(1) of the Political Parties Act 2002 requires that “every political party shall after being issued with a final certificate of registration under Section 12, as the Commission may direct in writing, submit to the Commission a written declaration giving details of all its assets and expenditure; including all contributions donations or pledges of contributions or donations whether in cash or in kind, made or to be made to initial assets of the party by its founding members in respect of the first year of existence”. However, this legal provision is generally not followed by the political parties. The Political Parties Registration Commission (PPRC), which has the mandate to oversee the behaviour of these political parties, lacks the capacity to sanction any political party in breach of this law or showing signs of inappropriate behaviour. While Section 19(1) of the Political Parties Act requires that “the source of funds of a political party shall be limited to contributions or donations”, party financing in Sierra Leone is under-regulated, allowing political parties and their candidates to finance their campaigns from unconventional sources (Kamara, 2009) such as using resources from individual fortunes which, in most cases, originate from corrupt practices. Although the PPRC is mandated to enforce the laws on political party formation and funding, it lacks the necessary robust enforcement powers to either prosecute parties or revoke the registration of parties that refuse to fulfil their responsibilities and abide by the constitutional provisions. To strengthen the operations of the political parties’ registration body, a new Act of parliament was enacted in 2012 (Republic of Sierra Leone, 2012) which gives the Commission additional roles and increases

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its ability to regulate the activities of political parties and politicians (Republic of Sierra Leone, 2012). According to the 1991 Constitution, political parties in Sierra Leone must be present in all regions, and their activities must be nationwide in scope. In spite of these constitutional provisions, political parties and their actors in the nation are divided along Creole, Temne, Mende, and Limba ethnic lines (Kandeh, 1992). As a result, ethnicity is a medium of political identity and a tool for galvanizing support for an individual’s political ambitions. For instance, the two main political parties, the SLPP and the APC, not only survived a decade-long civil war but have at different times ruled the nation. Both maintain strong support bases among the Mende and Temne ethnic groups and their regional allies, respectively. Politicians in power award development opportunities to their kinsmen so as to consolidate and retain power. This denies development to the opposition strongholds. The PPRC’S Code of Conduct for political parties’ code establishes the principles, values, and standards of acceptable behaviour expected of politicians. These codes are the foundation for the establishment of democracy and the rule of law. In 2006, political parties in Sierra Leone, with the support of the United Nations Integrated Office in Sierra Leone (UNIOSIL) and the United Nations Development Programme (UNDP), subscribed and assented to the country’s first code of conduct, which guided the 2007 electioneering process. Similar codes have been developed by the PPRC, together with the National Electoral Commission (NEC) and the political parties. The objective is to guide the behaviour of political parties and politicians. The codes particularly encourage political parties and their supporters to refrain from activities that may create tension on racial, ethnic, gender, class, language, regional, or religious grounds (PPRC, 2006). However, politicians and political parties, even though parties to this code of conduct, openly disregard them in their day-to-day doings. For example, in 2011, a presidential candidate of the opposition Sierra Leone Peoples Party (SLPP) was attacked, and opposition party members in retaliation attacked a property belonging to the governing APC. While political parties that have subscribed to this code are required to maintain communications with other political parties that have also subscribed to the code, this is not the case, as they are always at loggerheads with one another. In consequence, there is a lack of common ground, and engagement on issues of shared concern is nonexistent.

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The PPRC is tasked by the Constitution to elicit compliance from the political parties with respect to the Political Parties Code of Conduct, a committee chaired by PPRC that brings together representatives from political parties, the Sierra Leone Police, the National Commission for Democracy Civil Society, and the Inter-religious Council of Sierra Leone. The Committee is tasked to monitor, communicate, warn, and sanction politicians and political parties who break the rules of the code of conduct, mediate disputes arising between political parties and support women’s participation in the electoral process (NDI, 2007). While the Commission is able to settle disputes between the political parties, it lacks the political will to enforce its own laws in regard to sanctioning politicians and their parties. The Office of the Ombudsman was established through the enactment of the Ombudsman Act, 1997 to collaborate with the Anti-Corruption Commission (ACC) in receiving citizens’ petitions and complaints to the government and promoting good governance and integrity among ministries, agencies, and departments. The office also draws its authority from Section 146 of the 1991 Constitution. In practice, the office lacks the necessary powers to cause government officers working in these ministries, departments, and agencies (MDAs) to answer queries. Even though the Act clearly stipulates that if a person required to provide information fails to do so or makes a false statement either knowingly or recklessly, that person can be tried in a court of law and if found guilty will be liable to a fine or imprisonment or both, it is rarely enforced.

5.2

Political Parties Regulation in Ghana

Since gaining independence, Ghana’s political parties have played an important role in the country’s democratic practice. Political parties and politicians have emerged as key players in shaping the political process and the democratic credentials of Ghana in the transition period from colonial rule into an independent state. Political parties in Ghana have progressively been driven by the fundamental principles of democracy, and have been a tool through which individuals carry out their responsibilities to the state. The current constitutional democratic dispensation is anchored on the 1992 Constitution, which promotes a multiparty competitive system. Since its enactment, several political parties have emerged with

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sub-national or ethnic, religious, regional, or supranational faces (Ninsin, 2006). However, these parties are all guided by the democratic philosophies of the right to association, self-determination, and the right to free choice. 5.2.1

Political Parties Regulation

Today, even though Ghana can boast of developing a culture of successful presidential and parliamentary elections, political plurality, political stability, and fairly strong institutions of governance, the country has shown weakness in dealing firmly with political party actors. It is becoming apparent that the conduct of politicians and political parties can potentially derail the progress made in advancing democracy in Ghana. Article 55 of the 1992 Constitution and the Political Parties Act, 2000 (Act 574) provides the legislative basis for the formation of political parties in Ghana. Additionally, Ghana is a party to the International Treaty on Freedom of Association as enshrined in various international provisions such as the African Charter for Population Participation in Development and Transformation and the Conference on Security, Stability Development and Cooperation in Africa (CSSDCA), and the New Partnership for Africa’s Development (NEPAD), (OSIWA, 2007). According to Article 55(1) of the Constitution, “every Ghanaian citizen of 18 years and above has the right to form political parties”, while Article 55(2) grants all Ghanaians of voting age the freedom to join political parties of their choice (Republic of Ghana, 1992). Article 55(3) empowers political parties to fully participate in the political process and help with the development of policies for Ghana. In addition, Part Two of the Political Parties Act 2000 (Act 574) also suggests that every citizen of voting age has the right to form or join a political party (Republic of Ghana, 2000). The constitutional requirements concerning the formation and responsibilities of political parties clearly demand that a political party’s internal organization must conform to democratic principles. As a result, political parties are required to (a) uphold regional balance in selecting party executives and national executive committees; (b) must be visible in all regions and not less than two-thirds of the districts; (c) the party’s name, emblem, colour, motto, or any other symbol must have no ethnic, gender, regional, religious, sectional connotation, or give the appearance that its activities are confined only to part of the country (Republic of Ghana, 2000).

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However, the majority of the smaller political parties like the United Love Party (ULP), the United Renaissance Party (URP) and the Reformed Patriotic Democrats (RPD) while appearing to be democratic, hardly demonstrate the general tenets of democracy in their activities. Apart from the two major political parties, the New Patriotic Party (NPP) and the National Democratic Congress (NDC), the smaller parties are mostly not national in scope and they revolve around individual leaders. Although the Electoral Commission (EC) has duly registered some of these parties (such as the RPD and URP), they are only active in certain parts of the country. The Electoral Commission of Ghana, under whose supervision political parties are registered, has been unable to stop the registration of “oneman” political parties. Additionally, the choice of candidates for executive and party leadership positions tends to ignore the democratic principles of freedom of choice, transparency, and participation. Some of the challenges recorded within some parties include a lack of internal democracy characterized by cases of buying votes, bribery and corruption, imposition of candidates, claims of favouritism, and intolerance of opposing views. Nevertheless, the model the NPP opposition used in its party primaries in 2010/2011 for the national elections is a great step towards achieving political plurality and democracy in Ghana. Political parties have largely disregarded the constitutional provision that requires them to shape the political will of the people through the dissemination of information. Instead, political parties have become campaigning machines deeply focused on gathering votes (OSIWA, 2007). Consequently, political parties have lost their critical role of being a primary institution in the development of the state. This has resulted in a shift from the politics of principles and ideas to the politics of defamation and insults. The major problem facing the political parties has been the issue of party financing. A lack of transparency in campaign financing and state support for political parties has created opportunities for drug traffickers to participate in the governance process. The only explanation as to why political parties are rich when they are in power and broke when they are in opposition is corruption, taking state funds, and receiving donor support for incumbent parties.

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5.3

Political Parties Regulation in Nigeria

Today, Nigeria’s political space is dominated by two political parties, the All Progressives Congress (APC) and People’s Democratic Party (PDP). The PDP held the presidency and the majority of seats in the National Assembly from its founding in 1998 until 2015, while the APC, which was formed in 2013, won the presidency two years later with the election of current President Muhammadu Buhari. In Nigeria, political parties tend to be structured along ethnic, religious, or geographic lines, as opposed to being organized around ideological principles. The 2002 Supreme Court ruling established provisions for the creation of new political parties with the purpose of promoting greater diversity of perspectives and voices in the political domain. However, it has on the contrary opened the system to manipulation and abuse. Today, political parties and politics are perceived primarily as commercial ventures due to the influence of money. Political finance and its effects on the ownership of political parties are sources of concern in Nigeria’s politics and political life. The fear of either a political party and, by extension, the government being hijacked by an individual or group of individuals is real, resulting in a debate on funding of political parties that has been going on for some time now. While funding by ordinary members through the paying of registration fees, membership dues, and levies was popular in Nigeria’s First Republic (1960–1966), it was in decline in the Second Republic (1979–1983). Political parties also generated revenues by participating in commercial activities such as newspaper printing and the sale of party constitutions and other printed materials to members. When two parties of “equal founders and equal joiners” and their funding by the government were established between 1989 and 1993, it changed all of these. When the Third Republic failed in 1993, it resulted in the collapse of the then two major parties, the Social Democratic Party (SDP) and the National Republican Convention (NRC). The emergence of a new class of stupendously wealthy Nigerians between 1985 and1999 who were mostly involved in commercial activities related to foreign exchange trading, banking and finance, oil and gas servicing, and general imports, and which had connections with the military, played prominent roles in the registration and funding of some of the political parties.

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They were active on the ground at the birth of the Fourth Republic and, these groups had already spread their influence and as a result been actively involved in the political direction for 20 years. This has generally hindered the active political participation of females and ordinary youths in general. For instance, the same politicians have been recycled over the years, making it extremely difficult for new entrants, especially women and the youth, to effectively participate in politics and governance. Primary elections are also associated with the imposition of candidates. INEC is unable to fulfil its mandate of punishing election perpetrators by increasing arrests, investigations, prosecutions, and suspensions. Politicians and political parties lack internal accountability mechanisms for holding members responsible for violating party constitutions which prohibit contravening of the electoral laws and procedures.

5.4

Political Parties Regulation in Kenya

Political parties are the lifeblood of democratic systems of government worldwide. Generally, the party that is in government is assumed to be the majority party and is expected to represent the interests of the majority. Alternatively, a coalition of parties can represent the majority interests. In contrast, the minority interests are represented by the party or parties outside government, mostly the opposition party. The role of political parties in any society underscores their importance as institutions of social, economic, and political governance. Political parties function as representatives of societal interests in legislatures; political socialization and participation; political education and communication; recruitment of political leaders; policy formulation; and working towards national cohesion. These roles vary from one political system to another, based on contextual factors as well as the level of political development. In an ideal democracy, these roles are perceived as requisite and must be performed in a specified manner. The importance of political parties in Kenya’s democratic process cannot be overemphasized. In the late 1980s and early 1990s, Kenyans agitated for the repeal of Section 5.2A of the Constitution, which barred the existence of parties other than the Kenya African National Union (KANU). The struggle for multiple parties was labelled the second liberation (the first being liberation from colonialism). The reintroduction of multiparty politics in December 1991 was an enormous step towards Kenya becoming a competitive representative

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democracy, although it has engendered the propagation of many political parties, most of which remain ineffectual (International IDEA, 2006). Many of these parties were formed on the basis of regional or ethnic considerations. Only FORD began as a mass movement, drawing supporters from almost all ethnic groups across Kenya and hence had the semblance of a national party. However, FORD’s national appeal was short-lived. It’s alleged that the then-President, Moi engineered the divide of Ford using divide and rule tactics which split FORD into two parties—FORD-Asili and FORD-Kenya—before the 1992 elections. FORD-Asili drew most of its support from the Kikuyu tribe, while most supporters of FORD-K hailed from the Luo and Luhya tribes. After the first multiparty elections in 1992, party loyalists and ethnic kingpins were rewarded with ministerial positions. The practice has prevailed to date. Patronage has become the main currency in intraparty and national politics. In Kenyan politics, both party and national elections have fallen short of being democratic. Individuals, communities, or regions that are perceived to be in opposition to the party and a national leader are punished by being denied access to resources, especially government services and development funds. The parties have performed poorly in fulfilling their mandate. In addition, there is failure of political parties to articulate coherent ideologies, establish a national following, develop concrete political programmes, and practice internal democracy. Most of these parties are only used as electoral vehicles and are only heard from during the election time. Indeed, with six multiparty elections. The country is yet to transform into a full-fledged representative democracy (International IDEA, 2006). Parties are believed to be “parts” of a whole and should pursue the interest of their members and the national interest according to agreed principles, allowing for dissent and diversity in the social order and body politics. However, this has not been the case, as parties engage in vicious and selfish struggles for control of government positions and benefits. Political parties in Kenya have tended to behave more like factions than parties. Mobilization of members to join a party in Kenya often depends on issues such as saliency, ethnicity, culture, and religion. In addition, issuebased mobilization such as the constitutional review referendum (2005), the independence struggle, the agitation for multiparty democracy in the early 1990s, or any other issue of national importance, have often attracted phenomenal support from the citizenry.

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For example, during the run-up to the 2007 elections, the debate about how to decentralize power was interpreted differently by the ODM and PNU. The ODM Party advocated for regional governments (Majimbo or Ugatuzi), as means of ensuring equitable distribution of national resources. In its campaigns, the PNU interpreted the ODM programme on regional governments as a scheme to eject the Kikuyus from the Rift Valley and other places where they had settled. By so doing, PNU hoped to get Kikuyu support. However, attempts at ethnic mobilization were not new. Campaigns in the 2005 referendum followed this trajectory (Transparency International-Kenya, 2002). However, such mobilization is not based on enduring party loyalties. Rather, it is often a temporary phenomenon, which fizzles away “shortly” after realization of the specific purpose. It has often been the case in Kenya that the party in power, or the dominant member of a coalition, often uses state resources, including government vehicles and funds, the Provincial Administration and other civil servants, and security agents to campaign and mobilize support for the party/government position in a struggle between the government and opposition parties. Generally, political parties are expected be used to address social conflict situations. However, political parties in Kenya have been unsuccessful in articulating socio-economic issues. Instead, they tend to articulate interests based on ethnicity, aggravating the already prevailing societal divisions, conflicts, and tensions (Giertzynski, 2000). According to International IDEA (2006), political parties lack ideological and policy platforms, and this has led to parties appealing to ethnic sentiments and participating in patronage and corruption. This has also led to increased claims of ethnic inequality and/or exclusion from the political system. This phenomenon was especially heightened in the period leading to the constitutional referendum in 2005, through to the 2007 General Elections, when a dispute over the tallying of presidential votes resulted in widespread post-election violence that led to the death of over 1000 people and the displacement of another 500,000. In ideal democracies, parties fulfil four recruitment roles: selecting candidates for election, recruitment, and selection of candidates for appointive offices, recruitment, and socialization of political activists and political party office holders, and integration of citizens into the existing political system. Parties perform this function in order to ascend to power. The party recruitment process in Kenya is in most cases not meritocratic. Several criteria, such as party loyalty, ethnicity, role of the

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candidate in party leadership, funding, or the likelihood of winning against candidates of other parties, come into play. Differences among party members during party elections have often resulted in party decline or split (Transparency International-Kenya, 2002). The Political Parties Act establishes the Political Parties Fund and requires the Minister for Finance to make provisions for it. The Act restricts the use of the fund’s finances for purposes compatible with democracy, such as promoting active participation of citizens in political life, covering expenses of the political party, communicating party policies, maintaining links between party and state organs, organizing civic education in democracy and electoral processes, and bringing the party’s influence to bear on the shaping of public opinion, No more than 25% of the funds may be used for administrative expenses of the party (Political Parties Act, Part V, Sections 28–30). Thus, the funds cannot be used to promote investment or business-like ventures by the party. They can only be used for the promotion of multiparty democracy and the electoral processes. The Act also stipulates how the funds from the Fund shall be shared (International IDEA, 2006). The Act requires full disclosures as to the sources of funds. Individual contributions have a ceiling of five million Kenya shillings (Ksh. 5,000,000), except for founder members. Party accounts shall be subject to audit by the Comptroller and Auditor General on an annual basis. Thus, party accounts might become a subject of parliamentary debate and scrutiny. Political financing, broadly defined, includes finance of party activities in elections and during non-election periods. It can also be described as the funds received and spent by political parties and candidates in election campaigns. Such a campaign as envisaged in this definition includes both party and individual campaigns, since both need resources. Political finance is therefore both the object and result of political processes. The funding of parties and campaigns is determined by the policy decisions of politicians. In new democracies, it must not be treated solely as a problem but as a means to create a basis for democratic government. The challenge, therefore, is to find the best way of matching the need for a sustainable financial base for the parties, with the wider public interest of curbing or curtailing corruption and avoiding undue influence in politics (Giertzynski, 2000).

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In Kenya, the ruling party continuously enjoys undue advantage due to the fact that, apart from its access to state funds, it also gets donations either voluntarily or through coercion from the corporate world and individual businessmen, who usually enjoy patronage from the incumbent regime and are therefore interested in playing a part towards its electoral victory. The way elections are financed in Kenya leads to undermining of democracy.

5.5

Conclusion

In review of this chapter, different countries have adopted different approaches to regulate political parties. Whereas in some countries like Ghana, it is the electoral body that manages the regulation of political parties, in other countries like Sierra Leone an independent body established by the Constitution is responsible for regulating the political parties. Irrespective of the body that has been given the mandate of regulating political parties in the different countries, it emerges that regulations have been clearly set out in these countries with the interest of promoting democratic values in the formation of the parties and in their activities. It is evident that in most of these countries, including Kenya, Ghana, and Sierra Leone, the political parties’ regulations have been established in both the Constitution and Acts of Parliament. As such, theoretically, regulations for political parties have been laid out but the enforcement of the regulations by the respective bodies in charge is quite wanting in all these countries. The enacted regulations have played various roles in shaping democratic processes in these countries, including their electoral processes. For instance, in Kenya, the introduction of the multiparty system and the contribution of political parties in the formation of Parliament and oversight of the government is a major way of promoting democratic governance through political parties. However, despite the regulations endeavouring to promote democracy in different countries, ethnicity is still found to be a medium of political identity and a tool for galvanizing support for an individual’s political ambitions. Apart from Ghana, where the regulations have significantly influenced the formation of major political parties to reflect the national representation of the different regions, in Sierra Leone, Kenya, and Nigeria, political parties’ formation and support are greatly shaped along tribal and regional lines.

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In Ghana, what seems to have significantly worked is the constitutional requirement that a political party must uphold regional balance in selecting party executives and national executive committees, that the party must be visible in all regions and in not less than two-thirds of the districts, and that the party’s name, emblem, colour, motto, or any other symbol must have no ethnic, gender, regional, religious, and sectional connotation. The party must not appear that its activities are confined only to part of the country. This has resulted in the major political parties in the country, including NPP and NDC, being national in scope. While this is something to emulate, it is important to note that there are still small parties in Ghana that have been established around individual leaders and do not have a national scope, yet they have not been abolished. This emphasizes the earlier observation that enforcement of political parties’ regulations in the countries is often wanting, and this makes the regulations seem not to be working. It is evident that in most countries, the electoral commissions play a fundamental role in regulating political parties, even where there exist independent bodies separate from the electoral commission. As such, the model and role of electoral commissions are critical aspects that should be interrogated. This forms the gist of the next chapter.

References Abdullah, H. J. (2010). Forging ahead without an affirmative action policy: Female politicians in Sierra Leone’s post-war electoral process. IDS Bulletin, 41(5), 62–71. Abdullah, I. (1998). Bush path to destruction: The origin and character of the Revolutionary United Front/Sierra Leone. Journal of Modern African Studies, 36(2), 203–235. Aning, K., & Atuobi, S. (2012). The economic dimensions of negotiated peace accords in West Africa: Is there an emerging praxis by ECOWAS? Africa Spectrum, 47 (1). Atuobi, S. (2009). Peace support operations and post-conflict elections: The case of Sierra Leone (KAIPTC Monograph No. 6). Castillejo, C. (2009). Women’s political participation and influence in Sierra Leone (Working Paper). FRIDE. Accessed 22 July 2012. Dumbuya, P. (2011). Post-conflict reconstruction election, stabilization, and nation building in an African state: The 2007 presidential and parliamentary elections in Sierra Leone. Journal of Third World Studies, 28(2), 143–159.

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Giertzynski, A. (2000). Money rules: Financing elections in America. West View Press. International IDEA. (2006). Ten years of supporting democracy worldwide. International IDEA. International IDEA. (2013a). Legal and policy frameworks, regulating the behaviour of politicians and political parties—Ghana. https://www.idea.int/ sites/default/files/publications/regulating-politicians-and-political-parties-insierra-leone.pdf. Accessed 23 February 2022. International IDEA. (2013b). Legal and policy frameworks, regulating the behaviour of politicians and political parties—Sierra Leone. https://www. idea.int/sites/default/files/publications/regulating-politicians-and-politicalparties-in-sierra-leone.pdf. Accessed 22 February 2022. International Republican Institute. (2019, September 10). Research from Nigeria highlights need for elected officials to engage. https://www.iri.org/resource/ research-nigeriahighlights-need-elected-officials-engage-citizens International Republican Institute. (2020). The role of political parties in Nigeria’s fledgling democracy. https://www.iri.org/wp-content/uploads/legacy/ iri.org/ Kamara, K. S. (2009). Political parties and the functioning of modern democracy in Sierra Leone. Sierra Leone Policy Papers. Accessed 6 August 2012. Kandeh, J. D. (1992). Politicization of ethnic identities in Sierra Leone. African Studies Review, 35(1), 81–99. Kenya Domestic Observation Programme. (2003). When Kenyans Spoke. 2002 General Elections Report K-DOP. National Democratic Institute for International Affairs (NDI). (2007). The Sierra Leone elections story unfolds. Accessed 10 August 2012. Ninsin, K. (2006). Political parties and political participation in Ghana, a study on behalf of the Konrad Adenauer Foundation Accra, Ghana—Berlin, Germany. Accessed 7 March 2013. Open Society Initiative for West Africa (OSIWA). (2007). Ghana: Democracy and political participation. Open Society Institute Network Publication. Accessed 20 June 2012. Political Parties Registration Commission (PPRC). (2006). Codes of Conduct for Political Parties. Accessed 14 August 2012. Republic of Ghana(k). (2000). Political Parties Act, Act 574. Ghana Publishing Corporation. Republic of Sierra Leone. (1991). Constitution of the Republic of Sierra Leone. Government Printing Department. Republic of Sierra Leone. (2012). Sierra Leone Gazette, CXLIII/29. Government Printing Department.

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Sierra Leone Daily Mail. (2012). Government white paper on the Shears-Moses Commission of inquiry into incidents of political violence and intolerance occurring in Gendema, Freetown and Kenema. Accessed 12 August 2012. Transparency International-Kenya. (2002, December 16). The Kenyan elections: Vote vs money, Adhili, Issue No. 16.

PART II

Political Party Financing, Code of Conduct and Judicalization in Election in Africa

CHAPTER 6

Political Party Financing

As discussed in Chapter 5, political parties are fundamental institutions for contemporary democracy. They are major vehicles for expressing and manifesting the political will of the people by providing an opportunity to integrate individuals and groups in the society into the political system. They not only help in mobilizing and socializing the general public, especially during elections but also play an important role in the formation and organization of a government. As such, to effectively serve their role in democracies, political parties require appropriate funding. This chapter contains an in-depth review of political party funding; exploring its various facets. The chapter focuses the investigation on different African countries. Political party financing in its conceptualization is basically money and its role in the political sphere (Lee-Johnes, 2019). According to LeeJohnes (2019), money is essential for inclusive democracy and effective governance by enabling candidates and parties to reach out to the voters and establish long-term political organizations. Nonetheless, it could also be an instrument to influence politicians and political parties to serve their donors’ interests as opposed to the interest of the voters, as well as to compromise the government tendering process, where tenders are awarded to the company that provided the most financing in the last election instead of being the best bidder.

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When political party financing is not properly regulated or managed, it results in an uneven political playing field, which is one of the major threats to democracy globally (International IDEA, 2014). Moreover, when there is a scarcity of information about the circulation of money in and around elections, including the source of the money and its spending, it could facilitate corruption and erode public trust in political institutions (International IDEA, 2019). In this regard, this chapter begins by reviewing the various models of political party financing before exploring the regulation and monitoring of the financing of political parties.

6.1

Models of Funding for Political Parties

Many political parties political parties are funded through a private funding model or a public funding model, as discussed herein: 6.1.1

Private Funding Model

Private funding of political parties entails obtaining funds from the following sources: party membership fees, corporate donations, foreign donations, and self-funding. It is important however to underscore that as Gyampo (2015) cautions, if political parties rely on private funding sources alone, certain individuals through their financial power can hijack the party. Moreover, especially in the contemporary context, where the society is highly disengaged from party politics with a high reluctance to donate money to political parties, some parties may have a difficult time raising funds. This is because not all parties have sufficient resources or endowments, and since many of them, especially the small and newly established ones—may not be able to secure sufficient funds from private contributions, this may hinder their effective functioning and result in an uneven political playing field (Gyampo, 2015). Porat (2021) notes that the private funding of political parties and candidates in many countries is a source of corruption and it usually distorts the democratic process. Porat (2021) suggests that solutions to the problem include restrictions on private funding and the supply of public funds so that candidates and parties would not have to depend on wealthy individuals, corporations, or even foreign countries to cover the high costs of political campaigning. Gyampo (2015), on the other hand, recommends that there should be a synthesis of private and public financing of political parties. This Section discusses each type of private funding in turn.

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a. Membership fees Membership fees constitute the major source of private funding for political parties in most African countries (ACE Project, n.d.). Political parties that have strong support and hence a large membership are capable of mobilizing colossal resources through membership fees. In South Africa, for instance, Nicolaides and Grootes (2015) indicate that the African National Congress (ANC) party, whose membership exceeds 700,000, is capable of amassing more than USD 2.5 million every year from membership fees alone. Although the amount may be inadequate for all the financial needs of the party, it greatly assists in funding basic party structures and communication platforms. b. Corporate donations A report published by the International Institute for Democracy and Electoral Assistance (International IDEA) highlights the fact that huge donations from corporate entities and wealthy individuals have become a major source of political party financing in the contemporary political environment (Check et al., 2019). The report indicates that only a few countries in Africa have banned corporate donations to political parties, warning that this poses a high risk of state capture in many countries, especially where such donations are used to “buy” government contracts. State capture, according to Meirotti and Masterson (2018), refers to a situation whereby a state loses its social independence and as a result cannot function independently to serve the broader social interests of the citizenry or make decisions that will achieve long-term development goals, usually because it has been influenced to serve a certain narrow of private interests. For instance, in the 2017 internal leadership election in South Africa’s ANC party, several corporate entities made donations to the main candidates. BOSASA, a South African government contractor that had been implicated in corruption scandals, made donations of ZAR 500,000 to Cyril Ramaphosa who won the election, while Hitachi Power Africa gave about USD 5 million to Chancellor House, a company serving as a front for the party. The latter claimed that the USD 5 million was from a dividend obtained from its investment in a purchase of a 25% stake of Hitachi Power Africa. Jurgen Harken, a German businessman based

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in South Africa, reportedly donated ZAR 500,000 to the Democratic Alliance Party. Imvume Management Company is also believed to have donated ZAR 11 million to the ANC prior to the 2004 elections. These donations have been pointed to by many civil society organizations as examples of the corporate funding of political parties (Mabuza, 2018). Nonetheless, as Falguera et al. (2014) explain, while the donations are largely considered as political, or motivated by a sense of public responsibility by the corporate entities, some are aimed at influencing a country’s political trend or winning favour from the political establishment. Revelations about some ANC members and their business interests during the South African State Capture Inquiry reflect this argument. Some political parties in power mount pressure on corporate entities to contribute to them in order to ensure continuity of their operations in the country, or they may reward such donations by giving such corporations tax breaks. This has been evident in countries like Botswana, where leaders from the ruling party have often depended on donations from wealthy diamond trading companies in the country such as De Beers in exchange for economic and political favouritism. This trend, which has sustained the ruling party for decades and contributed to the state’s peaceful development, could explain the resistance, mostly by the political elites in the country, who have been demanding transparency over private donations to political parties (Hillborn, 2012; Makgala & Bothlhomilwe, 2017). In Kenya, a similar situation has been experienced where, according to Kiboro (2017), many large corporate entities and very rich individuals have been alleged to influence political and electoral processes through their donations to political parties. For instance, in the run-up to the 2017 presidential elections, British American Tobacco (BAT) company reportedly donated USD 65,000 to the National Rainbow Coalition (NARC) party, led by Martha Karua (Daily Nation, 2016). Although it was claimed that the money was a private donation to Karua’s presidential campaign, it indicates the willingness of corporations to fund political campaigns on the continent. c. Foreign donations Many political parties in Africa often solicit foreign donations to fund their daily operations and election campaigns. This is usually because other sources of private funding from local sources are limited. Foreign

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donations and other forms of support create an opportunity for foreign interests to influence election outcomes and manipulate the decisions made by the government in the future (The Conversation, 2018). According to Falguera et al. (2014), over 30 countries in Africa have banned foreign donations to political parties to prevent foreign interests from influencing electoral processes. However, many of the countries cannot enforce the ban adequately because of a lack of transparency and accountability in the management of political party financing, which makes it hard to determine the source of all the donations to political parties. d. Self-funding There are political activities in Africa which are also funded by the leaders of the political parties. In Mali, for instance, Briscoe and Goff (2016) indicate that National Assembly candidates average USD 59,544 in financing parliamentary election campaigns while presidential candidates spend approximately USD 11.8 million for successful campaigns. Some countries regulate the amount that a candidate can spend or contribute towards their campaigns. In Tanzania, the Elections Expenses Act 2010 gives the minister of home affairs power to set the maximum amount a candidate can contribute for their own campaigns, is the amount being based on the size of the electoral constituency and its population, the category of candidate, or the communications infrastructure. In Liberia, the candidates are allowed to spend their personal finances in their campaigns, which is counted as part of the candidate’s expense that must not exceed limits set in law, and they are required to report the contributions and expenses to the National Electoral Commission. Similarly in Algeria, presidential candidates are prohibited from spending above DZD 60 million (USD 496,150) in the first round of elections and a maximum of DZD 80 million (USD 661,367) in the second round of elections (International IDEA, 2018). According to Briscoe and Goff (2016), the high cost of political campaigns usually puts newly elected politicians into major debt after the election. Prokop (2016) adds that in efforts to quickly recover the money they spent on the campaigns and/or repay their sponsors, there is a high probability that self-funded politicians will engage in corrupt practices, especially where they also hold a high executive position in

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the party. It is thus important that, inasmuch as self-funding can be a fundamental source of financing for political parties, there should be a systematic regulation of the same. e. Funding from electoral candidates There is a traditional assumption that if one is nominated by a political party to represent it in a particular election, the person will at least receive some financial support from the party itself. In Africa, presidential campaigns conducted by major political parties are usually funded in part by the nominating party. For non-presidential elections, however, the case is different. In countries like Kenya, Ghana, and Sierra Leone, individual candidates that are seeking to represent the party usually pay to even be considered as a candidate (Maiyo, 2008; Wiafe-Akenten, 2004). In countries with strong political party loyalty in Africa, to be nominated by the “right” political party is more critical than the election itself, because it could actually guarantee success in the election. As such, candidates may spend even more money in the nomination process than in the main election campaign. Therefore, candidates usually pay for their campaigns. In Tanzania, for instance, a report by the European Union Election Observation Mission (EU EOM) indicated that small parties often chose their candidates based on the candidate’s independent financial capacity to fund their campaigns (EU EOM, 2011). In Kenya’s 2007 elections, for instance, a majority of the parliamentary candidates funded their campaigns by themselves with the source of their financing largely from personal resources including donations from family and friends. Funding also came from pyramid schemes, loans from savings, credit and cooperative societies, banks, personal business funds, and insurance companies. Only about 5% of the candidates’ funding on average was provided by their respective parties. This reliance on a candidate’s independent financial capacity and his ability to raise funds through donations favours the rich but usually hurts significantly the opportunities for those candidates with limited resources, especially the female candidates (Falguera et al., 2014).

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f. Income from elected officials A salary deduction for the elected officials of a given party is also a source of funding for political parties. While this is categorized as a form of private funding, to some extent it can be considered an indirect public funding because the salaries of the officials are paid from the state budget. In Uganda, for instance, opposition parties obtain a substantial share of their funding from contributions of their elected officials, which are deducted from their salaries (Helle, 2011). The same trend has been reported in Zimbabwe, Lesotho, South Africa, Nigeria, and Botswana; Matlosa & Sello, 2005; Punch, 2012; Somolekae, 2006; Think Africa Press, 2012). This is not unique to African countries: countries like Italy and Germany also apply it as a source of political party financing (Nassmacher, 2003). This kind of funding may be considered legitimate, but as Helle (2011) indicates, it can create a sense of “increased” importance to win positions because if the party loses in the election, there is the perception that it will lose a critical source of financing too, hence a sense of double loss. Nonetheless, in cases where civil servants are required to have part of their salaries deducted and channelled to a political party. This is called “macing” and it is present in various countries worldwide and affects democracy and the effectiveness of governance. This is because the state and its employees ought to be separate from any political party (Austin & Tjernström, 2003). 6.1.2

Public Funding Model

Financing political parties through public funding, especially in Africa, can help to minimize the soliciting of funds by political parties from questionable sources which could damage or undermine the credibility and authenticity of democratic processes. Giving public subsidies to political parties might help to achieve an even political playing ground, unlike in the contemporary environment where the better-resourced parties have an advantage. However, overreliance on public funding also has its disadvantages such as creating an opportunity for people to form parties with their main goal being to get state funding, and it may also be a loophole for a major wastage of public resources supporting parties and candidates who have little or no support among the electorate (International IDEA, 2014).

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A 2019 report by International IDEA, documented that public funding of political parties is done in approximately 71% of countries in Africa, and it is regularly done in about 20 countries including Kenya, Burundi, Algeria, and Cameroon. Furthermore, the report indicates that 12 countries financially support political parties for both political campaigns and day-to-day activities. It is only in Tunisia and Cape Verde where public funding is restricted to campaigns (Check et al., 2019). In some countries, legislation on how finances provided to political parties should be spent is stricter than in other countries. The fundamental thing, however, is that strict eligibility criteria should be put in place for the receiving of public funding. This is because too liberal criteria could trigger the creation of political parties whose primary purpose is not an objective democratic purpose but mainly to obtain money. This happened in Gabon in 1990, when delegates were invited to form political parties which were to be receiving funding support from the government. Over 70 self-proclaimed political parties were rapidly created, and each received 20 million Chadian francs (equivalent to USD 35,000) and a four-wheel drive vehicle to facilitate electoral campaigns. After receiving the money from the state, the majority of the parties vanished and never reappeared (Ohman, 1999). This is just a single example, but the situation has happened in several other countries in Africa where some political parties do not have a permanent life; rather they only emerge mainly to gain access to the funds that the states give out to political parties. On the other hand, if the threshold set for political parties to obtain funding is very high, only a few of them will have access to funding, which will be detrimental to the continuity of democratic processes. For instance, in Malawi during the 2009 elections, with a threshold of 10% of the vote, only three political parties qualified for funding, leaving small political parties and independent members of parliament unfinanced despite the fact that they held 18% of the parliamentary seats combined (Ballington et al., 2014). In Zimbabwe, the high threshold set for political parties to access public funding (13% of the seats) during the 1990 and 1995 elections resulted in only the ruling party, the Zimbabwe African National Union-Patriotic Front (ZANU-PF) qualifying for public funding. However, the Supreme Court lowered the threshold to 5% of the seats. This enabled the opposition party Movement for Democratic Change (MDC) to qualify for public funding in the subsequent 2000 and 2005 elections. Nonetheless, with the formation of the coalition government after the 2008 elections, only political parties that had

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representation in the government qualified for public funding (Chikuhwa, 2004; EISA, 2007). In the 2013 elections, only ZANU-PF and MDC-T qualified for public funding. The most commonly used eligibility criteria for public funding of political parties in Africa is often the number of votes a party received in the previous election or its representation in the elected body. For example, Burundi, Morocco, Congo, Cape Verde, Namibia, Seychelles, and Madagascar usually provide public funding to political parties on the basis of a party’s share of seats in the previous election. This approach may make it more difficult for newly formed parties to receive public funding. Basically, there are two forms of public funding through which the state provides financing to political parties, including direct and indirect public funding as explained herein. a. Direct public funding This is the provision of resources in the form of money by the state to political parties. In most of the countries on the continent, this is done through the allocation of public funds to political parties based on the number of votes/seats they received. Very few countries provide an equal amount of money to all registered parties. However, there are some countries like Burkina Faso, Uganda, and South Africa that allocate funds to political parties based on both an equality and proportionality basis, while there are still a few (16 countries) that provide no public funding at all to political parties. In South Africa, the Constitution in Section 236 and the Independent Electoral Commission Act provide for public funding of political parties. The state allocates funds annually on the basis of each party’s number of elected officials at the national, regional, and local levels. In Cameroon and Ivory Coast, public funding of political parties is done based on the electoral calendars (International IDEA, 2018). Public funding in Africa has also been used in promoting gender equality among political candidates. This is especially important in promoting the representation of women in political parties. Falguera et al. (2014) indicate that only approximately 37.3% of African countries direct the allocation of public funding towards the achievement of gender balance in political parties, and only eight countries directly connect this to a specified requirement to promote gender equality. For example, in

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Cape Verde and Burkina Faso, electoral laws require political parties to at least have 35% and 25% of female candidates, respectively, in order for them to qualify for public funding. In Niger and Mali, 10% of the funds available for political party financing is set specifically for parties with female elected officials. In Senegal, Ivory Coast, and Cameroon, political parties are required to have at least 30% of female candidates in their lists for parliamentary or municipal elections. In Kenya, the legislation requires that a party should not have more than two-thirds of the same gender in their elected officials in order to qualify for public funding. In Rwanda, there is public funding to political parties, but no stipulated gender quota. Nonetheless, women constitute a major part of the total parliamentary seats (over 60%) in Rwanda. The Rwanda case implies that it is actually sufficient political will that ensures achievement of gender balance without even the necessity for a regulatory framework. b. Indirect public funding Indirect public funding entails providing state resources apart from money to political parties and/or their candidates. It mainly takes the form of free or subsidized public media access, but other forms include tax relief to the parties and/or their donors, free access to public buildings for rallies or other party activities, and providing them with space for electoral advertising. Indirect public funding of political parties is not prevalent in Africa as compared to global trends. Although subsidized media access constitutes the main form of indirect public funding of political parties in most places, tax subsidies for political parties are also quite a common form of indirect public funding of political parties in many countries. In Benin, for instance, political parties are exempted from tax apart from the taxes related to their direct commercial activities, while in Seychelles and Egypt, political parties pay zero income tax (Ballington et al., 2014). Other kinds of indirect public funding include providing free space to the parties to place campaign materials, such as in Senegal and Gabon, or providing premises for the political parties to hold meetings, as in Cape Verde (Ballington et al., 2014). It is important that African countries, through their legislators, come up with more ways to indirectly provide help to political parties. This

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is because it is much easier to control how indirect support is utilized, unlike direct public funding which is mostly in the form of money. This can be good for African countries because of the inadequacy of the regulation and lack of oversight of direct public financing of political parties, as revealed in Sects. 6.2 and 6.3. Indirect public funding is also likely to be cheaper compared to direct public funding because that is mostly utilized through existing resources like the use of government broadcasting equipment and government premises (International IDEA, 2014). However, it should be noted that strong financial muscle does not automatically translate into electoral support of a political party in a wellfunctioning democracy. For example, in South Africa, the ruling ANC party had garnered more private financial support than any other party in the country during the 2016 municipal elections. It reportedly spent up to ZAR 1 billion (USD 72,148), yet achieved the worst results in the party’s history, losing control of several metropolitan municipalities. Nonetheless, it is important to review the manner in which parties are funded, such as the methodological framework for distribution and the regularity with which such funds are provided.

