In modern democratic systems of representative governance, elections are periodic contests which determine the next set of rulers in a nation state. In many ways, the notion of a free and fair election is subject to numerous interpretations and like most political concepts is always contentious. In essence, elections should be held in an atmosphere which is ‘free from the clouds of traditional claims to political legitimacy based on perceived roles played in the independence struggle’ and by extension free from colonial underpinnings or used as a cover for the protection of colonial and neocolonial interest.

ELECTIONS AS HIGH STAKE EVENTS

Why are some countries able to organise ‘free and fair elections’ while others are not? What constitutes a ‘free and fair’ election? Is a ‘free and fair elections’ simply the absence of obvious and overt rigging or a reflection of the maturity of the political institutions; or a process which is judged by the citizens to be fair, honest, and reflects the will of the people?

The importance of elections lies in their traditional importance and to some extent in the way they promote or truncate democracy. As a tool of democracy, elections should be the only basis for choosing a government or representatives of the people. It appears that discussions about having free and fair elections always assume certain certainties enumerated as ‘global norms’.

But within these global norms, certain facts begin to emerge which I believe are African specific. The widely held assumption that conducting a ‘free and fair elections’ is tantamount to having a democratic system of government is sometime overstated. Indeed, recent events have shown that this may not always be the case.

Secondly, such discussions always tend to ignore economic and social factors such as economic mismanagement, levels of poverty; unemployment, ethnicity (tribalism) and why elections tend to widen, not bridge the ethnic divide in some African countries (e.g. Kenya in 2007; Ghana in 2008).

However, the importance of conducting free and fair elections can never be overstated. The post election violence witnessed by Zimbabwe, threats of violence in South Africa, Ethiopia in 2005, and Kenya in 2007, are constant reminders of the need for ‘free and fair elections’ whose results are incontestable, and are respected by all citizens and institutions of democracy (e.g. including political parties, civil society groups, and the security forces).

The notion of a free and fair elections have become even more prominent as countries have through the years, failed to conduct elections in a manner that could stand the test of a free and fair election. This problem is not African specific, and should not be treated it as such. In Asia, Latin America, and Europe and even in the United States of America, the conduct of elections has been subject to various contestations.

THE POLITICS OF ELECTIONS IN AFRICA TODAY

Elections are the basis of ‘representative democracy’ and one of the many, but acceptable means of choosing and deselecting leaders in a democratic society. In past and recent African history, elections have become the mechanism for the transition from colonial rule to independence. In the military dictatorships of West Africa, elections became the basis for transition from military to civilian rule. Even when regimes have come to power through armed struggle (as was the case in Rwanda, Angola, Mozambique and Uganda to mention a few), elections are often used for legitimising the role of the victorious guerilla army.

It has always been perceived that an election with observers who give their seal of approval is always a ‘successful one’, but organising free and fair elections requires more than a mass of election observers, whose presence, though reassuring, could also be used to mask undemocratic and unfair results – as in the case of West African transitions from military dictatorships to civilian regimes. Popular democracy must create the basis for frequent democratic ways of changing the political leadership of a country; the promotion of a democratic culture, based on tolerance and respect for diverse views and opinions.

The popular will of the people, expressed through popular democracy must be the foundation of any political system built on the rule of law and respect for human rights. This requires the active and responsible role of civil society and other mass movements. Elections form a core component of such a democratic society, recognising that elections on their own do not lead to fundamental change, but are part of a process that will lead to the strengthening of national institutions and democratic processes. Elections are therefore important democratic processes.

COLONIAL AND POST COLONIAL VULNERABILITIES

The political economy of African states, particularly, their colonial origins can provide a window to understanding why Africa is prone and vulnerable to elections malpractice and disputes. There is sometimes a conscious attempt to deny the impact of colonialism and now neocolonialism in certain events in Africa. Elections cannot be one of them.

Electoral politics in post-colonial African states is very much linked to the character of the post-colonial state as the basis for the primitive accumulation of capital and for amassing economic power and wealth. In other words, the character of the post-colonial African state encouraged a winner takes all mentality to competitive electoral politics and by extension, the violation of the rules of democratic engagement, particularly political succession. The ethnicisation of politics in Africa has also contributed largely to the above.

