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Articles

Constitution-building and safeguarding the integrity of elections in Africa

Pages 521-533 | Received 08 Jun 2023, Accepted 09 Oct 2023, Published online: 20 Oct 2023

ABSTRACT

This article explores the significance of constitution-building and its impact on electoral integrity in Africa. Over recent decades, numerous African countries have turned to constitution-building and revisions to enhance democracy. The role of constitutions has expanded beyond governing and regulating governance-citizen relationships; they are now crisis management tools. Ultimately, constitution-building emerges as a crucial mechanism to fortify electoral processes and democratic development, particularly within Africa. The article highlights key elements for constitution-building to strengthen electoral integrity.

Introduction

The main preoccupation of this article is to explore the nexus between constitution-building and electoral integrity in either abetting or forestalling democratic recession in Africa. It acknowledges the impact of democratic recession in many African countries, most of which have had to overcome layers of racial discrimination and colonialism. The article further highlights the importance of constitution-building and the pivotal role it plays in safeguarding electoral integrity and its potential to contribute to the reversal of democratic recession, thereby revitalising democracy on the African continent.

Following this introduction, the article is divided into three sections. The first section, immediately below, introduces the concepts of electoral integrity and democracy, the importance of constitutional protection of electoral rights, constitution-building and best practices. The second section provides the barometer of free and fair elections. It discusses the importance of an electoral justice system in African countries and highlights key areas and elements for strengthening electoral integrity through constitutional reforms. The last section closes the discussion by highlighting key observations.

Electoral integrity and democracy

Electoral integrity refers to the ‘agreed upon international conventions and universal standards about elections reflecting global norms applying to all countries worldwide throughout the electoral cycle, including during the pre-electoral period, the campaign, on polling day, and its aftermath.’Footnote1 It is an important element of democratic procedures.

Democracy as a concept and/or idea denotes a state that is led by its people, with their will and desires manifested through free and fair elections.Footnote2 Undoubtedly, democracy has evolved through ages and centuries taking many shapes and forms. At one point the concept was used by authoritarians to gain legitimacy and at another point it was used to overrule the very same authoritarians. Further, the idea of democracy is context-specific given that it differs from one society to another and from one generation to the next. One cannot succeed at an attempt to pin down a universal definition of the term. Nonetheless, in modern times there are universally accepted tenets that make up democracy. In their simplest form these include, inter alia, citizen participation, holding free and fair elections, respect for fundamental freedoms, the rule of law and political tolerance.

Conversely, the notion of democracy can also be explicated by what it is not. There is often confusion in both policy and academic discourses whereby elections tend to be equated with democracy and vice-versa. That is not correct. Elections, though a key component of democracy, are not, in themselves, tantamount to democracy. Aptly put, ‘democracy, it is true, cannot be judged solely by looking at the ability of citizens to vote at elections and exercise their civil and political rights’.Footnote3 For a society to be democratic, the electoral process, itself, must be free and fair, the citizens must have access to accurate political, economic, and social information, and the rule of law must always be respected.

For decades, countries have been applauded for holding regular elections and that has, for many, been equated to democracy. This has come at a cost as sight was lost on what democracy is and has led to systematic relapse in democracy birthing a crisis now widely known as democratic recession. In particular, over the yester decade democratic recession has become prevalent at an alarming rate. According to Khabele Matlosa, the key contributors to democratic recession can be classified as ‘structural’ and ‘super structural.’Footnote4 These include the high levels of capitalism and globalisation during the 1997/1998, 2007/2008 financial crises, underdevelopment, poverty, unemployment, and inequality. There is a prevalence of populism, war, unconstitutional change of government and mismanagement of diversity. These factors combined have contributed to the decreasing confidence in elections which is evidenced by lower voter turnout rates and increasing trends of public mistrust in governance institutions.Footnote5

The root causes of democratic recession have been aptly canvassed by other scholars.Footnote6 Therefore, these should not detain us for purposes of this article. This article, however, acknowledges the impact of democratic recession in many African countries. The article highlights the importance of constitution-building and the pivotal role it plays in safeguarding electoral integrity and its potential to contribute to the reversal of democratic recession, thereby revitalising democracy.

