Election Lawyers

Volume 8 • Issue 2 • January/February 2022
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Fighting for Free and Fair Elections in Africa

A conversation with a scholar of international human rights law

Dana Walters, associate editor of The Practice, recently sat down with Chidi Anselm Odinkalu, professor of practice in international human rights law at the Fletcher School of Law and Diplomacy at Tufts University, to talk about the role of lawyers in electoral politics in Africa.

Dana Walters: You’ve held several positions across government, international politics, academia, and in the nonprofit sphere focused on law and human rights across Africa. Putting your hat on as a lawyer, do you believe that the legal profession—and lawyers—writ large have a unique responsibility to hold states accountable to ensure free and fair elections around the world. And, if so, what is that role?

Chidi Odinkalu: Absolutely. I don’t have any doubts at all that lawyers—particularly lawyers of good skill and values—have a heck of a lot to add to ensuring accountable elections. Everything begins and ends with elections and with government. Americans have seen it with the penultimate administration. And when that goes wrong, everything goes pear-shaped.

Elections—and government—are largely about one thing: counting. It’s all about adding and subtracting. That mechanism of counting—and accounting—honestly is overseen and underpinned by law and often lawyers. But most systems don’t have mechanisms for counting—and then accounting—honestly.

Now, there is a second thing. Elections are supposed to be about determinate norms and indeterminate outcomes. But for most politicians, in many places where elections don’t work, they want to invert that code and make them about determinate outcomes and indeterminate norms so they can guarantee rigged outcomes. That is where you need lawyers. Good lawyers can make sure that the norms are not indeterminate. You can’t just make these things up as you go along. The norms need to be clear and applied clearly to everyone. And when the norms are clear, let the person whom the people have chosen advance. That does not have to be someone whom you like or necessarily have to agree with. But if the person is the lawful, legitimate will of the people, invariably the people will find a way to hold that person accountable in office. Where people can rise to power without having been elected or voted legitimately by the people, there’ll be no end to the problems.

I think all lawyers are public servants by definition. The law is one of those few vocations that you don’t get to do without actually assuming an oath.

In that entire value chain of counting, of accounting, of ensuring that the rules are not indeterminate, everything requires lawyers. Then after that process has gone through, if you have to go into dispute resolution, you also need credible and good lawyers to make sure that the dispute resolution produces fair and credible outcomes.

Walters: Following up on that, do you think private-sector lawyers and public-sector lawyers have different roles and responsibilities with respect to ensuring free and fair elections?

Odinkalu: My view really is that it doesn’t matter. The distinction between private-sector and public-sector lawyers breaks down if you have a state that doesn’t function or doesn’t work for anybody. I think all lawyers are public servants by definition. The law is one of those few vocations that you don’t get to do without actually assuming an oath. You have to swear to an oath to become a lawyer, just as you have to do an oath to become a doctor. I do think that part of the breakdown that we see now across the world in norms, but also in electoral processes, is down to the fact that there’s a disconnect between lawyering and those oaths that we have taken to take public service seriously.

Walters: I’d love to drill down more on a specific case. Before coming to the Fletcher School at Tufts, you were a legal officer with the Africa Program at the Open Society Justice Initiative. OSJI was co-counsel with the Pan African Lawyers Union in a case at the African Court on Human and Peoples’ Rights where the court ruled that “Member States of the African Union have a duty under international law to guarantee fairness and transparency in elections during the COVID-19 pandemic.” Could you talk about the big issues at play in this case? How did you get involved? And finally, how have member states responded?

We believed that democratic participation as a right guaranteed in international law needed to be protected or we could face irreversible tensions in many countries.

