Court says State at liberty to postpone polls

The government can decide to postpone next year’s election over the Covid-19 pandemic.

This follows advice by Africa Court on Human and People’s Rights that African Union member States are at liberty to call off an election if there is an emergency or a health crisis.

According to the Arusha-based court, an election can be pushed upon the government consulting health agencies, political actors, and civil society.

Kenya will hold elections in August next year.

An 11-judge bench led by Justice Imani Aboud was determining an advisory sought by Pan African Lawyers Union (PALU). “States may decide to conduct or not to conduct elections in the context of a public health emergency or a pandemic. Such a decision requires prior consultation with health authorities and political actors, including representatives of civil society,” the court ruled.

According to the judges, each member should however create their own laws on what happens after the expiry of the term of office of elected officials.

“Accordingly, in principle, States must have their own legislation on the consequences of the expiry of the term of office of elected officials without elections being held…The court holds that if such legislation exists, it must be applied, otherwise new legislation should be enacted by the competent bodies,” it continued.

The Arusha-based lawyers' lobby floated two issues for the court to determine. The lobby wanted the court to interpret if member States can hold elections during the Covid-19 crisis.

At the same time, PALU asked the court to set up standards for conducting elections during Covid-19.

The organisation argued that the Covid-19 pandemic poses serious challenges to democratic governance, the rule of law and the promotion and protection of human and peoples’ rights, and organising of elections.

While responding to the questions, the court noted that AU members could also decide to continue with the elections even with the prevailing pandemic.

“It follows, then, that State parties can decide to conduct elections within the timeframe provided for by law, notwithstanding the situation of the Covid-19 pandemic, if they deem it possible,” the court observed.

At the time PALU was seeking advice, 22 countries were to hold elections for presidents and prime ministers. It argued that due to Covid-19, governments are protecting lives by limiting freedoms of movement, assembly, and association.

The court heard that at least 78 countries and territories across the globe have decided to postpone national and sub-national elections due to Covid-19. On the other hand, 52 countries have held elections that were initially postponed due to spread concerns.

In Africa, countries, where elections have been held, include Algeria, Burkina Faso, Burundi, Cape Verde, Cameroon, Central African Republic, Côte d’Ivoire, Egypt, Ghana, Guinea, Guinea Bissau, Kenya, Liberia, Malawi, Mali, Niger, Nigeria, Seychelles, Tanzania, Togo, and Uganda.”

According to the judges, countries that do not have laws in place can apply laws in a state of emergency.

It continued: “In the absence of specific provisions on the postponement of elections, the provisions concerning the scheduling and holding of elections, including during a situation of emergency, are applicable to their postponement.

Indeed, those who can schedule elections also must be able to call them off or postpone them if the conditions for holding the elections are not met because of the emergency situation, as is the case with the Covid-19 pandemic.”