Importance of constitutional protection of electoral rights

The level of protection and enforceability of electoral rights is highly dependent on where and how they are provided for. Electoral rights may be protected in the constitution, primary and secondary legislation, and codes of conduct. This article argues that constitutional protection of electoral rights is the highest form of legal protection.Footnote7 Nevertheless, complementary legislation (primary and subsidiary legislation) and codes of conduct still play an important role in enhancing electoral integrity. The effective protection of electoral rights is not only dependent on their inclusion in the constitution but also on the commitment of the government, political parties, civil society, and citizens to uphold and implement them. This commitment, by various stakeholders, is what distinguishes a constitution from constitutionalism. In recognition of this intricate nexus, some scholars have observed a trend of constitutions without constitutionalism in several African countries.Footnote8

A constitution is commonly definedFootnote9 as a:

document, written, or unwritten, which governs and allocates power, functions and duties amongst different agencies within the state and between the governed and government. The main purpose of a constitution is to limit the use of government power in a manner that will prevent the twin dangers of anarchy and authoritarianism.

Constitutions can come in many forms. The classic distinction that is commonly made is between majoritarian and consociationalist constitutions.Footnote10 Majoritarian constitutions involve institutions such as a winner-take all electoral system, a single legislature, and an executive with more power than the legislature and thus more likely to bring single-party government. Consociationalist constitutions involve institutions such as a proportional voting system, a federal and decentralised state, and a bicameral legislature; such systems are thus more likely to bring about power-sharing situations.Footnote11

Constitutionalism is a much broader and complex concept in both form and content than that of ‘constitution’. As with the idea of a constitution, the concept of constitutionalism denotes limited government. But it also entails protection of citizens against arbitrary rule. It is about the existence of clearly defined mechanisms for ensuring that the limitations on state power are legally enforceable. The core elements of constitutionalism include the recognition and protection of fundamental rights and freedoms, the separation of powers, an independent judiciary, the review of the constitutionality of laws, the control of the amendment of the constitution, and institutions supporting constitutional democracy and accountability.Footnote12

Generally, the main functions of a constitution are to establish a state or nation, create a government framework with the necessary powers and institutions to manage public affairs, limit the powers of the government for the protection of individual rights and freedoms and declare and reflect the ideals of the nation and the responsibilities of the state towards its subjects.Footnote13 Constitutional protection of electoral rights outweighs the safeguards in primary or secondary legislation and even codes of conduct. The constitution holds the highest legal authority in the legal system; thus, all other laws must conform to the provisions of the constitution. This ensures that electoral rights are protected even when there are conflicting laws or codes of conduct. The procedure for amending constitutions is more difficult than that for primary and secondary legislation and codes of conduct.

The role of constitution-building in safeguarding electoral integrity

Constitution-building refers to the process of negotiating, drafting, and implementing constitutions.Footnote14 It is a long-term process that is constantly ongoing and includes ‘establishing institutions, procedures and rules for constitution making or drafting, giving legal effect to the constitution, and implementation.’Footnote15 Indeed, this process requires judicial creativity and innovation, as may be necessary, in the judicial system through the courts and public discussions. It requires jurisprudential analysis of the constitutional provisions to give effect to the rights contained therein by the judicial officers who are tasked with ensuring adherence to the constitution. In most African countries the constitution is often referred to as a means of last resort and not a point of contact. This has led to a situation where the constitution remains untested for a long time.

Previously, the process of establishing and later reviewing and revising a constitution did not involve members of the public and was only led by experts.Footnote16 However, in recent years public participation in the process has increased and is now recognised as a basic democratic right, affirmed by the United Nations Human Rights Council through Article 25 of the International Covenant on Civil and Political Rights. Mechanisms that have been identified as employable in this pursuit include civic education, public consultations, citizen participation via lobby and advocacy by civil society including minority groups, expert groups and referenda. Most African countries do not adequately provide for citizen participation in constitution-building processes. For instance, the 2005 constitutional amendment in Eswatini was not considered inclusive of citizen participation and was therefore widely rejected. This led to skirmishes between the security forces and the labour and political activists who objected to the Tinkhundla (individual merit) electoral system prohibiting political parties from contesting elections. In 2007, a series of attacks on public buildings involving petrol bombs occurred in some parts of the country, leading to arrests and treason charges against members of the People’s United Democratic Movement (PUDEMO).Footnote17 PUDEMO is the largest opposition party in Eswatini.