6.2

Regulation on Political Parties Financing

Various laws have been enacted to enhance the regulation of political party funding, including the establishment of major democratic entities and systems for political party financing and giving local enforcement agencies the power to implement the regulations. For instance, Nigeria, Cameroon, Senegal, Rwanda, and Kenya have criminalized foreign donations to political parties. In Kenya, the Political Parties Act (2011), which was revised in 2015, prohibits political parties from receiving donations from a non-citizen (International IDEA, 2018). In Nigeria, the Independent National Electoral Commission (INEC), is the principal oversight agency, and as such is under a legal obligation to report to the National Assembly any failure by a political party to keep and report proper financial accounts. Nevertheless, the National Assembly lacks sufficient legal authority to enforce this if INEC fails to comply. As Ukase (2016) reports, since the return of democratic government in 1999, INEC has not complied with this requirement and neither has there been any action taken by parliament to rebuke and correct the actions. Instead, Ukase (2016) reports that there has been a common dodging of

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enforcement of donation bans, jeopardizing the integrity of the electoral processes. In Uganda, foreign donations are not banned, but there is a limit on how much a foreign entity may donate to a political party. In Section 14 (1) of the Political Parties and Organizations Act (2005), a political party is allowed to receive a foreign donation not exceeding USD 104,000 within a twelve-month period. In contrast, there is no regulation on spending by political parties, and the parties mostly depend on private contributions (Boly & Sampinbogo, 2006). Foreign donations to political parties are banned in Sudan and Senegal too. The Political Parties Act of 2007 of Sudan prohibits political parties from accepting any financial donation/contribution from foreign entities or foreign persons. In Senegal, Article 4 of Law No. 89-36 of October 1989 stipulates that a political party that receives direct or indirect foreign support from foreigners, whether outside or within the country, may be dissolved.

6.3

Monitoring of Political Parties Financing

The importance of political parties reporting their expenditures for auditing purposes and for other purposes as well cannot be overemphasized. It has actually been considered as a basic rights matter. Wehner and Renzio (2013) assert that it is a moral obligation for every government to ensure transparency in the way taxpayer money is handled, hence it is a basic right to have proper auditing of political party funding, especially where public funding is involved. Many governments require auditing of political party funding be accredited accountants and the statements be presented to parliament or other select institutions. The primary goal of this, according to Wehner and Renzio (2013), is to promote and enforce integrity and accountability, to ensure proper internal controls, and to allow legislative oversight and scrutiny. It is important however to note that this is only possible where there are effective reporting mechanisms that guarantee transparency and compliance with other fiduciary establishments for the protection and preservation of democratic processes. A report by the International IDEA (2018) indicates that the requirement for political parties to report on their finances related to political activities, including their campaign funding, is in place in 28 countries in Africa. The report further indicates that 23 countries require political

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parties’ financial reports to be made public, while in 17 countries that is not a requirement at all. In Namibia and Benin, the requirement is made intermittently. In the eventuality of a party breaching the requirement, the most common penalty is a fine, which is also the case in 85% of the countries, while sanctions like imprisonment are set out in 72% of the countries, along with the loss of public funding. This has been adopted by 17 countries in Africa. The report acknowledges that political parties often avoid submitting their financial reports by taking advantage of weak legislative oversight in many countries. As a result, due to this weak oversight, it is rare to have the parties sanctioned or reprimanded because of their failure to submit financial reports. Few countries have oversight agencies that have been given the authority to investigate such cases or refer the cases for investigation. Moreover, even when the parties submit financial reports, the reports are rarely scrutinized in detail to ensure proper accounting for the monies allocated to the parties or individuals (International IDEA, 2018). In countries where the state provides public funding to political parties, the state has a responsibility to ensure that taxpayers’ money is spent properly and accounted for in a transparent manner. In this regard, auditing of political parties’ finances goes beyond a regulatory function to a fiduciary role that the government ought to undertake. In African countries, the judiciary (particularly the courts) and the Electoral Management Bodies are usually the ones mandated with the task of examining financial reports and investigating violations committed by the political parties, but there are some countries where auditing agencies and specific ministries carry out the task (International IDEA, 2018). It is thus important that countries that do not have strong oversight mechanisms for their political parties’ finance take up measures to strengthen the oversight agencies’ power for thorough auditing and scrutiny of political parties’ financial reports. One major aspect that needs to be in place to strengthen the oversight of political party finance is to make it compulsory for political parties to submit their financial reports to a government agency whose mandate should be to audit the reports. Otherwise, where such reports are not provided, transparency and compliance cannot be effectively monitored. However, it is important to note that the submission of the financial reports is not a sufficient guarantee that transparency and compliance exist in the political parties’ finances. The reports may be falsified, but at least

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they provide a key starting point for the authority to scrutinize the political parties’ finances. The requirements stipulated must be comprehensive to enable thorough and effective analysis of the reports, but at the same time, they should not be too demanding to the extent of making it hard for the parties to comply as this may encourage the contestants to ignore them. A vast majority of African countries have one form of reporting requirement or the other for the political parties. However, as indicated by Ballington et al. (2014), the majority of them only require the submission of financial reports for either the political parties or the candidates, but not both. There are some countries where political parties are required to submit financial reports that indicate their income and expenditures independent of their parties. However, few political parties in Africa have the requisite administrative capacity for collecting and verifying such data. It is apparent as mentioned earlier, that even when political parties submit their financial reports, there is minimal scrutiny of the same and sanctions are rarely imposed on violators. Cases of political parties refusing to submit financial reports have been reported in various countries without any action being taken, including Namibia, Nigeria, Kenya, Ghana, Tanzania, Sierra Leone, and Liberia (AllAfrica, 2011b; Ghana News Link, 2011; Hopwood, 2005; Karume, 2004). For instance, out of 44 political parties in Kenya in the period 2009/2010, 30 of them did not submit their financial reports as required (AllAfrica, 2011a). This lack of transparency is a major hindrance to effective oversight of political financing. A report by Transparency International Zimbabwe (TIZ) indicated that in spite of clear legal requirements on disclosing information via official newspapers, supervisory bodies have never disclosed it that way. At the time of the report, no political party or candidate had ever reported their income and expenditure (TIZ, 2010). Similarly, despite countries like Nigeria, Liberia, and Sierra Leone having in theory a high level of regulation on political party finance reporting, there is minimal or no scrutiny of the ports at all (Ballington et al., 2014). This implies weak enforcement in the regulating and control of political party financing in Africa, with the problem being not the lack of a regulatory framework, but in its implementation. A major challenge hindering effective scrutiny of political parties is the high tendency of the political parties to carry out most of their transactions in cash as opposed to using the banking system or cheque/bank

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transfers. As such, the enforcing agencies have limited trail to investigate the transactions. Public funding, as indicated earlier, has often been considered as one of the effective ways that states can use to monitor and ensure compliance with political party financing, especially because they can withhold funding from parties that violate the requirements, including the disclosure requirement. Helle (2011) found that this was to an extent effective in Uganda in the past few decades where international donors that were providing public funding required the parties to audit their finances and provide audited reports of the accounts in order to be eligible and qualify for funding. Helle (2011) indicated that transparency improved, with opposition parties being more consistent in submitting their audited accounts to the country’s Electoral Commission. However, its implementation has deteriorated since 2005. This implies that where the size of public funding provided is large enough to deter the parties from ignoring auditing requirements and to make them more careful so as not to lose the funding, it can be a viable way to enhance compliance. A major issue is that regulation in many countries such as Lesotho, Congo, and Mauritania gives a specific institution the responsibility to receive financial reports without giving it the explicit mandate of doing anything with the reports or scrutinizing the reports for violations. Again as aforementioned, many countries have theoretically set sanctions in law for violating political finance reporting requirements. Unfortunately, rarely have the sanctions been implemented, as evident in the scarcity of reports of such instances. The report by Transparency International Zimbabwe (2010) indicated that while violations of regulations on political financing were evident in Mozambique, there was no sanction or punishment taken against the non-compliant, with the public being kept largely ignorant on the matter. In the case of Kenya, when 30 political parties failed to submit their yearly financial reports in the year 2009/2010, they were threatened with deregistration, but according to AllAfrica (2011a), the sanction was never implemented. In a similar case in the Gambia, the Independent Electoral Commission (IEC) did not take any action against the APRC party despite the party breaching the Political Parties Code, while Ghana’s Electoral Management Body has been accused of often turning a blind eye to obviously inaccurate returns by parties (Commonwealth Expert Team, 2011). This lack of sanctions and the failure to take any action against parties violating

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political party financing regulations greatly reinforces perceptions of bias, especially among the opposition party members and their supporters (International Crisis Group, 2012). When political parties fail to comply with regulations for political finance, such as failing to submit financial reports, there should be an automatic sanction imposed as set out in the law. This may range from simple warnings, mild fines, or withholding of public funding to hefty fines for persistent non-compliance, such as parties failing to submit their financial reports despite constant reminders. Criminal sanctions ought to be imposed for major violations like vote buying and intentional reception of huge illegal donations. Where the regulation on the matter has been largely ignored for a long time, however, enforcement should be gradual. It is important to understand that sanctions on their own are insufficient to instil transparency in political party financing. Political party financing regulatory institutions must take a strategic long-term view that aims to enhance awareness among the parties themselves and the public at large on the necessity of regulating political party financing. Moreover, each country should ensure that the rules and regulations they set on political party financing are best suited to that specific country’s situation. Last but not least, the regulators of political parties’ financing must ensure they are in close communication with and are engaging with the political parties, the candidates, and the relevant stakeholders, and carefully ensure their independence is protected.

6.4

Conclusion

In this chapter, it emerges that political parties are financed either through private funding or public funding, or both. Private funding includes sources such as party membership fees, corporate donations, foreign donations, and self-funding. Public funding entails the state providing financing to political parties, including direct funding (provision of resources in the form of money by the state), and indirect public funding (providing state resources apart from money to political parties and/or their candidates). Both private and public funding of political parties each have advantages and disadvantages. If political parties rely on private funding sources alone, this may hinder their effective functioning and result in an uneven political playing field, because not all parties are endowed with sufficient resources. Many parties, especially the small and newly established ones, may not be able

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secure sufficient funds from private sources. On the other hand, while public funding to political parties may help to achieve an even political playing field, it may create an opportunity for people to form parties with their main goal of obtaining state funding, thus creating a loophole for a major wastage of public resources. It is therefore important to have a synthesis of both public and private funding of political parties through proper regulation. A major issue in political party financing, as revealed in this chapter, is the regulation and monitoring of political party finance. It is apparent that many countries in Africa have made efforts to legislate and set laws to improve political party financing, but the implementation of the same is quite wanting. Although this scenario is not only a problem for African countries, it is important that African countries should seek to improve in this area. Doubtless, there should be some reforms traversing both the formulation and implementation of the regulations. Although the reform could take relatively long due to the inadequacy of political will; that is, political actors are unlikely to embrace them immediately, the reforms are necessary. It is also important to interrogate the conduct of political parties, since the supervision and monitoring of their financing must involve a review of their conduct. To acquire insights into this, the next chapter reviews the code of conduct of political parties in different countries in Africa.

References ACE Project. (n.d.). The electoral knowledge network. http://aceproject.org/aceen/topics/pc/pca/pca02/pca02c/default AllAfrica. (2011a, June 30). Kenya: Audit office puts political parties on notice. http://allafrica.com/stories/2011a07010004.html AllAfrica. (2011b, February 1). Liberia: Political parties evade accountability law. LDI Says. http://allafrica.com/stories/2011b02040950.html Austin, R., & Tjernström, M. (2003). Funding of political parties and election campaigns. International IDEA. Ballington, J., Falguera, E., Kahane, M., Londoño, J. F., Nassmacher, K., Ohman, M., Piccio, D. R., Sjöberg, F., Smilov, D., Ufen, A., & Zovatto, D. (2014). Funding of political parties and election campaigns: A handbook on political finance. International IDEA. Boly, M. A., & Sampinbogo, M. S. (2006, November). Le mode de financement des parties politiques au Burkina Faso [The method of financing political parties in Burkina Faso]. ACCPUF-Bulletin No. 6.

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Briscoe, I., & Goff, D. (2016). Protecting politics: Deterring the influence of organized crime on elections (U. Burcher, Eds.). International IDEA and the Clingendael Institute. Check, N. A., Madise, T., Majozi, N., & Hamada, Y. (2019). The integrity of political finance systems in Africa: Tackling political corruption. International IDEA. Chikuhwa, J. W. (2004). A crisis of governance: Zimbabwe. Algora Publishing. Commonwealth Expert Team. (2011, November 24). The Gambia presidential election, 24 November 2011. Commonwealth Expert Team. Daily Nation. (2016, April 25). Parties fail to provide source of billions details. https://www.nation.co.ke/news/Parties-fail-to-provide-sou rce-of-their-billions-details/1056-3174394-4dtr5ez/index.html Electoral Institute for Sustainable Democracy in Africa (EISA). (2007). Comparative data: Funding of political parties. EISA. European Union Election Observation Mission (EU EOM). (2011). Tanzania: Final report, General elections, April 2011. EU EOM. Falguera, E., Jones, S., & Ohman, M. (2014). Funding of political parties and election campaigns: A handbook on political finance. International IDEA. Ghana News Link. (2011, September 13). NDC is unable to submit financial report to EC. http://www.ghananewslink.com/?id=16561 Gyampo, R. E. (2015). Public funding of political parties in Ghana: An outmoded concept? Ufahamu, 38(2), 3–27. Helle, S. (2011). Breaking the ‘vicious cycle’: Financial challenges for the opposition parties in Uganda and the role of the international community. Chr. Michelsen Institute. Hillborn, E. (2012). Botswana: A development-oriented gate-keeping state. African Affairs, 111(442), 7–89. Hopwood, G. (2005). Trapped in the past: The state of the opposition. In J. Hunter (Ed.), Spot the difference: Namibia’s political parties compared. Namibia Institute for Democracy. International Crisis Group (ICG). (2012). Liberia: Time for much-delayed reconciliation and reform (Africa Briefing No. 88). ICG. International IDEA. (2014). Funding of political parties and election campaigns: A handbook on political finance. International IDEA. International IDEA. (2018). Political finance database. https://www.idea.int/ data-tools/data/political-finance-database International IDEA. (2019, March). Political finance transparency. Policy Brief. International IDEA. Karume, S. (2004). Dilemmas of political transition: Towards institutionalisation of multiparty democracy in Tanzania. Electoral Institute for Sustainable Democracy in Africa.

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Kiboro, F. (2017, August 6). Kenya’s election jitters have roots in campaign financing. It is time to act. The Conversation. https://theconversation. com/kenyas-election-jitters-have-roots-in-campaign-financing-its-time-to-act81693 Lee-Johnes, K. (2019). The role of political party finance reform in the transition from dominant to competitive party systems. CMI—Chr. Michelsen Institute. Mabuza, E. (2018, March 13). Some examples of donors whose secret donations were exposed. https://www.timeslive.co.za/politics/2018-03-13-someexamples-of-political-donors-whose-secret-donations-were-exposed Maiyo, J. (2008). Political parties and intra-party democracy in East Africa— From representative to participatory democracy (Master’s Thesis). Leiden University. Makgala, C., & Botlhomilwe, M. (2017). Elite interest and political participation in Botswana, 1966–2014. Journal of Contemporary African Studies, 35(1), 54–72. Matlosa, K., & Sello, C. (2005). Political parties and democratization in Lesotho. Electoral Institute for Sustainable Democracy in Africa. Meirotti, M., & Masterson, G. (2018). State capture in Africa: Old threats, new packaging? EISA. Nassmacher, K. (2003). Party funding in continental Western Europe. In R. Austin & M. Tjernström (Eds.), Funding of political parties and election campaigns. International IDEA. Nicolaides, G., & Grootes, S. (2015, October 9). ANC membership numbers are down. Eyewitness News. https://ewn.co.za/2015/10/09/Mantashe-adm its-ANC-membership-numbers-are-down Ohman, M. (1999). Public funding of political parties in Africa. International Foundation for Electoral Systems. Porat, I. (2021). Buying democracy: The regulation of private funding of political parties and the press after ‘my vote counts.’ Constitutional Court Review, 2021(11), 503–531. Prokop, A. (2016). Really rich people aren’t actually that good at buying their way into political office. https://www.vox.com/2015/12/3/9837596/selffunding-candidates Punch. (2012, June 24). PDP Holdings: Altering formula of party funding. http://www.punchng.com/politics/pdp-holdings-altering-formulaof-partyfunding/ Somolekae, G. (2006). Botswana: Country report based on research and dialogue with political parties. International IDEA. The Conversation. (2018, July 5). Why South Africa’s new political party funding bill is good news for democracy. http://theconversation.com/why-south-afr icas-new-political-party-funding-bill-is-good-news-for-democracy-99034

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Think Africa Press. (2012, February 8). The MDC is funded by Zimbabweans not foreigners. http://thinkafricapress.com/zimbabwe/mdc-funded zimbabweans-not-foreigners Transparency International Zimbabwe (TIZ). (2010). Nuru: Promoting transparency in political finance in Southern Africa. TIZ. Ukase, P. I. (2016). Political parties and election/campaign financing in Nigeria: Interrogating the 2015 general elections. Global Journal of Human-Social Science: Political Science, 4(16). Wehner, J., & Renzio, P. (2013). Citizens, legislators and executive disclosure: The political determinants of fiscal transparency. World Development, 41, 96– 108. Wiafe-Akenten, C. (2004). Ghana: Country report based on research and dialogue with political parties. International IDEA.

CHAPTER 7

Codes of Conduct for Political Parties

7.1

Background

Political party conduct is a fundamental aspect in the question of achieving free and fair elections. As one of the major avenues through which the representation of the people is democratically achieved, as well as being a platform for the political participation of the citizenry in the leadership and governance of their respective countries, it is important that their conduct must be regulated. This chapter reviewed the codes of conduct for political parties. According to Goodwin-Gill (1998), a code of conduct (CoC) in the context of elections is a set of principles that are laid out to guide those participating in an election. This definition, however, is too general as it does not factor in the legal status of a code of conduct as to whether it may be binding or non-binding. A more elaborate definition was provided by the International IDEA (1999), which defined a code of conduct for political parties as a set of rules of behaviour for political parties and their supporters to adhere to, and governing their participation in elections. Ideally, parties agree to comply voluntarily, and this agreement may subsequently be incorporated into law. Regarding how the code of conduct for political parties relates to a legal framework, International IDEA (2017) identifies two types of CoC: (i) a voluntary CoC in which the signatory parties set out terms of how

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they relate to the legal framework, with two basic types of CoC: (a) voluntary codes, where all the parties signatory to the Code jointly accept a form of self-regulation without any external compulsion, and they have the option to sign up or not; and (ii) a CoC that is part of the legal framework and hence automatically binding on all parties with an external body or agency such as the police, courts, or an electoral commission responsible for enforcing the Code. No matter the kind of CoC that a country adopts, good implementation mechanism is fundamental to its effectiveness (International IDEA, 2017). However, it is important to note that a political code of conduct has both advantages and disadvantages. Thomas (2014) outlines some of the advantages and disadvantages of a code of conduct as follows: 7.1.1

Advantages of CoC

It can help to raise the level of public trust and confidence in political parties and fulfil the heightened ethical standards on which basis political parties and their candidates can be held accountable by the voters. A CoC may be an incentive to promote political party awareness and consciousness of their ethical and legal obligations to conduct themselves properly. In other words, the Code can serve as a reminder to political parties and their candidates of their duty to maintain public trust. A CoC makes the handling of cases of ethical violations easier for party leaders, which could otherwise result in trust in the party being undermined. A CoC can help to influence or persuade political parties to adhere to a high standard of ethical conduct during electoral processes. 7.1.2

Disadvantages of CoC

In contrast with other fields where codes of conduct are relatively objective in how they work, in the political field, ethical violations of the code result in complaints which may become a political weapon for some politicians to use to achieve a political advantage over their opponents. While a CoC is intended to increase trust in politics, it may boomerang and have the opposite and unintended effect of diminishing trust in politicians and politics at large when there are regular accusations of violations of the Code.

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Adopting a CoC may reinforce the already existent exaggerated negative stereotype of politicians and political parties, which in turn may discourage talented individuals from venturing into political and public life who would have otherwise made positive contributions to the country. In some countries, the electoral systems provide a compulsory CoC that is mandatory for every political party and for all candidates competing in elections. Such a CoC usually forms part of their respective countries’ legal framework in which case administrative and legal sanctions are set for those who violate the Code. For instance, a candidate who fails to comply with the Code may be disqualified from the election and face further legal sanctions (Ace Project, 2012). Even so, many Codes are substantially voluntary, but in some cases, the voluntary Codes provide for consultation and mediation in circumstances where there have been violations (Ace Project, 2012). A major strength of a legally binding CoC is that it is enforceable through sanctions by authorities such as the courts, the election management body, or the police. On the other hand, in the case of a voluntary CoC, the parties are encouraged to live up to their commitments by use of both incentives and deterrents. The strongest consequence of breaching a voluntary CoC is the reputational costs that the culprit party suffers which may negatively affect its popular support. However, there are contexts where public exposure may be more effective deterrent than enforceable sanctions such as, for example, where their state has a weak investigatory capacity or long adjudication procedures. Even so, there are cases where parties may not be very concerned about their reputation, and such a party may make the voluntary Code ineffective (International IDEA, 2017). In this chapter, Codes of Conduct as established in different countries including South Africa, Kenya, Ghana, and Sierra Leone were reviewed.

7.2

Code of Conduct for Political Parties in South Africa

In South Africa, the code of conduct for political parties is largely contained in Schedule 2 of the Electoral Act, 1998 (referred to as the Electoral Code of Conduct) herein referred to as Code 1998. Registered political parties are required under the code (Code, 1998, 2) to promote the code’s purpose, which is “to promote conditions that are conducive

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to free and fair elections including (a) tolerance of democratic political activity and (b) free political campaigning and open public debate” (Code, 1998, 1). The parties are also required to widely publicize the code in election campaigns and promote and support efforts for voters’ education (Code, 1998, 2). Every registered political party must comply with the code and instruct its candidates, officials, agents, members, and supporters to comply with the code and any other applicable electoral laws and take reasonable steps for ensuring compliance of all the instructions (Code, 1998, 3). In Section 9(1)(a) of the Code 1998, every registered party and their candidates must state publicly that it is everyone’s right: i. To freely express their political beliefs and opinions; ii. To challenge and debate the political beliefs and opinions of others; iii. To publish and distribute election and campaign materials, including notices and advertisements; iv. To lawfully erect banners, billboards, placards, and posters; v. To canvass support for a party or candidate; vi. To recruit members for a party; vii. To hold public meetings; and viii. To travel to and attend public meetings. Registered parties and candidates must: publicly condemn any action that may undermine the free and fair conduct of elections (Code, 1998, 9.1.b); accept the results of an election or challenge those results in court (Code, 1998, 4[2]); and liaise with each other to ensure that they do not hold public events at the same time and place as each other (Code, 1998, 5). The code prohibits registered political parties and their candidates from various actions. Under Section 9 (1) of the Code, registered parties and their candidates are prohibited from: a. Using language or act in a way that may provoke: (i) violence during an election; or (ii) the intimidation of candidates, members of parties, representatives or supporters of parties, or candidates or voters;

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b. Publishing false or defamatory allegations in connection with an election in respect of (i) a party, its candidates, representatives, or members; or (ii) a candidate or that candidate’s representatives; c. Plagiarizing the symbols, colours, or acronyms of other registered parties; or d. Discriminating on the grounds of race, ethnicity, sex, gender, class, or religion in connection with an election or political activity. Section 9 (2) of the Code prohibits any person from: a. Offering any inducement or reward to another person: (i) to join or not to join a political party; (ii) to attend or not to attend a public meeting, march, demonstration, rally, or other public political event; (iii) to vote or not to vote, or to vote or not to vote in any particular way; or (iv) to refuse a nomination as a candidate or to withdraw as a candidate b. Carrying or displaying weapons: (i) at a political meeting; or (ii) in any march, demonstration, rally, or other public political event. c. Unreasonably preventing any other person access to voters for the purpose of voter education, signatures collection, signatures, recruiting members, raising funds, or canvassing support for a party or candidate; d. Defacing or unlawfully removing or destroying the billboards, placards, posters, or any other election materials of a party or candidate; or e. Abusing a position of power, privilege, or influence, including parental, patriarchal, traditional, or employment authority to influence the conduct or outcome of an election. The Code also has a provision compelling political parties to promote the role and participation of women in the political sphere. In Section 6 of the Code 1998, it is a must for every registered political party and their candidates to: a. Respect the right of women to communicate freely with parties and candidates; b. Facilitate the full and equal participation of women in political activities:

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c. Ensure the free access of women to all public political meetings, marches, demonstrations, rallies, and other public political events; and d. Take all reasonable steps to ensure that women are free to engage in any political activities. Additionally, the Code has provisions on the relationship between political parties and the Independent Electoral Commission (IEC). In Section 7 of the Code, every party and their candidates must: a. Recognize the authority of the Commission in the conduct of an election; b. Assure voters of the Commission’s impartiality; c. Give effect to any lawful direction, instruction, or order of the Commission, or a member, employee, or officer of the Commission; or the chief electoral officer; d. Establish and maintain effective lines of communication with (i) the Commission and (ii) other registered parties contesting the election; e. Facilitate the access of members, employees, and officers of the Commission, and the chief electoral officer, to public meetings, marches, demonstrations, rallies, and other public political events of that party or candidate f. Cooperate in any investigation of the Commission g. Take all reasonable steps to ensure: (i) the safety of members, employees, and officers of the Commission, and the chief electoral officer, in the exercise of any power or the performance of any duty assigned by or under this Act; (ii) that persons referred to in subparagraph (i) are not subjected to insult, hazard, or threat by any representatives or supporters of that party or candidate; and (iii) that representatives of that party or candidate attend meetings of any party liaison committee or other forum convened by the Commission. The Code further puts an obligation on the parties to respect the role of the media and cooperate with them. In Section (8) of the Code, every party and its candidates:

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a. Must respect the role of the media before, during, and after an election conducted in terms of the Electoral Act; b. May not prevent access by members of the media to public political meetings, marches, demonstrations, and rallies; and c. Must take all reasonable steps to ensure that journalists are not subjected to harassment, intimidation; hazard, threat, or physical assault by any of their representatives or supporters. The legal enforceability of the Code is set out in Article 99 of the Act, which requires that every registered party must subscribe to the Code before the party is allowed to contest an election, and every candidate must subscribe to the Code prior to their placement on the list of candidates. Article 94 of the Act also demands that “No person or registered party bound by the Code may contravene or fail to comply with a provision of that Code”. Further provisions on the legal enforceability of the Code are contained in Articles 96, 97, and 98 of the Act, where 96 and 98 set out sanctions and penalties for violating the Code such as a fine of not more than R200,000, cancellation of the party registration, or imprisonment of not more than ten years, among others.

7.3 Code of Conduct for Political Parties in Kenya In Kenya, the Political Parties Act (2012) provides the Code of Conduct for Political Parties under the First Schedule of the Act. Political parties are required under Article 91 and Article 92 of the Constitution to subscribe and comply with the Code. Section 4 of the Code requires political parties to: (a) promote policy alternatives responding to the interests, the concerns, and the needs of the citizens of Kenya; (b) respect and uphold the democratic process as they compete for political power so as to implement their policies; and (c) promote consensus building in policy decision-making on issues of national importance. In Section 5, the Code stipulates that every political party shall: (a) respect the right of all persons to participate in the political process including youth, minorities, and marginalized groups; (b) respect and promote gender equity and equality, human rights and fundamental freedoms; and (c) be tolerant and inclusive in all their political activities.

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Additionally, every political party is required under Section (6) of the Code: i. To respect, uphold and defend the Constitution of Kenya; ii. To respect and uphold the Political Parties Act and any other written law relating to elections and political parties; iii. To respect, uphold, and defend their respective political party constitutions, political party election rules, political party nomination rules, and any other political party rules and regulations developed and agreed upon in accordance with this code of conduct; iv. To respect, uphold, and promote human dignity, equity, social justice, inclusiveness and non-discrimination, and protection of the marginalized; v. To respect, uphold, and promote human rights and the rule of law; vi. To promote national patriotism and national unity; vii. To respect, uphold, and promote democratic values and principles, performing inclusive participation of party members and accountable representation viii. To respect, uphold, and promote good governance, integrity, respect, tolerance, transparency, and accountability; ix. To promote cooperation in the political competition; x. To promote sharing and devolution of power and resources; xi. To respect, uphold, and promote democratic practices through regular free, fair, and credible elections within the political party and among others have a democratically elected governing body and political party organs; xii. To respect, uphold, and promote democratic practices through free, fair, and credible political party nominations; xiiii. To respect, uphold, and promote leadership and integrity as prescribed in the Constitution of Kenya; and xiv. To perform transparency and accountability in all its legislation and regulations, structures, procedures, and performance. The Code prohibits political parties from the following under Section (7): a. Engaging in or encouraging violence by its members or supporters;

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b. Engaging in or encouraging any kind of intimidation of opponents, any other person, or any other political party; c. Engaging in influence peddling, bribery, or any other form of corruption; d. Accepting or using illicit or illegal money; e. Accepting or using public resources other than those allocated to the political party through the political party fund; f. Advocating hatred that constitutes ethnic incitement, vilification of others, or incitement to cause harm; g. Obstructing, disrupting, breaking up, or in any other way whatsoever interfering with a meeting, rally, or demonstration of another political party or its leadership; h. Establishing or maintaining a para-military force, militia, or similar organization or having any links with such organizations; and i. Using state resources for partisan campaigns. Section 8, which is the last Section of the Code, sets out four things that every political party is required to do for the purpose of promoting inter-party relations. These include: a. ensuring free competition among political parties in respect of different political views and principles; b. fostering trust and confidence through mechanisms for cooperation; c. managing and mitigating political differences through constructive dialogue enhancing harmony among the parties; and d. promoting national reconciliation and building national unity. Although the Code does not have a direct provision for penalties and sanctions for violations, Article 45(5) of the Act in which the Code is contained provides that in case a party commits an offence under the Act, the Registrar (of Political Parties) can issue a warning and require the political party to conform to this Act within a specified period; suspend the registration of the political party for a period not exceeding twelve months; withhold funds to the political party for a period not exceeding twelve months; or, subject to Section 21, deregister a political party. Article 46 of the Act further stipulates that “A person convicted of an offence under this Act for which no penalty is prescribed shall be liable,

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on conviction, to a fine of not less than one million shillings or to imprisonment for a term of not less than two years, or to both”.

7.4 Code of Conduct for Political Parties in Ghana In Ghana, the political parties’ code of conduct was drawn up by civil society organizations together with political parties and the Electoral Commission of Ghana (ECG) in 2000 (and amended in 2004) that was used through to the 2008 election. It was intended as a guide for political parties in their day-to-day activities generally and specifically during the campaign season. At the initiative of the Institute of Economic Affairs (IEA), the Political Parties Code of Conduct 2012 (herein referred to as Code 2012 or the Code) discussed below was reviewed and adopted by the four parties with seats in Parliament and four other parties in August 2012 (EISA, 2012). The purpose of Code 2012 as set out in its Preamble, is to guide the parties’ activities and assist in entrenching genuine multiparty democracy in Ghana. Code 2012 sets out six democratic imperatives that political parties and their candidates are expected to uphold: 1. All Political Parties and Candidates shall at all times uphold rules, freedoms, and rights of Citizens, as enshrined in the Constitution. All Parties shall recognize at all times that sovereignty resides in the people of Ghana. 2. Political Parties and Candidates shall observe all rules and regulations relating to the conduct of elections and the maintenance of public order. 3. Political Parties and Candidates shall have the right to put their views to the electorate without hindrance. Consequently, all Political Parties hereby undertake to refrain from hampering the rights of other Political Parties and Candidates to put their views across to the electorate and not to hinder freedom of access by other Political Parties and candidates to potential voters, but to enhance and promote genuine national debate on matters of vital interest. 4. Political Parties and Candidates shall publicly and without reservation condemn all forms of intimidation and political violence irrespective of the perpetrators. Accordingly, all Political Parties

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renounce violence and pledge not to indulge in violence and intimidation of any kind. 5. There shall be equal access to State media, and no Political Party in power shall prevent the State-owned electronic and print media from giving equal access to the other Political Parties as a way of dominating the media to the detriment of all others. 6. Political Parties and Candidates shall at all times avoid defamatory, inflammatory, and foul language in all forms. Provocative, derogatory, and insulting attacks on the other Parties, personalities, and ethnic and religious groupings by way of communication, verbal or non-verbal, shall be avoided at all times. The Code 2012 has seventeen provisions on political parties’ activities during campaigning period as follows: 1. All Political Parties, Candidates, and election officials shall adhere to existing electoral and civil laws as well as the provisions of the Criminal Offences Act, 1960 (Act 29). 2. Political Parties, Candidates, agents, and Party workers shall not obstruct, disrupt, break up, or cause to be broken up, meetings or rallies organized by other Political Parties and candidates; nor shall they interrupt or prevent speeches and the distribution of handbills or leaflets, and the posting of posters by other Parties and candidates. 3. Political Parties, Candidates, party members, and agents must not destroy, remove, deface, or in any way tamper with paraphernalia, logos, symbols, handbills, and other publicity materials of other Parties and Candidates. 4. Political Parties, Candidates, party members, and agents shall desist from the carrying of arms and offensive weapons and the display of same and shall extend cooperation to the law enforcement agencies, particularly for the purpose of recovery of illegal arms. 5. No Political Party or Candidate shall take any extra-legal initiative for the release of any person arrested for carrying offensive weapons during campaigning and elections and on no account should any Party or Candidate initiate extra-legal measures for the release of such persons from lawful custody.

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6. Political Parties, Candidates, party members, agents, and supporters should adhere to the Public Order Act, 1994 (Act 491). In this regard, Party officials and Candidates shall coordinate their campaign activities in such a way that no two Political Parties shall hold public meetings or rallies in the same locality on the same day, if such meetings or rallies are likely to be so close to each other that a possibility of creating conflict arises. 7. Where dates, venues, and timing for any of the above activities clash, representatives of the Parties or Candidates involved shall in collaboration with the Police meet in a cordial manner to resolve issues without resorting to violence. 8. Political Parties and Candidates shall ensure that they separate State business from Party business. No Political Party or Candidate shall use government vehicles and other State property for electioneering campaigns or other Party business. However, the use of one motor vehicle assigned to a public officer shall not be regarded as misuse of a public resource. 9. Political Parties, Candidates, Party members, agents, and Party workers shall avoid all activities constituting electoral offences such as offering gifts and gratification or inducing other persons to stand or not to stand as candidates, to withdraw or not to withdraw their candidature, buying voter identity cards from voters and generally bribing of voters, officials, and Party agents, and canvassing within the precincts of polling stations on polling day. Political Parties, Candidates, Party members, agents, and Party workers shall refrain from holding public meetings within 48 hours of the polls. 10. No Political Party, Candidates, members, and agents shall resort to the use of abusive or inflammatory language or incitement; and specifically, all Political Parties and members shall refrain from incitement to hatred on the basis of gender, ethnicity, religion, creed or sect, or any other criteria. 11. Political Parties and Candidates undertake to be non-offensive and in this regard, to erect non-offensive banners, placards, advertisement, and notices and to promote campaigns by lawful means only. Political Parties shall also refrain from publishing offensive literature and campaign material and may express divergent opinions in a peaceful and persuasive manner. 12. Political Parties and Candidates shall in the course of campaigning avoid plagiarizing the symbols, slogans, and paraphernalia of other

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Parties or Candidates for legal or illegal activities and refrain from impeding the rights of access of other Political Parties and Candidates for purposes of voter education, fund-raising, canvassing, campaigning, soliciting of support, and dissemination of campaign messages by peaceful means. 13. In the spirit of the present Code, the Political Parties shall enjoin all political appointees to work during campaigns in a spirit that fosters equity and fairness. 14. In particular, the Political Parties shall, consonant with the spirit of this Code, see to it that public officials and political appointees ensure that no Political Party monopolizes access to public facilities during the campaign. 15. Restrictions on public facilities, where they exist, shall apply to all Political Parties and Candidates equally and there shall be no monopoly on the use of public resources by any Political Party. 16. The Political Parties shall also ensure that official events within the local authority unit are not turned into campaign rallies, particularly to introduce candidates and solicit for votes and that Party paraphernalia, logos, publicity material, and insignias are kept out of State functions. 17. The Political Parties agree that subject to District Assembly byelaws, allocations for billboards, and other spaces for political publicity shall, as far as practicable, be done on a basis of equal opportunity. On out-of-campaign periods, the Code requires that: 1. Political Parties shall continue to scrupulously observe all laws and rules so long as they continue to apply outside election and campaign periods. 2. Political Parties shall desist from the use of inflammatory language, heightening of ethnic and other tensions, personal attacks, and acts of violence either directly by themselves through leaders, assigns, members, representatives, agents, and privies or by proxies. 3. The imperatives for a level playing field and equality of opportunities for all Political Parties shall continue to prevail at all times outside of elections and campaigns.

