The nullification of election results by the judiciary in Malawi has again put a spotlight on the issue of to what extent the international election observation industry has become part of the problem of propping up unfair election outcomes. Supposed political pragmatism seems to trump democracy and principle.
In Kenya (2017) and now Malawi courts have nullified presidential elections that international election observers had certified as free and fair. One peculiarity in both countries was that local observers and opposition parties were already crying foul about electoral irregularities and illegalities. This resulted in the election results being challenged in the courts.
Subsequently in both countries the judiciaries came to the conclusion that the elections had irregularities and illegalities that warranted nullification and holding of fresh elections.
This has resulted in the questions being raised as to whether international election observation was still a useful enterprise. While there is little doubt that election observation is still absolutely critical, there is need for an overhaul of methods in order to review means, ways and utility value.
Areas needing attention include the need to invest in observing the entire electoral cycle. Often international observers only enter the country just before elections Ė– when it is too late to have an impact. Thus there is a need to increase the number of long-term observers and observation as preparatory processes can have a strong bearing on outcome and integrity of elections.
Local observers understandably seem to have a better grip and understanding of critical local laws and administrative processes impacting on elections. This may explain the difference in the margin of appreciation between local and foreign observers about the freeness and fairness of elections.
This may mean that international observers need to be given a thorough briefing on local laws and processes as they have of late unwittingly become rubber stamps of deeply flawed elections. This has undermined the standing of international observer missions and their contribution to strengthening democracy globally.
International observers also need to have a proper appreciation of local civil society and hear their concerns to minimise international observers being increasingly at odds with local observers and local courts, as happened in Malawi and Kenya.
There is a tendency to use former statesmen as heads of international election observation missions. For example, former South African president Thabo Mbeki, who was the chairperson of the Commonwealth observer group in the Malawi elections which he said had been handled with “professionalism and dedication”. The logic seems to be that this increases the weight and gravitas of the observer missions and integrity of the elections. However, given the judicial decisions in Kenya and Malawi, the use of former statesmen as leaders of International Observer Missions is now creating an impression of an elite pact where they use their weight to reinforce incumbents at the expense of fairness in the electoral process. This too needs to be reviewed.
Often the election day and the immediate aftermath has been calm. This may reinforce the illusion of free and fair elections, even where they are deeply flawed. The post-election period therefore also needs to be closely observed in order to avoid incumbents using control over the security sector to undermine any democratic gains.
In Malawi and Kenya, significant pronouncements were made by the courts around failure to comply with the law in some of the electoral practices. Previously the predominant focus has been to demand that a petitioner proves not just irregularities but that such irregularities had a measurable impact on results. However, the question of legal compliance has now been escalated to a basis for nullification in Kenya and Malawi.
There may be need for election observer missions to escalate the requirement for legality of process to a ground of declaration that elections are not free and fair where failure to comply with the law is observed and proved.
However one looks at the Malawian and Kenyan Court decisions nullifying election results, democracy is on the rise in Africa. The international observation missions’ methods require a significant overhaul. It is both a political and a technical debate. MC
Arnold Tsunga is the Chairperson of the Southern Africa Human Rights Defenders Network (SAHRDN) and writes in his personal capacity.