Constitutional amendments should not be avoided or delayed as countries continue to pursue democratic goals, particularly with regard to electoral laws. One of the best practices is presented by the Kenyan Constitution which welcomes initiatives for its amendment by extra parliamentary means.Footnote18 While these provisions safeguard constitutional electoral democracy, there remains the risk of well-organised political interests and groups taking over the process in a way that may put constitutional stability and overall institutional development in jeopardy. The case of Kenya sheds light on the risks involved in advancing popular amendment initiatives. If not well monitored, politicians can easily take advantage of these amendment provisions which would have adverse implications on governmental bodies and on democratic development and stability of the country at large.

International IDEA suggests a two-step process of constitution-building that: (i) uses an interim or transitional constitutional plan, specifically addressing stability and concluding the peace process; and (ii) allows final constitutions to emerge with a stronger focus on a long-term vision of institutional design. Furthermore, IDEA proposes that the process should identify whether constitutional solutions that may succeed in preventing or stopping violence also effectively address other constitutional issues, such as corruption, accountable government, and the mass abuse of human rights.Footnote19

Constitution-building must be designed to safeguard electoral integrity by regulating private funding of political parties and ensuring a level playing field in electoral contests. Where political funding is not regulated it can be a means to destroy a fair electoral process and it may jeopardise the ethical integrity of the leaders in government. Political party funding that is fair and transparent guarantees equal access by political parties and candidates to state or public media, and can help in levelling the electoral playing field. All these requirements are often lacking in African democracies – in part because of democratic recession. In addition, constitutions must provide for the regulation (including public disclosure) of private funding of political parties and candidates to avoid state capture and financing by criminal networks and terrorists.

Constitution-building must further be utilised to secure the independence of the judiciary, which is key for the electoral processes, complementing the role of electoral management bodies (EMBs). Judicial independence refers to the capacity of the courts to perform their constitutional functions free from actual or apparent interference by – and to the extent that it is constitutionally possible, free from actual or apparent dependence upon – any persons or institutions including the executive arm of government.Footnote20

Judiciaries in most African countries also rely on the executive to provide them with the equipment, tools, and enforcement mechanisms of their orders. This has subjected the quality of work of the judiciary to the executive, thereby limiting their independence, especially when there are crucial election petitions involving the ruling elite. Indeed, some unexpected breakthroughs have occurred, such as the 2019 Supreme Court decision in Malawi, nullifying an earlier election that was marred by widespread electoral malpractices. This was the first time in Africa where an election petition that was successful resulted in the re-run of a flawed election leading to the defeat of an incumbent president. By and large, many countries in Africa still face problems of political polarisation, institutional dysfunction, and threats to civil liberties.

Constitution-building must ensure the independence of the media for credible free, and fair election reporting. Despite playing a critical role in the dissemination of information before, during and after elections, the media is often left unprotected with no safeguards on their security and independence. There is increased persecution of journalists and reporters that has limited the ability of the media to provide accurate information to citizens and consequently the public remains largely uninformed about key electoral processes. The constitution must outline safeguards to protect the media and make it a matter of national interest and security when there arise any threats to the media reporting on elections and electoral processes.

It is important to highlight that constitution-building must be conscious of providing independent enforcement mechanisms and not restrict constitutions to substantive provisions only. It is one thing to have a right and another to have the enforcement of that right. Similarly, it is one thing to have the desired independence of EMBs and autonomy of the judiciary, and to declare media freedom, but it is another thing to enforce these principles. This, therefore, requires constitutions to provide for effective and efficient mechanisms that stakeholders can use to assert their autonomy.

Free and fair elections in the context of Africa

One key pillar of sound constitution-building is the electoral justice system (EJS). This is an essential instrument that protects the rule of law and guarantees compliance with the democratic principle of free and fair elections. The EJS in African countries has become important as a foundation of democracy and a catalyst for change, as a mechanism for measuring a country’s political stability and a government’s legitimacy, as well as for garnering domestic and international support.Footnote21 The main objective of an EJS is to prevent and identify irregularities in elections and to provide the means and mechanisms to correct those irregularities and punish the wrongdoers.Footnote22

On 26 March 1994, the Inter-Parliamentary Council adopted the Declaration on the Criteria for Free and Fair Elections during its 154th session held in Paris, France.Footnote23 Building on the 1948 Universal Declaration for Human Rights and the 1966 International Covenant on Civil and Political Rights, this declaration stipulated that the authority of government draws from the will of the people as expressed in genuine, free and fair elections held at regular intervals on the basis of universal, equal and secret suffrage. The declaration covers a wide gamut of various aspects that contribute to electoral integrity including (a) voting and elections rights, (b) candidacy, party and campaign rights and responsibilities, and (c) rights and responsibilities of states.

