Guarantee of electoral freedom by African regional judge

International colloquium on constitutional justice and electoral litigation – Constitutional Court of the DRC – Kinshasa, 16-18 May 2023

1. Recent doctrine has echoed the emergence in Africa of a regional constitutional judge. It is clear from these discussions that the role of this judge is being extended to African electoral disputes as the mechanisms for protecting human rights on the continent are consolidated. This development obviously enshrines the confluence between human rights and democracy, both of which are fundamental principles adopted by the new African constitutionalism.

2. This is not surprising, given the growing importance of elections in the formation of new or renewed African constitutional democracies. Elections are the corroboration of a process that must seek legitimacy before a judge, who is the guarantor of its transparency, reliability and peaceful and legal outcome.

3. The question that therefore arises is not whether electoral justice is becoming regionalized, but rather what the expressions and implications of this are. Beyond the certainty of a regionalisation of electoral norms, it is the institutional guarantee that is taking shape as case law expands. This is no longer a question. It is an assertion. The regional judge has not been able to escape the ingenuity of litigants who have almost forced his office on the guarantee of national electoral processes. Called to the rescue in an electoral Africa where the people’s appointment of their leaders has largely shifted from the electoral game to confrontation at the ballot box, the African electoral judge has ruled on almost all the disputes traditionally reserved for the national supreme court, whether constitutional or administrative.

4. The African Court on Human and Peoples’ Rights is undoubtedly the most established regional electoral court in Africa, since its jurisdictional action has covered virtually all areas of guarantee. For example, it has exercised its powers as an interim election judge, issuing orders for provisional measures ordering voter registration or even the suspension of elections. Having said that, the electoral function of the African regional judge predates the case law of the African Court. In several decisions handed down as early as 1998, the African Commission on Human and Peoples’ Rights sanctioned not only the annulment of election results but also their outright invalidation. The ECOWAS Court of Justice and the Court of Justice of the East African Community have also contributed to guaranteeing electoral processes by ordering the repêchage of recalled candidates or even the revision of electoral codes.

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