In the anti-colonial struggle, ethnicity became an important factor as the colonial elite from different ethnic groups jostled for power and influence through anti-colonial independence movements. As colonial edifices collapsed, some politicians and activists found comfort as tribal warlords, with no discernable ideas about nation building, except to protect the land, economic resources and power they either grabbed or inherited from the departing colonial power. Reflecting this view, the United Nations Economic Commission for Africa (UNECA) notes that ‘ethnic followers vote along ethnic lines, believing that their “sons and daughters” can best act as gate keepers to protect their ethnic interests, if voted into power.’

Ethnicity has been a key driver in elections with political leaders whipping up ethnic emotions among the electorate thus being the precursor to violence. This situation is not endemic to Kenya. Indeed, it is an African problem. Ethnic conflicts have played themselves in various forms in countries such as Nigeria, the Democratic Republic of the Congo, Ghana, Rwanda, Sierra Leone, Uganda and Sudan. What most conflicts in Africa illustrate is the character of neocolonial state as one dominated by the largest ethnic groups, allowing these groups to use resources and sometimes state power to disadvantage their opponents opposition political parties.

POVERTY AND ELECTIONEERING

Democracy, it is said, is expensive business, and nowhere is this reflected more than at election time. Elections are expensive; both at the level of maintaining democratic Electoral Management Institutions and supporting political parties. In situations of severe poverty and deprivation as witnessed in Africa, individuals also become susceptible to manipulation and fall prey to financial inducements from politicians. Undoubtedly, poverty makes the electorate susceptible to monetary influences and therefore remains a severe impediment to organising free and fair elections in Africa. This is also related to the high cost of electioneering on the continent and elsewhere. Both the cost of maintaining the electoral administration and the high cost of electioneering are impediments to free and fair elections.

Related to this factor is illiteracy, which poses its own problems, e.g. how are electoral regulations or the use of ballot papers to be explained to illiterate voters. In short, the limitations, indeed the imperfections of electoral administration must be realistically set against the problem of underdevelopment and the economic crisis of the state. In general however, geopolitical considerations can also influence the perceptions of an election as being free and fair. For instance the 2008 elections in Ghana were organised within the shadows of monumental flaws in Nigeria, Zimbabwe and Kenya, and political upheavals in Guinea and Mauritania. The need for an African success story meant that similar flaws in Ghana could have been overlooked.

PAN AFRICAN FRAMEWORK FOR FREE AND FAIR ELECTIONS

In the African context, free and fair elections imply that an election is conducted under electoral processes and systems that are open, transparent and in a climate in which political parties and candidates are free to campaign openly and without inhibition or fear of reprisals from the party in power.

While elections in and of themselves do not lead to a democratic dispensation, it is widely accepted that countries which are able to hold free and fair elections, where the winning party is accountable and promotes good governance, accountability and expresses the popular will of the people, and where civil society is vibrant and free from state manipulation, are also able to deliver effective welfare services.

The right to participate in an election is always guaranteed by the Constitution, which provides the institutional framework for free and fair elections. It is therefore incumbent that the Constitution clearly defines the parameters under which an election is held: Timing, conditions, voter register, role of political parties and independent election monitors from civil society and political parties.

Various regional and global institutions have attempted to set out a framework for ensuring that elections are free and fair. For instance, as part of its mandate, the United Nations (UN) continues to provide electoral assistance as part of its efforts to promote free and fair elections in Members States. The Africa Union considers elections as the sole and legitimate ‘basis of the authority of any representative government and constitute a key element of the democratization process’. Article 4 of the Constitutive Act of the Africa Union therefore provides that: ‘Democratic elections should be conducted: (a) freely and fairly; (b) under democratic constitutions and in compliance with supportive legal instruments; (c) under a system of separation of powers that ensures in particular, the independence of the judiciary; (d) at regular intervals, as provided for in National Constitutions; (e) by impartial, all-inclusive competent accountable electoral institutions staffed by well-trained personnel and equipped with adequate logistics.’

In line with this approach, the Africa Union also requires that ‘every citizen and political party shall accept the results of elections proclaimed to have been free and fair by the competent national bodies as provided for in the Constitution and the electoral laws and accordingly respect the final decision of the competent Electoral Authorities or, challenge the result appropriately according to the law.’

INSTITUTIONAL MECHANISMS FOR A FREE AND FAIR ELECTION

For a nation or government to organise free and fair elections, certain institutional mechanisms should be in place. Political architecture and institutional support ensures that citizens are free to elect and be elected under rules and regulations that are clear to all contesting parties, that political parties are not only aware of these rules, but willing to abide by them in the spirit of democratic elections and fair play. Some of the institutional and political mechanisms are discussed below.