The notion of ‘free and fair elections’ became popular following the above declaration, especially in the 1990s. For instance, in 1997, Jorgen Elklit and Palle Svensson penned an interesting article that proposed a checklist for assessing the ‘freeness and fairness’ of elections.Footnote24 This article proposed a comprehensive barometer covering the entire electoral cycle (pre-polling, polling day and post-polling stages).Footnote25 Despite the criticism that the notion of free and fair elections received later on, such as the one advanced by Chigudu,Footnote26 this article adopts its overall framework as the standard to adjudge Africa’s performance in respect of safeguarding electoral integrity. It cannot be overemphasised that there needs to be infrastructure proposed to drive independent electoral administration with a mandate to preserve its professionalism, resources, and credibility.Footnote27 It is also important to protect stakeholders such as independent media, their ability to function without hindrance or fear of government intervention and other private players who may want to silence the media.Footnote28

Both the Declaration on Criteria for Free and Fair Elections and the scholarly works by Elklit and Svensson are unanimous that every adult citizen must be afforded the right to vote on a non-discriminatory basis; that there is an effective, impartial, and non-discriminatory procedure for the registration of voters; and that every candidate must have the right to move freely within the country to campaign for election and to campaign on an equal basis with other political parties, including the party forming the existing government.

Strengthening electoral integrity: Key areas and elements for constitutional reforms

To safeguard electoral integrity and mitigate the impact of democratic recession, constitutions must provide for an independent electoral process, independent judiciary, independent media function and respect for the rule of law and the mechanisms of enforcement. Most of the elements required for strengthening electoral integrity are drawn from those of a democratic constitution.Footnote29

Establishment of independent electoral management bodies (EMBs)

EMBs must be seen to be effective and illustrate the highest level of ‘independence and impartiality to promote justice, transparency, accessibility, inclusiveness and equality.’Footnote30 There must be no threat or allegations discrediting the system, causing voters to second guess their participation in the electoral system or, worse, to reject the outcome of an election. It is therefore important that the system is effective and offers timely electoral justice to maintain its credibility and confidence among the people.

Constitutions should establish independent and impartial EMBs with the authority to conduct free and fair electoral processes.Footnote31 Constitutions should provide for the composition of EMB members, procedures for their appointment to office and removal from office, the administrative and financial independence of the EMBs and the functions of the EMBs.Footnote32 Constitutions granting the EMB statutory de jure independence create even greater de facto independence.Footnote33

Problematically, in many African countries, chairpersons and secretaries of EMBs and other top officials are appointed by the government and at times by the head of state, who naturally has an interest in the outcome of the work and functions of the EMB. The appointing authority ordinarily also has the power to remove EMB officials from office. This, therefore, places the officials under the scrutiny of the governing power and puts them in a compromised position where they may have to meet the demands of the governing power for fear of their job security. Constitution-building must ensure that the appointment is by independent bodies that have no interest in the outcome of the election, and the appointment process must be transparent.

Another problem for African EMBs is a lack of sufficient resources. Most African countries fail to meet the criteria set for free and fair elections by failing to provide for independent and sufficiently resourced EMBs. Funding is important in the conduct of elections, and it should be adequately provided to allow EMBs to engage in citizen education campaigns to keep the public informed of their electoral rights, and to ensure that there is proper registration of voters, one of the basic tenets for free and fair elections.

Inadequately resourced EMBs are prone to reliance on funding by the government, a situation that allows the government to have an undue influence on the running of EMBs, with possible adverse effects on electoral integrity. In instances where governments have unfettered discretion over the funding of EMBs, opportunities for real or perceived election rigging abound.Footnote34

Recognition and protection of electoral rights and interrelated rights

Constitutions should explicitly guarantee the protection of electoral rights and interrelated rights according to the appropriate and justifiable limitations required of a democratic nation.