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4. Political Parties shall ensure that their agents and officials are sufficiently trained for registration and other exercises. 5. During registration exercises, Party agents may initiate protests and complaints only within such formats and channels as prescribed by the relevant electoral laws, rules, and regulations. 6. Political Parties shall ensure fairness in their activities, moderating such activities in a manner that minimizes tension and avoids misrepresentation. The Code also has provisions for the conduct of political parties during elections which are as follows: 1. Political Parties and Candidates shall work to safeguard the integrity of the electoral process and shall ensure absolute transparency and honesty before, during, and after polling day transactions. 2. Political Parties, Candidates, members, and agents participating in polls shall, on polling day, extend full cooperation to election officials in the performance of their legal duties in order to ensure peaceful and orderly polling. 3. Political Parties and Candidates shall actively discourage members and supporters from engaging in multiple voting and other forms of cheating such as voting in the name of deceased and absent voters as well as minors and other unqualified persons. 4. No members, officials, or agents of Political Parties or Candidates shall engage in confrontation or open arguments with election officials at the polling stations. To this end, any complaint, protest, or challenge relating to processes and procedures at a polling station shall either be routed through the Party agent(s) to the Presiding Officer or the Security Officer for resolution. Thereafter, an aggrieved Party or person is at liberty to seek redress in the law courts of the State. 5. Political Parties and Candidates shall on polling day observe rules and regulations restricting the number of individuals with access to the polling station.

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6. Political Parties and Candidates shall recognize and acknowledge the rights of accredited observers and monitors and other accredited persons for the purpose of entering a polling station or area and observing the conduct of elections. 7. Political Parties and Candidates recognize that the use of thugs terrorizes voters and creates tension and an atmosphere of intimidation on polling day. Consequently, all Political Parties shall refrain from the recruitment and deployment of such individuals on polling day and at all times. 8. Political Parties and Candidates undertake to work together with the Electoral Commission to create on polling day an atmosphere that is conducive to free and fair voting and to refrain from coercing, threatening, and intimidating other political parties and candidates so as to prevent them from carrying out their lawful activities at the polling station. 9. Political Parties and Candidates shall refrain from fraudulently procuring results and votes by invasion and forcible occupation of polling centres and any other unlawful means. 10. Political Parties and Candidates undertake to instruct their agents in attendance at polling stations to perform their duties in accordance with the electoral laws and regulations and to cooperate with election officials for the efficient, transparent, and uninterrupted administration of elections. After the declaration of election results, the Code sets out five provisions that parties are expected to uphold: 1. All Political Parties and Candidates undertake to accept election results declared by the Electoral Commission or its agents and not to create commotion or cause violence on the ground that they lost or even won the election. 2. All Parties and Candidates shall openly restrain their members and supporters from reacting violently to election results and shall use all available means of mass communication to restrain their members and supporters who react violently to election results. 3. All Political Parties and Candidates undertake not to taunt, insult, and humiliate their opponents whom they defeat at an election and to celebrate their victory with decorum.

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4. All Political Parties and Candidates accept to use only the due process of law to address grievances they may have in respect of an election. 5. All Political Parties and Candidates pledge themselves to make a concession statement and congratulate the winner of an election to whom they have lost using all available media of mass communication. To promote the implementation of Code 2012, the Code requires that every political party ensure it is made fully known to its members and that it is fully observed. In addition, the political parties have undertaken to publicize the Code to the general public by all means available to them. The IEA was mandated to enter into negotiations with political organizations, movements, and associations for them to ratify the Code. However, the Code is non-binding and not legally enforceable (the parties could not agree on making the Code law; Code, 2012, 19), so it contains measures to facilitate its implementation and enforcement. Signatories undertook to convey the contents of the Code to their members and to publicize it (Code, 2012, 14). Parties further undertook, after adopting the Code, to incorporate it into their constitutions (Code, 2012, 19). In an attempt to give some teeth to its provisions, an Inter Party Advisory Committee (IPAC) was established with structures at National, Regional, and District levels to investigate complaints and was empowered to issue reprimands. The unenforceability of the Code has drawn criticism.

7.5

Code of Conduct for Political Parties in Sierra Leone

In Sierra Leone, the Code of Conduct for political parties was developed by the Political Parties Registration Commission (PPRC) together with the National Electoral Commission (NEC) and the political parties. The Code has three main purposes: a. Guide the actions of all political parties in Sierra Leone before, during, and after the Elections; b. Outline acceptable and non-acceptable actions by parties, candidates, and their agents;

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c. Facilitate conditions conducive to the conduct of free, fair, and democratic elections within a climate of democratic tolerance in which political activities may take place without fear of threats, intimidation, or revenge. The Code requires every political party to promote the Code by: a. Actively promoting the Code among its members and electorate at each opportunity and specifically during the campaign period; b. Distributing copies and facilitating discussion on the Code; and c. Displaying the signed original at their party’s Headquarters and campaign offices. The Code states that all Political Parties that have subscribed to the Code are bound by the Code, and requires that every party instruct its leaders, officials, candidates, and members to adhere to the terms of the Code; and discourage its supporters from breaching the Code. Every party is further required to instruct the party’s officials, candidates, members, and supporters to observe the Code and ensure compliance. They are also supposed to maintain one colour for use so as not to confuse supporters and voters. Those with multiple colours should select one before the campaign period begins. Moreover, every party is required to institute internal measures and steps within their party structures to ensure full adherence to the Code and its provisions; to inculcate respect for human rights, the pursuit of liberty, and tolerance of different opinions among the citizenry. The Code requires political parties to comply with electoral laws. In particular, it requires every political party to adhere to existing laws, rules, and regulations regarding the conduct of elections. Every party is also required to cooperate with election officials to ensure the safety and security of electoral officials, party agents, accredited election observers, and election materials such as ballot papers, ballot boxes, etc., before, during, and after the polls; and to respect and cooperate with officials or accredited election observers in maintaining the secrecy of the ballot.

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The Code sets out the rights to which every political party and their candidates are entitled. Under this Code, it is the right of every party and its candidate(s) to: . Present their political principles and ideas without intimidation or threat; . Disseminate their political ideas and principles without let or hindrance; . Equal access to the state media; . Organize and hold rallies and public meetings for the purposes of the campaign; . Canvass for membership among the electorate in accordance with the law; . Erect billboards, banners, and other campaign material within the confines of the law. However, the posting of these handbills, leaflets, and posters must be with the consent of the owners of the properties; and . Participate in public debates and other such fora with other contestants and parties without fear of intimidation, character assassination, and other deplorable actions. In promoting the role and participation of women and the youth in political activities, the Code requires every party to enlist the full participation of all its members, including youth and women, and protect them from any gender-based discrimination, violence, and abuse. Moreover, it requires the parties to ensure equal opportunity for youth and women candidates in particular to contest and campaign in a conducive and violence-free environment and with full access to and support of all party machinery. The Code requires that all Political Parties that have subscribed to the code notify the Inspector General of Police/Paramount Chiefs of any meeting or rally in accordance with the Public Order Act of 1965. Moreover, every Political Party that has subscribed to this code is required to respect the rights and freedoms of other political parties to campaign. The Code further stipulates that Journalists who are engaged in their professional activities shall have a free hand to do so without any intimidation.

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In pursuit of creating a conducive environment for free and fair elections, subscribers to the Code are required to refrain from indulging in any activity which may create or aggravate tension on the grounds of race, gender, ethnicity, language, class, region, or religion; unsubstantiated criticism; unfounded criticism of any aspect of private life, not connected with public activities of the leaders or workers of other parties; criticism of other parties or their workers based on unverified allegations or distortion; displaying oversize banners that obstruct those of other parties and candidates; obstructing, disrupting, breaking up or causing to be broken up, meetings or rallies organized by other political parties and candidates; interrupting or preventing speeches made by other parties and their candidates during the campaign period or public debates; and singing of derogatory songs about candidates and other political parties at rallies and other such-like gatherings. Every political party is also required to refrain from destruction of handbills, leaflets, and the defacing of posters by other political parties and candidates; denying other parties access to venues for rallies through financial inducements or other means; the use of state power, privilege, or influence or other public resources for campaign purposes; coercing or offering financial or other kinds of inducements to individuals or group of individuals to vote for or against a particular party or candidate, or to abstain from voting; displaying and wearing of party regalia and symbols within stipulated radius of polling stations on polling day and during counting of votes; making use of the radio/television stations or convene or hold political activity twenty-four hours prior to polling day; and the police/paramount chief are required to ensure that no preferential treatment is accorded to one political party or particular candidate to the detriment of other parties that have subscribed to this code of conduct. The Code is strongly against political intimidation and violence. In this regard, it demands that all leaders of political parties direct their officials, candidates, members, and supporters not to intimidate any person at any time. In particular, the Code prohibits parties from coercing or intimidating Paramount Chiefs or their sub-chiefs, or any other authority; to deny any political party the right of access to any chiefdom for political functions; enlisting Paramount Chiefs or their sub-chiefs to coerce individuals and communities within their jurisdiction to vote for a particular party or candidate; raising any private force or militia or use the regular army or other forces to intimidate other candidates and parties or the electorate thus gaining political or electoral advantage; taking actions or using

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language that may intimidate other candidates and voters and provoke violence throughout the entire electoral process; using offensive language and statements on the basis of gender, ethnicity, religion, disability, or socio-economic status and region that may cause intimidation and fear or incite violence in any form; aiding or tolerating intimidation and violence of any form among its candidates, members, and agents; sponsoring physical violence or intimidation against opponents and their supporters in any way; or using the youth members of their parties and others to intimidate other candidates or electorate and carry out acts of violence. The Code demands the cooperation of political parties with the Electoral Commission. To ensure that political parties cooperate with the Electoral Commission, the Code requires all political parties to: . Familiarize all their candidates, agents, and members with the provisions of the Political Parties Act of 2002, and the 2012 Public Elections Act, and ensure compliance; . Familiarize themselves with the campaign calendar and arrange their activities accordingly to ensure full compliance; . Familiarize themselves with the complaint procedures regarding the outcome of elections and use them to seek redress; . Take the necessary steps to ensure the safety of staff of the Political Parties Registration Commission, and the Electoral Commission from attacks by party members and agents; . Ensure that after voting, no political party candidate, member, or supporter shall loiter around the polling station; and . Allow timely access to information and comply with other requests from the Electoral Commission to enable it to carry out its mandate. The Code also requires political parties with the media. In this regard, the Code requires that political parties responsibly engage with the media through: . Ensuring journalists access to rallies and other public for, as well as providing pertinent information as requested, as long as this does not prejudice the party or its candidates; . Protecting journalists from intimidation, harassment, and violence from party candidates, agents, and supporters;

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. Desisting from making media pronouncements with the intention of causing alarm and inciting violence against other party candidates, agents, and supporters; . Avoiding the use of hate speech and the promotion of such among party candidates, agents, and supporters on all forms of media; . Desisting from using financial inducements for journalists and media houses to publish negative stories or deny access and coverage to other parties and candidates for their own advantage; and . Desisting from using the Media to make any complaints or allegations against other Parties, the PPRC, and the NEC without following due process. Enforcement of the Code is, however, weak. This is because there is no legally binding mechanism that has been established to ensure compliance and enforcement. The Code only establishes a committee that discusses issues of concern, including violations of the Code, before, during, and after elections.

7.6

Conclusion

From the review of political parties’ codes of conduct of the four African countries, it emerges that there is a wide recognition and acknowledgement by political parties that it is necessary to conduct themselves in a democratic and ethical manner before, during, and after elections. This is apparent in the content of the differing codes of conduct of the political parties in the countries under review, which call for the commitment of political parties to ensure a harmonious relationship with each other, with the media, and with election management bodies, as well as promoting the participation of the youth and women. However, it is apparent that enforceability of political parties Code of Conduct is quite wanting in many countries. This is evidenced by the few cases filed against political parties for breaching the respective codes of conduct despite the fact that many political parties do not fully abide by the Codes in their respective countries. There are poor mechanisms in place for enforcing the Code in some countries, and a lack of political will to enforce it in other countries. For instance, in Ghana the political party code of conduct is voluntary, and the challenge of enforceability is acknowledged in the Code itself. In Sierra Leone, there are no established sanctions for breaching the Code or any legal provision in law to make

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the Code legally binding. Even in countries where there are established legal provisions to make the Code legally binding, such as in Kenya and South Africa, enforcement of the Code is still a challenge. For instance, in Kenya the High Court declared that the Electoral Code Enforcement Committee chaired by IEBC chairperson was unconstitutional and illegal, ruling that IEBC has no power to summon any witness or candidate that violated the Electoral Code of Conduct (Mwangi, 2022)—a Code that has many similar provisions with the Political Parties Code of Conduct. The unenforceability challenge of Political Parties’ Codes of Conduct questions their effectiveness in achieving their common goal of ensuring democratic and fair political and electoral processes. Nonetheless, one common facet in the Codes of Conduct for political parties is the promotion of the participation of youth and women in politics. The fundamental question then is, what is the role of the youth and women in elections? Again, in light of the enforceability challenge of political parties’ codes of conduct, what are the best legal provisions for the participation of women and youth in elections? These will be explored in the next chapter.

References Ace Project. (2012). Electoral integrity (3rd ed.). https://aceproject.org/aceen/topics/ei/eic/eic02 Constitution of Kenya. (2010). EISA. (2012). Ghana: Political party code of conduct. African Democracy Encyclopedia Project. Available at: https://www.eisa.org/wep/ghaparties3.htm. Accessed 20 April 2022. Goodwin-Gill, G. (1998). Codes of conduct for elections. Inter-Parliamentary Union. Institute of Economic Affairs, Ghana. (2020). Elections—political parties’ code of conduct 2012. Available at: https://ieagh.org/mdocs-posts/elections-pol itical-parties-code-of-conduct-2012/. Accessed 20 April 2022. International IDEA. (1999). Code of conduct for political parties campaigning in democratic elections. International IDEA. International IDEA. (2017). Dialogues on voluntary codes of conduct for political parties in elections. International IDEA. Mwangi, I. (2022 April 5). Court says IEBC has no power to summon anyone over Electoral Code of Conduct violation. Capital News. Available at: https:/ /www.capitalfm.co.ke/news/2022/04/court-says-iebc-has-no-power-to-sum mon-anyone-over-electoral-code-of-conduct-violation/. Accessed 22 April 2022.

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Political Parties Registration Commission, Sierra Leone. (n.d.). Political Parties Code of Conduct. Available at: http://pprc.gov.sl/index.php/ct-menu-item21/code-of-conduct. Accessed 21 April 2022. Republic of Kenya. (2012). The political parties act, 2011 (Revised ed.). National Council for Law Reporting. Thomas, P. G. (2014). A code of ethics or code of conduct for political parties as a potential tool to strengthen electoral democracy in Canada. University of Manitoba, Elections Canada.

CHAPTER 8

Judicialization of Elections

8.1

Introduction

The phrase “judicialize” was first used in the English language in the mid-nineteenth century meaning “to give judicial character”, “to deliver to a judge the decision of”, or “to treat judicially” (Norgueira, 2020). According to Hamlin and Sala (2018), the concept “judicialization” in politics first emerged in the 1980s, and since then it has been widely used in comparative law and judicial politics, although there is no consensus on its meaning. Shapiro and Sweet (2002) defined judicialization of politics as the use of the medium of legal discourse to pursue political matters. According to Hirschl (2008), judicialization in politics is the dependence on courts and judicial ways to address fundamental moral predicaments, public policy questions, and political controversies. In Africa, there has been a tendency of national courts to rule in favour of incumbent candidates, especially in presidential elections when incumbent’s victories are petitioned and challenged in the court. When opposition candidates are defeated in highly contested gubernatorial and presidential elections, rarely do they accept the outcome without filing petitions to challenge the election results. In most cases, there are allegations of electoral irregularities, fraud, violence, incompetent electoral management bodies, and an uneven playing field, among other allegations, which form the basis for the opposition candidates to refuse to

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concede defeat in the election (Gathii & Akinkugbe, 2021). These allegations transform the petitions into high-stakes mega-political disputes when judicialized. Judicialization in the national courts ends up, in most cases, in the upholding of the incumbents victory as opposed to the establishment of a new political equilibrium. Nonetheless, opposition parties, in spite of being cognizant of this trend, still resort to the national courts to challenge the election results. They sometimes resort to international or regional courts, partly because they consider the regional and international courts as somewhat free from the influence and control of the local incumbent political leaders. Although the regional and international courts/cases do not undermine the incumbency, opposition parties and candidates consider the utility of these courts in the indirect gains they acquire from the courts. The benefits of challenging elections in international courts include, but are not limited to, an opportunity or platform to express their grievances, and a platform for galvanizing supporters and exposing electoral malpractices in a forum that is free from the control of incumbents. This chapter focuses on a holistic review and discussion of judicialization of elections in Africa by focusing on selected countries, including Kenya, South Africa, Ghana, and Sierra Leone. The chapter interrogates the mechanisms and legal provisions for adjudication of electoral disputes in these countries, looking at relevant laws and outcomes of select cases.

8.2

Kenya

The Kenyan Constitution, under Article 87(2), requires any election petition other than a presidential election petition to be filed within 28 days after the results of that election have been declared by the Independent Electoral and Boundaries Commission (IEBC). In line with Article 87(1) of the Constitution, national legislation has been enacted that sets out the process and timeline for settling election disputes. The legislation is established in the Elections Act 2011. However, the Constitution also provides for presidential election petitions. Article 140(1) stipulates that a presidential election petition must be filed within seven days after the date of the declaration of the results of the presidential election. The Supreme Court, established by Article 163(1) of the Constitution, has exclusive original jurisdiction to hear and determine disputes relating to presidential elections as provided under Article 163(3a). In Article 140(2) of the

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Constitution, the Supreme Court is required to hear and determine the petition within a period of 14 days from the day the petition is filed, and a decision made by the court on the petition is final. The Supreme Court has also set out rules [in line with Article 163(8) of the Constitution] on presidential election petitions. These are the Supreme Court (Presidential Election Petition) Rules 2017. Sub-rule 4(2) provides that where there is no applicable provision in the Act or in these Rules, the procedures set out in the Supreme Court Rules, 2017 in so far as they are not inconsistent with the Act or these Rules, shall apply to an election petition. In sub-rule 6(1), a petition challenging the election of the President-elect must state: a. The name and address of the petitioner; b. The date when the election in dispute was conducted; c. The results of the election, if any, and however declared; d. The date of the declaration of the results of the election; e. The grounds on which the petition is presented; and f. The name and address of the advocate, if any, for the petitioner which shall be the address for service. The petitioner of a presidential election is required under Sub-rule 9(2), upon filing a petition, to deposit a sum of one million shillings as security for costs. Sub-rule 9(3) provides that the petition may be filed by several persons who may be joined as co-petitioners. Even so, sub-rule 21(1) provides that the petitioner may apply to the Court to substitute a copetitioner or strike out any of the petitioners. A petition is considered filed upon fulfilment of the following set out in sub-rule 9(4): payment of the prescribed court fee, depositing the security for costs, and stamping by the Registrar. Sub-rule 23(1) provides that a petitioner may, with leave of the Court, withdraw the petition at any stage of the proceedings. Otherwise, at the conclusion of the hearing of an election petition, Sub-rule 26(1) provides that the Court may make an order: a. Dismissing the petition; b. Declaring the election of the President-elect to be—

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i. Valid or ii. invalid.

c. Invalidating the declaration made by the Commission under Article 138(5) of the Constitution; d. On payment of costs; or e. As it may deem fit and just in the circumstances. Sub-rule 27 stipulates that the Court shall, at the close of a hearing, give its decision, but may reserve its reasons for the decision to a date not later than fourteen days, and the decision of the Court shall be final. The Elections Act 2011 contains the legal provisions that guide the petitions for other elections apart from the presidential election. Article 77(1) of the Act provides that a petition concerning an election, other than a presidential election, shall be filed within twenty-eight days after the declaration of the election results by the Commission (that is, IEBC). Under Article 77(2) of the Act, a petition may be served personally upon a respondent or by advertisement in a newspaper with national circulation. Article 76(1a) requires that a petition be served within fifteen days of presentation. The Elections Act 2011 grants jurisdiction to different levels of courts to handle different petitions. Under Article 75 of the Elections Act 2011, the High Court has jurisdiction over petitions for gubernatorial elections while a Resident Magistrate Court designated by the Chief Justice has jurisdiction over election petitions for Members of a County Assembly. The Constitution in Article 105(1a) also grants the High Court jurisdiction over petitions for parliamentary elections (including for Members of Parliament, for the National Assembly, and for Members of the Senate). Article 105(2) of the Constitution stipulates that a petition for a parliamentary election be heard and determined within six months from the day the petition has been lodged. On gubernatorial election petitions, Article 75(1) of the Elections Act 2011 provides that “A question as to validity of election of a county governor shall be determined by High Court within the county or nearest to the county”. This means an election petition for a county governor cannot be filed outside that county except when there is no High Court in that county, in which case the petition must be filed in the High Court

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that is nearest to the respective county that the gubernatorial election has been petitioned. A person who presents a petition to challenge an election is required under Article 78(1) of the Elections Act to deposit security for the payment of costs that may become payable by the petitioner not more than ten days after the presentation of a petition. Article 78(2) sets out the security deposits for the different election petitions as follows: a. One million shillings, in the case of a petition against a presidential candidate; b. Five hundred thousand shillings, in the case of petition against a Member of Parliament or a county governor; or c. One hundred thousand shillings, in the case of a petition against a member of a county assembly. Article 78(3) stipulates that where a petitioner does not deposit security as required, or if an objection is allowed and not removed, no further proceedings shall be heard on the petition and the respondent may apply to the election court for an order to dismiss the petition and for the payment of the respondent’s costs. Under Article 79, upon receipt of a petition, the court is required to peruse the petition, and if it considers that there are no sufficient grounds for granting the relief claimed, it may reject the petition summarily. Otherwise, the court is required to fix a date for the trial of the petition. In Article 80(4) of the Act, the respective election court may order the Commission to issue a certificate of election to a candidate for President, a Member of Parliament, or a member of a county assembly if, upon recount of the ballots cast, the winner is apparent, and that winner is found not to have committed an election offence. Under Article 83 of the Elections Act, no election shall be declared void by reason of non-compliance with any written law relating to that election if it appears that the election was conducted in accordance with the principles laid down in the Constitution and in that written law, or that the non-compliance did not affect the result of the election. Apart from petitions for presidential elections whose petition is heard exclusively by the Supreme Court, and whose ruling is final, rulings on other election petitions can be appealed. Article 85A of the Elections Act stipulates that an appeal from the High Court in an election petition concerning

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membership of the National Assembly, Senate, or the office of county governor shall lie to the Court of Appeal on matters of law only. The Article further provides that the appeals shall be filed within thirty days of the decisions of the High Court, and heard and determined within six months of the filing of the appeal. Article 87(2) of the Elections Act stipulates that before a person, not being a party to an election petition or a candidate on whose behalf the seat is claimed by an election petition, is reported by an election court, the elections court shall give that person an opportunity to be heard and to give and call evidence to show why he should not be reported. There were attempts in October 2017 by the majority party in the National Assembly to change or manipulate the provisions for election petitions. In early October 2017, despite strong opposition from civil society and opposition political parties, the party introduced and passed the Election Laws Amendment Bill for the purpose of addressing several deficiencies pointed out by the Supreme Court in its decision on the August 2017 presidential election petition where it annulled the election of Uhuru Kenyatta before the re-run election on 26th October. The legislation would have amended Article 83 of the Elections Act to change the threshold for annulling elections in Kenya, so that a court could only annul the results of an election if it was proven that there was both substantial non-compliance with the principles laid down in the Constitution and the law and that the non-compliance had affected the result of the election. Other important changes that the amendment had sought to introduce included changing the definition of “chairperson” in the Independent Electoral and Boundaries Commission (IEBC) Act 2011 to include a vice chairperson or member acting in the capacity of the appointed chairperson, reducing the quorum for IEBC meetings and decisions from five to three, deleting the requirement that presidential election results be electronically transmitted in the prescribed form from the polling station to the tallying centres, and adding a requirement that results be physically delivered to the constituency and national tally centres (Carter Center, 2019). However, in April 2018, the High Court struck down all of the amendments as unconstitutional, citing specifically Articles 10, 81, and 86 of the Constitution, which require that all elections be verifiable, transparent, and accountable. According to the court, these principles, which were introduced in the 2010 Constitution, were a reaction to past election irregularities in Kenya, and therefore any amendment to the election law

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or procedures had to be examined in light of compliance with the enunciated constitutional principles. As interpreted by the Supreme Court in the Odinga 2017 case, Article 83 allows courts to measure from either a qualitative or a quantitative perspective, meaning that elections in Kenya can be annulled either for non-compliance with the principles of the Constitution and the law, regardless of the actual results (the qualitative test), or because non-compliance with the law affected the results (the quantitative test). As the court also noted, the threshold set in Article 83 is different from that in most countries, where best practices require that a petitioner prove that the election did not substantially comply with the principles of the law and the Constitution, and also that the non-compliance led to a different result. Until such time, the standard for annulling elections in Kenya will continue to be that enunciated by the Supreme Court in the Odinga 2017 case. Effectively then, the court ruling means that an election could be annulled (as it was ruled in the Odinga 2017 case), if it were conducted so poorly that it was not substantially in accordance with the principles in the 2010 Constitution or the election law, irrespective of whether the result was affected or not (Carter Center, 2019). Nevertheless, a review of the many election petition cases after the 2017 elections by the Carter Center (2019) revealed that the standard set by the Supreme Court in the Odinga 2017 case was a difficult one to apply, and was subject to interpretation by individual judges as to what constitutes strict or substantial compliance with the constitutional principles. There was no agreement among the lower courts as to what constitutes a “substantial” versus a “non-substantial” violation of the principles in the Constitution and the law that would justify annulling an election on that basis alone. In the cases reviewed, some courts took a strict view that any violation of the principles in the Constitution was sufficient to annul an election, while others considered other factors such as the margin of victory and whether or not the declared winner encouraged or managed the irregularities, and who benefited from them.

8.3

South Africa

In South Africa, Article 55(1) of the Electoral Act 1998 provides that any interested party may make an objection concerning any aspect of an election that is material to the final result of the election. It further stipulates in 55(2) that such objection must be made to the Electoral Commission in the prescribed manner not later than 21:00 hours on the second day

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after the voting day. Taking into account Article 57(2) of the Act, which stipulates that the determination and declaration of results of an election cannot occur sooner than 21:00 of the second day after the voting day, it means that anybody who intends to make an objection that is material to the final result must make the objection before the declaration of the results. However, Article 55(2) of the Act provides that the Commission, on good cause being shown, may excuse a late objection. It is important to emphasize that the interested party who intends to file an objection concerning the election—particularly that which is material to the election results—the person cannot file the petition directly in the judicial system, but first has to lodge it with the Commission. The Commission has the power under Article 5(10) of the Electoral Commission Act, 1996 to adjudicate disputes which may arise from the organization, administration, or conducting of elections and which are of an administrative nature. Once the Commission receives the objection, Article 55(4) requires that the Commission must decide the objection, and must notify the objector and any other parties involved in the objection, of the decision. However, when the objector or any other party involved in the objection is not satisfied or feels aggrieved by the decision made by the Commission concerning the objection, Article 55(5) of the Electoral Act 1998 provides that the objector or the party aggrieved by the decision of the Commission may appeal to the Electoral Court. The Electoral Court is established by Article 18 of the Electoral Commission Act 1996, with the status of the Supreme Court. The Electoral Court consists of five members appointed by the President, including a chairperson who is a judge of the Appellate Division of the Supreme Court, two other judges of the Supreme Court, and two other members who are South African citizens. The Electoral Court, in line with Article 20(4) of the Electoral Commission Act, has also established rules via General Notice 2915 of 1998 regulating electoral disputes and complaints and determined the courts that have jurisdiction over the different kinds of electoral disputes and complaints of infringements on the electoral code of conduct. In Sub-rule 2(1), the electoral disputes and complaints are to be heard and determined in the Magistrate Court and the High Court within whose area of jurisdiction the dispute or complaint has arisen. However, under Sub-rule 2(2), only the Electoral Court has the jurisdiction to impose sanctions set out in Section 96(2) of the Electoral Act. The High Court

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can impose any of the sanctions set out in Section 96(2) of the Electoral Act except disqualifying the candidacy of a person or any candidate of a party and issuing an order to cancel the registration of a party. In addition to the two sanctions that the High Court cannot impose in an electoral dispute or complaint, the Magistrate Court also cannot issue an order to prohibit a person or a party from receiving any funds from the State or from any foreign sources. Sub-rule 3 of the Electoral Court rules provides that, a party may institute, defend, or carry to completion any proceedings either in person or by a duly authorized and suitably qualified representative. A group of persons associated with a common purpose may also institute or defend proceedings through a member nominated by the group. In Sub-rule 4 of the Electoral Court Rules, the proceedings in respect of electoral disputes and complaints are instituted by way of an application whereby, for an electoral dispute, the application must clearly and succinctly set out the nature of the dispute and the facts upon which the dispute are based, the persons or registered parties involved in the dispute, and the relief claimed and the grounds upon which the relief is claimed. In addition, the application must be accompanied by any relevant document substantiating the application. For appeals, Sub-rule 5 of the Electoral Court rules provide that a person may appeal against a decision made by a Magistrate’s Court to the appropriate High Court, and from there to the Electoral Court on a point of law only, and with leave of the Chairperson of the Court. The appellant is required to lodge a notice of appeal within three days after the decision, setting out clearly and specifically the legal basis upon which the appeal is sought, together with a copy of the judgement if available. Under Article 20(2a) of the Electoral Commission Act, the Electoral Court may hear and determine an appeal against any decision of the Commission only in so far as such decision relates to the interpretation of any law or any other matter for which an appeal is provided by law. However, as to the time frame within which the Electoral Court is to review the decision of the Commission, the provision is relatively vague in that Article 20(1b) stipulates only that the review “…shall be conducted on an urgent basis and be disposed of as expeditiously as possible”. Nonetheless, while Article 55(6) of the Electoral Act 1998 provides that the Electoral Court must consider and decide the appeal and notify the parties to the appeal of its decision, Article 55(7) provides that the

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result of an election is not suspended pending the decision of the Electoral Court. It is important to note that the Constitutional Court of South Africa, established under Section 166 of the Constitution, and being the highest court on all constitutional matters in line with Section 167(5), makes the final decision as to whether an Act of Parliament, a provincial Act or the conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status before that order has any force. This means that the constitutional court has the final appellate jurisdiction on electoral decisions or laws that are challenged or petitioned on the basis of being unconstitutional. This was evident in the case of New Nation Movement NPC and Others v. President of the Republic of South Africa and Others [2020]—herein referred to as NPC 2020. In the NPC 2020 case, as explained in the court’s full judgement (Case CCT 110/19), the applicants were seeking leave to appeal directly to this Court against a judgement of the High Court of South Africa, Western Cape Division, Cape Town. The applicants had initially instituted an urgent application at the High Court in late 2018 arguing that the Electoral Act 1998 was unconstitutional for unjustifiably limiting a candidate’s right to stand for public office and, if elected, to hold office conferred by Section 19(3)(b) of the Constitution, by allowing individuals to be elected to the National Assembly and Provincial Legislatures only through membership of political parties. The High Court had dismissed the application, focusing only on Section 19(3)(b) of the Constitution where it reasoned that nowhere does the Section expressly provide “that standing for [public] office must include standing…. “as an independent candidate” as opposed to a member of a political party”. Based on Sections 46(1)(a) and 105(1)(a), the High Court held that, at best for the applicants, the Constitution does not prohibit a system that makes it possible for independents to stand for public office, but it does not require that system. Therefore, it ruled that once Parliament has made its choice (as it had done in the Electoral Act), the choice was not unconstitutional. However, the applicants appealed to the Constitutional Court against the ruling by the High Court. One of the key issues the Constitutional Court set out for determination in the appeal was the question of whether, and to what extent, it allows individuals to be elected to the National Assembly and Provincial Legislatures only through membership of political parties, arguing that the Electoral Act was constitutional. In

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other words, whether the channelling to membership of political parties infringed on certain rights enjoyed under the Bill of Rights by individuals or, more specifically, would-be independent candidates. In addition to this broad challenge, the applicants also sought the invalidation of Section 57A of, and Schedule 1A to, the Electoral Act. Section 57A provided that Schedule 1A applied in general to National Assembly and Provincial Legislature elections. Schedule 1A provided for a party proportional representation system, which is achieved through party lists. The Constitutional Court upheld the appeal and declared that the Electoral Act 73 of 1998 was unconstitutional to the extent that it required that adult citizens could be elected to the National Assembly and Provincial Legislatures only through their membership in political parties. However, in the ruling, the Court further added that the declaration of unconstitutionality was to be prospective with effect from the date of the order (i.e. 11 June 2020), but its operation was to be suspended for 24 months to afford Parliament an opportunity to remedy the defect giving rise to the unconstitutionality.

8.4

Ghana

In Ghana, the Constitution together with the Supreme Court Rules contains the legal provisions on the procedure for applying and handling electoral petitions against presidential elections. Article 64(1) of the Constitution provides that the validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for that purpose to the Supreme Court within twenty-one days after the declaration of the results of the election in respect of which the petition is presented. In line with Article 64(3) of the Constitution, the Supreme Court of Ghana has established rules on presidential election petitions. Sub-rule 68(2) stipulates that the petition shall be presented within twenty-one days after the declaration of the results of the election in respect of which the petition is presented. Sub-rule 70 stipulates that where two or more petitions are presented in relation to the same election, the Court may direct that some or all of the petitions be dealt with as one petition. The petition, according to sub-rule 68(1), must be commenced by presenting it to the Registrar in the form prescribed in the rules. Under

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Sub-rule 68(3), a presidential election petition must clearly state the following: → The full name and particulars of the citizenship of the petitioner, and how the citizenship was acquired; → The residential and the electronic and telegraphic address, where available, of the petitioner, and the business address of counsel for the petitioner, where the petitioner is represented by counsel; → The grounds for challenging the validity of the election; → The facts relied on, to be verified by an affidavit, and the law in support of the petition; → The number of witnesses to be called; and → Any other matters that the Court may determine. The petition according to Sub-rule 68(6) must also set out the reliefs sought by the petitioner. Once the petition is filed, the Registrar is required under Sub-rule 68B(1) to, as soon as practicable, serve a copy on each of the respondents, and on the Electoral Commission, unless the Electoral Commission is a respondent in the proceedings. Sub-rule 69 A(1) stipulates that a respondent who wants to oppose the petition must, within ten days after the petition is served, file an answer to the petition, and may in the answer raise a preliminary objection. The answer must contain a statement of the facts on which the respondent intends to rely, verified by an affidavit, and for the answer as well as for the preliminary objection, state the law in support of the legal arguments to be relied on. Under Sub-rule 69C (1), once the petition and answer are duly served and the application for further and better particulars has been determined, the Court is required to hear the petition within fifteen days after the due service of the petition on the respondent. Subject to the Constitution and any other enactment, the hearing of a petition must take place in open court and the Court must be duly constituted by no fewer than five Justices of the Court. Based on Sub-rule 69C (4), the Court must inquire into and determine the petition expeditiously and give its decision not later than fifteen days from the close of hearing. However, Sub-rule 69C (7) allows the Court in exceptional cases, on an application by a party to a petition or via its own motion, to adjourn the hearing of a petition. Petitions for parliamentary elections are guided by the presidential and parliamentary election laws. In Part IV of the Laws, the petitions must be

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presented in the High Court for hearing and determination. Clause 17 of the Laws provides that the petition may be presented by one or more of the following persons: • A person who lawfully voted or had a right to vote at the election to which the petition relates; • A person claiming to have had a right to be elected at the election; • A person alleging himself to have been a candidate at the election; or • A person claiming to have had a right to be nominated as a candidate at the election. Clause 18(1) of the laws requires that an election petition must be presented within twenty-one days after the date of the publication of the result of the election to which it relates in the Gazette, except where a petition questioning an election on an allegation of corrupt practices and specifically alleging a payment of money or other awards to have been made by the person whose election is questioned, or to have been made on his behalf with his knowledge, may be presented within twenty-one days after the date of the alleged payment. Clause 18(2) provides that the presentation of an election petition under Subsection (1) shall not be valid unless, within the time specified in Subsection (1), the petitioner gives ¢20,000 as security for costs. Clause 18 (3) expressly stipulates that the time limit set out for the presentation of an election petition shall not be extended. Clause 19 provides that after the hearing of an election petition, the High Court may make any of the following three orders: declare that the election to which the petition relates is void; declare that a candidate other than the member whose election is questioned was duly elected; or dismiss the petition and declare that the member whose election is questioned was duly elected. Clause 20(1) provides three grounds on which the High Court may declare the election of a candidate void on an election petition. It provides that the election of a candidate shall be declared void on an election petition if the High Court is satisfied:

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i. That general bribery, general treating, general intimidation, or other misconduct or circumstances, whether similar to those specified in this Law or not, have so extensively prevailed that they may be reasonably supposed to have affected the result of the election; ii. That there has been non-compliance with any provision of elections Law or of regulations made under the elections Law and that it appears that the election was not conducted in accordance with the principles laid down by law and that such non-compliance affected the result of the election; iii. That the candidate was at the time of his election a person not qualified or a person not qualified or a person disqualified for election. However, under clause 20(2) of the rules, there are exceptions where the election of the candidate may be upheld despite there having been corrupt or illegal practices in the election. It provides that where, at the hearing of an election petition, the High Court finds that a candidate has been guilty through his agent or representative of a corrupt or illegal practice, and the High Court further finds, that the candidate has proved to the High Court— i. That no corrupt or illegal practice was committed by the candidate himself or with his knowledge or consent or approval; or ii. That even though there was corrupt or illegal practice the candidate took all reasonable steps to prevent the commission of corrupt or illegal practice at the election; and iii. That in all other respects, the election was free from any corrupt or illegal practice on the part of the candidate. then, if the High Court so recommends, the election of the candidate shall not because of the corrupt practice be void or illegal and the candidate shall not be subject to any incapacity under this Law. It further provides that where at the hearing of an election petition the High Court finds that there has been a failure to comply with any provision of this Law or of regulations made under it, and the High Court further finds that the election was conducted in accordance with this Law and regulations made under it and that the failure did not affect the result of the election, the election of the successful candidate shall not because

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of this failure be void, and the successful candidate shall not be subject to any incapacity under this Law or regulations made under it. This may have applied in the December 2020 presidential election petition that was filed by NDC presidential candidate, John Mahama, who lost the election to the incumbent president, Nana Akufo-Addo of NPP, who had been declared president-elect, having been re-elected with 51.59% of the votes against the 47.63% that Mahama had obtained. In Mr. Mahama’s petition, as explained by Opoku (2021), he wanted Nana Akufo-Addo’s declaration as the president-elect by the EC invalidated by the court. Chief among his arguments was that the EC violated Article 63(3) of the Constitution by declaring Akufo-Addo presidentelect on 9 December 2020, since at the time of the declaration, none of the candidates had attained more than 50% of the total valid votes cast. Mahama also alleged that in their collation of presidential election results, the EC was unfair, untruthful, and unreasonable, citing evidence of vote padding and clerical or arithmetical errors in the collation of the results. The court set five issues/questions for the determination of the petition in its pre-trial direction including: 1. Whether there was any reasonable cause of action disclosed in the petition; 2. Whether on the basis of the data contained in the declaration of EC (the first respondent), no candidate garnered more than 50% of the valid votes cast as per Article 63(3) of the Constitution; 3. Whether Nana Akufo-Addo (the second respondent) met the threshold set in Article 63(3) of the Constitution with the inclusion or exclusion of presidential election results for Techiman South constituency; 4. Whether the declaration by the EC on 9th December 2020, of the election results of the presidential election held on 7 December 2020 was in violation of Article 63(3) of the Constitution; 5. Whether the vote padding and other errors alleged by the petitioner affected the outcome of the December 2020 presidential election results. In its decision on the petition, the Supreme Court unanimously upheld the re-election of the incumbent, Nana Akufo-Addo, ruling that the

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case did not have merit. While reading the ruling, Chief Justice Anin Yeboah said the petitioner had failed to satisfy all the five issues the court had Chief Justice Anin Yeboah said the petitioner did not satisfy all the five issues outlined by the court for the determination of the petition (Redaction Africanews, 2021). It is important to underscore that not in every case the petition will be based on alleged irregularities only, as there are also examples of petitions where the unsuccessful candidates claimed to have obtained majority of the valid votes cast in the election. Clause 21(1) stipulates that in a case where, in an election petition, the election is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, the High Court may direct an examination of the votes cast at the election by the Commission or such other person as the Court may determine.

