Court bars African countries from postponing elections over Covid-19 crisis

African countries have been advised against using the Covid-19 crisis to postpone elections and instead told to put in place measures that will guarantee integrity during those elections.

In a statement released on Saturday, Pan-African Lawyers Union (PALU) clarified the African Court on Human and Peoples' Rights was not presented with any question of whether a country can or should postpone its elections.

Lawyers Donald Deya (Tanzania), Ibrahima Kane (Senegal) and Chidi Anselm Odinkalu (Nigeria) said the court in its advisory opinion told the AU member states to ensure free and fair elections during the pandemic without infringing on the rights of the voters and the candidates.

Last resort

The Court said the postponement of elections entails the suspension of the right of citizens to take part regularly in the governance of their countries, therefore can only be contemplated as an exceptional last resort under an emergency declared as part of general law.

"From the point of view of proportionality, the postponement of elections must be a last resort, without which it will not be possible to protect the health and lives of the people and ensure the integrity of the electoral process,” read the statement.

The counsels stated that the Court's judgement cannot be used by governments to postpone elections in any country but on the contrary, a limitation on their [incumbents'] claim to use the pandemic to postpone polls at a whim.

“In the event, a country postpones the election as prescribed in its local laws, there must be consultation between political actors, health authorities and representatives of other stakeholders.”

According to the court, the consultations should focus on measures that are necessary to ensure the electoral process is transparent.

Since 2020, some of the African countries that have held elections include Chad, Ethiopia, Uganda, Tanzania, Burundi, Gambia, Morocco, South Africa, Zambia among others.

Questions addressed

The court advised that whereas decisions to hold elections are within the domestic jurisdiction of the member state, the manner in which they are conducted must follow the African Treaty Law including the African charter on human and people’s rights and Africa charter on democracy, election and governance.

The advisory was delivered following last year’s submission by the PALU seeking guidance from the African court and the regional institutions on how to hold elections during the Covid-19 period.

The judgment addresses three questions which included the decision to conduct or not to conduct elections in the context of a public health emergency or a pandemic, such as the Covid-19.

It also addressed the obligations of State Parties to ensure effective protection of citizens’ right to participate in the government of their countries in the context of an election held during a public health emergency or a pandemic, such as the Covid-19 crisis.

The judgement also touched on the obligations of State Parties that decide to postpone elections because of a public health emergency or a pandemic, such as the Covid-19 crisis.

Counsel Odinkalu argued that “Covid-19 has had far-reaching effects on democratic participation and election in Africa and around the world.”

“The decision by the African Court lays out authoritatively what incumbents can and cannot do for the sake of keeping power.”

“One thing is clear, the era of government using the pandemic as a sword against the democratic competition is over. A public health pandemic must not be an excuse for an election rigging,” he said.

Raging debate

Election postponement remains a thorny issue in the country after Central Organisation of Trade Unions (Cotu) boss Francis Atwoli pitched for it.

Some MPs led by Ndaragua MP Jeremiah Kioni are also preparing to petition the High Court to postpone the election date to give the Electoral Boundaries and Commission (IEBC) adequate time to conduct boundary delimitation.

The MPs argue the move is meant to avert a constitutional crisis by going into an election with electoral units that are illegal.

Kioni said they will ask the courts to compel the IEBC to conduct the boundary review before the August 9, 2022, vote to avert what he calls a looming constitutional crisis.

The MP said the 26 constituencies that were specially protected in 2012, though they didn't meet the threshold would be scrapped in the event the election agency cannot carry out a review.

IEBC has already set August 9, 2022, in its election operational plan as the date for the next poll.

So far, Deputy President William Ruto and his allies and ODM’s Raila Odinga’s wing have opposed any move to defer the elections.

The Constitution provides for the term limit of the President under Article 255 which is protected and can only be extended through a referendum.

Article 102 of the Constitution also provides for the extension of Parliament for six months if the country is at war or under exceptional circumstances.

Kenyan elections are not staggered with all the elective positions held on the same day after every five years.