Constitutions should guarantee the right to vote to all eligible persons. There should be provisions to ensure regular democratic elections, term limits and presidential powers to enhance democratic competition. Regrettably, Africa has recorded a decline in free and fair elections as most countries fail to meet the minimum criteria set for free and fair elections. In some countries, elections are not held at regular intervals and in fact some countries have not held a single election. For example, the State of Eritrea has not held a single election, notwithstanding that it attained its independence in 1993 and has since then been a member of the United Nations.Footnote35 Presidents who have attempted to extend their stay in office are often successful; since 1990, 80% of presidents who have attempted to bypass the limitations in their constitutions with regards to their tenure have done so successfully.Footnote36

Most countries in Africa adopted their constitutions after gaining independence from colonial rule. This process was largely controlled by the colonial governments and they in some cases implemented their own constitutions into their former colonies.Footnote37 As a result not only did that erode the cultural concept of democracy, but it also provided African countries with constitutions that are devoid of their African values and principles and were in many ways in conflict with their traditional approaches of organising their societies. In consequence, these constitutions failed to find genuine legitimacy among the Africans.

Further, a notable feature of African countries’ constitutions is that they were reactionary. Most African constitutions adopted their constitutions following the decolonisation, liberation and independence struggles. Some constitutions were adopted after attainment of freedom from apartheid and racial discrimination. As a result, these constitutions were heavily influenced by the need to deal with social injustices and in the process failed to make adequate provisions for transparent governance, democratic rule, and respect for the rule of law. In some instances, the constitution has no provisions on the socio-economic-political factors that affect democracy and electoral integrity.

This inadequacy in Africa’s constitutions has provided loopholes for manipulation by leaders who wished to extend their presidential terms and alter the election process in contravention of the 2007 African Charter on Democracy, Elections and Governance. In response to this scourge of power grabs by incumbents, in 2022, the African Union (AU) adopted the Declaration on Unconstitutional Changes of Government in Africa.Footnote38 The declaration emphasises the AU’s zero-tolerance for the overthrow of constitutionally elected governments, including manipulation of constitutions by incumbents and all other forms of unconstitutional changes of government. Further, it underscores that countries must respect their respective constitutions, especially adherence to presidential term limits; respect for the outcomes of elections; the creation of governance structures that allow smooth transition processes; and inclusivity in national engagements to address lack of fidelity to transitional justice in the community.

Governance systems that do not have any presidential term limits go against democratic ideals for two main reasons.Footnote39 The first reason is that by virtue of their being in office, presidents typically enjoy great advantages as compared to their challengers. They control the implementation of budgets and laws, and they have the power to manipulate them to meet their own political agendas. Because of weak legislative frameworks, there is limited accountability, which perpetuates these advantages and basically renders presidents invincible. Many African states are faced with this challenge, and this explains why it is of utmost importance for constitutions to provide term limits in support of ongoing consolidation of competitive electoral democracy on the continent. Footnote40

The second reason is that, in the absence of term limits, power is vested in the hands of one individual or a small group of people for an extended period of time, and yet it is known that the essence of democracy is the division and also the limitation of power through constitutional checks and balances.Footnote41 The longer a person is in power, the more likely interest groups are to stop investing in institutions and rather focus on the individual that holds power, which ultimately leads to ‘institutional decay’.Footnote42 Limiting terms is therefore important in ensuring that power does not sit in the hands of one or a few individuals for an unreasonably long time, which, in turn, will encourage investment in governance institutions rather than individuals.

Constitutions should also protect all interrelated rights, including the freedom of expression, access to information on all electoral processes, freedom of the media, freedom of association and assembly for all eligible persons. Weak protection of these rights is problematic for electoral integrity in Africa. The problems faced during electoral processes in Africa relate to the broad restrictions to these rights that often hinder the free flow of information and participation in the making of electoral laws and in electoral processes.

Constitutions should provide guidelines on the application of international law and instruments on electoral rights and integrity in the country. International law and instruments encourage international election observation and regular and transparent electoral audits in democratic states. This can ensure the application of well-established best practices to enhance electoral integrity during law-making processes and even enforcement of laws.

Electoral laws and regulation

Although an electoral justice system does not alone absolutely guarantee that elections will be free, fair, and genuine, without it the reality is that conflicts would be worsened. If elections are held without a comprehensive and agreed upon legal framework that is aimed at enforcing democratic principles and values, the electoral process may well worsen frictions or even lead to outbreaks of war or revolts against the outcomes. The violence that erupted in Kenya after the 2007 elections proves the above assertion and it may well be attributed to the lack of a credible and impartial court which is focused on resolving electoral disputes.Footnote43

Level the playing field for political parties

Africa has reported numerous instances of political harassment of election candidates by other candidates, especially the candidates of the ruling parties.Footnote44 This occurs through threats to the lives of opposition candidates, as well as economic harassment through the imposition of unreasonable tax and other money demands from candidates. In some instances, the violence has extended to voters.Footnote45 Studies show that parties have resorted to intimidation and violence directed at voters during electoral campaigns. Violence against voters has frequently been initiated by members of the ruling parties who utilise official security forces bound to obey their instructions.Footnote46 On another note, the African political landscape is largely influenced by social factors of ethnicity, tribalism, and social class. In this way, ethnic and tribal hatred often trigger political violence.