8.5

Sierra Leone

The legal provisions for handling electoral disputes in Sierra Leone are largely provided in the Public Elections Act, 2012. Section 55(1) of the Act provides that a person who is a citizen of Sierra Leone and has lawfully voted may, in a presidential election challenge, the validity of that election by petition to the Supreme Court within seven days after the declaration of the result of a presidential election. The Supreme Court of Sierra Leone is established by Section 120(4) of the Constitution. However, Subsection (2) of Section 55 of the Public Elections Act stipulates that a declaration by the Supreme Court that the election of the President is not valid shall not prejudice anything done by the President before the declaration. While Section 122(1) of the Constitution provides that the Supreme Court shall be the final court of appeal in and for Sierra Leone, it is important to note that under Section 122(2) of the Constitution, the Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears right so to do, and all other Courts shall be bound to follow the decision of the Supreme Court on questions of law. On parliamentary elections, Section 139(1) of the Public Elections Act provides that every election not called in question within twenty-one days after the publication of the result in the Gazette shall be deemed to have been a good and valid election. While presidential election petitions are heard and determined by the Supreme Court, an election petition pertaining to a Member of Parliament or a member of a local council be

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heard and determined by the High Court. Section 141 of the Public Elections Act stipulates that every election petition pertaining to a Member of Parliament or a member of a local council shall be tried by a Judge of the High Court in open court. Section 140(1) expounds on the timeline within which the petitions must be presented to the court and describes the persons who can present such petitions. It specifically provides that a petition complaining of an undue return or undue election of a Member of Parliament or a member of a local council, in this Act called an election petition, may within twenty-one days from the date of the publication of the result of the election in the Gazette be presented to a Judge of the High Court by any one or more of the following persons: (a) A person who voted or had a right to vote at the election to which fee petition relates; (b) A person who claims to have had a right to be returned or elected at the election; or (c) A person who alleges himself to have been a candidate at that election. Under Subsection (2) of Section 140 of the Act, the person presenting an election petition is required to immediately upon presenting the petition to the court, deliver a copy of it to the Electoral Commission. During the hearing of an election petition, the High Court under Section 141(2), may order the inspection and production of any rejected ballot papers, the opening of a sealed packet of counterfoils of used ballot papers, or the inspection of any counted ballot papers. In making and carrying this order into effect, care shall be taken that the way in which the vote of a particular person has been given shall not be disclosed until it has been proved that his vote was given and the vote has been declared by the High Court to be invalid. Under Subsection (3) of Section 141 of the Act, the High Court at the conclusion of the trial shall determine whether the person whose return or election is complained of was duly returned or elected, or whether the election was void, and shall certify that determination as provided in Subsection (2) of Section 136, where the question decided concerns an election to Parliament and where the election concerns an election to a local council, the High Court shall certify its determination to the Electoral Commission and to the Minister responsible for local

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government. It is however important to note that Section 143 of the Act categorically stipulates that no election shall be invalid by reason of noncompliance with the Act if it appears to the High Court that the election was conducted in accordance with the principles laid down in the Act, or that the non-compliance did not affect the result of the election. This was experienced in the March 2018 presidential election petition that was filed in the Supreme Court challenging the validity of the election in which President Julius Maada Bio of the Sierra Leone Peoples Party (SLPP) was declared the winner after narrowly defeating the then ruling party’s (APC) candidate, Samura Kamara. Kamara had been hand-picked by the outgoing president, Ernest Bai Koroma, as his preferred successor (BBC News, 2018). In the petition, as explained in Politico SL (2021), the petitioners included Dr. Sylvia Biden (first petitioner), Dr. Samura Kamara (second petitioner), Minkailu Mansaray (third petitioner), and Dr. Osman Foday Yansaneh (fourth petitioner), challenged the validity of the 2018 presidential election results, claiming that the conduct of the national elections held on 31 March 2018 was filled with irregularities. They argued that the election was not substantially conducted in line with the Constitution, the 2012 Elections Act and the governing regulations. They alleged that the NEC did not establish and maintain an accurate, publicly available, verifiable, and credible voter register as required by the Constitution. They further alleged that the NEC Commissioner in his declaration on 4th April 2018 that Julius Maada Bio had won the presidential run-off election was without full and frank disclosure of over-voting concerns, contrary to Public Elections Act No. 2 of 2012. The petitioners alleged further that there was widespread intimidation, harassment, and assaults on APC party agents by “SLPP operatives in conjunction with NEC officials in several districts including Bo, Kailahun, Kenema and Pujehun”. The court in its 2021 ruling on the petition unanimously upheld the election of President Julius Maada Bio, the SLPP candidate, as being valid. The judges said that the petitioners failed, refused, or neglected to provide any evidence to refute the fact that Julius Maada Bio had been validly elected the president of the Republic of Sierra Leone, and consequently, the consolidated petitions were all struck out. Section 146(1) provides that if the High Court determines that a candidate returned as elected was not duly elected and that the election was void, then the candidate’s seat shall become vacant from the time of the notice of the decision of the High Court, and if notice of appeal from

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that decision has been given within fourteen days, the seat shall remain vacant for the period until the determination of the Court of Appeal is given on the appeal or the appeal is abandoned. However, if the High Court has determined that a candidate was duly returned or elected, or that the election was void and no notice of appeal has been given against that determination within fourteen days, or where on appeal the Court of Appeal had determined that a candidate was duly returned or elected, or that the election was void, Section 146 (3) provides that the Speaker shall publish by notification in the Gazette whether the candidate whose return or election is questioned is duly returned or elected or whether the election is void. If the election is declared void, Section 146 (3) stipulates that another election shall be held. In case of an appeal for the decision of the High Court on the election petition, Section 145 of the Public Elections Act applies. Subsection (1) of Section 145 provides that an appeal shall lie to the Court of Appeal from the determination of the High Court upon an election petition, or a proceeding of the High Court taken under Section 138 at the suit of a Party to the petition or proceedings, and the decision of the Court of Appeal on the appeal shall be final to all intents and purposes. Subsection (2) stipulates that notwithstanding any provisions to the contrary, the Court of Appeal shall not entertain an appeal under this Section unless notice of the appeal has been given within fourteen days of the determination in question. Subsection (3) further stipulates that at the time of filing the notice of appeal, the appellant shall give security for the payment of all costs, charges, and expenses which may become payable by him to any witnesses summoned on his behalf or to a respondent, in an amount and given in the manner as the Court, may order; in the event of a failure to comply with the order, no proceedings shall be heard on the appeal.

8.6

Conclusion

It is apparent that every country has its own legal provisions for judicialization of elections. Some have extensive national legislation on judicialization of elections while in others, it is embodied in both constitutional provisions and national legislation. This has encouraged frequent petitions of elections where the petitioners challenge the process, the results, or both. Apparently, presidential election petitions are handled by the Supreme Court, while lower-level courts handle other types of

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election petitions. However, in the hearing and determining of electoral disputes, judges do not seem to apply a standard practice in interpreting the law to either uphold or nullify an election. Rather, judges apply subject interpretations on whether the petitioner has presented substantial legal arguments as the basis for the relief they are seeking, in deciding whether to award relief. Consequently, judicial decisions on election petitions may not necessarily create precedents that will guide future election petitions.

References BBC News. (2018, April 5). Sierra Leone election: Julius Maada Bio fast-tracks presidential oath in a hotel. https://www.bbc.com/news/world-africa-436 53098 Carter Center. (2019). Report on legal issues from Kenya 2017 Presidential Election. https://www.cartercenter.org/resources/pdfs/news/pr/kenyalegal-rpt-2019.pdf Case CCT 110/19. New nation movement NPC and others v president of the republic of South Africa and others [2020] ZACC 11. https://www.saflii.org/ za/cases/ZACC/2020/11.pdf Electoral Commission of Ghana. Presidential/parliamentary elections laws. https://aceproject.org/ero-en/regions/africa/GH/ghana-presidential-andparliamentary-elections Gathii, J. K., & Akinkugbe, O. D. (2021). Judicialization of election disputes in Africa’s international courts. Law and Contemporary Problems, 84(4), 181– 218. Hamlin, R. & Sala, G. (2018). The judicialization of politics disentangled. Oxford Research Encyclopedia. https://doi.org/10.1093/acrefore/978019 0228637.013.746 Hirschl, R. (2008). The judicialization of mega-politics and the rise of political courts. Annual Reviews in Political Science, 11, 93–118. Norgueira, A. J. (2020). State of the art research in the judicialization of politics. Beijing Law Review, 11(3), 670–689. Opoku, N. (2021, March 3). Summary of 2021 presidential election petition ahead of Supreme Court judgment. Ghana Law Hub. https://ghanal awhub.com/summary-of-2021-presidential-election-petition-ahead-of-sup reme-court-judgment/ Politico, S. L. (2021). Sierra Leone’s Supreme Court dismisses election petition case. https://www.politicosl.com/articles/sierra-leones-supreme-court-dismis ses-election-petition-case

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Redaction Africanews. (2021, March 4). Ghana’s top court quashes opposition election petition. Africanews. https://www.africanews.com/2021/03/ 04/ghana-s-top-court-quashes-opposition-election-petition// Republic of Ghana. Acts of Ghana: The Supreme Court (Amendment) Rules, 2012. Republic of South Africa. (1998). Electoral Court—Rules regulating electoral disputes and complaints about infringements of the electoral code of conduct in Schedule 2 of the Electoral Act, 1998 (Act No. 73 of 1998) and determination of courts having jurisdiction. Notice 2915 of 1998. Shapiro, M., & Sweet, A. S. (2002). On law, politics and judicialization. Oxford University Press. The Public Elections Act, 2012 (Sierra Leone). https://www.ilo.org/dyn/natlex/ docs/ELECTRONIC/92358/107513/F-1129235944/SLE92358.pdf

PART III

Politics, Citizenship, Ethnicity and Violence in Election in Africa

CHAPTER 9

Ethnicity and Election in Africa

9.1 Historical Background of Ethnicity in Politics Ethnic politics during elections refers to the use of ethnic identity as a basis for political mobilization, voting, and competition in electoral contests. This phenomenon is particularly prevalent in African countries where ethnic identities play a significant role in shaping social and political structures. Historically, ethnic diversity in African countries was often a result of colonial boundaries that were drawn without regard for the cultural and linguistic boundaries of the people living in those territories. As a result, many African countries are home to numerous ethnic groups with distinct cultures, languages, and histories. During the post-colonial period, many African countries faced challenges in building inclusive and democratic political systems that could accommodate the diverse interests and identities of their citizens (Akpabio, 2017). Ethnic politics emerged as a way for political leaders to appeal to their ethnic base and gain power through electoral contests. This practice often involves the manipulation of ethnic identity for political gain, leading to the formation of political parties and coalitions that are organized along ethnic lines. It also contributes to the polarization of political discourse and the marginalization of minority groups that are not part of the dominant ethnic group. While ethnic politics can sometimes be used to address legitimate grievances and promote © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_9

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the interests of underrepresented groups, it can also lead to violence, instability, and the erosion of democratic institutions (Mungiu-Pippidi, 2017). Therefore, it is important for African countries to develop political systems that can accommodate diverse identities and foster inclusive political participation. According to the Afrobarometer, a survey-based research project that measures public attitudes and experiences in 38 African countries, ethnicity is a significant factor in shaping voting behaviour in many countries. In a 2019 survey, the Afrobarometer found that 44% of respondents across 34 African countries considered ethnicity to be the most important factor in their voting decisions, followed by party affiliation (19%) and candidate qualities (16%) (Schatzberg, 2018). The study also found that ethnic polarization, defined as the degree to which individuals are divided along ethnic lines, was highest in countries such as Kenya, Nigeria, and South Africa. In many African countries, political parties are often organized along ethnic lines, with parties appealing primarily to their ethnic base. For example, in Kenya, the Jubilee Party, which won the 2017 presidential election, relied heavily on support from the Kikuyu and Kalenjin ethnic groups. Similarly, in Nigeria, the People’s Democratic Party (PDP) and the All Progressives Congress (APC) have been described as predominantly dominated by the Hausa/Fulani and Yoruba ethnic groups, respectively (Aidoo & Botchway, 2021). Thus, the study aims to explore the ethic politics during elections in four African countries namely, Ghana, Nigeria, Kenya, and Sierra Leone. In addition, the study will also try to explore the electoral laws including National Constitution and against ethnicity in elections, investigate the role of ethnicity in present-day elections, and explore the ethnic bloc voting and its implications for democratization in heterogeneous states: Ghana, Nigeria, Kenya, and Sierra Leone. 9.1.1

Ghana

The politics of ethnicity in Ghana dates back to the colonial era when ethnic identities were used to divide and rule the country. In the 1960s, political parties based on ethnic affiliations emerged, leading to tensions and violence. In 2000, over 30% of Ghanaians identified as belonging to one of the 100+ ethnic groups, with the largest being the Ashanti (19%) and Ewe (13%) (Amoako, 2018).

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Nigeria

The history of ethnicity in Nigerian politics can be traced back to the precolonial era when various ethnic groups had distinct governance systems. After independence, ethnicity became a dominant political factor, leading to military coups, civil war, and electoral violence. Nigeria has over 250 ethnic groups, with the largest being Hausa-Fulani (29%), Yoruba (21%), and Igbo (18%) (Isike & Onuoha, 2016). 9.1.3

Kenya

The history of ethnicity in Kenyan politics dates back to colonial times when British rule favoured some tribes. After independence, ethnic groups competed for power, leading to violent clashes, particularly during elections. The country has over 40 tribes, with the largest being Kikuyu (22%), Luhya (14%), and Kalenjin (12%) (Cheeseman & Kanyinga, 2016). 9.1.4

Sierra Leone

The history of ethnicity in Sierra Leone’s politics is characterized by the divide and rule policies of the colonial administration, leading to tensions between various ethnic groups. In modern times, ethnicity remains a dominant factor in politics, with over 18 ethnic groups, the largest being Mende (33%), Temne (31%), and Limba (8%) (World Population, 2023).

9.2 Ethnicity and Voting Behaviour: Conceptual Exposition 9.2.1

Ethnicity and Voting Behaviour

Ethnicity plays a significant role in voting behaviour in Ghana, Nigeria, Kenya, and Sierra Leone. The historical background of each country has contributed to the development of ethnic identities, which have become entrenched in their political landscape. Ethnic affiliations often determine voting patterns, with individuals more likely to vote for candidates from their ethnic group. In Ghana, political parties have been formed along ethnic lines, leading to the perception that political power is based on ethnicity. This has resulted in the politicization of ethnicity, leading to tensions and violence during elections. According to the Ghana Statistical Service, during the 2020 elections, 49.2% of voters supported the

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National Democratic Congress (NDC), which is perceived to be a party dominated by the Ewe and Northern ethnic groups (Asante, 2015). In contrast, 47.3% of voters supported the New Patriotic Party (NPP), which is perceived to be a party dominated by the Akan ethnic group. In Nigeria, ethnicity has played a significant role in politics since independence. The country has over 250 ethnic groups, leading to a complex web of ethnic affiliations (Irobi, 2018). Moreover, it has been observed that in Kenya, ethnic affiliations are often used to mobilize voters during elections. Also, in Sierra Leone, ethnicity has played a significant role in politics, with different ethnic groups competing for political power. Political parties often mobilize voters along ethnic lines, leading to the politicization of ethnicity and tensions during elections.

9.3 Electoral Laws---National Constitution---Against Ethnicity in Elections: Ghana, Nigeria, Kenya, and Sierra Leone 9.3.1

Laws in the Following Countries Recognizing Ethnic Balance in Representative

Electoral laws in African countries play a crucial role in ensuring the fairness and transparency of elections. These laws govern the conduct of elections, including the registration of voters, the nomination of candidates, and the counting and reporting of votes. They also establish the roles and responsibilities of electoral bodies, such as the independent electoral commission, and provide guidelines for the conduct of political parties and candidates during election campaigns (Langer, 2018). By promoting free, fair, and transparent elections, electoral laws help to strengthen democracy, foster political stability, and promote social and economic development in African countries. However, challenges remain in implementing and enforcing these laws, including issues of corruption, inadequate resources, and insufficient voter education. Ghana Ghana has a history of ethnic diversity, with over 100 ethnic groups living within its borders. Recognizing this diversity, the government has implemented laws to ensure ethnic balance in representative bodies such as parliament and local government councils. For example, the 1992 Constitution of Ghana requires the President to appoint no fewer than 50%

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of their ministers from Parliament, ensuring representation from various regions and ethnic groups (Gyampo, 2017). Moreover, the Constitution mandates that all regions be represented in the Council of State, a consultative body to the President. In terms of parliamentary representation, the Electoral Commission of Ghana is required to consider ethnic and regional balance when delimiting constituencies. The commission uses statistical data to ensure that no particular ethnic group or region is underrepresented in Parliament. In the 2020 elections, there were 275 parliamentary seats available, with the Ashanti Region having the most seats at 47, followed by Greater Accra with 34 (Biney, 2016). Despite these efforts, some critics argue that ethnic balance laws may be ineffective in promoting true ethnic representation. Political parties may still favour certain regions or ethnic groups when selecting election candidates. Nigeria Nigeria has over 250 ethnic groups, and recognizing ethnic diversity in representative bodies is an important aspect of its political system. The Nigerian Constitution mandates that the Federal Character Principle be applied in appointing government officials and distributing resources to ensure equitable representation and distribution of resources across different ethnic groups. The Federal Character Commission ensures no domination of any region or ethnic group in government appointment or resource distribution (Akpabio, 2017). The commission uses statistical data to monitor compliance with the Federal Character Principle, ensuring that each state and ethnic group is adequately represented. Regarding parliamentary representation, the Independent National Electoral Commission (INEC) is responsible for delimiting electoral constituencies and ensuring that each constituency has a roughly equal population size. According to the 2019 general elections, Nigeria’s House of Representatives had 360 seats, with the North West region having the highest number of seats at 97, followed by the South West region with 71 seats (Adebanwi, 2015). While these laws and institutions aim to promote ethnic balance and representation, there are still concerns about the effectiveness of these measures in promoting true representation and inclusivity. Critics argue that political parties still favour certain ethnic groups when selecting candidates and that the Federal Character Principle can sometimes lead to tokenism rather than merit-based appointments. Despite these challenges, recognizing and promoting ethnic balance in

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representative bodies remains an important goal for Nigeria’s political system: ensuring inclusivity and equitable representation across all ethnic groups. Kenya Kenya is a country with over 40 different ethnic groups, and promoting ethnic balance in representative bodies is an important aspect of its political system. The 2010 Constitution of Kenya recognizes the diversity of its people and mandates that public appointments should reflect the diversity of its population. The Constitution establishes the Commission on Administrative Justice (CAJ), which is tasked with ensuring that public appointments are based on merit, fairness, and regional balance. The CAJ uses statistical data to monitor compliance with the constitutional requirement of ethnic and regional balance in public appointments. Regarding parliamentary representation, the Independent Electoral and Boundaries Commission (IEBC) is responsible for delimiting electoral constituencies and ensuring that each constituency has a roughly equal population size. According to the 2017 general elections, Kenya’s National Assembly has 349 seats, with the Central region having the highest number of seats at 54, followed by the Rift Valley region with 50 seats (Caramani, 2017). However, despite these laws and institutions, there are still concerns about the effectiveness of these measures in promoting true representation and inclusivity. Critics argue that political parties still favour certain ethnic groups when selecting candidates and that the ethnic balance requirement can sometimes lead to tokenism rather than meritbased appointments. Overall, recognizing and promoting ethnic balance in representative bodies remains an important goal for Kenya’s political system: ensuring inclusivity and equitable representation across all ethnic groups (Gathara, 2018). Sierra Leone Sierra Leone is a country with over 18 different ethnic groups, and promoting ethnic balance in representative bodies is an important aspect of its political system. The 1991 Constitution of Sierra Leone recognizes the diversity of its people and mandates that public appointments should reflect the diversity of its population. The Constitution establishes the Human Rights Commission of Sierra Leone, which is tasked with ensuring that public appointments are based on merit, fairness, and regional balance (Bangura, 2019). The commission uses statistical data

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to monitor compliance with the constitutional requirement of ethnic and regional balance in public appointments. Regarding parliamentary representation, the National Electoral Commission (NEC) is responsible for delimiting electoral constituencies and ensuring that each constituency has a roughly equal population size. The NEC also considers the distribution of ethnic groups when delimiting constituencies to ensure that no ethnic group is underrepresented in Parliament. According to the 2018 general elections, Sierra Leone’s Parliament has 124 seats, with the Northern region having the highest number of seats at 68, followed by the Western region with 31 seats (Conteh, 2018). However, despite these laws and institutions, there are still concerns about the effectiveness of these measures in promoting true representation and inclusivity. Critics argue that political parties still favour certain ethnic groups when selecting candidates and that the ethnic balance requirement can sometimes lead to tokenism rather than merit-based appointments (Langer, 2018).

9.4 Laws and Practices Dictating Regional Balance in Political Parties 9.4.1

Regional and Political Balance of Ghana

Like many other countries, Ghana has a long history of political imbalances that have led to regional disparities in development, infrastructure, and resource allocation. In an effort to promote national unity and development, Ghana has implemented laws that dictate regional balance in political parties. The Electoral Commission of Ghana (EC) has developed a formula that ensures regional balance in the distribution of parliamentary seats. According to the formula, the total number of seats in Parliament is divided by the number of regions in Ghana, and each region is allocated a minimum of five seats (Asante, 2015). The remaining seats are distributed based on population size, with regions with a larger population receiving more seats. As a result of these laws, political parties in Ghana have made a conscious effort to field candidates from all regions of the country in order to secure a balanced representation in Parliament. Table 9.1 shows the regional distribution of parliamentary seats in Ghana after the 2020 general elections:

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Table 9.1 Regions in Ghana and corresponding seats in parliament

Region Ashanti Brong Ahafo Central Eastern Greater Accra Northern Upper East Upper West Volta Western Total

Seats in parliament 47 16 23 33 34 31 15 11 18 26 254

Source Learner

As can be seen from Table 9.1, each region is represented in Parliament, with the Ashanti region having the most significant number of seats due to its population size. This regional balance ensures that the interests of all regions are represented in the decision-making process at the national level. In addition to promoting regional balance in Parliament, Ghana has also implemented laws that ensure gender balance in political parties. The political parties must reserve a percentage of their parliamentary seats for women candidates. This has increased the number of women in Parliament, with 40 women currently occupying seats in the 275-member Parliament (Nunoo & Duodu, 2018). Therefore, the laws that dictate regional and gender balance in Ghana’s political parties have successfully promoted national unity, ensuring that all regions and genders are adequately represented in the decision-making process. 9.4.2

Promotion of Regional Balance to Maintain Federal Principle of Nigeria

Nigeria, which is a federal republic with a complex political system, seeks to balance power and representation among the various regions and ethnic groups within the country. One of the ways that this is achieved is through laws and practices that promote regional balance within political parties. One such law is the Federal Character Principle, enshrined in the Nigerian Constitution which requires that public appointments and other government positions are distributed fairly among the different

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regions and ethnic groups (Adesina, 2016). This principle also applies to political parties, and many parties have internal guidelines and structures in place to ensure that they have a balanced representation of members from different regions. For example, the ruling All Progressives Congress (APC) has a zoning system in place, which divides the country into six regions and rotates key positions among them. This system has helped to promote regional balance within the party and has been credited with helping the APC to win elections in different parts of the country. Other parties, such as the People’s Democratic Party (PDP), also have similar structures to ensure a diverse and representative membership. The PDP operates a power-sharing agreement between the north and south of the country, which rotates the presidency between the two regions (Alao, 2016). Therefore, these laws and practices have successfully promoted regional balance within Nigeria’s political parties. However, there are still concerns about how these structures can address underlying inequalities and power imbalances within the country. There are also ongoing debates about the effectiveness of these systems in promoting good governance and effective leadership and whether they may perpetuate regional and ethnic divisions within the country. 9.4.3

Political Turmoil and the Diverse Population of Kenya That Impact on Political System

Kenya is a country with a diverse population and a history of political turmoil. To promote national unity and ensure that all regions are represented in government, laws, and practices dictate regional balance in political parties (Schatzberg, 2018). The Kenyan Constitution requires that political parties reflect the diversity of the country’s population, including its different regions and ethnic groups. Political parties are also required to comply with the gender balance principle, which requires that no more than two-thirds of the members of any elected or appointed body should be of the same gender (Mungiu-Pippidi, 2017). To ensure that these principles are upheld, the Independent Electoral and Boundaries Commission (IEBC) requires all political parties to submit lists of their members, including their gender and regional affiliation. The IEBC also monitors the allocation of resources by political parties to ensure that they are distributed fairly among the country’s different regions. Moreover, many political parties have internal structures in place to promote regional balance. For example, the ruling Jubilee Party of Kenya

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has a power-sharing agreement in place between the country’s different regions. This agreement rotates the presidency and other key positions among the different regions to ensure that all regions are represented at the highest levels of government (Jennings, 2017). Therefore, these laws and practices have been successful in promoting regional balance in political parties in Kenya. However, there are still challenges in implementing these principles in practice, particularly in rural areas where political parties may struggle to recruit members from diverse backgrounds. There are also ongoing debates about the effectiveness of these structures in promoting good governance and reducing political tensions in the country (Bienen & Ndura, 2017). 9.4.4

Ethnic Tension, Political Instability, Regional Disparities, and Inhumanities of Sierra Leone

Sierra Leone has a history of political instability, ethnic tensions, and regional disparities. In an effort to promote fairness and balance in the distribution of political power, the country has implemented laws and practices that dictate regional balance in political parties. One key law that governs regional balance in political parties is the Sierra Leone Political Parties Act of 2002 (Kallon, 2017). This act requires political parties to ensure that their leadership and membership reflect the diversity of the country’s regions, ethnic groups, and gender. Specifically, the act mandates that no region or ethnic group should dominate the leadership of a political party. This law is intended to prevent one region or ethnic group from monopolizing political power and marginalizing other regions or ethnic groups. In addition to this law, Sierra Leone has implemented other practices that promote regional balance in political parties. For example, political parties must conduct their primary elections to ensure that candidates from all regions and ethnic groups have an equal chance of being nominated (Musa, 2019). This practice helps to ensure that political parties do not favour candidates from certain regions or ethnic groups over others. The impact of these laws and practices on political representation in Sierra Leone has been significant. Since the implementation of the Political Parties Act in 2002, there has been a noticeable increase in the participation of women and members of minority ethnic groups in political parties (Johnson, 2018). According to data from the National Electoral Commission, in the 2018 parliamentary elections, women accounted for

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30% of the candidates fielded by political parties, up from 12% in 2007. Additionally, candidates from minority ethnic groups accounted for 40% of the total number of candidates, up from 25% in 2007 (Harsch, 2019).

9.5 Role of Ethnicity in Present-Day Elections in Ghana, Nigeria, Kenya, and Sierra Leone 9.5.1

Ethnicity or Accountability

Electoral laws in African countries play a crucial role in ensuring the fairness and transparency of elections. These laws govern the conduct of elections, including the registration of voters, the nomination of candidates, and the counting and reporting of votes. They also establish the roles and responsibilities of electoral bodies, such as the independent electoral commission, and provide guidelines for the conduct of political parties and candidates during election campaigns (Langer, 2018). By promoting free, fair, and transparent elections, electoral laws help to strengthen democracy, foster political stability, and promote social and economic development in African countries. However, challenges remain in implementing and enforcing these laws, including issues of corruption, inadequate resources, and insufficient voter education. Ghana Ghana is a country in West Africa known as the “Second Most Peaceful Country” in Sub-Saharan Africa. There is an interesting phenomenon that is taking place in Ghana’s fourth republic in the field of politics. A wide range of factors has been identified in research on electoral politics as contributing to the effect on voters’ decision-making at the polls, including their identity as a party member, their religious affiliation, their social class, and their assessment of economic concerns. Several identifying factors inform people’s choice of parties and political affiliations in Ghana, including ethnonational affiliations and religious affinities (Aidoo & Botchway, 2021). Nonetheless, it is interesting to note that identity politics existed in Ghana for decades before either the Fourth Republic or the declaration of independence. A good example of this is that, except for the CPP, no other parties were running to contest the 1954 elections that represented any religious, ethnic, or regional interest. A further instance of identity politics in Ghana can be seen in forming of the “National Liberation Movement” (NLM) as soon as elections

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were held in 1954. As we move forward into the post-independence period, this will, unfortunately, continue unabated (Baleyte et al., 2020). It cannot be overstated that identity factors such as religion, region, and ethnicity play an important role in Ghana’s fourth democratization quest, especially during electioneering periods from developing campaign strategy to the outcome of elections, identity factors such as region, religion, and ethnicity play an effective role (Aidoo & Botchway, 2021). These identity factors largely influence even party candidates and running mates. According to popular belief and widely circulated, identity, particularly religion and ethnicity, determined the outcome of all previous elections held by “Ghana’s Fourth Republic since 1992”. Although all eight elections held thus far have been conducted systematically and holistically, no systematic and comprehensive evaluation has been made of how religion and ethnicity influence the outcome. Nigeria It is also an African country based in the Gulf of Guinea and has the largest African economy. Ethnicity is one of the crucial factors that help to understand Nigeria’s pluralist society from an ethnic perspective. People are distinguished by their local origins and a number of other cultural markers in order to distinguish themselves from other groups for historical reasons. Nigeria has more than 250 ethnic groups. According to the 2018 report, the major ethnic groups in Nigeria are Yoruba, Fulani, Igbo, and Hausa (Sasu, 2022). In spite of the failure in the use of card readers, the Nigerian government successfully conducted the 2015 presidential elections. In order to ensure that only the registered and accredited electorate could vote in the elections, the Independent National Electoral Commission (INEC) acquired the audit software (Medcrave online, 2017). There is no doubt that the federal government should be blamed for failing to carry out credible elections, other than for those who understand “the influence of ethnicity and religion in Nigerian politics” and feel that the federal government is to blame for this (Fig. 9.1). Ethnicity has become one of the major sources of issues in Nigerian politics (Isiaq et al., 2018). Each member of contemporary heterogeneous societies has an ethnic group affiliation that gives them a sense of belonging to a particular ethnic group. It has been widely accepted that ethnicity has evolved “in a variety of ways over the years”, just as the concept of ethnicity has evolved. The concept of ethnicity is one factor that characterizes social and cultural phenomena, such as national pride,

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Fig. 9.1 Distribution of ethnic groups in Nigeria (Source Sasu, 2022)

ancestral descent, and cultural norms. According to the opinion of Isiaq et al. (2018), taking this into account, we can conclude that ethnicity is a property of heterogeneous societies only. A military coup led by Gen. Ibrahim Babangida ended the first phase of the First Republic in a matter of days because the country underwent a short second phase. As a result of the partial truncation of the presidential election that was held on June 12th 1993, which was expected to bring about a new democratic era, the final results of the election were not announced until several days later (Medcrave online, 2017). A pronounced ethnopolitical dimension was evident in the general elections of the 1999 elections, which was consistent with how the elections were conducted in the First and Second Republics of Nigeria. Kenya Kenya has a noticeably diverse ethnic group that includes Luhya, Luo, Kamba, Kisii, Kalenjin, and Meru (Eac. int, 2022). Currently, Kenyan politics are governed by a system of presidential representative democracy, given that the country is a republic with a presidential president. In

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accordance with the new Constitution passed in 2010, the President of the Republic of Kenya, the head of state and the head of government, is both the head of state and the head of government of a multiparty system. Ethnic conflicts cause human rights violations sometimes, such as crimes against humanity, genocide, economic decline, refugee flows, environmental problems, and state failure (Kimenyi, 2013). Despite eight candidates for the 2007 presidency, Raila Odinga has emerged as the most likely to win the election. Deputy Prime Minister Uhuru Kenyatta made his second run at the presidency while attempting to become President for a third time. With their strong grip on their ethnic communities, Uhuru and Raila have galvanized wide support throughout the country. Unfortunately, the new Constitution has created new alliances rather than reducing the significance of ethnicity in elections. Sierra Leone Individual self-identification and collective distinctiveness are defined by ethnic identity, a unique factor in intensity and durability in Sierra Leone. A powerful tool for engaging a group in a political struggle is mobilizing ethnic identity and ethnic nationalism. In 1961, Sierra Leone had a vibrant and promising economy and a relatively well-functioning state. As a result, the government became increasingly unresponsive to its citizens’ needs (Reuter, 2023). SLPP, the opposition party, and APC, the ruling party, have both been involved in Sierra Leone’s governance at some point. APC won and controlled the presidential elections between 1997 and 2002, while the SLPP emerged as the winner in 2007 and 2012 (Reuter, 2023). Some ethnic groups that impact the present-day election of the country are Temne, Mende, Oku, Limba, Fula, Mandingo, Kono, and Sierra Leone Creole (Kormoh, 2022).

9.6

Issue-Based Debate or Tribal Backing 9.6.1

Two Political Parties in Ghana

Ethnicity and religion in Ghana between the election of 1992 and 2020 are thus critically assessed in this part. There would be a particular focus on the two major political parties that make up the New Patriotic Party (NPN) and the “National Democratic Congress” (NDC). According to Aidoo and Botchway (2021), the sociological model influences voter

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choices based on ethnicity in their sociological mode, which was organized in Ghana from 1992 to 2020. Compared to the sociological model, it can be concluded that “long-held social factors” like religion, region, and ethnicity significantly influence voter behaviour and selection. Literature gathered so far shows that effective sociological factors significantly affect election results in Ghana, in particular, as well as in Africa at large. According to researchers Danso-Wiredu and Brako (2021), ethnicity is among the most important factors influencing voters’ choices. There is a consensus among academics that ethnic motives play a significant role in African elections. According to another author, voting is primarily influenced by ethnicity in Africa as opposed to other factors. According to the author Lindberg and Morrison (2008), an election in Africa is nothing more than an ethnic census. This demonstrates people’s identity and sense of belonging to a particular ethnicity. Aspects such as region, ethnicity, and religion are often used to determine whether to vote in Africa. The author says this is generally because there is a boundary between the communities. The model assumes that votes are necessarily cast in favour of a “particular candidate or party in an election” because of shared social backgrounds, including region, ethnicity, religion, and class. It must be noted, however, that there are some limitations to this model in that it does not consider the rational calculations that African voters are likely to make during an election, for instance, in Ghana in particular, before they cast their votes (Baleyte et al., 2020). Most people in the country vote for familiar people’ in elections based on their social leanings. Their social relationships enable them to satisfy their interests because such people and groups have close social relationships based on ethnicity. 9.6.2

Challenges That Interrupted Democracy During the General Election in Nigeria

The seventh consecutive general election to be held in Nigeria since the return of democracy in 1999 could face a number of key challenges, a think tank stated. A long-awaited election is set to take place next week, marking the longest period of uninterrupted democracy in the history of the country, which is 24 years. According to Yusuf (2022), there is still a lot of insecurity, especially in areas like the northwest and southeast of the country. Additionally, the environment within which the polls

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are to be held is undergoing infrastructural, structural, and cultural challenges, making this an extremely challenging operation (Yusuf, 2022). Nigeria has a multi-religious, multi-ethnic, and multicultural federal-style structure. From the year 1999, Nigeria has faced challenges due to the nation’s diversity, resource management system, and managing zoning arrangement during its election. Appointive positions are governed by the Federal Character provision of the Constitution, while the “zoning formula governs elective positions”. Religion concerns are resolved by having a running mate from another religion when a Christian or Muslim becomes a presidential candidate. 9.6.3

Conflicts in Kenya: Refugee Rights, Women and Girls Rights, Abuses Rights, and LGBTI Rights

There are several conflicts noticed in Kenya due to some issues such as “Abuses Related to Covid-19 Pandemic”, “Refugee Rights”, “Abuses by Security Forces”, “Women and Girls’ Rights”, and “LGBTI Rights” (Roth, 2021). The Kenyan government did not design a social security programme to ensure no one goes hungry. In the case of a pandemic, that would ensure a reasonable standard of living for everyone, not just for a small group of people which also impacts the election of Kenya (Roth, 2021). Repatriation efforts in the past have been involuntary and coerced, but not in Somalia. Security conditions in Somalia and South Sudan remained unsafe for return, as they risked being tortured or killed. Kenya also faces issues due to the LGBTI community, which impacts its election. Those who engage in “consensual same-sex relationships” can face “up to 14 years in prison under Kenya’s penal code section 162”. 9.6.4

Human Rights Crime in Sierra Leone That Causes Genocidal War

In the years 1991–2002, thousands of innocent Sierra Leoneans were brutally killed by the brutal civil war in Sierra Leone. “Some of the most heinous crimes against humanity” committed in Africa during the conflict are among the worst offences committed by the parties involved. Sierra Leoneans who suffered from war bore hope after the Lomé Peace Accord was signed in 1999. A genocidal war is likely to result if “ethnic instigations and hate messages” are not managed properly if there is a trend of ethnic instigation and hate messages (Kormoh, 2022). As a means

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of setting the scene, it might be helpful to briefly discuss ethnicity and tribe “in the context of Africa and other places” in the world in progress. Between 1991 and 2002, eight factors contributed to the outbreak of the Sierra Leone conflict, which lasted for almost a decade. It was the over-centralization of state institutions, factionalism, rural exclusion, and ethnic politics that contributed to these problems (Reuter, 2023). Systematic exclusion of marginalized groups, decentralized politics at the chiefdom level, security, and constitutional abuse of power. In addition to youth abuse and neglect, there has been negligence and lapses in state security apparatuses and the politicization of the legal profession. In a recent paper published by the UN, there is substantial evidence that all of these factors, in addition to many others, have been attributed to the conflict in Sierra Leone (Kormoh, 2022). There appeared to be no significant impact of ethnic identity on the 11-year civil conflict that Sierra Leone experienced during the period of post-independence, although it figured prominently in the domestic politics of the country after its independence.

9.7 Recent Evidence of Regional and Ethnic Voting 9.7.1

Complicated Ethnic Relationship on National Identity in the Perspective of Ghana

The cultural traits represented by different ethnic groups and the languages spoken are very much at the centre of Ghana’s ethnic diversity. According to the opinion of Danso-Wiredu and Brako (2023), nationality and ethnicity have a complicated relationship regarding national identities. Ethnicity can play a role in national integration in some respects, but it can also play a role in other aspects of national integration. Many African countries share a spirit of affection regarding national political voting, especially between ethnic groups. There is a competitive process for political appointments, women and minorities are eligible for employment in their institutions, and ethnic groups seek the favour of their governments. Especially between the two major parties in Ghana, ethnicity heavily influences voting (Danso-Wiredu & Brako, 2023). There used to be a geographical concentration of ethnic groups in certain areas, but now because of migration, ethnic groups are getting mixed up and dispersed (Fig. 9.2).

