The Role of the Judiciary in Preventing Post-Electoral Violence

Sherna Tamboly, 2L, International Development Law Organization (The Hague)

Elections are often seen as the cornerstone of a sustainable democratic state, especially when they are inclusive, free, fair, and transparent. However, elections can also perpetuate violence, social unrest, and oppression in fragile and post-conflict states. With the rise of multi-party elections in emerging democracies over the last few decades, election-related violence has been reported all over the world, including in Kenya, Zimbabwe, Bangladesh, the Philippines, Guatemala, and Haiti. A recent example is the controversial 2015 presidential election held in Burundi where incumbent President Pierre Nkurunziza’s decision to seek a third term was criticized by the opposition for violating the Constitution, which only allows for two terms. The elections were preceded by months of demonstrations and violent clashes between the rebel soldiers and the army. The crisis claimed dozens of lives, displaced over 140,000 people, and threatened to bring the country into another civil war.

Broad structural, social, and political factors can play a key role in perpetuating electoral violence, and these are often exploited by political actors to further their interests. These factors include poor governance, exclusionary politics, socioeconomic discrepancies, class conflict, and ethnic tensions. Additionally, the electoral processes themselves, such as voter registration and poll counting, may be unfair, flawed, and vulnerable to political manipulation.

The outcomes of opaque or violent elections are often tainted by allegations of fraud and may be perceived as illegitimate by the losing parties or the general public. In such cases, an impartial judiciary can hear and peacefully resolve electoral disputes, ensure accountability, and help uphold the rule of law. Judicial independence and separation of powers can protect against undue influence from the other branches of the government and lend credibility to its decisions. The judiciary must also possess the technical competence and the political will to adjudicate such politically charged issues. When the judicial system lacks the clout, capacity, or credibility to effectively intervene, it can lead to further violence, weaken the democratic institutions, and create a culture of impunity.

Post-electoral violence and the judiciary’s role in preventing it have become important topics of discussion in the international law community. I had the opportunity to explore them in-depth during my IHRP internship with the International Development Law Organization (IDLO) at their Branch Office in The Hague. The IDLO is an intergovernmental organization dedicated to promoting the rule of law. They work to enable governments and empower people to reform laws and strengthen institutions to promote peace, justice, sustainable development, and economic opportunity. I interned with the IDLO’s Research Unit, part of the Department of Research and Learning, which is responsible for research program development and implementation, knowledge generation, and impact assessment. IDLO’s “Lessons Learned Program” is designed to draw lessons from its own programming and disseminate these lessons within the organization for learning and future program development. My primary task at the IDLO was to support the preparation of a “Lessons Learned Brief” on the organization’s work in Kenya related to judicial preparedness for electoral disputes.

The 2007 Kenyan presidential elections were heavily contested, and the ensuing violence claimed over 1,100 lives and displaced thousands of people. Two large political coalitions, led by incumbent President Mwai Kibaki and Raila Odinga, went head- to-head in what was predicted to be a very close race. Kibaki eventually won by a narrow margin but Odinga’s party rejected the results and made accusations of vote-rigging and fraud. This resulted in months of widespread political violence fuelled by existing ethnic tensions and long-standing land grievances.

In the lead up to and following the 2013 elections, many national and international organizations, such as the National Democratic Institute and USAID, operated within Kenya to help ensure credible elections and build the institutional capacity to peacefully tackle electoral disputes. During this time, the IDLO provided technical support to the Judiciary Working Committee on Election Preparations in Kenya, and supported the development and implementation of the 2010 Constitution through expert advice, institutional strengthening activities, and legal research support. The 2013 general elections were largely peaceful and Kenyan courts were able to rule on all election petitions in less than six months. Furthermore, public confidence in the judiciary was over 75% at the end of 2012, which was a stark improvement from 31% during the post-election period in 2008.

At the IDLO, I had the opportunity to work closely with the Lead Researcher to find, map, and summarize relevant literature, both Kenya-specific and international, on the lessons learned from judicial engagement with electoral disputes and on how to engage effectively with the judiciary in post-conflict environments. I also worked with the Lead Researcher to connect with colleagues in the IDLO’s Kenya Country Office to collect detailed information on the IDLO’s projects in Kenya, their experiences with program implementation, and outcomes. It was an incredible opportunity for me to analyze high-level research, appraise country-level programming, and learn how technical expertise can be put to practical use. Finally, it also allowed me to critically evaluate whether these lessons can be used to inform program development in other countries with a similar context.