Constitutions should address the influence of money in the electoral process by establishing state funding for political parties and elections.Footnote47 Most opposition parties in Africa lack resources to push their political agenda and run their parties.Footnote48 Incorporating provisions that require transparency in the funding of political parties, in expenditure reporting, and in the announcement of election results can help maintain public trust in the electoral process.

Equality and non-discrimination

Inclusiveness is a core value of democratic governance and electoral integrity. Constitutions should guarantee maximum participation for all sectors of the population and minority groups in electoral processes. Minority groups include vulnerable and marginalised groups like women, persons with disabilities, youth, and ethnic, cultural and religious minorities.

Electoral dispute resolution

Electoral justice involves the means and mechanisms available in a specific state, local community or on a regional or international level for (a) ensuring that each action, process and decision related to the electoral process complies with the legal framework; (b) protecting or restoring electoral rights; and (c) giving people who believe their electoral rights have been violated the ability to file a dispute, have their case heard and receive a fair ruling.Footnote49

The wider electoral justice system includes a variety of specific mechanisms to ensure credible electoral dispute resolution. This includes preventative measures as well as both formal and informal means of resolving electoral disputes. A strong view suggested by International IDEA is that an increasing respect for the rule of law will lead to a decrease in the number of electoral disputes that require resolution. Once a state has nurtured a culture that promotes lawful behaviour and civic respect for democratic norms, this will help to decrease the likelihood of electoral disputes. It is also important to involve the main political parties and key sectors of civil society when developing electoral legal frameworks in preventing the likelihood of disputes.Footnote50

Allow for constitution-building and review of electoral laws

One of the ways to ensure the efficacy of an electoral justice system is to review it periodically and ensure that it fulfils its objectives of safeguarding electoral integrity predicated upon free, fair, credible and genuine elections conducted within the confines of the law.Footnote51 This may occur through constitution-building or amendment of electoral laws that are contrary to the constitution. The study of electoral justice systems has shown that there is no perfect or best system per se, and it is advisable to assess the strengths and weaknesses of different systems, identify ongoing trends and offer other elements of analysis, noting the successful experiences or practices that have led to the best outcomes.Footnote52

Africa has done little by way of constitution-building that would entrench institutions that support democracy and ensure that the voice of the people as expressed at regular elections would not be subverted for narrow partisan ends. Most of the continent’s constitutions remain deficient in aiding democratic consolidation even when the societies have drastically changed.Footnote53 The challenges to the constitution-building process in South Sudan is one case in point. A constitution-building process is a sovereign process that must not only promote inclusive participation from citizens, political parties, and civil society, but also requires an environment free from violence and intimidation. The environment in South Sudan in non-conducive for this process.

The South Sudanese are more divided in recent times than even before they attained self-rule in 2011. Barely three years following the declaration of its independence from Sudan, South Sudan was engulfed in a protracted and violent conflict that persists to date. To find a sustainable solution to this conflict, a diligent and transparent reconciliation process is a major imperative. Only thereafter can the state purport to undertake the process of constitution-building. Observers have opined that ‘South Sudan might be rushing to adopt a permanent constitution, yet it has not addressed serious underlying contentious issues such as land’ and that ‘South Sudan should slow the constitution-building process and embrace processual solution.’Footnote54 It goes without saying then that the process can only be undertaken successfully in a harmonious environment that is conducive to negotiated outcomes and encourages inclusive national dialogue and exchange between the state and its people.

Conclusion

This article has proposed that constitution-building is key in safeguarding electoral integrity. By extension, constitution-making is one of the mechanisms to combating democratic recession and revitalising democracy. For this to happen, at the heart of constitution-building should rest the imperative to secure the independence of the EMB, provide for free and fair elections, and ensure judicial independence, media freedom and respect for the rule of law. This will rely upon inculcating a culture of constitutionalism overall. This paper has set a clear guide on the removal of undue influence by the executive on the electoral process and the judicial system to remove compromises that hinder free decision making.