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Fig. 9.2 Regional presidential elections results in Ghana 2016 (Source Ayee, 2017)

The National Democratic Congress government of President Mahama, led by Nana Akufo-Addo, was defeated in the presidential and parliamentary elections on December 7th 2016 (Ayee, 2017). Ethnic rivals or ethnicity is one of the key non-economic issues that impact the ethnic voting system of Ghana, which brings issues to maintain democracy and key features of the country’s political economy (Bossuroy, 2011). Ethnic cleavages remain one of the core political weaknesses of the county that results in economic oppression. 9.7.2

The Problem of Electoral Violence in the History of Nigeria

Third-world countries, more specifically Nigeria, do not suffer from electoral violence more than other third-world countries. From the indirect rule of the British government to the post-independence era in Nigeria, electoral violence has been a problem throughout the country’s history for over a century (Yusuf, 2019). During the past 20 years of uninterrupted democratic rule in Nigeria, the period of 1999–2019, the Nigerian state has regularly been battling cases of electoral violence in every election cycle since it assumed self-rule from the British government on October 1st, 1960 (Obiam, 2021). In 2015, there was some violence in the presidential election as well. As flag bearers, Dr. Goodluck Jonathan represented the “People’s Democratic Party” (PDP), while Gen. Muhammadu Buhari represented the “All Progressive Congress” (APC). In the

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Fig. 9.3 A voting result of Nigeria in 2019 (Source Onimisi & Tinuola, 2019)

electoral process, hate speeches were uttered, slanderers were slandered, victims were victimized, intimidations were conducted, and murders were committed (Fig. 9.3). Pre-election, during-election, and post-election violence were all prevalent (Yusuf, 2019). There were violent clashes in some parts of the Nigerian state during the registration period, following the announcement of the election winners, and on the main election day itself. According to Onimisi and Tinuola (2019), electoral violence played an important role in influencing the outcome of the 2019 presidential election. It resulted in the loss of many lives and the destruction of property. Therefore, it follows that since the inception of Nigerian democracy in 1960, there has been an increase in electoral violence almost every election year since that time. Electoral violence has resulted in many deaths and the destruction of “property worth millions of naira” has caused thousands of people to lose their lives. 9.7.3

Controversial Election and Ethnic Politics in Kenya

According to some reports, Kenyan elections are hot and controversial and ethnic politics tend to dominate this country’s electoral process. As it currently stands, the popular imagination regards elections as a mass

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Fig. 9.4 A voting result of Kenya based on ethnic group (Source Ferree et al., 2014)

movement involving large numbers of people mobilized by Big Men to take control of their community. The results of the elections are regarded as little more than ethnic censuses if they are free and fair. In the case of the 2022 elections, however, this cliché is directly misrepresenting the complexity of Kenyan politics (Cheeseman, 2022). Kenyan politics have been characterized by coalition building since 2002 when the “Kenya Africa National Union” was comprehensively defeated by the National Rainbow Coalition (NARC) (Fig. 9.4). An increasingly demanding electorate can promote democratization through William Ruto’s mobilization of support in Central Kenya. The ethnic element, however, continues to play a significant role in Kenyan politics. Even though ethnicity will not factor into the outcome of the election, its importance remains fundamental to how the campaign is interpreted (Ferree et al., 2014). This East African country is heavily influenced by ethnicity when electing its presidents. Kenya contains “more than 40 tribes”, and candidates from different ethnic groups compete for political seats more fiercely than ever. 9.7.4

Crimes Related to Humanity and Ethnicity in Sierra Leone

Thousands of innocent Sierra Leoneans were brutally killed “between 1991 and 2002” during a vicious civil war. Many crimes against humanity

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were committed during the conflict, “some of the most heinous” ever to be documented in Africa. Sierra Leoneans, who had been enduring war for years, finally found hope with the signing of the Lomé Peace Accord in 1999 (Kormoh, 2020). It has been argued throughout this article that racial instigation and hate speech are destroying state stability in a number of parts of the world and may even spark genocidal wars if unchecked. To set the background and contextualize the discussion, Kormoh (2020) presented a brief theoretical discussion of tribe and ethnicity concerning “Africa and other developing regions”. Tribes were like nations in the colonial era. They were political and cultural groups. In the aftermath of Margai’s death, tribal and ethnonational politics became a topic of public discussion. In the provinces that had previously been the seat of the Socialist Labour Party of Palestine (SLPP), the All People’s Congress (APC) recruited many people. In Sierra Leone, some political leaders and their parties use “ethnonational messages to advance” their political agendas or maintain their power positions. The “softer” option, i.e. ethnic or tribal manipulation, is often used by political parties when they lack convincing and practical messages or solutions for the electorate.

9.8 9.8.1

Conclusion

Ethnic Bloc Voting: Implications for Democratization in Heterogeneous States

Ethnic bloc voting is where voters tend to support candidates from their ethnic group, forming voting blocs. This phenomenon has significant implications for democratization in heterogeneous states, where the presence of multiple ethnic groups can lead to a complex political landscape. One of the implications of ethnic bloc voting is the perpetuation of political polarization. When political parties are formed along ethnic lines, they tend to focus on issues that resonate with their ethnic base rather than issues relevant to the entire population (Irobi, 2018). This leads to a situation where ethnic grievances dominate the political discourse, and the search for common ground is hindered. In Ghana, 55% of respondents reported being more likely to vote for a candidate from their ethnic group, while only 41% said they would vote based on their policies (Isike & Onuoha, 2016). Another implication of ethnic bloc voting is the potential for electoral violence. When the stakes are high and the competition is fierce,

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ethnic bloc voting can lead to tensions and in extreme cases, violence. According to the National Bureau of Statistics, during the 2019 presidential elections in Nigeria, there were 620 reported cases of electoral violence, resulting in the death of 39 people (Irobi, 2018). The majority of these incidents were linked to ethnic tensions, with rival ethnic groups clashing over political power. Ethnic bloc voting also has implications for the representation of minority groups in the political system. When a few ethnic groups dominate political parties, minority groups are often marginalized, leading to a situation where their interests are not represented. According to the Kenya National Bureau of Statistics, during the 2017 presidential elections, President Uhuru Kenyatta won the election largely due to support from the Kikuyu ethnic group, which is the largest ethnic group in Kenya (Kanyinga & Lynch, 2018). This led to concerns that other ethnic groups would be marginalized and their interests not be represented in the political system. Finally, ethnic bloc voting can hinder democratic consolidation by undermining the legitimacy of the electoral process. When ethnic bloc voting is perceived to be the norm, the credibility of the electoral process can be called into question. Therefore, ethnic bloc voting has significant implications for democratization in heterogeneous states. 9.8.2

Conclusion

It can be summarized that the research has focused on the historical background of the ethnicity politics of different countries like Ghana, Nigeria, Sierra Leone, and Kenya. Several ethnic issues are noticed in the countries such as misusing of youths, lack of proper state security, corruption, ethnoreligious conflict, misuse of power, frequent trade disputes, and civil war. A history of ethnic diversity is noticed in Ghana which has more than 100 ethnic groups. It has also been noted that Nigeria has more than 250 ethnic groups that make an impact on its political system. Thereafter, Kenya has over 40 different balanced ethnic groups and Sierra Leone has 18 different ethnic groups which is also an effective factor in their political system. A history of a brutal killing in civil was noticed in Sierra Leone. Controversial ethnic politics is also noticed in Kenya. Hence, Nigerian people face electoral violence that impacts their democratic rule as well. A complicated relationship between the ethnic people of Ghana is noticed regarding their national identities.

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Recommendations

It can be recommended that African countries like Ghana, Nigeria, Kenya, and Sierra Leone need focus on their ethnic issues to balance their political factors. Some issues like “corruption and abuse of power” need to be mitigated by the countries (Kormoh, 2020). Hence, they need to stop misusing youths, which can be effective in developing the political condition of countries like Sierralaeone. Kenya needs to focus on their “state security” so that the people of that state feel more secure and protected with time. After that, the issue of “politicization of the judiciary” needs to be focused on to resolve the political conflicts of the countries (Ferree et al., 2014). “Ethno-religious conflicts” is another reason behind the critical issues of the countries which need to be resolved by the countries by accepting diversity. Resolving and avoiding civil war is another recommendation that can be made for the countries to develop their economic and political condition. Hence, “regional conflict ” is noticed in most of the country’s places which need to be resolved to balance harmony and maintain the stability of the states. As per the opinion of Onimisi and Tinuola (2019), African countries need to focus on providing protection against “trafficking and terrorism”, which can help to remove violence and resolve conflicts. Thereafter, countries like Ghana need to focus on their trade dispute which can bring political stability to the country. Moreover, “relationship conflicts ” with the states must be mitigated to maintain proper harmony and balanced life for the people (Aidoo & Botchway, 2021). Hence, such recommendations are going to be operative enough for the countries to have proper political stability.

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Akpabio, E. M. (2017). Ethno-political conflicts and the 2015 general elections in Nigeria. African Journal of Political Science and International Relations, 11(3), 57–68. Alao, A. (2016). Ethno-political cleavages, political parties and voting behaviour in Nigeria’s 2015 general elections. African Journal of Political Science and International Relations, 10(7), 124–134. Amoako, K. Y. (2018). Ethnic politics, patronage and vote buying in Ghana’s elections. Journal of African Elections, 17 (2), 107–127. Asante, F. A. (2015). Elections in Ghana: The role of ethnicity and political parties. Africa Spectrum, 50(1), 25–45. Ayee, J. R. (2017). Ghana’s elections of December 7th 2016: A post-mortem. South African Journal of International Affairs, 24(3), 311–330. Baleyte, J., Gethin, A., Govind, Y., & Piketty, T. (2020). Social Inequalities and the Politicization of Ethnic Cleavages in Botswana, Ghana, Nigeria, and Senegal, 1999–2019. In A. Gethin, C. Martínez-Toledano, T. Piketty (Eds.), Political cleavages and social inequalities: A study of fifty democracies, 1948–2020. Harvard University Press. Bangura, Y. (2019). Ethnic politics and electoral violence in Sierra Leone. Journal of Third World Studies, 36(2), 97–117. Bienen, H., & Ndura, E. (2017). Kenya: The presidential election of 2017. Electoral Studies, 50, 167–170. Biney, A. E. (2016). Electoral politics and the search for legitimacy in Ghana: The 2012 elections in historical perspective. Africa Today, 63(1), 68–90. Bossuroy, T. (2011). Ethnicity and election outcomes in Ghana. https://dial. ird.fr/wp-content/uploads/2021/10/2011-05-Ethnicity-and-Election-Out comes-in-Ghana.pdf Caramani, D. (2017). Elections in Africa: A data handbook. Oxford University Press. Cheeseman, N. (2022). Kenya’s upcoming vote: Three reasons why ethnicity is less important. https://bti-project.org/2022/07/27/kenyas-upcoming-votethree-reasons-why-ethnicity-is-less-important/ Cheeseman, N., & Kanyinga, K. (2016). Ethnicity and democracy in Africa: The case of Kenya. Journal of Eastern African Studies, 10(3), 536–554. Conteh, A. M. (2018). Ethnicity and political participation in Sierra Leone. African Journal of Political Science and International Relations, 12(8), 98–108. Danso-Wiredu, E. Y., & Brako, I. (2021). Regionalism, ethnicity, and politics in Ghana. Ghana Journal of Geography, 13(3), 1–26. Danso-Wiredu, E. Y., & Brako, I. (2023). Regionalism, ethnicity, and politics in Ghana. https://www.ajol.info/index.php/gjg/article/view/219789/ 207411

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Eac. int. (2022). The Republic of Kenya. https://www.eac.int/culture/jamafest2022-articles/2581-republic-of-kenya#:~:text=Kenya%20has%20incredible% 20ethnic%20diversity,%2C%20Kamba%2C%20Kisii%20and%20Meru Ferree, K. E., Gibson, C. C., & Long, J. D. (2014). Voting behaviour and electoral irregularities in Kenya’s 2013 Election. Journal of Eastern African Studies, 8(1), 153–172. Gathara, P. (2018). Ethnicity, elections and violence in Kenya: Is devolution the answer? Third World Quarterly, 39(5), 837–852. Gyampo, R. E. (2017). The politics of ethnicity in Ghana: A social psychological perspective. Journal of Social Science Education, 16(3), 25–36. Harsch, E. (2019). Ethnic politics and political violence in Sierra Leone. African Studies Quarterly, 18(2), 57–72. Irobi, E. G. (2018). The dynamics of ethnicity and politics in Nigeria: An overview of the 2015 elections. International Journal of Political Science and Development, 6(1), 1–11. Isiaq, A. A., Adebiyi, O. M., & Bakare, A. R. (2018). Ethnicity and election outcomes in Nigeria. Journal of African Elections, 17 (1), 117–139. Isike, C., & Onuoha, F. C. (2016). Ethnic politics and democratic consolidation in Nigeria: A critical analysis of the 2015 general elections. African Studies Quarterly, 16(1), 1–21. Jennings, M. K. (2017). Kenya’s electoral crisis and the perils of ethnic politics. Journal of Democracy, 28(4), 117–129. Johnson, G. B. (2018). The role of ethnicity in Sierra Leone’s electoral politics. African Studies Review, 61(2), 73–89. Kallon, A. (2017). Ethnicity, elections and democracy in Sierra Leone. Journal of African Elections, 16(1), 1–22. Kanyinga, K., & Lynch, G. (2018). Political mobilization, ethnic diversity and social divisions in Kenya. African Affairs, 117 (466), 615–638. Kimenyi, M. (2013). Kenya’s elections: Implications of ethnic rivalries and international intervention. https://www.brookings.edu/opinions/kenyas-ele ctions-implications-of-ethnic-rivalries-and-international-intervention/ Kormoh, J. (2020). Ethnicity and conflict instigation in Sierra Leone. https:/ /www.accord.org.za/conflict-trends/ethnicity-and-conflict-instigation-in-sie rra-leone/ Kormoh, J. (2022). Critically examining current trends in Sierra Leone’s political landscape from the point of view of unoriginal politics and hate messages. https://www.accord.org.za/conflict-trends/ethnicity-and-con flict-instigation-in-sierra-leone/ Langer, A. I. (2018). Electoral politics and ethnic conflict in Sierra Leone. African Affairs, 117 (468), 373–392.

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Lindberg, S. I., & Morrison, M. K. (2008). Are African voters really ethnic or clientelistic? Survey evidence from Ghana. Political Science Quarterly, 123(1), 95–122. Medcrave online. (2017). Influence of ethnicity and religion in Nigerian elections and the imperative of media intervention. https://medcraveonline.com/SIJ/ influence-of-ethnicity-and-religion-in-nigerian-elections-and-the-imperativeof-media-intervention.html Mungiu-Pippidi, A. (2017). Democracy in the making: The Open Society Foundations’ experience in Kenya. Journal of Democracy, 28(4), 103–116. Musa, H. A. (2019). Ethnicity, voting behavior, and political power in Sierra Leone. Journal of Contemporary African Studies, 37 (2), 245–259. Nunoo, J., & Duodu, J. K. (2018). Ethnicity and voting behavior in Ghana: An empirical analysis of the 2016 elections. Journal of African Elections, 17 (2), 89–106. Obiam, S. C. (2021). The Nigerian state and electoral violence: An analysis of the 2019 presidential general election in Nigeria. IOSR Journal of Humanities and Social Science, 26(3), 53–61. Onimisi, T., & Tinuola, O. L. (2019). Appraisal of the 2019 post-electoral violence in Nigeria. Malaysian Journal of Social Sciences and Humanities (MJSSH), 4(3), 107–113. Reuter, K. (2023). Ethnic conflict. https://www.britannica.com/topic/ethnicconflict Roth, K. (2021). Kenya events of 2021. https://www.hrw.org/world-report/ 2022/country-chapters/kenya Sasu, D. (2022). Distribution of ethnic groups in Nigeria in 2018. https:// www.statista.com/statistics/1203438/distribution-of-ethnic-groups-in-nig eria/#:~:text=According%20to%20estimations%20from%202018,people%20s peaking%20the%20Hausa%20language Schatzberg, M. G. (2018). Elite fragmentation and electoral volatility in Kenya, 1992–2017. Journal of Eastern African Studies, 12(1), 147–166. World Population. (2023). Sierra Leone Population Pyramid 2023. https://wor ldpopulationreview.com/countries/sierra-leone-population Yusuf, I. M. (2019). Electoral violence in Nigeria: Disentangling the causes. Research on Humanities and Social Sciences, 9(10), 38–47. Yusuf, K. (2022). Key issues that will shape Nigeria’s 2023 elections— Report. https://www.premiumtimesng.com/news/headlines/556316-key-iss ues-that-will-shape-nigerias-2023-elections-report.html?tztc=1

CHAPTER 10

Citizenship and Election in Africa

10.1

Introduction

Citizenship greatly assists each individual for the active participation of people in government processes and decision-making. Citizenship has been helping each individual for the development of their strong moral code for generating a safe and supportive society. In order to contest an election in any country, the first and foremost requirement is that the candidate should be a citizen of the country. From the point of view of Ayoade (2019), candidates who have been contesting any election have been representing the whole country in front of the people. If the people do not belong to the country, they can lose their trust in them, which can create riots. “Elections make a fundamental contribution to democratic governance because direct democracy—a form of government in which political decisions are made directly by the entire body of qualified citizens—is impractical in most modern societies; democratic government must be conducted through representatives” (Britannica, 2020). Elections have been providing the ability to voters to choose the right person for making the betterment of the country and countrymen, but any person who does not belong to the country might not have the capability to understand the requirements of people. Thus, in order to contest, a person should be a citizen of that country. In order to progress with any election in Ghana, a candidate has to prove himself as the native one. “Citizenship Act, 2000” of Ghana © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_10

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has clarified this statement for the election contestant (Gis Gov, 2023). Article (2)(1) has discussed that every citizen of the country shall have the right to take part in political activities and also influence the policies of the government. As per Section (10)(1), the people of Ghana can have attained citizenship approval by the approval of the president but for getting, the person has to show his good character, have the capability for understanding and speaking their native languages and have the intention for the welfare of the country. On the other hand, a candidate should not indulge in any malpractice that has been violating their rights as it can become the reason for losing his citizenship and as a result, he will lose the opportunity for contesting in an election. Apart from that, he should not be associated with any violence or become the reason for the violence that can create war or warlike situations and in that he had to take liability due to which he will be unable to take part in election contests. Following legal requirements has been critically needed to remain a citizen of Nigeria and take part in election contests. “Electoral Act 2010” and “the Independent National Electoral Commission (INEC) Regulations and Guidelines” has been clearly highlighted that citizens of Nigeria have the opportunity to be elected as a member of parliament and hence, they can participate in elections (PLAC, 2023). Section 26 of the Constitution of Nigeria has clarified that for participating in the election, he had to have citizenship which can be possible through registration. In this case, the candidates have to meet certain criteria such as the person should be of good character and must have been certified as a citizen of Nigeria. Apart from that, they have to follow residency requirements to qualify as candidates for being selected for an election contest. On the other hand, as per the citizenship law, manipulation is not acceptable and they have to debar them from any kind of discrimination and should have a positive mind-set for the welfare of the people and the country. Otherwise, there is a chance of riot that can create a warlike situation and hence, they can be expelled as a candidate on the ground of this fact. Citizenship of Kenya is automatically transferred from generation to generation as per article 14(1). Article (5)(1) clarified that “The NEC shall develop voting mechanisms for all its candidates for Presidential, Parliamentary and County nominations to ensure compliance with the provisions of Chapter 6, Constitution of Kenya 2010 and other relevant provisions of the Law regarding Leadership and Integrity” (IEBC, 2023). As per this provision, no person will be qualified as a candidate for any election if the person is not a citizen of Kenya and is not a holder of

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his “National Identity Card” or any other card that is similar to it and provides the exact proof of his citizenship. Here, it has been mandated that for electing a president in Kenya, a person should have citizenship by birth. In these connections, other provisions that could have given citizenship are not applicable in order to progress with elections. Violating these rules or giving wrong information is strictly prohibited and in case, malpractice has been conducted, then as per legislation, he will not only lose his candidate but also face other legal consequences for the country as well. Instances of candidature for election in Sierra Leone have highlighted the criteria for exclusion of the citizenship of people. “Section 32 (1) of the Constitution provides for a National Electoral Commission of Sierra Leone, which commission is responsible for the conduct and supervision of the registration of voters for and of all public elections and referenda” (The Legal Framework, 2012). As per the provision, a candidate who has the desire to take part in the election should be free from any corruption, cruelty, and imprisonment. Actually, these are also impacting the citizenship of the country and hence, there is a chance that he can lose his status as a citizen of Sierra Leone which will be taken away from the opportunity for competing in any kind of election. Minister has the power to deprive any person under 16 who is degrading the national interest of the country. Hence, it has to be noted by the candidate that he should be fulfilling these criteria for remaining his candidature in the election of Sierra Leone. In this regard, the case of Kandeh Yumkella has highlighted that for taking part in any election; a candidate should be a certified citizen of the country and have proper proof.

10.2 Legal and Constitutional Requirements for Citizenship in Elections of Different Countries 10.2.1

Constitutional and Legal Requirements for Citizenship of Ghana

The “Citizenship Act 2000” provides key requirements that are necessary for the election of Ghana. As per section 1 of the act, every Ghanaian citizen who “was a citizen by law” will continue to be a citizen if the Constitution is ratified. Section 2 focuses on the laws that are applicable for citizenship by birth and says if it is necessary to determine the law

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governing “Ghanaian citizenship by birth”, this Part summarizes the relevant provisions (Ref World, 2001). As per Section 3(1)(a) a person can be a citizen of Ghana by birth who was “born before 6th March 1957” and he must be “born in Ghana and at least” his grandparents or one of the parents needs to be born in Ghana (Ref World, 2001). A person can also become a citizen of Ghana in case he is born outside Ghana but his parents were born in Ghana. As per Section 4(1) Ghana citizens by birth are those born between “6th March 1957 and 22nd August 1969” if at least his grandparents have been “born in Ghana”. According to section 4(2), if a parent, grandparent, or great-grandparent from whom a person claims Ghanaian citizenship was a citizen of Ghana “at the time of his birth”, he is not a citizen of Ghana under subsection 1 of section 4 (Ref World, 2001). Citizenship by registration is mentioned under section 10(1) which says that there are any citizens of any approved country who satisfy the Minister of Foreign Affairs. They may be registered as Ghanaians upon application and approval by the president if he has good character if he remains an ordinary resident of Ghana if he reminds the resident of the last five years and if they can understand and speak the “indigenous language of Ghana” (ILO, 2023). As per section 11, Children who become citizens of Ghana through registration or naturalization shall be registered as citizens of Ghana by the Minister upon the request of their parents or guardians (ILO, 2023). Part III of the act focuses on dual citizenship which provides legal requirements for the election. Section 16(1) of the Act says a Ghanaian citizen can hold citizenship in any other country (Ref World, 2001). In addition to Ghanaian citizenship, citizens of any other country will not be qualified for appointment to “any office specified in this subsection” “without prejudice to Article 94(2)(a) of the Constitution” (Ref World, 2001). . Exclusion of candidates of Ghana from Elections on citizenship questions The concept of nationalism is characterized by “a power-sharing agreement between segments of society” who are clearly separated by their

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differences in religion, ethnicity, language, and citizenship but who can be united by their membership in a nation or state (State, 2019). . Instances of manipulation in Ghana After extensive multi-stakeholder consultations, Ghana adopted its “National Anti-Corruption Action Plan” (NACAP) in 2014 (UNODC, 2023). Bribery is one of the key issuing Ghan that causes manipulation for instance in 2021 nearly 83.8% of adult people “had at least one contact with a public official” related to such a situation (Fig. 10.1).

Fig. 10.1 Contact rate due to bribery (Source UNODC, 2023)

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Additionally, electoral manipulation can include ballot stuffing, voter list manipulation, as well as vote-buying as part of its broader definition, although vote-buying is not the only type of manipulation. Most outbreaks of violence that the citizens of Ghana face are force by police, rape by police, threatening prison conditions, harassment of journalists, lack of accountability, and corruption in governmental branches which questions the citizenship rights of the people of Ghana (State, 2019). . Tribal and Regional Exclusions from political participation and rights to vote No such instances of questioning the whole region related to the right to vote have been noticed in Ghana. 10.2.2

Constitutional or Legal Requirements for Citizenship in Nigeria

According to “Section 25 of the Nigerian Constitution”, this category of citizens consists of those who fall within the definition of being eligible for “citizenship under the Nigerian Constitution” (Denton, 2023). A person who is born within the “territory of Nigeria after 1 October 1960”, who is a member of the indigenous community of the geographical region that is known as Nigeria, or who “has a parent or grandparent who belongs or was a member” of that community (Denton, 2023). In addition to Yoruba, Ibibio, Itshekiri, Hausa or Fulani, Erik, Igbo, Urhobo, Kanuri, Kanuri, Erik, and many others, Nigeria is home to many indigenous communities (Ecitibiz.Interior.gov, 2023). The word “indigenous” is emphasized in this subsection, which means the people have “blood ties to Nigeria”. The citizenship of Nigeria by birth is available to “individuals born outside of Nigeria whose parents or grandparents were or are Nigerian citizens”. The purpose of this subsection is to discuss citizenship through descent by birth. In accordance with this section, if neither a person’s parents nor grandparents were born in Nigeria, they cannot claim Nigerian citizenship by birth. Having blood ties with a Nigerian person is a requirement to become a naturalized citizen by birth in Nigeria.

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Legal or constitutional requirements related to the election of the country can be based on citizenship by registration. “Section 26 of the Nigerian Constitution” focuses on “Citizenship by registration” (Ecitibiz.Interior.gov, 2023). A candidate may be certified as a citizen of Nigeria if the person has good character. Such statement is required to be witnessed by two people, one of whom must be a religious leader from the candidate’s church. It is evident that the person wishes to be a permanent resident of the country and expresses this clearly. If a person wants to become a citizen, then they will have to fulfil the residency requirements required to qualify (Denton, 2023). Nigerian Constitution Schedule 7 of the constitution provides that the oath of allegiance must be “administered on the person” (Ecitibiz.Interior.gov, 2023). Citizenship ceremonies are conducted by government representatives who administer the oath of allegiance. As per Section 26(2) if a woman marries a citizen of Nigeria then she can be a citizen of Nigeria and eligible for election. Section 27 of the “Nigerian Constitution says that a person can be a citizen of the country” by naturalization if he contributes to the well-being of the country and has a clear desire to be a citizen. . Instances where candidates of Nigeria have been excluded from citizenship questions Basically, the political exclusion is a process in which resources are distributed unequally and wealth is accumulated based on power. For instance, people with AIDS or leprosy, undocumented migrants, and Street children of Nigeria are excluded from citizenship questions during the election (UN, org, 2023). . Instances of manipulation in Nigeria Political manipulation is noticed in Nigeria based on religious and ethnic sentiments in the country. A “potential case of discrimination” is noticed in Hillcrest School during the entire admission process where

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parents were provided medication without their consent (Kolawole, 2017). The discrimination that occurs in advanced societies is based on health grounds and therefore is an act of discrimination. . Instances where tribe or region Are questioned about their rights to vote According to the report, The Lyttleton Constitution granted suffrage to women from eastern and southern regions of Nigeria in 1954. Under the Federal Republic of Nigeria Constitution of 1979, women from the northern region are granted suffrage. Elections are also held with the citizenry included and the voting age is lowered to 18. 10.2.3

Constitutional and Legal Requirements for Citizenship in Kenya

Article 14(1) of the Kenyan constitution illustrates that by birth, someone is a Kenyan citizen if either their mother or father is a Kenyan citizen on the day of their birth, regardless of whether they are born in Kenya (Kenya Brussels, 2023). Kenyan citizenship is automatically conferred on children born abroad whose parents have Kenyan citizenship. A Kenyan passport can, therefore, be obtained by them. Children born abroad should also receive birth certificates, which are used to register them in Kenya as soon as they are born. Kenyan citizens by birth are automatically recognized as those whose parents are or were Kenyan citizens at birth, so long as they can prove either or both parents were Kenyan citizens when they were born under the new constitution are eligible to have dual citizenshipKlrc, 2023. Kenyan citizens who have lost their citizenship at the age of 23 may apply for Kenyan citizenship again for the elections. Citizens of other countries are invited to consult the website of the National Council for Law Reporting for information on the requirements and conditions of applying for Kenyan citizenship (Kenya Brussels, 2023). In any Kenyan embassy, such citizens will not be able to apply for citizenship. According to the report citizenship can be applied for on application by someone who has been married for “at least seven years to a citizen” (Klrc, 2023b). According to Article 15, the act of parliament specifies the conditions

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under which a person may apply to become a citizen if he or she has been lawfully resident in Kenya for at least seven years. . Instances where candidates of Kenya have been excluded from citizenship questions A great deal of statelessness is caused by discrimination against religious, ethnic, and linguistic minorities in Kenya which is also excluded from the question of citizenship. . Instances of manipulation in Kenya It has been noticed that incompetent lawyers are employed by the Kenyan government (Hansen, 2012). In Kenya, the man on the street may not always be able to distinguish “between good and bad legal arguments”, even though the African Court proposal is highly unconvincing. Kenyan governments have proven in the past to be masters at manipulating the public through various means. . Instances where a whole tribe or region Are questioned about their rights to vote No such instances have been detected where the whole region and tribe are questioned about the right to vote in Kenya. 10.2.4

Constitutional or Legal Requirements for Citizenship of Sierra Leone

The Sierra Leonean passport is issued on the basis of the laws governing the nation’s sovereignty (SLID, 2020). Although various amendments were made to the “Sierra Leone citizenship act” in the years that followed, the 1973 statute remains the principal statute defining the legal basis for citizenship. In addition to this, it is effective to detect that the citizen will not automatically receive a passport simply because you have Sierra Leonean nationality (Refworld, 2013). The person can not be eligible to have a new passport of legal citizenship if he is suspected to have a serious crime and non-bailable condition. According to the “Sierra Leone Citizenship Act 1973, anybody born in Sierra Leone before 19 April 1971

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or living there on 18 April 1971, automatically becomes a Sierra Leonean citizen” (SLID, 2020). On the 19th of April, 1971, Sierra Leone citizens who are not citizens of any other State will be deemed to be citizens by birth of Sierra Leone. Legally a person can be a citizen of Sierra Leone if his grandfather is “born in Sierra Leone and a person of negro African descent”. Those born in Sierra Leone are no longer discriminated against based on their gender since section 3.2(a) has been amended to allow citizenship to be passed down both maternal and paternal lines (Refworld, 2013). A further extension of this right was made by the government in 2017, allowing for the adoption of children born abroad. There is, in other words, no restriction on who can obtain a Sierra Leonean passport if they satisfy the above conditions (Refworld, 2013). Therefore, citizens of Sierra Leone by descent are anyone born outside the country on or after 19 April 1971 to a Sierra Leone citizen parent or parent by descent. Section 8(2) of the Citizenship Act of 1973 in Sierra Leone says that a “person of Negro African” descent who has resided in Sierra Leone for at least eight years and is 21 years of age and of sound mind may apply for naturalization in the manner prescribed upon reaching the age of 21 (Refworld, 2013). . Instances where candidates of Sierra Leone have been excluded from citizenship questions As per the Human Rights Report of Sierra Leone, key issues that have been excluded from the question of citizenship are cruelty, inhuman nature, degrading treatment, punishment by the government, lifethreatening prison, serious government corruption, and serious government corruption (State, 2021). . Instances of manipulation in Sierra Leone It is believed that people in Sierra Leone have manipulated the term “ex-combatant” “to gain political concessions at the expense of the entire

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community” (McIntyre, 2003). “Rather than perceiving themselves as exRUF or Civil Defence Force (CDF) combatants”, young people should be sensitized to define themselves as a youth. . Instances where a whole tribe or region Are questioned about their rights to vote There is little evidence that political debates are effective at influencing voters and candidates, despite debates often being considered a vital part of campaigns. Publicly screened debates before parliamentary elections in Sierra Leone were evaluated by researchers (Glennerster et al., 2013). During the campaign and one year later, candidates invested more in their constituencies because of debates that influenced voters’ political knowledge and voting decisions. Several democracies consider political debates to be an important outreach tool to maintain the right to vote (Glennerster et al., 2013). Election outcomes may be influenced by publicizing debates, particularly in contexts with limited information on candidates.

10.3

Exclusion Based on Citizenship 10.3.1

Exclusion Citizenship of Ghana

The provision of Ghana’s constitution has clarified that any person can get citizenship by birth. As per the view of Akaateba (2019), the law has clarified that children who might have been born anywhere in the world but if he had at least one grandparent of Ghanaian origin, then he would have got citizenship. If these criteria are not followed, then no citizenship rights will be entertained to a person. The Constitutional Act, of 1992 has highlighted that any person born on or after 7th January 1993 had set a cut-off date and people who have borne any of their parents or grandparent was or is a citizen can have been given citizenship (United Nations, 2023). Failing to meet the set data and not fulfilling any of the criteria mentioned in this section will become the reason for not getting citizenship in Ghana. Naturalization has been another effective method for availing of citizenship in Ghana. The point view of Ansong et al. (2019), a person has to reside for at least 6 years in order to get citizenship in Ghana. Apart from that, any person who is seeking citizenship of the country must have an understanding of their traditions, and customs and should

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have to speak the language mentioned in article 10(1)(d) of the Citizenship Act, 2000. Different general provisions such as good conduct and character of the person have been mandated for providing citizenship “The Minister may with the approval of the President grant a certificate of naturalisation to a person of age and capacity who satisfies the Minister that he is qualified under section 14 of this Act for naturalisation” which is written in the article 13(1) and “A person to whom a certificate of naturalisation is granted under subsection (1) shall take the oath of allegiance and become a citizen by naturalisation from the date on which the oath of allegiance is taken” written in article 13(2) (International Labour Organization, 2000). People who have been failing to meet any of the criteria are not acceptable to get citizenship as per the law. Though, it has to be noted that denaturalization can be one of the major reasons for losing citizenship in Ghana if a person is showing disloyalty to the state or committing any crimes against state security. Apart from that, if they are found to be indulging in misrepresentation, or fraudulent activities, then their citizenship will be taken away and hence, they will lose the status of Ghana. Voluntary renunciation has been considered by the Ghanaian citizenship act to lose citizenship in Ghana. For this, a person has to contact the Embassy and provide the necessary details set by them along with other paperwork as necessary (WSCL, 2023). In order to make voluntary renunciation, it has been required to show citizenship proof from another country; otherwise, as per the provision of the law, the person will not be excluded from the citizenship of Ghana. Article (16)(2) discussed that “without prejudice to Article 94(2)(a) of the Constitution, no citizen of Ghana shall qualify to be appointed as a holder of any office specified in this subsection if he holds the citizenship of any other country in addition to his citizenship of Ghana in which Chief Justice as well as Justices of Supreme Court, Secretary to the Cabinet, High Commissioner, Inspector General of Police, Chief Fire Officer and Chief Director of a Ministry” (Referworld, 2023). This has been clarified that people who have been holding any of these posts if found to have been using dual citizenship, then they will have lost their citizenship of Ghana. “Deprivation of Citizenship” has been provided in article 18 of the Citizenship Act, of 2000 (Citizenship Right, 2016). The provision has clarified that with the application of the Attorney General, the High Court has the power to deprive a person of the country who is a citizen of Ghana. Such steps have been taken when any person has become a threat

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to the security of the country or hurt the public interest or come up with prejudices against public morality. Article 18(b) clearly highlighted that citizenship that has been taken by misrepresentation, fraud, irregular practice, or any other improper way shall be liable to the country and have to lose the right of Citizenship of Ghana. 10.3.2

Exclusion Citizenship of Nigeria

The Constitution of 1999 Nigeria has been giving the chance to its citizens to renounce their citizenship. As per the argument of Asa (2020), “Any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation S. 29 (1) 1999 constitution of the Federal Republic of Nigeria”. This has been clarified that any person has the right to give up their citizenship voluntarily as per the voluntary act of relinquishing. It has been observed that multiple citizenships are one of the main reasons for renouncing citizenship by the people of this country. S. 28 of the 1999 constitution of Nigeria has been allowing its citizens to keep their citizenship intact if they are taking dual citizenship. But, people have not been showing their interest to show themselves as a citizen and hence they have been renouncing them. Thus, Nigeria has been given a chance to involuntarily take away its citizenship by following the appropriate procedure. “Person(s) who has committed an act of treason or an attempt to overthrow the government by force and being convicted by a court of law or tribunal may be deprived of his citizenship by the president although subject to the fact that such person is not a citizen by birth” (Nigerian Constitution, 2023). This fact is provided in S. 30(2) of the 1992 Constitution. Actually, this has been considered a crime and it has also been degrading the good image of the country hence, the government forced its citizens to be deprived of the country. In this regard, the person must be either the age of 18 years old or above and he must be sound-minded and not going through any mental illness. Apart from that, the person should have either acquired or would likely be granted citizenship by another country. Apart from that, the person must not have any financial liability or any criminal record to the state for availing renunciation in Nigeria. “The President may deprive a person, other than a person who is a citizen of Nigeria by birth or by registration, of his citizenship, if he

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is satisfied that such a person has, within a period of seven years after becoming naturalized, been sentenced to imprisonment for a term of not less than three years” (Nigerian Constitution, 2023). Thus it has to be noted that naturalization has been becoming one of the key factors for losing citizenship by people in Nigeria. Naturalization is provided by following Section 27(2) of the Constitution of Nigeria in which the President has the power for granting the certification of naturalization (Mondaq, 2023). But, in order to avoid deprivation from citizenship, it has been required that the person should be of full capacity and age, possess good character, show clear intention and have a desire for becoming domiciled in Nigeria, be acceptable to the local community and show interest in living here permanently, should be taken the oath of allegiance as mentioned in the Seventh Schedule. 10.3.3

Exclusion Citizenship of Kenya

Citizenship that has been taken by birth cannot be taken away in Kenya as per the law and they have been permitted dual citizenship. On the other hand, Kenyan citizenship might be lost if it has been done by registrationKlrc, 2023. The citizenship can be renounced if a citizen has acquired it by false representation, concealment of any kind of material fact, and fraud as per article 17(1)(a). Article 17(1)(b) highlighted that “if a person acquired citizenship by registration, the citizenship may be revoked if the person as, during any war in which Kenya was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was knowingly carried on in such a manner as to assist an enemy in that war” (RefWorld, 2011). Hence, it has to be remembered that by getting citizenship, it has not been indulging in any unlawful activities for facing legal issues and being denounced from Kenya. Article (17)(c) mentioned that the person should not be convicted of any offence or get sentenced to imprisonment for a term of 3 or more years (Kenya Constitution, 2012). In case, a person is found to have committed any offences, then as per the law, the procedure will happen and later on, it will be the decision of the court to make exclusion from the citizenship of Kenya. Article 17(2)(b) mentioned that “The citizenship of a person who was presumed to be a citizen by birth, as contemplated in Article 14(4), may be revoked if the nationality or parentage of the person becomes known, and reveals that the person was

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a citizen of another country” (Klrc, 2023). Hence, the person should not possess citizenship of another country without the permission of Keny; otherwise, as per the law, as a penalty, the person has to lose his citizenship of Kenya. Article (17)(2)(c) clearly depicts that the age of a person should not be older than 8 years from its founding year as it is directly indicating that the person does not belong to the country. As a result, as per the citizenship act of Kenya, such a person will not be entertained as a citizen of the country. 10.3.4

Exclusion Citizenship of Sierra Leone

According to Bonsoh (2018), “in relation to a person a person losing his or her nationality, Section 11 of Sierra Leone Citizenship Act explained that, ‘any person who, upon attaining the age of twenty-one years, is a citizen of Sierra Leone and also a citizen of another country shall cease to be a citizen of Sierra Leone upon his attaining the age of twentytwo years”. This is clearly highlighted that Sierra Leone does not give permission for keeping dual citizenship as per the 1991 Constitution of this country. Deprivation of Citizens is another method which is applied to removing the status of citizenship of the people of Sierra Leone. “The Minister may, by Order according to the Citizenship Act Section 16, deprive any person, who is a citizen by naturalization, of his citizenship if he is satisfied that such person has acquired the nationality or citizenship of a foreign country by any voluntary or formal act other than marriage” (Bonsoh, 2018). Apart from that, section 17 has also indicated that a person can be deprived of his citizenship if he has shown disloyalty to the government, or within 7 years of his becoming citizenship or sentenced to imprisonment. The Citizenship Act, of 2006 has been determining who is eligible to become a citizen of Sierra Leone and who is not. Point to view Khan (2021), “From independence right through to date, there are three ways of citizenship acquisition, namely, by automatic right of birth, the right to acquire citizenship by registration, and by naturalisation as a discretionary power and therefore Sierra Leone has an ius soli, ius sanguinis and ius domicili mix in its citizenship framework”. Women have not been getting any permission for passing citizenship to any foreign spouse and hence, the marriage of women by people of other countries will not have the right to avail citizenship of Sierra Leone. Sierra Leone’s law has been

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permitting voluntary renunciation of citizenship (Multicitizenship, 2023). In this regard, the proper procedure and legislation in this country have to be followed. Here, the person who wants renunciation has to contact the Office of the Attorney General or Minister of Justice in the Guma Building of Freetown. Citizenship Act 2006 has been describing that people do not have to lose dual citizenship which is clear from the case of Kandeh Yumkella. Dr Yumkella was accused of holding dual citizenship and still proceeding with the election of 2018 which was supported by the previous law of Sierra Leone and hence the case was filed against him. In this regard, evidence has highlighted that “he had relinquished his US citizenship in 2017, well before registering his presidential and parliamentary elections candidacy, a decision many believed he should never have been forced to make” (Judiciary Gov, 2018). In this case, “Section 127(1) & (2) 1991 Constitution; Public Elections Act, 2012” has been evaluated for gaining insight into the fact whether these laws are giving permission for conducting elections or not. Evaluating all of the facts it has been clearly found that elections should be prohibited and hence for some time, Kandeh Yumkella has to face prohibition for performing its tasks. Here, it has been observed that Fornah who had filed the case against Yumkella withdrew it though the question about the fair as well as correct interpretation of the law was required to be focused. “After unprecedented marathon legal arguments among the Supreme Court Judges in full view of the country’s media, a decision was reached: No one, born of Sierra Leonean parents in Sierra Leone can be denied the right to vote and be voted for office” (Judiciary Gov, 2018). Hence, it has been clearly identified that the decision of the Supreme Court is supporting the Citizenship Act 2006 and is eligible to contest in the parliamentary as well as presidential elections in 2018.

