IT is difficult not to be struck by the morbid fear of election petitions by political parties. In circumstances where there are electoral disputes and one party is faced with the prospect of seeking remedy via an elections petition, there is unwavering reluctance until that is the only option that remains. There are a plethora of factors associated with this state of affairs that certainly invite discussion. Admittedly, it is difficult to provide comprehensive insight into this broad and vast subject in a brief column, but there is much to gain by providing, even if briefly, some elucidation on this subject.
The politics of election petitions at the level of the average political party can be seen in several contexts: the refusal to easily settle for the judicial route to seek remedy; the genuine need to seek the correction of electoral fraud and irregularities and the strategic use of elections litigation to shift blame for defeat, bolster their future electoral prospects and to even negotiate government jobs (Erlich et al, 2019).
For all intents and purposes of this discussion, it is worth the time to focus on why there is always a guaranteed refusal to accept the need to seek redress via the courts at the level of the political party’ decision-making.
The unwillingness to engage in post-elections litigiousness stems from several considerations: it is not easily accepted by the rank- and-file supporters; readily conceding and complying are rare in polarised societies because it places the leadership of the party in a vulnerable position; elections petitions are expensive and laborious. It takes almost a year to compile a solid case: you can’t simply go to court and simply accuse your opponent of rigging, there has to be the filing of a winnable case within the law. To make matters more difficult, there needs to be the procurement of affidavits, the finding of elections agents who may have migrated or are reluctant to testify and the obtainment of numerous relevant documents. Further, in countries where the judicial system is slothful, political parties can find themselves embroiled in elections petitions cases by the time the next election comes around. Importantly, efficacious elections petitions politics demand that parties wage intense struggles during the hearing of the case to ensure there is enough public pressure to keep any machinations that are inimical to their interest at bay. This also requires many resources.
As you may have gathered by now, courts invariably become ground zero for all post-election political battles that are not extra-legal. To the extent that this is true, judges become the focal point to resolve disputes. After hotly contested elections in highly polarised and underdeveloped societies, it is not unreasonable to ask if judges can be true impartial arbiters in the grand scheme of electoral things. After all, they do not live in the sky, they reside within the society and are never free from societal harassment and constant badgering by politicians and power interests — domestic and foreign.
Above all, officers of the court, being humans, consider their self-interests and professional survival which are always at the whims and fancies of the state apparatus. Considering all of this, it is difficult to see how judges can escape playing the politics of elections petitions. This perspective naturally invites the question: how is this done?
Some have alleged that judges skilfully navigate their interests and survival by delaying elections cases at exasperating levels within the five-year electoral cycle and if there is the need to nullify a contest, this is done very close to the end of the life of a government. In the case of India, the High Court is expected to give judgment on all election petitions within six months, but in actual practice, it takes much longer and often the petitions remain pending for years and in the meantime, even the full term of the House expires. Some are convinced that these circumstances are in existence because judges play politics with elections petitions and in so doing, they attempt to satisfy all political forces. Where this does not occur, there has to be unparalleled judicial bravery that proceeds from a place of rare high principles. Unseating a President and bringing down a sitting government after one year in office is no easy feat, as recently exemplified by the Kenya and Malawi cases.
Also, those familiar with this subject such as Mohammed Haruna have noted the tendency of courts to kowtow to the party that controls the state apparatus. He noted, ‘the courts not only refused to take judicial notice of ‘… these and other attempts by the authorities to fix the elections, they dismissed the opposition’s petitions as “miniature complaints”! Yet, there were fundamental flaws in the very foundation of the elections.’ (The Nation, 5 March 2008, p.48).
What does the politics of elections petitions entail for those who take control of the government in the context of an ongoing election petition that has a large degree of success? They operate with the supreme awareness of the reality that their time might be limited and therefore it is extremely necessary to consolidate power as quickly as possible. In this, they embark on a desperate mission to use the weight of the state to crush their adversaries; jail their opponents; grow their political party; win national support and strategically place themselves in a position to win the next election whenever it is called.
In service of this interest; they form reconciliatory Cabinets, pass legislation, craft policies and rule with fatalistic determination to retain power at all costs in consideration of the fact that the election which enabled them to accede to the office may be nullified. The access to state resources, albeit, controversially by the dubious victor, provides a concomitant advantage. This is a key reason why political parties are very hesitant to readily accept the route of an election petition to assuage their electoral concerns.
Considering all that I have said, there is enough evidence available to make a strong argument that there is much politics that surrounds elections petitions. Perhaps this explains the qualms of political parties to easily settle for this option.