The article has shown that free and fair elections are a key cornerstone for electoral integrity. Regular constitutional reforms have a huge potential to anchor the integrity of elections as free and fair. The article has also highlighted the significance of electoral justice systems. It has pointed out that although an electoral justice system does not, in and of itself, absolutely guarantee that elections will be free, fair, and genuine, its absence has a potential to worsen violent election-related conflicts. If elections are held without a comprehensive and agreed upon legal framework that is aimed at enforcing democratic principles and values, the electoral process may in fact exacerbate existing frictions or lead to revolts or even outbreaks of war against the outcomes of an election.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Oagile Bethuel Key Dingake

Honourable Justice Professor Oagile Bethuel Key Dingake is a Justice of the National & Supreme Courts of Papua New Guinea and the Residual Special Court of Sierra Leone.

Notes

1 Norris Pippa, Why electoral integrity matters (Cambridge: Cambridge University Press, 2014), 9 and 21.

2 Charles M. Fombad, “An Overview of the State of Electoral Democracy in Africa”, African Journal of Legal Studies 14, no. 2 (2022): 245–68.

3 Fombad, “Democracy in Africa”, 246.

4 As noted in the introduction to the special Issue SAJIA Vol 30.3 by Toby S. James, Khabele Matlosa and Victor Shale,”Safeguarding Election Management Bodies in the Age of Democratic Recession”, South African Journal of International Affairs.

5 James, Matlosa and Shale, “Safeguarding Election Management Bodies”.

6 Larry Diamond, “Facing up to the democratic recession”, Journal of Democracy 26 (2015): 141.

7 The Constitution Unit, “Reliance on secondary legislation has resulted in significant problems: it is time to rethink how such laws are created” October 13, 2021, https://constitution-unit.com/2021/10/13/reliance-on-secondary-legislation-has-resulted-in-significant-problems-it-is-time-to-rethink-how-such-laws-are-created/.

8 J. Olonka-Onyango, ed. Constitutionalism in Africa: Creating opportunities, facing challenges, (Kampala: Fountain Publishers, 2001)

9 C. Fombad, Strengthening constitutional order and upholding the rule of law in Central Africa: Reversing the descent towards symbolic constitutionalism, African Human Rights Law Journal, no. 14 (2014): 414-5.

10 A. Lijphart, Patterns of Democracy, (New Haven: Yale University Press, 1999).

11 A. Lijphart, “Constitutional design for divided societies”, Journal of Democracy 15, no. 2 (2004): 96-109.

12 C. Fombad, “Strengthening constitutional order and upholding the rule of law in Central Africa: Reversing the descent towards symbolic constitutionalism”, African Human Rights Law Journal 14, (2014): 412-48.

13 BO Nwabueze, Constitutional Democracy in Africa (Vol. 5): The Returned of Africa to Constitutional Democracy (Ibadan: Spectrum books Ltd, 2004); Ndulo Muna. “Constitutions and Constitutional Reforms in African Politics” Oxford Research Encyclopedia of Politics. 2019.

14 Charles Manga Fombad, “Constitution-building in Africa: The never-ending story of the making, unmaking and remaking of constitutions”, African and Asian Studies 13, no. 4 (2014): 429-51.

15 Winluck Wahiu, A Practical Guide to Constitution Building: An Introduction (Stockholm: IDEA, 2011).

16 I Know Politics, “Women’s participation in the constitutional building process” https://www.iknowpolitics.org/en/discuss/e-discussions/womens-participation-constitution-building-process

17 See Dean Stuart and Victor Shale 2009. EISA Election Observer Mission Report. Johannesburg: EISA

18 Ken O Opalo, “Constitutional protections of electoral democracy in Africa: a review of key challenges and prospects”, In Annual Review of Constitution Building Process: 2015 (International Institute of Democracy and Electoral Assistance (IDEA), Stockholm, 2016), 16.

19 Winluck Wahiu, A Practical Guide to Constitution Building. 1st ed. Vol. 1. (International Institute for Democracy and Electoral Assistance, Stockholm, 2011), 8

20 Lovemore Madhuku, “Constitutional Protection of the Independence of the Judiciary: A Survey of the Position in South Africa” Journal of African law 46, no. 2 (2002): 232-45.

21 Perceptions of Electoral Integrity (PEI) Electoral Integrity in Africa (PEI, 2015).

22 Jesus Orozco-Henriquez, Ayman Ayoub and Andrew Ellis, Electoral justice: The international IDEA handbook (Stockholm: International IDEA, 2015).