10.4

Conclusion

It can be concluded that a key requirement for the election of Ghana is outlined in the “Citizenship Act 2000”. Ratification of the Constitution will ensure that “every Ghanaian citizen who is a citizen by law will continue to hold that citizenship”. Specifically, Section 2 discusses the laws governing “Ghanaian citizenship by birth” and explains if the relevant provisions need to be clarified, this Part summarizes them. In addition to people born outside Ghana, people whose parents were born in Ghana are also eligible to become Ghanaians. In accordance with

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section 4(2), a person who “claims Ghanaian citizenship” does not have citizenship of Ghana if their parent, grandparent, or great-grandparent was a citizen of Ghana “at the time of their birth”. Section 10(1) of the Citizenship Act describes citizenship by registration as a right that can be obtained by any approved national. As long as they have good character, remain ordinary residents of Ghana, and have reminded the president they have been residents for the last five years, they can be registered as Ghanaians. Under section 11, parents or guardians shall request registration as Ghanaian citizens from the Minister upon their children’s registration or naturalization. There are legal requirements for dual citizenship that are outlined in Part III of the act. “It is stated in Section 16(1) of the Ghana Citizenship Act that Ghanaian citizens can hold citizenship in any country other than their own”. Article 94(2)(a) of the Constitution establishes that “citizens of any other country” are not eligible for appointment to any of the positions mentioned in this subsection. This category of citizens falls under the definition of who is eligible to be a citizen of Nigeria under Section 25 of the Constitution. Here, the word “indigenous” is used a lot, and it signifies that these people are a part of the Nigerian bloodline. Those born outside of Nigeria who is the children of Nigerians or have grandparents who are Nigerian citizens are eligible to become citizens of Nigeria by birth. We will discuss citizenship by descent by birth in this subsection, which is the purpose of the discussion. As a result of this section, people who are not the children or grandchildren of Nigerian citizens are not entitled to “claim Nigerian citizenship by birth” if their parents or grandparents were not born in Nigeria. An individual who becomes a naturalized citizen by birth in Nigeria must have blood ties with someone who is Nigerian. It is possible for citizenship by registration to satisfy legal or constitutional requirements related to elections in a country. The Nigerian constitution has a section called Section 26 which focuses on “Citizenship by Registration”. If a candidate has good character, he or she may be certified as a Nigerian citizen. One witness must be a religious leader from the candidate’s church, and the other must be a member of the candidate’s church. As the person expresses this clearly, it is obvious that they wish to reside permanently in the country. The residency requirements for becoming a citizen must be fulfilled to qualify. A person must be administered “the oath of allegiance” by Schedule 7 of the Nigerian Constitution. An oath of allegiance is administered during citizenship ceremonies by government representatives. Women can become citizens of Nigeria if they marry

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Nigerian citizens and are eligible for election if they marry Nigerian citizens. A Nigerian citizen can become a citizen through naturalization if he contributes to the country’s welfare and demonstrates a clear desire to join. The Kenyan constitution stipulates that by birth, no matter whether the child is born in Kenya, one becomes a Kenyan citizen if either their mother or father is one. When parents have Kenyan citizenship, their children are automatically granted Kenyan citizenship. Therefore, they can obtain a Kenyan passport. Birth certificates are also issued to children born abroad, so they can be registered “in Kenya as soon as they are born”. As long as their parents are Kenyan citizens or were Kenyan citizens when they were born, Kenyan citizens by birth are automatically recognized as dual citizens under the new constitution, “so long as either or both parents were Kenyan citizens” at birth. Furthermore, if you have Sierra Leonean nationality, the citizen may not immediately receive a passport. If the person is suspected of serious crime and nonbailable, he cannot obtain “a new passport of legal citizenship”. Especially in contexts with limited information about candidates, publicizing debates may influence election outcomes in Sierra Leone. There are different provisions that are provided in the Constitutional Act and Citizenship Act of Ghana and correlating them has been required for not expelling as a citizen of the country. In this regard, it has been observed that Ghanaian citizenship can be attained by birth or at least a grandparent with its origin should be present; otherwise, no person is entertained as a countryman of this country. On the other hand, fulfilling the condition of naturalization has been playing a great role in availing citizenship. In order to do so, every person has to stay there a minimum of 6 years and have the knowledge about the customs and traditions and have the ability to speak their language. In case, they have not been fulfilling this criterion, then as per the Citizenship Act, 2000, they will not be considered a Citizen of Ghana. Apart from that, voluntary renunciation has been accepted by it and for doing so, a person should show citizenship of another country and have to follow legal procedure. Here, it has been observed that for getting renunciation, a person should be free from any financial liability and criminal cases; otherwise, as per the law, he would be bound there. Nigeria has also been providing renunciation to its citizens which has been highlighted in S. 29 (1) 1999 constitution of the Federal Republic of Nigeria. For availing of it, people have to show citizenship of another

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country and moreover, he has to follow legal procedure failing to meet these criteria will not provide any permission for getting voluntary citizenship. Any person who has been committing a crime and is not a citizen of Nigeria by birth will not be entertained to get deprivation of citizenship until he is proven that he is free from any conviction and criminal cases. The government of Nigeria has been checking whether the person is sound-minded and a minimum of 18 years old or not with a view to giving citizenship by naturalization. But, failing to meet the criteria that are mentioned along with possessing good characteristics, and having the clear intention of not harming the country and accepting the community has been closely observed. Fulfilling these conditions has been helping people to take the oath of allegiance and provide citizenship in a hassle-free manner. Legislation of Kenya has highlighted that any person who has availed of citizenship by birth has not been deprived of their citizenship forcefully. They have been allowing dual citizenship to their people. But, concealment of any kind of material factor, fraudulent activities or false representation is strictly prohibited as per article 17(1)(a). Furthermore, a person should not become the reason for influencing a war; otherwise, he will have lost his citizenship as mentioned in article 17(1)(b). A person should not indulge in any unlawful activities, traded or engaged themselves as these are the provisions for deprivation of citizens. People who have been seeking renouncement from Kenya should not be associated with any kind of offence or have been facing imprisonment. Apart from that, a person should not possess citizenship of another country and exposing it will be facing legal issues and might not avail deprivation as he desired to get. On the other hand, it has been observed that a person will not be considered a citizen of Kenya if his age is more than 8 years from its founding year. By article (17)(2)(c), the person will lose his citizenship directly from this country. On the other hand, it has been seen that women who have been marrying other people who are not from the same country are not capable of giving citizenship to their husbands. Sierra Leone has not been permitted dual citizenship as per the 1991 Constitution of the country. Though, the scenario has changed due to the citizenship act, 2006 and reform has made that citizenship of people can be retained if they possess dual citizenship. But, for the case of multiple citizenships, such a provision is not entertained that is leading to losing citizenship. Not fulfilling the criteria of naturalization is another reason why many people have been losing their citizenship in Sierra Leone. The

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case of Kandeh Yumkella has come up with a question for getting all of the rights of citizenship despite possessing the citizenship of another country. The judgement from Supreme Court has clarified that his act of him is as per the law and he should be availed of all of the rights of citizenship.

References Akaateba, M. A. (2019). The politics of customary land rights transformation in peri-urban Ghana: Powers of exclusion in the era of land commodification. Land Use Policy, 88, 104197. Ansong, M., Pergl, J., Essl, F., Hejda, M., van Kleunen, M., Randall, R., & Pyšek, P. (2019). Naturalized and invasive alien flora of Ghana. Biological Invasions, 21, 669–683. Asa, P. O. (2020). Renunciation of citizenship in Nigeria. [online]. Medium. Available at: https://medium.com/@peteroluwasholaasa/renunciation-of-cit izenship-in-nigeria-by-peter-oluwashola-asa-esq-7d2435e82805. Accessed 28 Mar 2023. Ayoade, J. A. (2019). States without citizens: An emerging African phenomenon. In The precarious balance (pp. 100–118). Routledge. Bonsoh, D. (2018). Citizenship under National and Customary International Law: Conditions of acquire and losing citizenship in the Republic of Sierra Leone. [online] www.grin.com. Available at: https://www.grin.com/ document/419405. Accessed 28 Mar 2023. Britannica. (2020). Election—Functions of elections | Britannica. In Encyclopedia Britannica. [online]. https://www.britannica.com/topic/election-pol itical-science/Functions-of-elections Citizenship Right. (2016). Citizenship Act of 2000 Citizenship Act, 2000 ARRANGEMENT OF SECTIONS PART I—EXISTING CITIZENSHIP; CITIZENSHIP BY BIRTH Section. [online]. Available at: http://citizensh iprightsafrica.org/wp-content/uploads/2016/02/Ghana_Citizenship_Act_ with_forms_591_2000.pdf. Accessed 28 Mar 2023. Denton, C. (2023). The ways in which citizenship can be acquired in Nigeria. Available at: https://www.ibanet.org/article/89D400A4-EA2D41D6-9ACE-E19B4AF99337. Accessed 28 Mar 2023. Ecitibiz.Interior.gov. (2023). Citizenship requirements. Available at: https://eci tibiz.interior.gov.ng/citizenship/requirements. Accessed 26 Mar 2023. Gis Gov. (2023). Citizenship Act, 2000 (ACT 591). [online]. gis.gov.gh. Available at: https://www.gis.gov.gh/ACTS%20AND%20REGULATIONS/ ACT%20591.pdf. Accessed 29 Mar 2023.

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Glennerster, R., Casey, K., & Bidwell, K., (2013). Impact of voter knowledge initiatives in Sierra Leone. Available at: https://www.povertyactionlab.org/ evaluation/impact-voter-knowledge-initiatives-sierra-leone. Accessed 25 Mar 2023. Hansen, T., (2012). Masters of manipulation: How the Kenyan government is paving the way for non-cooperation with the ICC. Available at: https://www.opendemocracy.net/en/opensecurity/masters-of-man ipulation-how-kenyan-government-is-paving-way-for-non-/. Accessed 27 Mar 2023. IEBC. (2023). Nomination and elections rules. [online]. Available at: https:// www.iebc.or.ke/uploads/resources/YzwzkLmtcn.pdf. Accessed 29 Mar 2023. ILO. (2023). Citizenship act 2000. Available at: https://www.ilo.org/dyn/nat lex/docs/ELECTRONIC/59377/101247/F526375904/GHA59377.pdf. Accessed 26 March 2023. International Labour Organization. (2000). Act 591 ARRANGEMENT OF SECTIONS PART I—EXISTING CITIZENSHIP; CITIZENSHIP BY BIRTH Section. [online]. Available at: https://www.ilo.org/dyn/nat lex/docs/ELECTRONIC/59377/101247/F526375904/GHA59377.pdf. Accessed 28 Mar 2023. Judiciary Gov. (2018). IN THE SUPREME COURT OF SIERRA LEONE. [online]. Available at: https://www.judiciary.gov.sl/wp-content/uploads/ 2021/09/DAVID-FORNAH-VS-ALHAJI-DR-KANDEH-KOLLEH-YUM KELLA-SUPREME-COURT-JUDGEMENT-BY-HON.-JUSTICE-SENGUKOROMA-1.pdf. Accessed 28 Mar 2023. Kenya Brussels. (2023). Citizenship. Available at: http://www.kenyabrussels. com/index.php?menu=4&leftmenu=101&page=112. Accessed 28 Mar 2023. Kenya Constitution. (2012). Chapter 3—Citizenship. [online]. Kenya Constitution. Available at: https://kenyanconstitution.manjemedia.com/citizenship/ #16. Accessed 28 Mar 2023. Khan, A. W. (2021). Authored By Amadu Wurie Khan Report on citizenship law: Sierra Leone country report. [online]. Available at: https://cadmus.eui. eu/bitstream/handle/1814/71023/RSCAS_GLOBALCIT_CR_2021_11. pdf?sequence=1&isAllowed=y. Accessed 28 Mar 2023. Klrc. (2023a). 17. Revocation of citizenship—Kenya Law Reform Commission (KLRC). [online]. www.klrc.go.ke. Available at: https://www.klrc.go.ke/ index.php/constitution-of-kenya/109-chapter-three-citizenship/183-17-rev ocation-of-citizenship. Accessed 28 Mar 2023. Klrc. (2023b). Citizenship by registration. Available at: https://www.klrc.go.ke/ index.php/constitution-of-kenya/109-chapter-three-citizenship/181-15-cit izenship-by-registration. Accessed 28 Mar 2023.

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Kolawole, S. (2017). The political manipulation of Nigerians. Available at: https://www.thecable.ng/political-manipulation-nigerians. Accessed 26 Mar 2023. McIntyre, A. (2003). Children and youth in Sierra Leone’s peace-building process. Available at: https://www.files.ethz.ch/isn/22702/Children_youth_ sierraLeone2.pdf. Accessed 28 Mar 2023. Mondaq. (2023). Overview of citizenship in Nigeria—General immigration— Nigeria. [online]. www.mondaq.com. Available at: https://www.mondaq. com/nigeria/general-immigration/1156382/overview-of-citizenship-in-nig eria. Accessed 28 Mar 2023. Multicitizenship. (2023). Sierra Leone. [online]. Multiplecitizenship.com. Available at: https://www.multiplecitizenship.com/wscl/ws_SIERRA_LEONE. html. Accessed 28 Mar 2023. Nigerian Constitution. (2023). Chapter 3: Section 30. Deprivation of citizenship. [online]. Nigerian Constitution. Available at: https://nigerian-constitut ion.com/chapter-3-section-30-deprivation-of-citizenship/. Accessed 28 Mar 2023. PLAC. (2023). Electoral Act and INEC guidelines simplified. [online]. Available at: https://placng.org/i/wp-content/uploads/2019/12/Electorl-Act-2010Simplified.pdf. Accessed 29 Mar 2023. Ref World. (2001). Citizenship Act 2000. Available at: https://www.refworld. org/pdfid/3eda135a2.pdf. Accessed 28 March 2023. Referworld. (2023). Citizenship Act, 2000. [online] Referworld.org. Available at: https://www.refworld.org/pdfid/3eda135a2.pdf. Accessed 28 Mar 2023. RefWorld. (2011). Kenya Citizenship and Immigration Act. [online]. refworld.org. Available at: https://www.refworld.org/pdfid/4fd9a3082.pdf. Accessed 28 Mar 2023. Refworld. (2013). Sierra Leone: The Citizenship Act of 1973. Available at: https://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf. pdf?reldoc=y&docid=5ce4063b4. Accessed 27 Mar 2023. SLID. (2020). Policy guidance on Sierra Leone Citizenship Laws. Available at: https://slid.gov.sl/wp-content/uploads/2020/02/Policy-Guidanceon-Nationality.pdf. Accessed 24 Mar 2023. State. (2019). Ghana 2017 Human Rights Report. Available at: https:// www.state.gov/wp-content/uploads/2019/01/Ghana.pdf. Accessed 28 Mar 2023. State. (2021). Sierra Leone 2021 Human Rights Report. Available at: https:// www.state.gov/wp-content/uploads/2022/02/313615_SIERRA-LEONE2021-HUMAN-RIGHTS-REPORT.pdf. Accessed 27 Mar 2023. The Legal Framework. (2012). The legal framework and election administration. [online]. https://www.thecommonwealth-ilibrary.org/index.php/com sec/catalog/download/255/252/1897?inline=1

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UN, org. (2023). Identifying social inclusion and exclusion. Available at: https:/ /www.un.org/esa/socdev/rwss/2016/chapter1.pdf. Accessed 25 Mar 2023. United Nations. (2023). Constitution of the Republic of Ghana 1992, as amended to 1996. [online]. constitutions.unwomen.org. Available at: https://constitutions.unwomen.org/en/countries/africa/ghana?provision category=5c2f8f06f7844dc4b49701c46c468454. Accessed 28 Mar 2023. UNODC. (2023). Corruption in Ghana. Available at: https://www.unodc.org/ documents/corruption/Publications/2022/GHANA_-_Corruption_survey_ report_-_20.07.2022.pdf. Accessed 24 Mar 2023. WSCL. (2023). [online]. Multiplecitizenship.com. Available at: https://www. multiplecitizenship.com/wscl/ws_GHANA.html. Accessed 28 Mar 2023.

CHAPTER 11

Women and Youth in Elections

There have been many strategies geared towards promoting significant active participation of women and youth in electoral processes and politics in Africa. These include, but are not limited to, strong advocacy by civil society activists for the establishment and implementation of proper legal frameworks, together with active media engagement in promoting youth and women involvement in political processes, among others. According to a report by OECD (2018), the total and effective political participation of women is a matter that traverses diverse contemporary issues in society, including human rights, sustainable development, and inclusive growth. Scholars like Mlambo and Kapingura (2019) have underscored that active participation of women at all levels of decisionmaking on equal terms with men is fundamental in achieving peace, democracy, and sustainable development as well as the inclusion of their perceptions and experiences in decision-making. Nevertheless, as Kumar (2018) indicates, women in the twenty-first century are confronted by a myriad of obstacles as they strive for political participation worldwide, and consequently women globally are underrepresented in parliament and are often left out at decision-making levels. Feminist theories argue that the low participation of women in political activities is attributed to differences mainly based on, among others, sex-role socialization or the gender role social structure, where different roles are ascribed to women and men

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with the women’s area being seen as the home duties, while politics and public life are considered men’s areas (Clark, 1991). On the other hand, the youth are also considered as one of the marginalized groups in political participation, which is a critical challenge that is re-shaping contemporary electoral politics (Kitanova, 2020). Part of what is contributing to the crisis is a lack of consensus on the definition of “youth” as the conceptualization varies across different countries and regions (Melike, 2017). The youth in Africa, according to the African Youth Charter (2006), basically entails the young men and women between the ages of 15 and 35 years (African Union, 2006). The youth are considered the most disengaged group in politics, with their turnout in elections rated the least compared to other age groups in elections (Kitanova, 2020). According to Arches and Fleming (2006), getting young people informed and ensuring they have requisite knowledge and skill for decision-making is key to their active participation. However, Melike (2017) explains that while some youth are eager and willing to participate in political activities/processes, others lack the requisite support and knowledge to participate. Irrespective of the rationale behind the low political participation of women and the youth, it is critical to note, as Clark (1991) explained in the theory of descriptive representation that excluding any group from power and decision-making positions has negative implications on policy and political outcomes. This chapter explores the role of women and youth in elections and the legal provisions for their participation in the political sphere. An overview of their political participation in Africa is looked at first, before reviewing the legal provisions for their political participation in the selected African countries, including South Africa, Kenya, Ghana, and Sierra Leone.

11.1

Overview of Political Participation of Women and Youth in Africa 11.1.1

Women

A report titled Women’s Political Participation–Africa Barometer 2021, published by the International IDEA (2021), has revealed that as we approach the 2030 deadline for the achievement of -1482181853 SDGs, Africa is still quite far from achieving SDG 05 which seeks to achieve

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gender equality, particularly to empower women and end their discrimination. The report from this overview on women’s participation in the political sphere has documented both the progress and the deficits of women’s political participation in Africa. According to the report, out of the 12,113 parliamentarians in Africa, women’s representation in the lower houses averages 25% of members, and 20% in the upper houses of parliament. Local government is usually considered a training ground for women’s active participation in elections and politics at large. However, although complete data on women councillors was only available for 19 countries, women constituted only 21% of the councillors in these countries. In compiling the report, ten indicators for women’s participation and representation in political and electoral processes were used. These included the percentage of women in election management bodies, lower houses of parliament, upper houses of parliament, parliament overall, cabinet, local government, political parties’ leadership, top political executive positions, mayors of capital cities, and house speakers. Among the ten indicators, representation of African women is greatest in election management bodies (28%), although this is still below the equal participation anticipated of 50%. They are least represented in top political executive positions (including presidents, vice presidents, prime ministers and deputy prime ministers), where their representation is 7% and political parties’ leadership (12%) on the whole continent. Based on the report, women’s political participation (WPP) in Africa has improved over the past two decades. In 2000, WPP stood at 9%, which increased to 17% in 2010 and further to 25% in 2020. In 2021, women representation in parliament (both upper and lower chambers) stood at 24%. However, there are notable variations in women’s representation in parliament in different regions in Africa, where the Horn of Africa and East Africa leads at 33% and 32%, respectively, while West Africa is the least at 16%. In Southern Africa, Central Africa, and North Africa, WPP is 29%, 19%, and 21% respectively. In the entire Africa, Rwanda has the highest proportion of women representation in parliament at 61%, followed by South Africa at 46% and Namibia at 44%. On the other hand, Nigeria and Burkina Faso are the least with 6% each. Kenya has 22% while Ghana and Sierra Leone have 15% and 12% respectively. Other countries with very low levels of women’s representation in parliament of less than 10% include Central Africa (9%) and Gambia (9%).

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11.1.2

Youth

Generally, in Africa, the youth are those young men and women who fall within the age brackets of 15–35 years (African Youth Charter, 2006). They constitute more than a billion of the world’s population and close to 80% of them reside in developing continents, particularly Africa (AU Population Report, 2017). Africa is therefore in the midst of what demographers call a youth-bulge as on the average, over 60% of its population is youthful. This is particularly true in Eastern, Western, and Central African countries where a preponderant majority of their populations are youthful (AU Population Report, 2017). Generally, in Africa, the youth are those young men and women who fall within the age brackets of 15–35 years (African Youth Charter, 2006). They constitute more than a billion of the world’s population and close to 80% of them reside in developing continents, particularly Africa (AU Population Report, 2017). Africa is therefore in the midst of what demographers call a youth-bulge as on the average, over 60% of its population is youthful. This is particularly true in Eastern, Western, and Central African countries where a preponderant majority of their populations are youthful (AU Population Report, 2017). They constitute more than a billion of the world’s population and close to 80% of them. The youth constitute over a billion of the global population, with the majority of them residing in developing countries, particularly in Africa where the youth constitute over 60% of its population. This is especially the case in East African, West African, and Central African nations (AU Population Report, 2017). Therefore, the youth in Africa are a major political force. Nonetheless, despite being the largest segment of the population, the youth are usually given meagre opportunities in public governance systems. Instead, they are often recruited to fight dangerous political wars, usually as political parties’ “foot-soldiers”. Young people are excluded from meaningful participation in governance systems (BobMilliar, 2014). They are sometimes (in extreme cases) lured into armed conflict and terrorism. This, however, is not a novel phenomenon. In pre-colonial African societies, the youth played a critical role of being the vanguard of the pro-independence movements and anti-apartheid struggles (Gyampo & Anyidoho, 2019). As expressed by Cooper (2008: 68),

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What is striking about the role of young men in postwar African history is less their occupying a specific role than their availability: as supporters of political parties – starting with Nkrumah’s political movement in the Gold Coast; as toughs who serve political henchmen – from urban slumlords to warlords in Liberia or Sierra Leone.

Contemporary youth cannot be simply described as being entirely without political agency. The youth are often engaged by political parties and other powerful influences to accomplish their own self-interested goals, but the youth themselves perceive it as an avenue to get jobs, money, and social capital that they often seek (Dawson, 2014). Furthermore, the youth are also known to take initiative in influencing and disrupting the existing political structures or seeking political expression outside these structures (Asante, 2012). Gender significantly influences the role and participation of youth in politics. In patriarchal societies, the active participation of youthful women in formal politics is undermined by the tendency of males to dominate public opportunities and resources, as well as a social ascription of male and female roles (Coffe & Bolzendahl, 2011). Mama and Okazawa-Rey (2008) articulate that the social ascription of gender roles, coupled with state institutions that are highly characterized by patriarchy and militarism, tend to make women lose interest and not engage in politics. In spite of these hindrances, and as the democratic space continues to open up, young women are increasingly participating in politics (Tripp & Badri, 2017). Their level of participation, however, differs across various African nations, and this is largely attributed to varying political attitudes and interests (Coffe & Bolzendahl, 2011). Young women’s political participation is hindered by the perception of “youth” as synonymous with “male”, which results in young men receiving more attention in addressing the issues of the youth (George, 2014). There are also variations in the kind of political activities or roles the youth are engaged in. For example, Dawson (2014), after studying local politics in a South African community, showed that while there was a universal feeling among all the youth that they had been excluded in politics, they had assumed their diverse roles as leaders, brokers, and protesters, which is usually influenced by how educated they were, their employment status, and living conditions, as well as their motivations.

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According to Bob-Milliar (2014), the youth are doubtless a vital component of any political coalition that is determined to succeed. They are usually considered as a unique group that can be influenced around a progressive political agenda (Debrah, 2012). A fundamental question however is, “Does the youth have an interest in formal politics, taking into account that being interested in and paying attention to public matters and discussions is a major catalyst of political behavior, especially in voting?”. In every electoral democracy, voting is core and hence a significant indicator to assess the engagement of youth in politics. Analysis of Afrobarometer data and trend in 16 countries over a ten year period (2005–2015) indicated that the youth have a low interest in politics, hence they have a high likelihood to decline to participate in political and civic activities or processes like elections, compared to older people (Lekalake & Gyimah-Boadi, 2016). However, the data did not confirm that a significant population of the youth actually declined to participate in political activities. The data for the last years of the period analyzed actually indicated that two-thirds of youth aged 18–35 years had voted in previous national elections in their respective countries, and that over 50% of them asserted they were interested in politics. However, there was a consistent trend of young women’s participation being lower than young men’s participation in almost all the indicators used to assess the political participation of the youth (Lekalake & Gyimah-Boadi, 2016). In another perspective, older youth of 25 years and above in age are likely to have less interest in politics and are less likely to vote in public elections than their younger counterparts This is probably due to the former being more engaged and concerned with their jobs, looking for jobs, or starting a family among other transitions to adulthood (Resnick & Casale, 2014). Moreover, youth who are relatively more knowledgeable in politics and electoral processes are more likely to vote in an election. Another key factor is that the tendency of the youth to vote is also influenced by how they perceive the elections: Are the elections fair? What is the length of tenure of the incumbent? If they are convinced that there is a possibility of political change through their vote (that is, will their vote count), they are more likely to vote in the election (Evrensel, 2010). This means that those administering elections can with a high degree of accuracy determine the level of youth participation in the election. Notwithstanding their marginalization within political parties, the youth are therefore doubtless a bloc that could play a major role within

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a political party in the achievement of democracy. In Ghana for instance, in 2008, 2012, and 2016, the youth in the New Patriotic Party (NPP) demonstrated against what they believed to be party leaders imposing candidates on constituents (Gyampo, 2011). The youth among members of NPP demanded that more youth be included in the party management and as candidates. Their advocacy succeeded to the extent that the National Democratic Convention (NDC), the second of the two major parties, established positions for youth representatives at all party levels (Asante, 2012). It is important to note that regardless of the political system in operation (whether autocracy or democracy), the role of the youth in politics can be peaceful or confrontational. For example, despite Ghana being hailed as a major democratic country in Africa, it is still not immune from confrontational youth politics (Bob-Milliar, 2014; Debrah, 2012). The country has experienced several instances of confrontational youth politics and demonstrations at political party levels and student levels since 1992, resulting in several casualties. According to Gyampo (2011), youth politics in Africa is usually confrontational, and what is being done to deal with it is co-optation and intentional efforts to marginalize them (Debrah, 2012). Young people are thus often excluded and their role curtailed in political systems and processes, resulting in their low representation in formal governance structures. In national elections, for instance, age limits set for a person to be eligible to stand for election to particular positions undermine the effective involvement and participation of the youth in elections. For example, the eligible age for one to contest for a parliamentary election is often higher than the voting age, the age of consent, and even the age of criminal culpability in many African countries. In addition to the deliberate formal regulations and cultural norms, insufficient social and financial capital hinders the youth from participating effectively in political processes and systems. As a result, in reality, and notwithstanding the formal rules and regulations, there are few formal political leaders below the age of 35 years. A report by the InterParliamentary Union (2016) revealed that African countries had only 1.5% of parliamentarians who were below 30 years in lower and single houses. In upper houses, Africa had only 0.7% of parliamentarians aged below 30 years. In terms of sub-regions in Africa, the report by the Inter-Parliamentary Union (2016) indicated that the proportion of parliamentarians under thirty years in lower and single houses was highest in

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East Africa at 3.4% and least in West Africa at 0.2%. This is an indication that the participation of the youth in political processes and their under representation is a major problem in Africa. Youth cultures, which include leisure activities, job avenues, and places of socializing (Murillo, 2017) can shape the role and participation of youth in political activities and processes. For instance, they can be starting points to political actions such as cases where apolitical engagements in social media culminate in political discussions, sometimes extending to political activism (Kahne et al., 2013; Ojok & Acol, 2017). Sometimes, as Murillo (2017) explains, these youth cultures or tendencies develop into resistance sites which are often used by states and conventional authorities as a basis for further exclusion of the youth from political processes and systems. Youth engage in movements connecting them across geographical space as a means for direct political activism. They may have diverse goals which could be clearly stated or implicit in such movements, including redressing injustices, seeking to achieve public good, or express support or grievance over a matter or principle(s) of moral value (Diani & Bison, 2004). Regardless of the goal, the collective political action of the youth is an inherent effort to bring change by stirring a sense of “we” versus “them”, the former being the powerless and the latter being those in power (Bakardjieva, 2015). According to Loader et al. (2014), the youth prefer engaging politically via their own self-created networks especially the media which they are more conversant with, as opposed to traditional political institutions like political parties that do not strongly affect them. The use of the internet in rallying for collective political action especially the social media appeals to the youth mainly due to the fact that the youth are highly receptive to novelty and experimentation that social media provides (Tandon & Brown, 2013). This has been evident in several major political cases. For instance, during the Egyptian revolution, the youth were largely involved through the social media in the organization of events and sharing of information. More specifically, Twitter was extensively used in the “Arab Spring”, which led to some calling it the “Twitter Revolution”. Twitter, Facebook, and other social media enable users to not only consume news but also to spread it very quickly, and this makes them effective instruments through which the youth channels are mobilized to channel political activism. From the overview, it is apparent that women and the youth have been politically marginalized in terms of their representation and participation

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in political processes and systems. As aforementioned, however, the level of participation vis-à-vis marginalization varies across different countries. It is therefore important to interrogate the legal provisions for the political participation of women and the youth in some African countries. In this work, country cases of South Africa, Kenya, Ghana, and Sierra Leone were investigated.

11.2

South Africa

The South African Constitution, in its Bill of Rights (Chapter 2), specifically Article 9, provides that everyone be treated as equal under the law without discrimination on the grounds of gender or age. This implies the recognition of the rights and women and youth and protection against their discrimination in various national processes including political processes like elections. Article 9(3) provides that. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

Under Article 9(4), the Constitution demands the enactment of national legislation to protect and prohibit unfair discrimination. Article 9(5) expounds that any discrimination on the grounds provided in 9(3) is unfair unless it is established that the discrimination is fair. This however creates ambiguity since “fair discrimination” is a contentious issue that may subjectively be misused to discriminate some groups of persons. The Constitution sets the eligible age to vote in an election at 18 years (Article 46.c; Article 105.c) which implies that the youth who have attained the age of 18 years and above have been granted the right to participate in elections. However, this exempts youth who are below 18 years from voting in an election despite the African Union Charter (2006) which sets the minimum age limit of youth at 15 years, providing in Article 11(1) of the Charter that every youth has a right to participate in all spheres of the society. On the political participation of women, the South African Constitution is quite advanced in recognizing the role of women and promoting their participation. In addition to prohibiting discrimination against women in Article 9(3) as explained earlier, the Constitution recognizes

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and encourages the election of women into the National Assembly and provincial legislatures by being gender sensitive in the wording describing the composition of these houses. Article 46(1) describes the composition of the National Assembly as consisting of “…no fewer than 350 and no more than 400 women and men elected as members…”. Similarly, Article 105(1) describes the composition of provincial legislatures as consisting of “…women and men elected as members…”. The Constitution also establishes the Commission for Gender Equality whose function as set out in Article 187 includes promoting respect for gender equality and the protection, development, and attainment of gender equality. The Commission has the power to monitor and evaluate policies and practices of organs of state at any level; statutory bodies or functionaries; as well as public bodies and authorities, in order to promote gender equality, and may make any recommendations that the Commission may deem necessary (Section 11(1a) of the Commission on Gender Equality Act No. 39, 1996). The Electoral Act, 1998 has an entire Article on the role of women— Article 6. The Article stipulates that every registered party and the candidate must facilitate the full and equal participation of women in political activities; and take all reasonable steps to ensure that women are free to engage in any political activities [Article 6(b&d)]. Article 6(c) of the Electoral Act further requires every registered party and candidate to ensure the free access of women to all public political meetings, marches, demonstrations, rallies, and other public political events. 11.2.1

Kenya

Article 55 (b) of the Constitution of Kenya grants the right to political participation and representation to the youth. The Article states that “the State shall take measures, including affirmative action programmes, to ensure that the youth have opportunities to associate, be represented and participate in political, social, economic and other spheres of life”. In promoting the representation of the youth, the Constitution promotes representation of the youth in the two levels of government (national government and county governments) where it establishes positions for youth representatives in the National Assembly (Article 97.c), the Senate (Article 98.c), and the County Assemblies (Article 177.c). The Political Parties Act 2011 under its first schedule (Code of Conduct for Political Parties) promotes the political participation of youth by requiring

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every political party to respect the right of all persons to participate in the political process, including youth (5.a). The Constitution also empowers parliament to enact legislation promoting the representation of women and youth (Article 100). On participation by women, the Constitution under the Bill of Rights protects women from being discriminated against in the political sphere. This is where Article 27(3) provides that women and men shall have the right to equal opportunities in the political sphere. However, while this seems to imply equal participation and representation in political and electoral processes, the Constitution sets a quota for representation of the different genders at not more than two-thirds of the same gender in an elective public body. Specifically, this is established as one of the general principles for the electoral system. Article 81(b) of the Constitution provides that not more than two-thirds of the members of elective public bodies shall be of the same gender (commonly known as “the two-thirds rule”). The Constitution has established positions in the National Assembly for women representatives, where every county has a woman representative in the house. Specifically, Article 97.1(b) states that part of the composition of National Assembly consists of forty seven women, each elected by the registered voters of the counties, each county constituting a single member constituency. In addition, the Constitution requires political parties to nominate women members to the Senate. Article 98, in describing the composition of the Senate, stipulates that part of the membership of the Senate shall be sixteen women members who shall be nominated by political parties according to their proportion of elected members of the Senate (Article 98.1b). In light of the two-thirds rule on gender representation required in the Constitution which was promulgated in 2010, to avoid a possible constitutional crisis on the composition of the two houses after the 2013 general elections, and following extensive discussions among governmental and non-governmental stakeholders, the Attorney General sought the advisory opinion of the Supreme Court on whether the Constitution required the implementation of the two-third gender principle during the 2013 general elections. Key public institutions and non-state entities and individuals applied to and were admitted as “interested parties” and “-1482181745 Amicus Curiae” in the case (Mumma, 2016). The Supreme Court, in a majority opinion with the Chief Justice dissenting, noted that the absence of a specific requirement in relation

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to the two houses of Parliament implied that, unlike in the case of county assemblies, the two-thirds gender principle was amenable only to “progressive realization” in relation to the two houses of Parliament. It could not therefore be enforced immediately. Accordingly, the Court advised that if measures necessary to crystallize the principle into an enforceable right were not taken before the 2013 elections, the principle would not be applicable to the said elections. Nevertheless, bearing in mind the constitutional duty to promote the representation of marginalized groups in Parliament, and the five year constitutional deadline for the enactment of laws implementing the Constitution, the Court advised that legislative measures giving effect to the two-thirds gender principle in relation to the National Assembly and the Senate be taken by 27 August 2015 (Mumma, 2016). However, by 2020, the two-thirds rule was yet to be implemented due to the failure by parliament to enact legislation to implement the two-thirds rule. This prompted a move by the Chief Justice to advise the president to dissolve parliament, which some people considered as a potential constitutional crisis in the country. However, the president did not dissolve parliament. Instead, the High Court prevented any move to do so (Waugh, 2021).