Odinkalu: At the onset of 2020, we discovered that COVID-19 had become a major factor in elections, especially endangering legitimate outcomes in many places. But even more than that, it was becoming a factor in stability in many countries. We saw in Mali in April 2020, for instance, the then-ruling party decided to use COVID-19 to steal parliamentary seats won by the opposition. That triggered protests, which led to a popular uprising, and the government was overthrown. In a country like Burundi, the outgoing president, Nkurunziza, decided to manufacture outcomes in an election again under cover of COVID. Sadly, he lost his life to COVID in the process. In Malawi, the president decided to force himself on the people with a rigged election and to write new campaign rules under cover of COVID. The court ruled him out of line and struck down elections and ordered a rerun in June 2020. And when he did not believe that he could win, he decided that he would sack the Supreme Court and rig the rules, included banning rallies by the opposition in the name of COVID-19 regulations. The Supreme Court struck him down, and ultimately the Malawi people rejected him. And we’ve seen similar things in Uganda, Tanzania, and across the continent—leaders who are instrumentalizing COVID-19 to make political instability viral across the continent.

As lawyers, we scrambled for what to do. We ultimately settled on approaching the African Court on Human and Peoples’ Rights specifically because it is a continental court. We believed that democratic participation as a right guaranteed in international law, as well as by the African Charter of Human and Peoples’ Rights, needed to be protected or we could face irreversible tensions in many countries. Given that, we felt the African Court was the right institution to address the issue.

In South Africa, local elections had to be put off, but they had to be put off with proper notification and consultation, precisely along the lines that the court indicated.

The advisory opinion from the court is the first statement of the broad principles applicable to the management of elections, under conditions of the pandemic in international law. And it’s fairly far-reaching. I think the most intense response has come from Kenya, which is doing presidential elections this year. There, politicians have really been wrestling with what the court’s decision means and how it applies. Politicians at the highest levels—from all parties— were scoping that decision for some one-upmanship as to how it could help them affect the process. But they have largely settled on the idea that it’s not going to be possible to defer Kenya’s elections at a whim using COVID-19 as artifice. As a result, they’ve got to conduct the elections to term and to constitutional stipulation. In South Africa, local elections had to be put off, but they had to be put off with proper notification and consultation, precisely along the lines that the court indicated.

These are some of the bigger jurisdictions in Africa that have begun to play by those rules, which makes us confident that smaller countries will abide as well or it’ll be much easier to bring the smaller countries in line.

Walters: Along similar lines, you’ve also recently written about judicial corruption in Nigeria and its impact on elections. Could you define “judicial capture,” and why does it have such an impact on elections?

Odinkalu: Increasingly elections are being judicialized. Across most countries, you don’t go into elections now without lawyers. And if you look at Africa, for instance, all the major elections invariably end up in court. Uganda’s presidential elections? Guaranteed to end up in court. Kenya’s last presidential elections were struck down by Kenya’s Supreme Court and had to be rerun. Malawi’s presidential elections? The last one was struck down, and the president was thrown out. Nigeria’s presidential elections since 1979 have all ended up in court, apart from 2015. Ghana’s presidential elections all ended up in court too.

As a politician, you no longer need to have good lawyers to fight elections; now you must have judges in your back pocket too.

These are common-law countries, but this is also happening in civil law jurisdiction. All the attempts by African presidents, for instance, to finagle themselves extra time or tenure extension have ended up in court. This is happening in Burundi, Côte d’Ivoire, and Senegal as well. As a matter of law, elections in the civil law countries mostly have to be certified by the constitutional court.

With this judicialization, what’s happening? Politicians no longer feel safe that all they need is a good lawyer to argue their case. What do they want now? They want to own the judges—they want to own judges who will give them the outcomes they want. So, you no longer need to have good lawyers to fight elections; now you must have judges in your back pocket too or in your house.

So if you cannot make the rules indeterminate, then make sure the final court that adjudicates them can guarantee you a determinate outcome. That really is what judicial capture is about. This is right up the street of electoral manipulation. It is the last bus stop in electoral manipulation. And that’s really what’s happening in a lot of African countries. Increasingly, you are having politicians committed to owning judges so that the judges can give them the outcomes they want.

Walters: As a lawyer, what are the biggest professional challenges in engaging in this sort of high-stakes, election-related work?

People have to be aware that it’s possible to win as a lawyer committed to building inclusive space.