23 Inter-Parliamentary Union, Declaration on Criteria for Free and Fair Elections, Geneva, Switzerland, 26 March 1994.

24 Jorgen Elklit and Svensson Palle, “The Rise of Election Monitoring: What Makes Elections Free and Fair?”, Journal of Democracy 8, no. 3 (1997): 32-46.

25 Jorgen Elklit and Svensson Palle, “The Rise of Election Monitoring”, 37.

26 Daniel Chigudu, “A Critical Review on the Determinants of a Free, Fair and Credible Election”, International Relations 4, no. 8 (2016): 508-18.

27 Association of World Election Bodies (A-WEB), Safeguarding Election Management Bodies in the Age of Global Democratic Recession, 15.

28 Association of World Election Bodies (A-WEB), Safeguarding Election Management Bodies, 17.

29 Ndulo, Muna. “Constitutions and Constitutional Reforms”.

30 IDEA, “Electoral Justice: An Overview of the International IDEA” (IDEA), (Stockholm, 2010), 5-6.

31 See for example the requirements in the Draft SADC Model Law on Elections by SADC Parliamentary Forum, December 2018.

32 Draft SADC Model Law on Elections by SADC Parliamentary Forum.

33 C. Van Ham, and HAGarnett, “Building impartial electoral management? Institutional design, independence and electoral integrity”, International Political Science Review, 40, no. 3: 313-34.

34 Said Adejumobi, “Elections in Africa: A fading shadow of democracy?” International Political Science Review 21, no. 1 (2000): 59-73.

35 Sir Duncan Cumming, “The UN disposal of Eritrea”, African Affairs 52, no. 207 (1953): 127-36.

36 Sumit Bisarya et al, Annual Review of Constitution Building Process: 2015 (Stockholm: International Institute of Democracy and Electoral Assistance (IDEA), 2016), 5.

37 Kwasi H. Prempeh, “Africa’s ‘constitutionalism revival’: False start or new dawn?” International Journal of Constitutional Law 5, no. 3 (2007): 469-506.

38 Adopted by the Participants of the AU- convened Reflection Forum, on 17 March 2022, in Accra, Ghana.

39 Ken O Opalo, “Constitutional protections of electoral democracy”, 17.

40 Ken O Opalo, “Constitutional protections of electoral democracy”, 18.

41 Ken O Opalo, “Constitutional protections of electoral democracy”, 18.

42 Ken O Opalo, “Constitutional protections of electoral democracy”, 18.

43 IDEA, “Electoral Justice”.

44 Eldridge Vigil Adolfo, Mimmi Söderberg Kovacs, Daniel Nyström, and Mats Utas. Electoral violence in Africa (Nordiska: Afrikainstitutet, 2012).

45 Liisa Laakso, “Insights into electoral violence in Africa,” in Votes, Money and Violence: Political Parties and Elections in Sub-Saharan Africa, eds. M. Basedau, G. Erdmann, & A. Mehler (Helsinki: Nordic African Institute, 2007), 224-52.

46 Dorina A Bekoe and Stephanie M. Burchard, “The contradictions of pre-election violence: The effects of violence on voter turnout in sub-Saharan Africa”, African Studies Review 60, no. 2 (2017): 73-92.

47 P. Norris, and AA van Es, Checkbook Elections?: Political Finance in Comparative Perspective, (Oxford: Oxford University Press, 2016). Ndulo, Muna. “Constitutions and Constitutional Reforms”.

48 Ndulo, Muna. “Constitutions and Constitutional Reforms”.

49 IDEA, Electoral Justice Hand Book: An Overview of the International IDEA Handbook (Stockholm: IDEA, 2016), 5.

50 IDEA, “Electoral Justice”.

51 IDEA, “Electoral Justice”.

52 IDEA, “Electoral Justice”, 8.

53 John Mukum Mbaku, “Constitutional discourse and the development of structures for sustainable development in Africa”, Journal for Studies in Economics and Econometrics 22, no. 1 (1998): 1-36.

54 Joseph Geng Akech, “Dilemmas of Constitution Building in Post-Conflict South Sudan” IACL-AIDC (blog) 13 September, 2021, https://blog-iacl-aidc.org/spotlight-on-africa/2021/9/13/dilemmas-of-constitution-building-in-post-conflict-south-sudan.