11.3

Ghana

The Constitution of Ghana dedicates an entire Chapter 5 to fundamental rights and freedoms. However, the Constitution has limited provisions for the political rights of the youth. Article 42 of the Constitution of Ghana sets the voting age at 18 years. The Article expressly states that “Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda”. This means youth who have attained the age of 18 years have the right to participate in elections. Furthermore, Article 55(2) grants every citizen of Ghana of voting age the right to join a political party, while Article 55(10) provides that every citizen of voting age has the right to participate in political activity intended to influence the composition and policies of the Government. This means that Ghanaian youth aged 18 years and above can also join political parties and participate in political activities. It is apparent, however, that the Constitution exempts some youth from being elected to some public offices by setting age limits that exclude some youth. For instance, one of the qualifications to be elected

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a member of parliament of Ghana as set out in Article 94(1).a is that one must have attained the age of 21 years. Moreover, the Constitution disqualifies any youth from being elected as president by providing in Article 62(b) that “a person shall not be qualified for election as the President of Ghana unless he has attained the age of forty years”. The political participation of women and their rights to the same are first set out in Chapter 5 of the Constitution, which is dedicated to fundamental rights and freedoms. Article 12 provides that every person shall be entitled to fundamental human rights and freedoms irrespective of their gender, political opinion, creed, colour, or place of origin. The rights are inclusive of political rights (Article 16). Moreover, Article 21(3) explicitly provides that “All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society…”. The Constitution also calls for the elimination of preconceptions that discriminate on the basis of gender, among others, and establish measures to realize regional and gender balance in appointments and recruitment to public offices (Article 35, (5) & (6)(b)). In compliance with this provision, a “quota system” has been established through several statutes designed to achieve women’s political empowerment. The Legal Aid Scheme Act 1997 for instance established the Legal Aid Board, requiring that its membership must include at least one female member. [Sections. 3, 4(1).h]. The Persons with Disability Act 2006, creates the National Council on Persons with Disability, stipulating that the Council must include a representative from the ministry in charge of women’s and children’s affairs, and two other female representatives (Sections. 41, 43). When nominating persons to the two positions in the National Peace Council that are supposed to be filled by the president, the National Peace Council Act No. 818 of 2011 requires the president to nominate one woman. A similar requirement has also been set for the appointment of members of Regional and District Peace Councils [Articles 9(b), 12(b)]. While the legislation is a significant step in promoting the participation of women, it is apparent that the legislation is yet to bring about the gender balance in participation in political processes and systems.

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11.4

Sierra Leone

In Sierra Leone, the role of women and youth in elections is marginally provided for in the Constitution. On the youth, their right to political participation in elections is envisaged in Chapter 4 of the Constitution on the representation of the people whereby, Section. 31 grants every citizen of Sierra Leone who has attained the age of 18 years and above and who is of sound mind, the right to vote in public elections. While this also excludes youth who are below 18 years from participating in an election, the Constitution further excludes some groups of youth on the basis of their age from being elected into other public positions. Section 75 provides that one of the qualifications to be elected as a member of parliament is that one must have attained the age of 21 years (Section 75.b). This age excludes any youth who is below 21 years from being elected as a member of parliament. Moreover, the Constitution provides in Section 45(c) that the minimum age for one to be elected as President of Sierra Leone is 40, years which excludes the youth from being elected into the office of the president. On political participation of women, the Constitution of Sierra Leone has limited provisions promoting women’s political participation. As part of these political objectives, Section 6(2) of the Constitution provides that the State shall promote national integration and unity and discourage discrimination on the grounds of place of origin, circumstance of birth, sex, religion, status, ethnic or linguistic association, or ties. Prohibiting discrimination on the basis of sex implies that the Constitution promotes the political participation of women. However, the Constitution has no other express provision promoting women’s political participation. This could explain the poor representation of women in politics in the country. As at October 2021, there were only 18 women members of parliament (approximately 12% of the total), which indicates the low political participation of women (Africanews, 2021). However, there have been recent advancements in efforts to promote the participation of women in political processes with the enactment of the Gender Empowerment Act 2021. The Act in Article 2(1.a) provides that in public elections, 30% of constituency seats in each district shall be exclusively reserved for female candidates contesting parliamentary elections. Article 2(1.b) provides that in public elections, 30% of ward seats shall be reserved exclusively for female candidates contesting local council elections. To enforce compliance with these provisions on seats reserved

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for women candidates, Article 2(3) provides that where a political party fails to comply with subsection (1), the Electoral Commission shall reject the party’s list of candidates. Article 4 of the Act further provides that a female candidate elected under a reserved seat provision during a public election shall be eligible for re-election for not more than one term in a reserved seat. However, the real impact of the Gender Empowerment Act in promoting political participation of women and their role in elections can only be established after the next general elections (2023 general elections), where compliance can be determined.

11.5

Conclusion

The review in this chapter indicates that marginalization of women and youth in political processes and systems is common in many African countries. However, in terms of legal support to promote the active participation of women in the countries reviewed, South Africa and Kenya have set out the better mechanisms as compared to Ghana and Sierra Leone. Besides prohibiting against their discrimination, South African Constitution encourages the election of women into the National Assembly and provincial legislatures by being gender sensitive in the wording describing the composition of these houses. It is also remarkable that the South African Constitution establishes the Commission for Gender Equality, which is responsible for promoting respect for gender equality and the protection, development, and attainment of gender equality. Ghana has put in some notable efforts by incorporating in the Constitution a call for the elimination of preconceptions that discriminate on the basis of gender. However, the country has mostly focused on empowering the participation of women through appointment as opposed to election into public offices. This is mainly through having an established quota for women to be appointed or recruited into various public bodies and institutions, which is embodied in statutes but not in the Constitution. Sierra Leone has the fewest requirements in terms of promoting political participation of women among the countries reviewed. Besides discouraging discrimination on the grounds of sex, the Constitution of Sierra Leone has no other express provision promoting women’s political participation. The negative implications of this are evident in the poor representation of women in politics in the country. It is commendable, however, that there are still indicators of an advancement in efforts to

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promote the participation of women in Sierra Leone with the enactment of the Gender Empowerment Act 2021. On the youth, Kenya is the best among the four countries reviewed in promoting political participation by youth in their legal framework. Kenya has provisions in its Constitution and national legislation that directly promotes the political participation of the youth, including having positions established for youth representatives. In contrast, the other countries do not have provisions in their legal frameworks that directly address the question of representation by youth in active politics besides the general provisions setting the minimum voting age at 18 years, but still discriminating against the youth by setting the eligible age to be elected in high political positions such as president at limits that excludes the youth. It is thus evident that there have been efforts to promote the active political participation of the youth and women, but fair representation and participation of these groups is yet to be achieved. For the youth, their culture of concentration on social media is turning into an avenue for political activism that continues even offline. This, as noted in the chapter, has also been used to influence or mobilize them and rally them into confrontational politics sometimes by political parties or political leaders in electoral processes, and sometimes ending up in violence. Therefore, in as much as the advocacy for legislation that seeks to reduce and eventually eliminate their marginalization, it is important that there should be legal strategies to cushion electoral processes from violence. The next chapter focuses on electoral violence, interrogating the regulation of electoral violence in different African countries.

References African Union. (2006). African youth charter. https://au.int/sites/default/ files/treaties/7789-treaty-0033_-_african_youth_charter_e.pdf Africa Union. (2017). State of Africa’s population 2017 . https://au.int/sites/ default/files/newsevents/workingdocuments/32187-wd-state_of_africas_p opulation_-_sa19093_-e.pdf Africanews. (2021, October 22). Sierra Leone moves to bring more women into politics. https://www.africanews.com/2021/10/22/sierra-leone-movesto-bring-more-women-into-politics/ Arches, J., & Fleming, J. (2006). Young people and social action: Youth participation in the United Kingdom and United States. New Directions for Youth Development, 111, 81–90.

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Asante, R. (2012). The youth and the future of democracy in Ghana. Ghana Universities Press. Bakardjieva, M. (2015). Do clouds have politics? Collective actors in social media land. Information, Communication & Society, 18(8), 983–990. Bob-Milliar, G. M. (2014). Party youth activists and low-intensity electoral violence in Ghana: A qualitative study of party foot soldiers’ activism. African Studies Quarterly, 15(1), 125–152. Clark, J. (1991). Getting there: Women in political office. The Annals of the American Academy of Political and Social Science, 515, 63–76. Coffe, H., & Bolzendahl, C. (2011). Gender gaps in political participation across Sub-Saharan African nations. Social Indicators Research, 102(2), 245–264. Cooper, F. (2008). Possiblity and constraint: African independence in historical perspective. Journal of African History, 49(2), 167–196. Dawson, H. (2014). Youth politics: Waiting and envy in a South African informal settlement. Journal of Southern African Studies, 40(4), 861–882. Debrah, E. (2012). Youth participation in decision-making at the grassroots. Ghana Universities Press. Diani, M., & Bison, I. (2004). Organizations, coalitions and movements. Theory and Society, 33(3/4), 281–309. Evrensel, A. (2010). Voter registration in Africa: A comparative analysis. Electoral Institute of Southern Africa. George, A. A. (2014). Making modern girls: A history of childhood, labor, and social development in colonial Lagos. Ohio University Press. Gyampo, R. E., & Anyidoho, N. A. (2019). Youth politics in Africa. In Oxford Encyclopedia of African Politics. Oxford University Press. Gyampo, R. E. V. (2011). Political apparatchiks and governance in Ghana’s fourth republic. Educational Research, 11(1), 21–36. International IDEA. (2021). Women’s political participation—Africa barometer 2021. International IDEA. Kahne, J., Lee, N. J., & Feezell, J. T. (2013). The civic and political significance of online participatory cultures among youth transitioning to adulthood. Journal of Information Technology & Politics, 10(1), 1–20. Kitanova, M. (2020). Youth political participation in the EU: Evidence from a cross-national analysis. Journal of Youth Studies, 23(7), 819–836. Kumar, P. (2018). Participation of women in politics: Worldwide experience. IOSR Journal of Humanities and Social Science (IOSR-JHSS), 22(12), 77–88. Lekalake, R., & Gyimah-Boadi, E. (2016). Does less engaged mean less empowered: Political participation lags among African youth, especially women. Afrobarometer Policy Paper 34. Loader, B. D., Vromen, A., & Xenos, M. A. (2014). The networked young citizen: Social media, political participation and civic engagement. Information, Communication & Society, 17 (2), 143–150.

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Mama, A., & Okazawa-Rey, M. (2008). Editorial: Militarism, conflict and women’s activism. Feminist Africa, 10, 1–8. Melike, T. (2017). The position of the youth in political participation. Sosyal Politika, 17 (39), 119–140. Mlambo, C., & Kapingura, F. (2019). Factors influencing women political participation: The case of the SADC region. Cogent Social Sciences, 5(1), 1–13. Mumma, C. M. (2016). Kenya’s failure to implement the two-thirdgender rule: The prospect of an unconstitutional Parliament. Constitutionnet. https://constitutionnet.org/news/kenyas-failure-implement-twothird-gender-rule-prospect-unconstitutional-parliament Murillo, B. (2017). Market encounters: Consumer cultures in twentieth-century Ghana. Ohio University Press. OECD. (2018). Women’s political participation in Egypt: Barriers, opportunities and gender sensitivity of select political institutions. MENA – OECD. Ojok, D., & Acol, T. (2017). Connecting the dots: Youth political participation and electoral violence in Africa. Journal of African Democracy and Development, 1(2), 94–108. Resnick, D., & Casale, D. (2014). Young populations in young democracies: Generational voting behaviour in sub-Saharan Africa. Democratization, 21(6), 1172–1194. Tandon, R., & Brown, L. D. (2013). Civil societies at crossroads: Lessons and implications. Development in Practice, 23(5–06), 784–796. Tripp, A., & Badri, B. (Eds.). (2017). Women’s Activism in Africa: Struggles over Rights and Representation. Zed Books. Union, I.-P. (2016). Youth participation in national parliaments 2016. InterParliamentary Union. Waugh, R. (2021). Lessons on gender equality and women’s political participation: Election case law analysis series. https://www.ifes.org/sites/default/files/ele ction_case_law_analysis_series_part_i_-_gender.pdf

CHAPTER 12

Electoral Violence

The concept of electoral violence generally has to do with the various forms of organized psychological, physical, and structural threats/acts whose main goal is to intimidate, harm, or blackmail political stakeholder(s) prior to, during and or after an election in order to delay or influence an electoral process (Albert, 2007). This means that electoral violence can multifaceted—it has physical, psychological, and structural dimensions. The physical dimension of electoral violence manifests in such acts as opposition politicians being assassinated, looting, arson, hostage taking and kidnapping, violent interruption of campaign rallies, raids on polling and tallying centres, armed snatching, and destruction of ballot boxes and ballot papers among others. The psychological dimension of electoral violence manifests in formal and informal acts that cause fear in people, sometimes as a result of physical violence. They may entail actions like security agents threatening opposition members via phone calls and text messages. The structural dimension of electoral violence is relatively more pronounced being as a result of structural imbalances. It manifests in actions like citizens being coerced by the government to register as voters or to vote, inequalities in opportunities given to political parties and candidates, incumbent leaders abusing their powers, election results being falsified, and politicizing of security and electoral matters (Nwolise, 2007). © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_12

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Just like election, electoral violence is not limited to the Election Day only, but it may occur before, during, and/or after the election. Electoral violence before the election may include electoral stakeholders being threatened when registering as voters or during election campaigns. Electoral violence on the elections day entails snatching of ballot papers and boxes, opposition party agents being harassed by security forces among others. Post-election violence can include violent protests against purported or real election rigging, and the state deploying its security forces to confront the protesters which fuels the violence further (Omotola, 2011). Electoral violence has been a common characteristic of elections in Africa. According to Buchard (2016), most of the past elections in Africa have been characterized by one form of violence or the other. Electoral violence is revealed in many ways, for instance, intimidation of both candidates and voters, physical harassment, assaulting of journalists, assassinations and unjustified imprisonments, confrontations with security forces, and attacks on party headquarters, among others (Ojok & Acol, 2017). The youth are mostly at the centre of the electoral violence. As Mehler (2007) indicates, electoral violence often emanates from the interaction between political parties, the elite groups, and party youth wings or youth groups. The fundamental question then is, how is electoral violence regulated in Africa and why is it a common occurrence in Africa? This question constitutes the main gist of this chapter, where the four countries case studies are reviewed: Kenya, South Africa, Ghana, and Sierra Leone.

12.1

Electoral Violence Regulation in Kenya

Several of Kenya’s past elections have been characterized by high levels of electoral violence, often taking place along inter-communal lines involving groups that are not formalized. In other words, the clashes are usually along identity lines. Electoral violence mostly fuelled along ethnicity links to the major political parties in the country was experienced in the 1992, 1997, 2007, and 2017 elections (Elfversson, 2022). Electoral violence in the country is a reflection of underlying socio-political and socio-economic issues, including marginalization, land injustices, and disenfranchisement. A 2013 report by the Truth, Justice and Reconciliation Commission of Kenya formed in response to the 2007–2008 electoral violence set out the issues (Otondi, 2017).

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This means only two elections in Kenya so far (that is, 2002 and 2013) have been relatively peaceful. The aftermath of violence of the 2007/2008 elections was the most conspicuous in this respect. According to Musila (2017), the violence which was triggered by the disputed 2007 presidential election resulted to the death of about 1300 people, with more than 600,000 others being displaced. This violence, which the International Criminal Court ruled amounted to crimes against humanity, was eventually resolved through a coalition government and constitutional reform. The thorough efforts to find a lasting solution to the underlying socio-economic and socio-political issues after the 2007–2008 electoral violence galvanized a lengthy constitutional review process which culminated into the formulation of the greatly heralded Kenyan Constitution 2010. Among the major reforms that the constitutional reforms brought forth to address some of the issues believed to fuel electoral violence included: . Establishment of a two-level government—the national government alongside 47 county governments; . Devolution of both economic and decision-making power to the county governments through elected county governors and legislatures; . Introduction of a presidential system with curtailed powers through strong checks and balances, made possible by a strengthened judiciary and a bicameral parliament comprised of a strong National Assembly and a relatively weak Senate designed for the protection of the county governments; . Enhancing the financial security and administrative independence of the judiciary to strengthen it, and further establishing a Supreme Court having the primary jurisdiction to hear and make rulings on presidential election petitions; . Developing a redress for discrepancies in regional representation by reviewing electoral boundaries and applying a formula for determining the size of each constituency. However, despite the constitutional reform that resulted to a new Constitution (Constitution, 2010), the 2017 elections conducted under the

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Constitution were still characterized by violence, although the magnitude of the violence was less than that which occurred during and after the 2007 elections. It is, however, important to underscore that the 2017 electoral violence also occurred one year after the adoption of the Election Offences Act 2016, which was also enacted to address electoral violence, among other electoral offences. Under Article 11 of the Electoral Offences Act, engaging in electoral violence can attract severe sanctions including a fine of not more than two million shillings, or a jail term of not more than six years, or both. In addition, the Electoral Code of Conduct contained in the second schedule to the Elections Act 2011 also prohibits electoral violence. Section 6 provides that those bound by the Code must repeatedly condemn violence and avoid any kind of action that could lead to violence or intimidation. The Code also requires that every party to the Code must refrain from any action involving violence. Section 5 of the Code further requires that every registered political party and their officials, candidates, and referendum committees commit to condemning, avoiding, and taking steps to prevent violence and intimidation. Infringement of the Code attracts various sanctions including: . Formal warning, . A fine determined by the Electoral Commission (a fine imposed by the Commission is registered in the High Court), . Permanent or temporary ban from using any public media time, . Ban from holding certain public meetings, demonstrations, or marches, . Cancellation of the right to participate in the election concerned, among others. However, despite regulation to prohibit electoral violence, few perpetrators—whether candidates or party supporters—have been successfully prosecuted and convicted in courts. Brown and Sriram (2012) indicate that since the 1990s, there has been a consistent failure by the government to prosecute and/or convict any high-level government or political official for electoral violence. This is despite detailed reports (some having been sponsored by the government) that mentioned names, and pressure from international and reputable donors and human rights groups. Brown and Sriram (2012) assert that the Kenyan courts mostly pursue low-level

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cases, and only six persons had been convicted of serious electoral violence as at December 2011. Some survivors of the 2007/2008 electoral violence had to wait for nearly a decade before a court made a ruling in December 2020 on their petition. In the case, eight petitioners who were subjected to sexual assault in the electoral violence had petitioned the government, with the backing of a coalition of NGOs. The High Court, in what activists said could be a precedent for other victims of the electoral violence, ruled that the state violated the rights of four of the eight petitioners by failing to act, that is, conduct an effective investigation and prosecution when the victims reported their complaints to the police. Consequently, the government was ordered to pay each of the victims a compensation of KES 4 million (approximately $36,000) (BBC News, 2020). The other four petitioners were not granted any compensation, with the court ruling that since they had not reported their complaints to the police at the time, the state could not be found at fault. The petitioners, with the backing of several NGOs and civil society groups, have filed a partial appeal at the Kenya’s Court of Appeal urging the court to reconsider the state’s responsibility because of its failure in ensuring accountability for violations that the four other petitioners experienced (BBC News, 2020; Reliefweb, 2021). The current President, Uhuru Kenyatta, and his deputy William Ruto, had also been charged in the International Criminal Court (ICC) with crimes against humanity, being accused of perpetrating the 2007/2008 violence. They denied the charges, and the charges were subsequently dropped.

12.2 Electoral Violence Regulation in South Africa After enduring decades of apartheid rule characterized by outright violations of basic human rights, South Africa’s returned to democratic rule in 1994 and eventually saw the birth of a new South Africa built on principles of representative democracy. Nevertheless, the country has not been free in entirety from electoral violence. Apart from the 1994 election that ushered the democratic South Africa, every other election has experienced violence. Historically, South Africa’s electoral violence is entrenched in a variety of factors including political intolerance and ethnic and tribal difference (Mbanyele, 2022). A country that at one time was applauded for carrying out one of the most peaceful elections in Africa in 1994, now

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contends with pockets of electoral violence characterized with killings in almost every election. For instance, in the race for the mayoral elections in 2016 between the 20th and 21st of June, after the Africa National Congress (ANC) party announced its candidate, there were protests and rampaging by party supporters in the area of Tshwane. The violence resulted into the destruction of property and the looting of shops, with five deaths being reported. Many protesters were arrested. Earlier, on 18 June, a member of the ANC was allegedly shot and killed at his home in Maboloka outside Brits, in the North West Province. Around that period, members of the Economic Freedom Fighters (EFF) and members of the ANC clashed in violent fights when EFF members accused the ANC of having killed two of EFF members at the Sethokga hostel in Tembisa (Aderemi & Mekoa, 2017). This has persisted despite the enactment of legislation that seeks to minimize and curb electoral violence. This includes the Electoral Code of Conduct of South Africa contained in Schedule 2 of the Electoral Act, 1998. Violence in an election is among the prohibited conduct laid out under Section 9 of the Electoral Code. The South African Constitution in Article 12(c) also provides that everyone is entitled to the right to be free from all forms of violence, whether from public or private sources. Additionally, Article 16(1) of the Electoral Commission Act, 1996 further provides that it may not register a party that contains anything which calls for the propagation or incitement of violence or hatred or which may cause serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, or language. Sanctions for any person who breaches the Electoral Code of Conduct, which is the main regulation prohibiting electoral violence, include imprisonment of up to ten years and/or a fine. For political parties that breach the Code, sanctions may include a fine of up to R200,000, forfeit of the party’s election deposit, a ban from operating in a particular territory, cancellation of their votes in a given region, and cancellation of the party’s registration (Electoral Commission of South Africa, 2022). According to a report on human rights practices by the US Department of State (2021), as is the norm in many African countries, few have been convicted as perpetrators of electoral violence in South African courts. In an outlier case, Bruce (2012) notes that an ANC member Sifiso Khumalo was convicted and sentenced to 22 years imprisonment for the

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killing of two other ANC members in September 2012. This was ten days after their death. This conviction cannot be considered as a reflection of an effective and efficient judicial process or the government’s ability to swiftly and effectively deal with such electoral violence-related cases. This is because, besides the case of Khumalo, the only other cases where people were convicted for the killing of an ANC member was on 12th July when four people were convicted of slaying Reuben Magutshwa, an ANC councillor in July 2007, with that case having taken five years to conclude. Arrests have been made in at least seven cases, including two of four cases where ANC councilors were killed. However, the cases have been repeatedly postponed, as was the case with the two people arrested in June 2011 for the murder of Wiseman Mshibe, Umlazi councillor in the previous two months. Investigative units that are often given the responsibility of investigating and prosecuting perpetrators of electoral violence are nearly always subject to political interference.

12.3

Electoral Violence Regulation in Ghana

Ghana has held several elections successfully since 1992. Even so, the country has continually faced threats of violence, mostly attributed to the recurring nature of micro-level of electoral violence, coupled with diverse vulnerabilities that plague the country. These include political patronage, exclusionary politics, a winner-takes-all system of election, and ethnic cleavages (Kumah-Abiwu, 2017). Of the seven presidential and parliamentary elections that have been held, few have been peaceful. Most of them, along with several by-elections, have been characterized by varying levels of violence. According to a report published by the Ghana Center for Democratic Development (CDD-Ghana), electoral violence in Ghana is mainly orchestrated by vigilante groups or foot-soldiers linked to political parties (Dumenu & Adzraku, 2020). Dr. Kwasi, a security expert, when appearing before a Commission of Inquiry on the AWW constituency that was led by Justice Emile Short, testified that there were some twenty-four known vigilante groups in the country, besides many other unidentified by name. There were fears that the number could grow with the heightened competition between NDC and NPP, mostly during future elections (Dumenu & Adzraku, 2020). In Ghana’s most recent general elections that were held in December 2020, at least five people lost their lives in election-linked violence.

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The Ghanaian Police Service reportedly recorded 60 cases of violence during the period, allegedly that 21 of those cases were linked to the election (Fisayo-Bambi, 2020). In the 2016 elections, an official of the country’s National Peace Council was quoted stating that electoral violence was experienced in 86 constituencies, compared to 47 in 2012 (Lieber & Planitz, 2020). These, among other documented cases of electoral violence in Ghana, are a clear indication that electoral violence is still a problem in Ghana, which raises questions about the effectiveness of electoral violence regulations in the country. In a Ghana, regulatory framework to address electoral violence is wanting. This is because the matter barely addressed in either the Constitution or in national legislation. Legal redress for electoral violence victims can only be sought through the general fundamental freedoms provide for in Article 21, since the Constitution does not have any clause directly addressing electoral violence. Similarly, provisions on electoral violence have been left out of key national legislation on elections. For instance, the Political Parties Act 2000 has scarcely any mention of electoral violence. The Act has one related provision that is relatively vague in addressing electoral violence. That is under Section 2(3) of the Act which provides that: A person who (a) suppresses or attempts to suppress the lawful political activity of another person contrary to subsection (1), or (b) requires a person to join a particular political party contrary to subsection (2), commits an offence and is liable, on summary conviction, to a fine of not less than two million cedis or to a term of imprisonment not exceeding five years or to both the fine and the imprisonment.

The only instrument that has several clauses addressing electoral violence is the Political Parties Code of Conduct, which was discussed extensively in Chapter 7. Subsection 4 of the democratic imperatives set out in the Code states that. Political Parties and Candidates shall publicly and without reservation condemn all forms of intimidation and political violence irrespective of

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the perpetrators. Accordingly, all Political Parties renounce violence and pledge not to indulge in violence and intimidation of any kind.

Subsection 7 of the clauses on campaigning provides that in case there is a clash in dates, venues, and timing for campaign activities including rallies and meetings for different political parties or their representatives/ candidates, the latter will collaborate with the police and meet to resolve issues without resorting to violence. Moreover, under the clauses set out for activities after the declaration of election results, the first clause states that All Political Parties and Candidates undertake to accept election results declared by the Electoral Commission or its agents and not to create commotion or cause violence on the ground that they lost or even won the election.

While all these provisions addressing electoral violence under the Political Parties Code of Conduct are prima facie good in regulating the violence, enforceability of the same is the major problem. This as explained in Chapter 7 is primarily because the Political Parties Code of Conduct is not legally binding, having been developed by the civil society organizations together with political parties and the Electoral Commission of Ghana as a mere guide to the parties’ activities and to assist in entrenching genuine multiparty democracy in the country. Consequently, in very few cases have perpetrators of electoral violence been successfully investigated and prosecuted in the country’s judicial system. At times the cases face long delays or are eventually settled out of court. For instance, an investigation by CDD-Ghana in a post-2020 elections accountability and security survey, twelve cases of electoral violence were tracked. By January 2022, four of the cases were still in court, three were still under police investigation, two were settled by the parties involved, while three had been forwarded to the office of the Attorney General for advice. This led to CDD-Ghana calling for the Ghana Police Service and the Office of the Attorney General to expedite the cases, noting that the failure to prosecute and ensure justice in electoral violence cases could fuel the tendency for retaliation attacks in future elections (Nyabor, 2022).

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12.4 Electoral Violence Regulation in Sierra Leone During the 1990s, Sierra Leone was known for violence, but after the end of the civil war, the country returned to peace. According to Bruijne (2020), electoral violence was relatively low until 2017, when cases of electoral violence increased in the context of the March 2018 elections. Bruijne (2020) explains the changing trend as having occurred in two major stages. The first took place in 2017 when electoral violence was at approximately five events on average every month. This grew to a peak of about twenty events every month at the onset of year 2018. Notably, electoral violence at first was mostly in internal party primaries and only subsequently among political opponents. The second phase of the shift in electoral violence took place in the period following March 2018 election. Instead of a decrease in violence as is expected in post-election period, electoral violence increased. From September 2018, electoral violence accelerated to an average of about ten events every month, occasionally increasing to a peak of about thirty incidents every month (which is on the average about one incident every day). The electoral violence experienced in this period included direct fighting between political parties, internal party violence, and civilian violence against political parties. There are evident signs that electoral violence is increasing in Sierra Leone. In the middle of 2019, Sierra Leone’s ranking in the Global Peace Index declined by 10%, making it among the five sub-Saharan countries that experienced the greatest deterioration in their stability (Sanny, 2020). In Afrobarometer survey results released in early 2020, about 80% of Sierra Leoneans were of the opinion that politics “often” or “always” results in violence. The survey indicated that over 50% of the population encountered violence in political events and rallies (Thomas, 2020). As in the case of Ghana, the legal framework to address electoral violence and curb it is relatively weak. This is because the regulation is mainly contained in the Political Parties Code of Conduct which does not have a proper enforceability mechanism. The Code is strongly against political intimidation and violence. The Code demands that all leaders of political parties direct their officials, candidates, members, and supporters not to intimidate any person at any time. It also prohibits parties from intimidating other candidates and voters and provoking violence throughout the entire electoral process; sponsoring physical violence or

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intimidation against opponents and their supporters in any way; or using the youth members of their parties and others to intimidate other candidates or the electorate, or carry out acts of violence. Nonetheless, due to its unenforceability, the Code has not been effective in abating electoral violence. As a result, electoral violence has been increasing, with APC and SLPP parties often at loggerheads and prepared to unleash violence against each other. From a tally of the actors from 2016, it was revealed that many groups that engage in electoral violence (apart from the unidentified rioters, protesters, and security forces) are APC and SLPP militias. Even of more concern is the emerging trend of other major active groups in the country (including rioters and protesters, communal groups, and state security groups) becoming more intimately connected to APC and SLPP. For instance, more recent riots in Freetown in April and May 2020 took place with APC politicians and party militias actively supporting the riots. Similarly, SLPP officials in power have been accused of sponsoring community resistance against paramount chiefs and union leaders, out of the fear that local power holders had supported the APC (Bruijne, 2020). A review of incidents of electoral violence since 2012 carried out with the purpose of highlighting the level to which local actors collaborated with or acted to represent the APC or SLPP indicated that at least a third of the cases perpetrated by protesters or rioters, communal actors and state security actors was actually carried out with the support of or on behalf of the APC or SLPP. This resulted to President Maada Bio referring to APC as “terrorists” (Bruijne, 2020). The impartiality of the judiciary of Sierra Leone in handling election issues has been questioned by opposition parties and independent election observers. The deep public distrust of the courts in handling election-related cases, including electoral violence-related cases, further complicates the problem of regulating electoral violence in the country. Different courts in Sierra Leone have jurisdiction on election matters, including matters to do with the nomination of candidates, cases against abuse or misuse of power by authorities in electoral processes, as well as petitions on election results. Nonetheless, the failure of the courts to deal expeditiously with election-related cases has caused uncertainty among election administrators, political parties, and the public at large. There is reportedly a widespread distrust in the Sierra Leonean courts to handle election cases in a timely manner and free from political influence and corruption. The constitutional power of the president to appoint

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members of the Judiciary, as well as the state’s oversight of the judiciary, contributes to this distrust, as well as the political connections of some judges, including those who sit in the senior-level courts. Court rulings on election cases have often been termed as biassed and compromised, which also constitutes a major setback in the regulation of electoral violence. For example, in a press release on 26 February 2018 and reviewed on 5 March 2018, Richard Moigbe, the then Inspector General of Police issued an order banning all unauthorized movement of vehicles on election day. This attracted criticism from various parties, including the SLPP, NGC, and PMDC, as well as different civil society organizations and human rights activists, who denounced the ban, with some parties and activists going further to call on the citizenry, especially their supporters, to defy it. Many considered it as a strategy by the ruling party to favour them, since they had access to government vehicles which enable them to indulge in electoral malpractices. They insisted that the ban was a restriction to freedom of movement and an undermining of the right to vote, which is contrary to the Constitution. Following the ban, the PMDC filed a case at the High Court challenging the vehicle movement ban, arguing that the police had no justified reason to impose the ban as a necessary security measure, but that it was a violation of the constitutionally-protected freedom of movement (The Carter Center, 2018). On the same day, after a brief hearing, the High Court issued an interim injunction that barred the police from further disseminating information on the vehicle movement ban, pending the next day’s hearing on the case. The next day, without a substantive hearing, the court summarily rejected the application and set aside the injunction, which left the ban in force. In so doing, the court failed to follow due process and its summarized judgement was a clear indication of its failure to adequately take into consideration legitimate legal arguments presented, including the constitutionality of the ban (The Carter Center, 2018).

12.5

Conclusion

From the review, electoral violence regulation is an arduous task in Africa. This is mostly because of two major factors: the inadequacy of legislation to regulate electoral violence in many countries, and compromised court rulings on electoral violence due to political interference and corruption in some judicial systems. Among the four countries reviewed, Kenya has

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demonstrated the greatest effort in regulating electoral violence through legal mechanisms compared to the other countries (South Africa, Ghana, and Sierra Leone). The most remarkable effort included having taken a constitutional reform initiative that culminated in the heralded (new) Constitution 2010, in which various issues believed to catalyze electoral violence were addressed in response to 2007–2008 electoral violence. South Africa has also made significant efforts. This included the enactment of legislation to curb electoral violence, especially the Electoral Code of Conduct of South Africa contained in Schedule 2 of the Electoral Act, 1998 which prohibits violence in an election. The establishment of sanctions for violating the Code is also commendable, as it provides for severe sanctions (such as a ban from operating in a particular territory and cancellation of the party registration) that if well implemented could discourage electoral violence. In contrast, Ghana and Sierra Leone have poor regulatory frameworks to address electoral violence. Ghana has barely addressed electoral violence in its legal framework, while Sierra Leone has only addressed it in its Political Parties Code of Conduct, which is a voluntary and non-binding instrument whose enforceability mechanism is poor. Nevertheless, in all the four countries reviewed, none is completely free from electoral violence, yet there have been a few cases where candidates or party supporters were successfully convicted in a court of law for perpetrating electoral violence. Even among the few cases where perpetrators were convicted, it was usually after a lengthy period before the ruling, which translates to justice delayed. This has resulted in poor precedents for electoral violence regulation. Consequently, electoral violence is still a major threat to elections in these countries. Further worsening the situation is the fact that besides the issues that are immediate or directly related to elections that trigger electoral violence, there are other underlying historical socio-economic and socio-political issues embedded in the ethnic fabrics of the communities, which often fuel the violence. Electoral violence regulation in many African countries is mostly theoretical in both legally binding and nonlegally binding instruments. Thus, electoral violence is a matter yet to be adequately regulated in Africa.

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References Albert, I. O. (2007). Re-conceptualising electoral violence in Nigeria. In I. O. Albert, D. Marco, & V. Adetula (Eds.), Perspectives on the 2003 elections in Nigeria. IDASA and Sterling Holding Publishers. BBC News. (2020). Kenya election violence: Court orders government to pay sex attack survivors. https://www.bbc.com/news/world-africa-55259099 Brown, S., & Sriram, C. L. (2012). The big fish won’t fry themselves: Criminal accountability for post-election violence in Kenya. African Affairs, 111(443), 244–260. Bruce, D. (2012, October 26). Wheels of justice turn slowly as political killings escalate. Mail & Guardian. https://mg.co.za/articleArticle/2012-10-26-00wheels-of-justice-turn-slowly-as-political-killings-escalate/ Bruijne, K. (2020). When emerging democracies breed violence: Sierra Leone 20 years after the civil war. Armed Conflict Location & Event Data Project (ACLED). Buchard, S. M. (2016). Electoral violence in Sub-Saharan Africa: Causes and consequences. FirstForum Press. Electoral Commission of South Africa. (2022). The electoral code of conduct. https://www.elections.org.za/pw/Parties-And-Candidates/The-Ele ctoral-Code-Of-Conduct Elfversson, E. (2022, May 01). Drivers of electoral violence in Kenya: Red flags to watch out for. The Conversation. https://theconversation.com/drivers-ofelectoral-violence-in-kenya-red-flags-to-watch-out-for-180703 Fisayo-Bambi, J. (2020, December 9). Ghana Elections: Police say five people killed in violence since Monday. Africanews. https://www.africanews.com/ 2020/12/09/ghana-elections-police-say-five-killed-in-violence/ Lieber, M., & Planitz, E. (2020, November 30). “Warning shots”: The steady rise of political violence in Ghana. African Arguments. https://africanar guments.org/2020/11/warning-shots-the-steady-rise-of-political-violencein-ghana/ Mehler, A. (2007). Political parties and violence in Africa: Systematic reflections against empirical background. In M. Basedau, G. Erdmann, & A. Mehler (Eds.), Votes, Money and Violence: Political Parties and Elections in Sub-Saharan Africa (pp. 194–223). KwaZulu-Natal Press. Musila, G. (2017). Legal reforms aim to prevent electoral violence in Kenya. Africa Center for Strategic Studies. https://africacenter.org/spotlight/legalreforms-aim-prevent-electoral-violence-kenya/ Nwolise, O. B. (2007). Electoral violence and Nigeria’s 2007 elections. Journal of African Elections, 6(2), 155–179. Nyabor, J. (2022, January 17). CDD-Ghana demands action on election 2020 violence cases. Citi Newsroom. https://citinewsroom.com/2022/01/cddghana-demands-action-on-election-2020-violence-cases/

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Ojok, D., & Acol, T. (2017). Connecting the dots: Youth political participation and electoral violence in Africa. Journal of African Democracy and Development, 1(2), 94–108. Omotola, S. (2011). Explaining electoral violence in Africa’s ‘new’ democracies. African Journal on Conflict Resolution, 10(3), 51–73. Otondi, S. T. (2017, April 23). Kenya’s history of election violence is threatening to repeat itself. The Conversation. https://theconversation.com/kenyashistory-of-election-violence-is-threatening-to-repeat-itself-76220 Reliefweb. (2021). Survivors of post-election sexual violence in Kenya appeal elements of recent ruling seek justice and redress for all survivor-petitioners. https://reliefweb.int/report/kenya/survivors-post-election-sexual-violencekenya-appeal-elements-recent-ruling-seek Sanny, J. A. (2020, February 24). Fear of political violence soars in Sierra Leone. Africa Portal (Afrobarometer). https://www.africaportal.org/publicati ons/fear-political-violence-soars-sierra-leone/ The Carter Center. (2018). Presidential and parliamentary elections in Sierra Leone. One Copenhill. Thomas, A. R. (2020, February 6). Government of Sierra Leone must take urgent action to end violence—Says campaign group. The Sierra Leone Telegraph. https://www.thesierraleonetelegraph.com/government-ofsierra-leone-must-take-urgent-action-to-end-violence-says-campaign-group/ US Department of State. (2021). 2021 country reports on human rights practices: South Africa. https://www.state.gov/reports/2021-country-reports-onhuman-rights-practices/south-africa

PART IV

Conclusions

CHAPTER 13

Conclusion

13.1

Summary

Elections in Africa have their root in the colonial period. Preindependence elections were undertaken under the patronage of colonial powers, who set the education of Africans as a precondition for independence. The immediate post-independence elections were considered the first wave of electoral democracy in Sub-Saharan Africa but this lasted only for a short period, with most of the leaders elected to the new political offices embracing an autocracy model of one-party regimes that negated the democratic gains that had initially been achieved. With gradual political development, multiparty elections were introduced in many countries. However, the emphasis in the elections has been mostly on person rather than party, resulting in many elected autocrats succeeding in remaining in power for long periods. However, with the advent of major developments in the legal framework on elections, including new constitutional developments replacing the initial post-independent constitutions adopted from the colonial powers, the trend gradually changing. The legal frameworks that have contributed to the shaping of elections, their conduct, and role in democratic states extend to international legal instruments. States, through various international, continental, and regional bodies, have formulated, passed, and subscribed to various declarations, protocols, charters, and treaties/covenants/agreements that emphasize matters pertaining to elections. Among the international © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6_13

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legal instruments that have contributed to the shaping of elections in Africa include the Universal Declaration of Human Rights, which presages fundamental rights and freedoms applicable to elections that were later enshrined in the International Covenant on Civil and Political Rights ICCPR. The UN Human Rights Council has also made General Comments (GC) which have been codified on the interpretation of ICCPR, making significant contributions in the subject of elections, reflecting international obligations for elections. Other instruments include African-centred legal instruments such as the African Charter on Democracy, Elections and Governance, and regional instruments like the SADC Principles and Guidelines Governing Democratic Elections and the ECOWAS Protocol on Democracy and Good Governance. At the national level, different countries have made efforts trying to establish a strong politico-legal basis for their elections: first by having various provisions on elections enshrined in their supreme law—the Constitution. In the countries reviewed—South Africa, Kenya, Ghana, and Sierra Leone—their respective Constitution has provisions on the management of their elections. These provisions establish different kinds of systems of government, where in Kenya, Ghana, and Sierra Leone the people have the constitutional power to elect both the president and the members of the legislature (presidential system of government). For South Africa, the Constitution has established a parliamentary system of government where the people have the constitutional power to elect members of the National Assembly who in turn elect the president from among themselves. However, the constitutions have provisions on the conduct of elections in both systems of government. There have been significant efforts to regulate political party activities in African countries, and this includes constitutional provisions, detailed legislation in some countries, and various degrees of regulation in other countries. The bodies responsible for managing the elections in different countries are mostly established by their respective constitutions. Electoral commissions or election management bodies have been established as fundamental components in electoral systems. The electoral management model for a country results from the holistic design process, where there are three broad models of electoral management including: independent model, governmental model, and mixed model. Irrespective of the model used, every country endeavours to have an independent and credible electoral agency to organize and conduct elections that are free and fair.