Odinkalu: Sometimes it can feel like you are rolling a boulder up a hill. There are lots of entrenched interests with a heck of a lot of stolen, deep pockets who want to make sure that these things are not outed and not understood. They can deploy not just legitimate rules but also a lot of violence in ensuring that they get their way. What it also means is that they leave a trail. It also means that no one person can address these issues alone. We all have to build coalitions. But it’s more than just a coalition of the willing. It’s got to be a coalition of the aware. You need a coalition of the aware to build a coalition of the willing for this.

People have to be aware that it’s possible to win as a lawyer committed to building inclusive space. I was involved, for instance, in a case in Malawi where a lot of our colleagues in-country as well as in Southern Africa did not believe that we could win and preclude a president from running a court out of town because they had chosen to apply the law fairly and firmly. It was a Saturday when the president decided he was going to fire the chief justice of the Supreme Court of Malawi. And my instinct was, “No, this is not to be allowed.” I’m not Malawian, but I just happened to know a bit of Malawi and many of the people involved. And I said, “No, you cannot allow this kind of thing to happen.” So we had to work all the networks across the continent to rally a few lawyers and to convince our colleagues in the country that we could stop this. And they did. Ultimately the president lost. That gave us all a lot of hope across Africa. In this enterprise, sustaining hope is important and you have to take it where you find it and amplify it.

We know that we are not going to win everywhere. We intervened in 2015 in Burundi, for instance, to stop President Nkurunziza from extending his tenure to a third term, and we failed. We appealed up to the appellate chamber of the East African Court of Appeal and won on a technical point of law, so the case has been remitted back to the first instance chamber. But the idea is: there are election rules, and you use and test those rules. If we don’t even try to use them and test them, then there is no progress. To test those rules, we need the best brains and the most committed people and skilled lawyers. And yes, we’ve got to work across borders, sometimes at great risks. And it’s not just risks to liberty. It’s also risks to life as well. But I really do think that those risks are worth taking, because if we don’t take them, many more people will lose their lives to bad government.

Walters: That’s really a perfect segue to my next question on how to train the next generation of lawyers. Harvard Law School recently launched a first-of-its-kind election law clinic aimed at both training law students through election law cases as well as exposing them to the type of work election lawyers do. Could you reflect on what needs to be done in African law schools as well as throughout the bar (public and private) to better train and equip lawyers to engage in election law work? What advice would you give lawyers who want to work in this space?

Odinkalu: Watergate is probably the place to start. After Watergate in the United States, law school curricula were reviewed, and the result was that you had an increased attention to ethics in the training of lawyers. In many of our African law schools, the curriculum has not really been reviewed since the generation after independence in the 1960s. It’s out-of-date. The first effort to now try to do something about that is beginning in Ghana. I do think it’s time to review our law school curriculum and bring it up-to-date to what’s happening.

Public service is really what defines the ethos of the public space and the capabilities of the state to deliver on its part of the social contract with the population.

Now we’re supposed to have plural systems, but the law school mindsets are still stuck in the laws of colonial rule—and indeed precolonial England from where we disinterred some of the norms that still apply in a lot of our countries. I’d like, for instance, to see public-service law introduced. It is not just election law, because elections underpin public service. And public service is really what defines the ethos of the public space and the capabilities of the state to deliver on its part of the social contract with the population.

When the state fails to do that, you then have the huge crisis and death spiral that a lot of our countries are going into. Rather than afflict students with military law, why don’t we go into better notions and more-refined notions of the social contract underpinned by public service? It’s ethics there that’s vital.

We should also invest in growing the skills and capability of lawyers throughout government. I think we have the possibilities here with what information and communications technology now offers us. Technologies offer us scale and speed in being able to access these skills and networks that were not otherwise at a disposal for a lot of people, when people like me went to law school.

 


Chidi Anselm Odinkalu is a professor of practice in international human rights law at the Fletcher School of Law and Diplomacy at Tufts University. He previously chaired Nigeria’s National Human Rights Commission and served on the panel of eminent persons that negotiated the return of the Gambia to the Commonwealth in 2017. Odinkalu has acted as counsel in international human rights litigation before Africa’s regional human rights courts and tribunals and was involved in the creation of the African Court on Human and Peoples’ Rights. 

Dana Walters is associate editor of The Practice.

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Election Lawyers Volume 8 • Issue 2 • January/February 2022

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