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With political parties being fundamental institutions for expressing and manifesting the political will of the people in an electoral democracy, their funding is critical in every democratic state. Political parties are funded through a private funding model or a public funding model, and in different countries various laws have been enacted to enhance the regulation of political party funding, including the establishment of major democratic entities and systems for political party financing, and giving local enforcement agencies the power to implement the regulations. The conduct of political parties is also highly regulated, with different countries having established code of conduct for political parties, although the enforceability of the code is quite weak in the countries surveyed. Efforts have also been made in the legal frameworks of different countries to promote the effective participation of women and youth in political processes and structures, and that includes elections. This has mostly been done through the inclusion of clauses in the constitutions of different countries that seeks primarily to promote the same although the incorporation of women and youth into the political processes and structures is yet to be adequately addressed. Politicians still use the youth in electoral violence, and women, along with children, are major victims of the violence. This continues to occur despite the countries putting in place regulations to curb electoral violence, a major reason being that the regulations in some of the countries like Ghana and Sierra Leone are contained in instruments that are not legally binding, which makes their enforceability very weak. However, many have provided the opportunity for the judicialization of elections in their constitutions and other legislation which has resulted in many election outcomes being challenged in the courts. In most cases, the courts have tended to uphold the incumbents’ victory as opposed to the establishment of new political equilibria. However, in the rulings, the interpretation of some of the laws have not been uniform, resulting in a lack of consistent precedents.

13.2

Conclusions

From the review and discussion of these facets pertaining to elections in the various chapters, we infer that elections have been and are still fundamental in growing and upholding democracy in Africa. They are doubtless key in promoting peace among nations and states, as well as promoting competition for democracy, if they are conducted within proper institutional and legal frameworks. Otherwise, if the institutional and legal

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frameworks for conducting elections are compromised, the elections will become tools for dangerous political and ethnic polarization that will culminate in violence. While the international community’s global and regional institutions have strongly advocated for democratic elections, helping these countries to develop various legal instruments to promote democratic elections, the fact remains that these institutions are made up of the very states that run these institutions. Consequently, the institutions are not independent of the states per se, which means their enforceability of whatever legal instrument or agreement they adopt is subject to the self-interest of each member state. In this case, the commitment of the political leadership each state whereby self-interest of the state supersede the goal targeted by the international legal instrument or agreement adopted. Consequently, until every state has the political will and commitment to domesticate in their national legal frameworks what they commit to uphold in the international legal instruments and agreements, the latter are often not worth the paper upon which they are written. African states have made significant efforts to promote constitutionally protected democratic elections. In particular, many of them give the people the ability to express their political will in national elections by having the right to vote enshrined in their respective constitutions. Giving the people the right to directly elect their preferred political leaders is crucial in ensuring better representation of the people in political processes. Nonetheless, this representation is connected to the effectiveness of the political structure, and the electoral processes through which the political leaders in the structure are elected. If the political leadership structure provided for the election in the Constitution is deficient in terms of fair and adequate representation of the people across the respective nation, this tends to negate the benefit of representation of the people that holding the election was meant to achieve. Equally, if there are lacunas in the constitutional provision for the election process in terms of how different elections are conducted, it opens a door to seeing the process compromised, which can end up negating the very benefit the election should have achieved of fair representation of the people through expression of their political will. The legal frameworks of many countries have gone further to establish comprehensive regulation of political parties as major vehicles for the political participation of the people. Even so, in many countries, political party formation and support is largely influenced by the tribal and

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regional backgrounds/interests of those spearheading their formation and leadership. Although fair representation of the people in political parties has been achieved in major parties in some countries like Ghana, where the requirement for this is enshrined in the Constitution, enforcement of the regulation is weak, partly due to the failure of electoral commissions, which play a major role in regulating political parties. Although electoral commissions are the bodies responsible for the management of elections and related facets connected to the activities involved in conducting elections, they are not to bear the absolute blame. It is a lack of measures to ensure the total independence of the commission: most of them lack all the pillars of electoral commission independence including financial autonomy, permanence, appointment of the commissioners and composition of the commission, and operational and administrative autonomy. Involvement of the executive and the legislature in the establishment and oversight of these bodies often compromise one or more of the pillars of the independence of the commission, which in turn compromises the dispensing of their democratic duties. Thus, implementing sensitive laws during elections, especially those that crosscut activities of political parties such as financing can prove difficult for electoral commissions. As a result, implementation of the set of laws to improve political party financing in many countries is quite wanting. There is limited documented evidence of legal proceedings or sanctions against a political party on matters pertaining to party financing. This eventually makes political party financing more of a subjective function of the financial status and connection of the party executives and members as opposed to an objective function of what has been set in law. While the success of multiparty politics in Africa has promoted multiparty elections, the political parties themselves rarely uphold democratic and ethical conduct despite many countries having in place the code of conduct meant to guide political parties in their activities. In some countries, this is to be blamed on the unenforceability of the code of conduct for the political parties due to the establishment of the code as a nonlegally binding instrument. In others, it is due to a lack of commitment to enforce the code, with very few instances of cases where courts have sanctioned a political party due to non-compliance with or in violation of the code of conduct. To this end therefore, most of the established codes of conduct in different countries are not effective in achieving their common goal of ensuring democratic and fair political and electoral processes.

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This weak implementation of the regulations has also resulted in the persistence of the marginalization of the youth and women in active political representation and participation despite the various laws enacted to promote it. If this is not addressed, the culture of the youth expressing their activism through using social media that continues offline is likely to remain, and their exploitation in electoral violence will remain a menace. Although there are significant laws to regulate electoral violence, this in itself is insufficient and has not proved effective. Otherwise, the trend of politicians influencing or mobilizing and rallying the youth into confrontational politics that eventually escalates into electoral violence would be minimal. What mainly aggravates the persistence of electoral violence, besides the inadequacy of legislation in some countries, is compromised court rulings on electoral violence due to political interference in the cases and corruption in some judicial systems. This is the reason behind the poor judicial precedents on electoral violence, with limited instances of influential political leaders in the recent past having been successfully prosecuted for electoral violence. This is despite the persistence of electoral violence in various countries. However, in as much as the examples of legal failure have contributed to the fueling of electoral violence, there are also underlying historical socio-economic and socio-political issues, mostly in the ethnic fabric of the communities, that further fuels electoral violence. This means the latter in some cases gets an opportunity to be rekindled after the failures of the legal processes to address electoral violence. The opportunity for judicialization of elections in the legal frameworks of many countries is a major channel for political parties and political leaders to use when dissatisfied with election outcomes, rather than perpetrate violence. However, the failure to establish reliable jurisprudence due to inconsistency and compromise in the handling of election petitions, especially in presidential election petitions, has eroded trust and confidence in the process. This is mainly due to the fact that in the hearing and determining of electoral disputes, judges have not been applying a consistent practice in interpreting the various provisions in law to either uphold or to nullify an election. Nonetheless, the frequent election petitions with petitioners challenging or disputing the process, the results, or both, are a clear indication that there is still hope that the process, institutions, and/or the leaders could become better.

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Recommendations

To improve the politico-legal framework for elections in Africa, the following measures need to be put in place: It is important to every member state that has subscribed to, or may subscribe to, global and regional legal instruments and agreements on elections be committed to domesticate what they commit to into their national legal frameworks. This must apply to all the instruments and charters that address election issues. Heads of state must make sure that institutional measures are also taken, to see to it that the principles and goals set out in the respective regional and international legal instruments they have subscribed to are upheld. Every country must ensure that they have adequate representation of the people through elected leaders. This means, their electoral boundaries should be reviewed in the light of respective leadership offices (besides the presidency) whose occupants are directly elected by the populace in every established electoral constituency as their representatives. This should culminate in identifying the areas that are wanting in terms of representation of the people, and reviewing the constitutions accordingly such that the leadership positions for which the people elect the occupants directly are adequate for the people’s representation. There should also be equity in the distribution of the positions across the constituencies, so that there is a fair representation of the people integrating both the geographical size of the constituencies and the population within each geographical space. Every country needs to make sure that the formation and executive management of political parties reflect national representation to prevent political parties from being formed around tribes or regions. To achieve this, every country must make it a constitutional requirement that every political party must reflect national representation in its membership and executive management. Besides improving the enforceability of the laws, having the regulation enshrined in the Constitution will ensure that at no time can the laws be easily amended to suit a particular leader’s or group’s interest, since amending a Constitution would in consequence require a referendum. A political party that does not have national representation in both its membership and executive management should not be allowed to nominate candidates for any election. This will be a major step in minimizing ethnic-based incitement before, during, and after elections.

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Every country must further review the independence of their respective election management bodies (Electoral Commissions). They must ensure that the commissions are established in such a manner that their decision-making will be independent of the influence of the executive arm of the government. In this regard, in addition to having the commissions established by the constitutions of their respective countries, the executive should have a minimal role in appointment of the commissioners of the electoral commission. On the contrary, the commissioners should be appointed by an independent and politically neutral body whose composition should be defined in the Constitution, in such a manner that any electoral commission is adequately staffed with properly skilled staff. The operations of any electoral commission should also be constitutionally protected from undue political or state interference by having stiff penalties and sanctions established for any political or state officer or group that may orchestrate such interference. Political parties, being major platforms for the political participation and representation of the people, must have their conduct properly regulated. This calls for reviewing the establishment and implementation of political party codes of conduct in various countries. The code of conduct for political parties must be contained in legally binding instruments, preferably in the Constitution, so that it is compulsory and not optional that political parties subscribe and adhere to them. This, coupled with streamlined independence of the electoral commissions, will greatly enhance the enforceability of the code of conduct for political parties which, in most cases, fall under the mandate of the electoral commissions. Moreover, active political participation and representation of the youth must be improved in every country. There should be established elective positions reserved exclusively for women and the youth representatives in parliament in every electoral constituency. This should be constitutionally provided for, but the qualifications for those to be elected, their tenure, and other aspects pertaining to their election may be contained in national legislation. The minimum age for one to vote or vie to be elected into various elections from the presidential elections to local council elections must be reviewed to ensure that the youth do not face discrimination in the elections. The regulations of different countries on electoral violence need to be reviewed to ensure that there are adequate legal provisions designed to mitigate violence during the political campaigns in the run-up period to elections, during elections, and after the elections. However, this must

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go hand-in-hand with establishing measures to curb corruption in the judiciary in order to ensure effective implementation of the regulations to mitigate electoral violence. This will go a long way in ensuring that no perpetrator of electoral violence escapes justice, which in turn will be a major step towards curbing electoral violence. Furthermore, the Chief Justice, in liaison with the judges, especially those of the apex courts in their respective counties, needs to come up with a standard practice in interpreting the various provisions in the laws of their respective countries, particularly the Constitution, to either uphold or nullify an election in determining election petitions. In as much as a judge has their independence in interpreting the law to make a ruling, having a standard practice in the case of election petitions will be instrumental in promoting consistent and effective precedents that are vital in judicialization of elections. This also calls for ensuring that there is no ambiguity in the various provisions in laws on election petitions, which makes their interpretation in the courts of law largely subjective.

Index

A abuses, 180 access to information, 22, 29, 136 accountability, 4, 21, 74, 75, 87, 101, 108, 175, 196, 237, 241 administration, 2, 21, 22, 63, 64, 148, 167 administrative, 19, 21, 23, 42, 70, 74, 90, 110, 119, 148, 255 affiliation, 19, 166–168, 173, 175, 176 Africa, 1, 4–8, 24, 26, 41, 63, 64, 72, 77, 99, 104, 106, 110, 141, 166, 175, 179, 180, 184, 185, 216–218, 221, 234, 245, 251, 252, 255, 257 African, 1–3, 6, 7, 15, 22, 25, 26, 28, 31, 32, 57, 64, 72, 165, 166, 168, 175, 176, 179, 181, 184, 187, 199, 200, 254 African countries, 3, 4, 6–8, 57, 58, 64, 69, 71, 75, 97, 99, 103, 105–107, 109, 110, 113, 137, 165, 166, 168, 175, 181, 187,

216, 218, 221, 223, 229, 230, 238, 245, 252 African Union, 15, 22, 26, 216, 223 Afro Barometer, 30 agreement, 15, 25, 77, 117, 147, 173, 174, 194, 251, 254 ancestral, 177 appointments, 169–172, 181, 227 armed, 24, 25, 218, 233 Article, 16–19, 21–25, 31–33, 42–46, 48–50, 56, 65, 69, 84, 123, 125, 142–149, 151, 155, 192, 194, 198, 202–204, 207 attitudes, 166, 219 authority, 16, 18, 20, 22, 23, 26, 27, 49, 55, 61, 63, 66, 79, 83, 107, 109, 110, 121, 122, 135

B balance, 84, 92, 105, 106, 168–174, 187, 227 ballot, 17, 18, 20, 32, 48, 70, 133, 145, 157, 196, 233, 234

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 E. S. Abdulai, Electoral Politics, Laws and Ethnicity in Africa, https://doi.org/10.1007/978-3-031-34136-6

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INDEX

birth, 17, 44, 49, 87, 193, 194, 196, 198, 200, 201, 203–209, 223, 228, 237 blood ties, 196, 207 born, 194, 196, 198–201, 206–208 boundaries, 165, 257 bribery, 29, 32, 85, 125, 154, 195 C campaign, 22, 62, 85, 89, 90, 100, 102, 106, 108, 126, 128, 129, 133–135, 176, 184, 201, 233, 241 candidate(s), 19, 21, 24, 25, 29, 31–33, 38, 41–46, 48–51, 53, 57, 58, 82, 90, 101, 102, 123, 135, 138, 145, 153, 154, 158, 159, 166–172, 174–176, 178–180, 184, 185, 191–194, 197, 199–201, 207, 208, 224, 238 century, 141, 182, 215 challenged, 31, 141, 150, 151, 158, 253 Chief Justice, 37, 39, 45, 53, 67, 144, 156, 202, 225, 226, 259 choice, 6, 19, 20, 80, 84, 85, 150, 175, 179 citizen, 17–20, 24, 25, 27, 30, 191–194, 196–209 citizen participation, 24, 30 citizenship, 191–209 citizen’s right, 19 civil and political, 16 civil servants, 21, 89, 103 civil society, 33, 100, 126, 146, 215, 237, 241, 244 civil war, 77, 78, 82, 167, 180, 184, 186, 187, 242 clientelistic, 6 coalition, 87, 89, 104, 165, 184, 220, 235, 237

code of conduct, 24, 82, 83, 113, 117–119, 126, 135, 137, 148, 240, 255, 258 coerced, 180, 233 colonial, 2, 83, 165–167, 185, 218, 251 colour, 17, 80, 84, 92, 133, 223, 227, 238 combat corruption, 22 Commission, 27, 31, 41, 55, 64, 65, 67, 69, 71, 74, 81, 83, 145, 148, 169, 170, 224, 229 community, 6, 30, 180, 184, 196, 201, 204, 209, 219, 243, 254 compliance, 27, 30, 31, 47, 48, 56, 83, 108, 109, 111, 120, 133, 137, 147, 169–171, 192, 227–229 comprehensive, 47, 110, 176, 184, 254 concerns, 51, 123, 157, 158, 169–171, 173, 175, 180, 186 concessions, 5, 200 conflict prevention, 26 Congress, 32, 51, 72, 166, 168, 173, 178, 182, 185 conscience, 16, 223, 238 consider, 52, 55, 74, 142, 149, 169, 179, 201 constituencies, 6, 43, 55, 169–171, 201, 240, 257 Constitution, 3, 4, 19, 22–25, 27, 28, 31–33, 35–38, 40, 42, 43, 45–57, 65–67, 71, 80, 84, 124, 126, 142, 143, 145, 147, 150, 155, 156, 166, 168–170, 172, 173, 178, 180, 192–194, 196–198, 202–207, 209, 223–226, 228, 229, 235, 244, 245, 254, 258 constitutionally, 25, 41, 55, 65, 71, 74, 244, 254, 258

INDEX

Constitutive Act, 22, 24 corruption, 21, 29, 71, 74, 78, 85, 89, 90, 98, 99, 168, 175, 186, 187, 193, 196, 200, 243, 244, 256, 259 Council of State, 67, 169 council(s), 2, 18–20, 30, 52, 57, 58, 78, 168, 169, 198 country, 1, 3, 7, 8, 16–18, 25, 27, 28, 30–32, 35, 47, 51, 55, 62–64, 71, 72, 74, 77–79, 84, 85, 88, 100, 107, 108, 111, 112, 118, 119, 159, 166–168, 170–179, 181–184, 187, 191–194, 197, 200–203, 205–210, 223, 226, 228, 229, 234, 237, 239–242, 252, 257, 258 Court, 31, 41, 45, 47, 48, 51, 56, 138, 143, 148, 150, 154, 159, 199, 206, 237, 255 coverage, 31, 137 credibility, 6, 30, 70, 73, 75, 103, 186 Creole, 82, 178 crimes, 178, 180, 184, 202, 235, 237 critics, 169–171 culture, 23, 30, 64, 84, 88, 165, 222, 223, 230, 238, 256 culture of democracy, 23 D data, 110, 169, 170, 174, 201, 220 death, 45, 49–51, 53, 55, 89, 183, 185, 186, 239 decentralized, 63, 181 decision-making processes, 28, 71 declaration, 15, 16, 26, 37, 45, 52, 56, 81, 131, 142, 144, 148, 151, 155, 156, 175, 203 decolonalisation, 15 degrading, 193, 200, 203

263

delimitation, 20, 62, 64 delimiting, 169–171 Democracy, Rule of Law and Human Rights, 23 democratic, 1, 3–5, 15, 17, 23–26, 28, 29, 32, 57, 77, 83, 84, 88, 91, 98, 104, 108, 165, 166, 177, 182, 186, 191, 255 democratic constitutions, 27, 28 democratic elections, 26–28, 254 democratization, 1, 26, 30, 166, 176, 184–186 descent, 177, 196, 200, 207 destruction, 135, 183, 233, 238 development, 3, 4, 16, 22, 23, 25, 26, 28, 82, 85, 87, 88, 99, 100, 167, 168, 171, 175, 191, 229, 251 diaspora, 29, 32 differences, 90, 125, 195, 215 discourse, 141, 165, 185 discriminated, 200, 225 discrimination, 16, 19, 20, 23, 26, 27, 124, 134, 192, 197, 199, 217, 223, 228, 258 disparities, 171, 174 disputes, 24, 64, 65, 74, 79, 83, 142, 148, 156, 160, 186, 256 diversity, 72, 86, 88, 165, 168–170, 173, 174, 180, 181, 186, 187 domesticating, 28 dual citizenship, 194, 198, 202, 203, 205–207, 209 E economic, 7, 16, 25, 77, 80, 87, 100, 136, 168, 175, 178, 182, 187, 224, 234, 245 Economic Community of West African States, 15 elections, 1–6, 8, 15–33, 35, 41, 48, 52, 58, 62, 66, 69, 74, 78, 85,

264

INDEX

88, 89, 98, 101, 104, 105, 117, 120, 130, 133, 137, 138, 141, 145, 154, 159, 165–171, 173–179, 182, 183, 186, 192, 193, 198, 201, 206, 207, 220, 228, 229, 240, 251, 253, 258 Electoral Authorities, 27 electoral boundaries, 20, 66, 235, 257 Electoral Code, 29, 119, 138, 148, 236, 238, 245 Electoral Commission, 27, 30–32, 36, 37, 41, 48, 52, 55, 61, 62, 65–70, 75, 101, 111, 136, 169, 171, 174, 176, 192, 193, 258 electoral democracy, 3, 7, 8, 28, 220, 251, 253 electoral justice, 29, 62 electoral laws, 5, 27, 28, 32, 33, 120, 130, 131, 166, 168, 175 electoral violence, 167, 182, 183, 186, 230, 233, 234, 236–240, 242, 253, 256, 258, 259 eligibility, 2, 20, 62, 104, 105 Embassy, 198, 202 entrenched, 70, 167, 237 environment, 24, 29, 78, 99, 103, 134, 135, 179 equal suffrage, 16–18, 20 ethnic, 23, 84, 88, 89, 127, 165–167, 169, 174, 178, 182, 185, 186, 197, 199, 223, 228, 237, 239, 245, 254, 256, 257 ethnic group, 80, 82, 88, 165–171, 173–177, 181, 184–186 ethnicity, 82, 88, 89, 91, 121, 128, 135, 136, 165–168, 175, 176, 178, 179, 181, 182, 184–186, 195, 234 ethnic minorities, 23 ethnopolitical, 177 evaluation, 65, 176 ex-combatant, 200

executive, 6, 19, 36, 57, 62, 71, 73, 84, 92, 217, 257, 258

F factors, 7, 87, 147, 175, 176, 179, 181, 187, 204, 237, 244 fair, 2, 8, 24, 25, 29, 30, 36, 41, 42, 47, 48, 68, 69, 74, 120, 135, 168, 175, 206, 220, 230, 252, 254, 255, 257 fairness, 29, 32, 71, 130, 168, 170, 174, 175 favouritism, 29, 85, 100 Federal, 169, 172, 180, 198, 203, 208 financial, 64, 70, 71, 73, 75, 90, 98, 99, 102, 107, 109, 110, 135, 203, 208, 255 first ‘past the post system’, 31 forced, 2, 72, 203, 206 foreign, 86, 98, 100, 101, 107, 108, 149, 205 fraud, 55, 141, 203, 204 free, 8, 16–25, 27–31, 106, 131, 142, 168, 175, 184, 193, 208, 209 free and fair, 2, 8, 22, 24, 27, 28, 41, 42, 64, 68, 69, 74, 75, 117, 120, 184, 252 free choice, 19, 80, 84 freedom of opinion and expression, 16 freedom of the media, 29 Freetown, 206, 243 Fulani, 166, 167, 176, 196 fundamental, 16, 18, 22, 23, 28, 35, 58, 61, 69, 72, 74, 92, 97, 102, 104, 117, 141, 184, 191, 220, 227, 252 fundamental principle, 18, 83 funding, 21, 64, 69, 75, 77, 81, 86, 90, 97, 98, 102–108, 111–113, 253

INDEX

G gender equality, 7, 23, 105, 217, 224, 229 genocidal, 180, 185 Ghana, 2, 3, 35, 48–50, 58, 63, 66, 67, 83–85, 92, 110, 111, 119, 126, 142, 151, 166–168, 171, 172, 175, 178, 179, 181, 182, 185–187, 191, 193–196, 201, 202, 206, 208, 226, 234, 239, 252, 253, 255 Ghanaian, 3, 57, 58, 84, 166, 193, 194, 201, 202, 206, 208, 226 governance, 3, 4, 6, 7, 22, 23, 26, 33, 78, 83, 84, 87, 97, 103, 117, 167, 173, 174, 178, 191, 221 governance institutions, 23 government, 2–4, 16, 18–20, 22–27, 30, 33, 36, 51, 57, 58, 62, 63, 70, 74, 75, 78, 83, 86, 87, 89, 97, 99, 105, 108, 168, 169, 172–174, 176, 178, 180, 182, 191, 192, 197, 199, 200, 203, 205, 207, 209, 235, 237, 252, 258 government policies, 33 grandparents, 194, 196, 207 grievances, 132, 142, 165, 185 Guidelines, 16, 22, 23, 30, 31, 173, 192 Gulf of Guinea, 176

H harm, 22, 125, 233 Hausa, 166, 167, 176, 196 Heads of State and Governments, 28 heinous, 180, 185 heterogeneous, 166, 176, 185, 186 High Court, 32, 138, 144, 146, 148, 150, 153, 154, 157, 159, 202, 244

265

history, 1, 64, 78, 107, 167, 168, 171, 173, 174, 179, 182, 186, 219 House of Representatives, 169 humanity, 178, 180, 184, 235, 237 human rights, 7, 16, 22, 23, 28, 123, 133, 178, 215, 227, 237, 238, 244 hungry, 180 I identities, 80, 165–167, 181, 186 illicit, 22 impartiality, 29, 61, 71, 122, 243 implications, 166, 185, 186, 216, 229 imprisonment, 36, 44, 81, 83, 109, 123, 126, 193, 204, 205, 209, 234, 238, 240 inauguration, 32 independence, 1, 2, 4, 22, 27, 29, 61, 64, 66, 69, 70, 72, 74, 75, 78, 112, 167, 168, 175, 176, 181, 182, 205, 251, 255, 259 Independent Electoral and Boundaries Commission, 42, 65, 142, 146, 170, 173 indigenous, 194, 196, 207 inequalities, 19, 173, 233 influence, 5, 19, 36, 62, 70, 73, 75, 86, 90, 91, 97, 100, 101, 118, 121, 135, 176, 179, 192, 208, 220, 243, 254, 258 instability, 3, 29, 166, 174 instigations, 180, 185 institutionalize, 22, 24 institutional weaknesses, 30 integrity, 21, 29, 30, 32, 61, 70, 72, 74, 108, 124 intention, 77, 192, 204, 209 International Covenant on Civil and Political Rights, 16, 79, 252 international customary law, 16

266

INDEX

international guidelines, 28 International Institute for Democracy and Electoral Assistance, 7, 15, 99 international law, 15, 17 interventions, 25

J journalists, 123, 134, 136, 196, 234 judicialization, 141, 142, 159, 253, 256, 259 judiciary, 22, 27–29, 32, 56, 78, 109, 187, 243, 244, 259 jurisdiction, 17, 135, 142, 144, 148, 150, 235

K Kalenjin, 166, 167, 177 Kamba, 177 Kenya, 2, 4, 5, 31, 35, 42, 44, 47, 52, 57, 58, 63, 65, 66, 71, 77, 87, 88, 91, 100, 104, 107, 111, 119, 123, 138, 142, 147, 166–168, 170, 173, 175, 177, 180, 183, 184, 186, 187, 192, 198, 199, 204, 208, 209, 224, 244 Kenyan, 32, 43, 44, 57, 67, 87, 88, 167, 173, 177, 180, 183, 184, 198, 199, 204, 208, 236 Kenyatta, Uhuru, 47, 146, 178, 186, 237

L language barriers, 19 law, 1, 16, 19–28, 30, 31, 33, 48, 51, 71, 82, 111, 112, 141, 146, 156, 172, 174, 192, 193, 201–206, 208, 210, 245, 252, 255, 256, 259

legal framework, 28, 52, 58, 79, 117–119, 215, 230, 242, 245, 251, 253, 254, 256, 257 legislative, 2, 4, 6, 17, 19, 21–24, 68, 70, 84, 108, 226 legitimacy, 2, 3, 77, 186 LGBTI, 180 Luo, 88, 177 M majority, 2, 3, 32, 38, 58, 73, 85–87, 102, 104, 110, 146, 186, 218, 225 Malawi, 2, 4, 31, 32, 104 malpractice, 192, 193 management, 21, 26, 35, 61–63, 75, 101, 119, 137, 180, 217, 252, 257, 258 manipulation, 3, 86, 165, 185, 192, 195–197, 199, 200 marginalization, 165, 220, 223, 229, 230, 234, 256 membership, 40, 43, 51, 58, 80, 86, 98, 99, 112, 136, 146, 150, 173, 174, 195, 225, 257 Mende, 82, 167, 178 mercenaries, 25 migrants, 23, 197 minimum age, 19, 223, 228, 258 minority, 87, 165, 174, 186 mobilization, 88, 89, 165, 184 mode, 70, 179 movement, 8, 17, 19, 88, 184, 244 Mozambique, 7, 111 multiparty, 3–5, 87, 88, 90, 178 N National Assembly, 36–40, 43, 45, 57, 69, 86, 101, 107, 144, 146, 150, 151, 170, 224, 225, 229, 252

INDEX

nationality, 181, 199, 204, 205, 208 National Rainbow Coalition, 100, 184 naturalised, 196, 207 nature, 20, 33, 48, 52, 148, 149, 200, 239 Negro African, 200 New Patriotic Party, 51, 52, 85, 168, 178, 221 Nigeria, 2, 3, 63, 72, 77, 86, 91, 103, 107, 110, 166–169, 172, 173, 175–177, 179, 182, 183, 186, 187, 192, 196–198, 203, 207, 208 Nigerians, 86, 207 non-discriminatory, 20 Non-Self-Governing, 17 norms, 22, 177, 221 O Odinga, 147, 178 offences, 22, 128, 180, 204 openness and fairness, 23 ordinary, 39, 86, 87, 194, 207 Organs, 23 outbreaks, 196 P parentage, 204 parliament, 4, 7, 32, 42–44, 46, 50, 53, 55, 64, 67, 73, 81, 108, 145, 156, 168, 169, 171, 172, 226, 228, 258 parliamentary, 2, 36, 52, 58, 84, 90, 101, 102, 106, 144, 152, 156, 169–172, 174, 182, 201, 206, 228, 239, 252 participation, 6, 7, 20–23, 26, 28, 29, 80, 85, 87, 90, 117, 134, 138, 166, 174, 191, 215–219, 221, 223, 224, 228, 229, 254, 256, 258

267

passport, 198–200, 208 peace, 15, 22, 26, 28, 215, 242 people with disabilities, 23 perception, 31, 70, 103, 112, 167, 215, 219 perpetuate, 173 perspective, 35, 63, 72, 86, 147, 176, 181, 220 phenomenon, 89, 165, 175, 185, 218 pluralism, 23 pluralist, 176 polarization, 165, 166, 185, 254 political actors, 24, 33, 113 political finance, 21, 86, 90, 111, 112 political life, 26, 86, 90 political parties, 6, 21, 23, 29, 33, 36, 58, 67, 70, 71, 73, 77–80, 82, 84, 86, 92, 98, 102, 105, 108, 110, 112, 117, 123, 126, 129, 132, 136, 150, 165–175, 178, 185, 186, 219, 241, 253–255, 258 political system, 4, 29, 78, 87, 89, 169, 170, 172, 173, 186, 221 politics, 5–7, 30, 70, 85–88, 98, 118, 138, 141, 165–168, 175–177, 181, 183–186, 215–217, 219–221, 229, 239, 242, 255, 256 positions, 7, 21, 58, 85, 88, 103, 172–174, 180, 185, 207, 216, 217, 221, 224, 225, 227, 230, 257, 258 post-colonial, 165 poverty, 19 powerful, 178, 219 powers, 2, 19, 23, 27, 70, 81, 83, 233, 251 pre-election, 30, 183 presidency, 58, 86, 173, 174, 178, 257

268

INDEX

president, 4, 31, 32, 37–39, 44, 45, 49, 53, 54, 66, 88, 145, 155, 156, 158, 177, 192–194, 202, 203, 207, 227, 243 presidential, 31, 32, 36, 51, 53, 82, 89, 101, 166, 176–178, 180, 182, 183, 186, 206 presidential elections, 31, 37, 45, 47, 48, 50–54, 56, 100, 141, 142, 144, 151, 155, 158, 186, 206, 235, 256, 258 principles, 17, 21–23, 25–28, 42, 61, 84, 85, 117, 145–147, 173, 174, 257 problem, 85, 90, 98, 110, 113, 182, 222, 240, 241, 243 procedures, 16, 18, 21, 51, 64, 70, 71, 73, 119, 143, 147 process, 1, 2, 20, 26–29, 31, 41, 63, 71, 83, 85, 97, 123, 142, 172, 181, 183, 186, 197, 225, 233, 235, 239, 242, 244, 252, 254 protection, 108, 187, 223, 224, 229, 235 Protocol on Democracy and Good Governance, 32, 252 psychological, 233 public office(s), 1, 4, 21, 33, 36, 150, 226, 227, 229 public service, 16–18, 25

Q quest, 176 question, 48, 69, 72, 117, 138, 141, 144, 150, 157, 159, 186, 196, 199, 200, 206, 210, 230, 234, 240

R race, 17, 121, 135, 223, 238

rallies, 31, 106, 122, 128, 135, 224, 233, 241, 242 recruit, 74, 174 referendum, 19, 66, 88, 89, 236, 257 Refugee Rights, 180 refugees, 23 regional, 15, 16, 24, 29, 82, 84, 88, 89, 91, 105, 142, 169–175, 181, 187, 227, 252, 254, 255, 257 register, 36, 41, 42, 55, 79, 80, 158, 198, 233, 238 registration, 41, 44, 52, 55, 64, 79–81, 123, 125, 149, 168, 175, 183, 192–194, 197, 203–205, 207 regulations, 30, 67, 77, 79, 91, 92, 107, 111–113, 133, 154, 158, 192, 221, 253, 256, 258 regulatory, 24, 79, 106, 109, 110, 112, 240, 245 religious, 23, 84, 86, 92, 175, 180, 187, 197, 199, 207 religious diversity, 24 renunciation, 202, 203, 206, 208 repatriation, 180 representation, 4, 7, 26, 35, 38, 40, 42, 57, 91, 105, 117, 151, 169–172, 174, 186, 204, 209, 217, 222, 224, 225, 229, 254, 257 representatives, 5, 17, 18, 25, 27, 191, 197, 207 Republic, 35, 38, 55, 172, 175–178, 198, 203, 208 requirements, 43, 56, 80, 84, 110, 111, 191–194, 196–199, 207 residency, 192, 197, 207 responsibility, 17, 26, 61, 63, 81, 100, 109, 111, 237, 239 Rift Valley, 89, 170 Ruto, William, 47, 184, 237

INDEX

S sanctions, 24, 109–112, 119, 123, 125, 137, 148, 149, 236, 238, 245, 255, 258 secret ballot, 18, 20, 37, 44, 48, 55 security, 22, 24, 26, 56, 70, 78, 89, 133, 143, 145, 180, 181, 186, 187, 202, 203, 233, 241, 244 security forces, 180, 234, 243 self-determination, 16, 17, 25, 84 sentenced, 36, 55, 204, 205, 238 sex, 17, 121, 180, 223, 228, 229, 238 Sierra Leone, 2, 4, 35, 52–56, 58, 63, 67, 77, 78, 81, 82, 119, 132, 137, 142, 156, 158, 166–168, 170, 171, 174, 175, 178, 180, 181, 184–187, 193, 199–201, 205, 206, 208, 209, 228–230, 242, 243, 245, 252 Sierra Leonean, 57, 58, 180, 184, 185, 199, 200, 206, 208, 242, 243 social, 7, 16, 17, 23, 25, 80, 87, 88, 165, 168, 175, 176, 179, 180, 215, 219, 222, 230, 256 sociological, 178 Somalia, 180 Southern African Development Community, 15, 28 sovereign, 24, 42 stability, 22, 26, 28, 30, 84, 168, 175, 185, 187, 242 stakeholders, 24, 27, 29, 70, 71, 112, 225, 234 State Party, 17, 22, 23 statistical, 169, 170 structural, 180, 233 struggle, 1, 87–89, 174, 178, 218 substantial, 16, 32, 47, 52, 103, 119, 146, 147, 160, 181 suffrage, 2, 16–18, 198

269

Supreme Court, 47, 51, 56, 57, 86, 104, 142, 143, 145–148, 151, 156, 158, 202, 206, 210, 225 systematic, 102, 176, 181 systems, 7, 21, 58, 61, 74, 75, 87, 107, 119, 165–167, 173, 218, 222, 223, 229, 244, 252, 256

T Temne, 82, 167, 178 tensions, 89, 129, 166–168, 174, 186 territory, 2, 17, 196, 238, 245 threatening, 131, 196, 200, 233 trafficking and terrorism, 187 transition, 15, 22, 25, 83, 220 transparent, 21–24, 28, 29, 33, 47, 48, 71, 109, 131, 146, 168, 175 treason, 203 turmoil, 173

U unconstitutional, 22, 24, 29, 138, 146, 151 unconstitutional changes of government, 24, 29 unconvincing, 199 underrepresented, 166, 169, 171 United Nations Convention against Corruption, 21 universal, 16–18, 20, 22, 23, 51, 219 Universal Declaration of Human Rights, 16, 252 universal suffrage, 2, 20, 23

V violence, 19, 29, 33, 72, 77, 78, 89, 134–136, 141, 166, 167, 182, 183, 185–187, 192, 196, 234–238, 240, 245 violent, 167, 183, 233, 234, 238

270

INDEX

vote, 2, 5, 16, 18–21, 25, 27, 29, 32, 33, 36, 38, 42, 51, 57, 72, 104, 121, 153, 157, 167, 176, 179, 185, 196, 198, 199, 201, 206, 244, 254, 258 voter education, 29, 62, 68, 121, 129, 168, 175 voters, 4, 5, 17, 19, 20, 30, 31, 33, 38, 40, 43, 44, 49, 55, 61, 67, 97, 120, 122, 130, 167, 168, 175, 179, 185, 191, 193, 201, 234, 242 W women, 6–8, 16, 23, 26, 33, 66, 87, 105, 134, 138, 172, 174, 180,

181, 198, 205, 209, 215–217, 219, 223, 228, 230, 256, 258

Y Yoruba, 166, 167, 176, 196 youth, 8, 78, 87, 123, 134, 136–138, 181, 186, 201, 215, 216, 218–224, 226, 228, 230, 234, 243, 256, 258

Z Zimbabwe, 30, 31, 103, 104 Zimbabwe Electoral Commission, 30