ROLE OF INDEPENDENT ELECTORAL MANAGEMENT BODIES (EMBS)

The role of Independent Electoral Management Bodies (EMBs) or Electoral Commissions is crucial to the outcome of an election. The electoral body should derive its powers and mandate from the Constitution. This will include administering and implementing laws regarding the registration of voters; overseeing the actual conduct of elections, supervising the ballot and the count; promoting transparency at all levels and being accountable to the public and parliament where one exists. The EMB should also actively advocate the open participation by all political parties and the public; and provide voter information and civic education to raise awareness of electoral laws and governance issues to help the populace make an informed choice. But most important of all, its role is to ensure that elections are conducted in conformity with the laws of the country.

In Africa, overwhelming evidence points to the fact that elections run by independent electoral bodies are more successful, and the results respected. In countries where election results have been respected, the state has ceded greater responsibility to the electoral administration such as the IIEC in Kenya, or the Electoral Commission in Ghana. A functioning and accountable Electoral Management Authority (eg the Interim Independent Electoral Commission in Kenya) is therefore essential to managing a free and fair electoral process. In the same way, in the absence of administrative clarity and the political will on the part of the Electoral Commission (EC) to enforce the rules, elections results will always be viewed with suspicion by the populace. In such an atmosphere, groups who feel swindled and abandoned by the electoral process will resort to non-democratic forms of protests.

CIVIL SOCIETY: PROMOTING A LEVEL PLAYING FIELD?

In addition to the institutional mechanisms for managing elections, civil society organisations – here defined to include non-governmental and faith based organisations, trade unions – play a very significant role in promoting free and fair elections.

For example, in the period leading to an election, they provide civic education, creating awareness of the democratic and electoral processes and sometimes in reassuring a restive public. In recent elections in Kenya, civil society has led the advocacy for electoral reform, arguing for more effective mechanisms to ensure free and fair elections. Kenya civil society continues to engage with democratic institutions to advocate for mechanisms for a free and fair elections.

During an election, civil society continues to play this role as elections observers and/or monitors, ensuring that rules laid down by the electoral body are followed, and that the election meets local and international standards of objectivity and fairness. In most countries, civil society organisations are active in pre-election periods, when they undertake civic education, promote awareness of the electoral process and promote public debates between candidates – government and opposition.

ELECTION OBSERVATION

To what extent are election observers key to a ‘free and fair election’? In most cases, it is acknowledged that the sole purpose of election observation is firstly, to help reduce irregularities, and also offer impartial advice to election officials where necessary. Some election observers have stayed within these professional boundaries. As the Kenya Domestic Observation Forum (KEDOF) report noted: ‘Election observers are not supposed to interfere in the electoral process and have no authority to change, improve or correct any shortcomings, or to request changes during the election process’. Thus, ‘observer missions are, strictly speaking, mandated to collect verify information concerning the election process, to analyse the observations and then, after the elections, to publish their findings’.

Allowing observers to monitor an election has become part of the accessory of any election. An election where these observers are barred is considered fraudulent from the beginning. The activities of these supposedly ‘neutral’ election monitors have become an important part, first as a way of validating an election, and secondly, as a legitimising exercise. In Africa, no election is thought to be free and fair without a horde of foreign election observers. There are two types of election monitors: international and domestic. International election observers or monitors usually comprise international organisations, regional organisations (e.g. Africa Union), and international organisations (e.g. the Commonwealth) groups outside the host nation.

The role of international election observers or monitors was given a significant boost by the United Nations when in October 2005, the UN 20 international democracy organisations signed on to the Declaration of Principles for International Election Observation. This declaration encourages countries to allow for both international and domestic election observation. In most African elections, the presence of international observers reassures the weak opposition and politicians that the process will be free and fair. A review of the Ghana elections of 2008, noted: ‘The large and visible presence of foreign media, and diverse groups of international observers including the EU, the carter centre, the Africa Union, the Pan African Parliament the Commonwealth and the Economic Community of West African States (ECOWAS) contributed to increased public confidence in the process as well’. The role of foreign observers are usually complemented by domestic elections observers.

Domestic observers also play a similar role. In the 2008 general elections in Ghana, and the 2007 elections in Kenya, local election observers contributed immensely to managing peaceful elections. But more than that, those observers can help to reduce or deter fraudulent election practices. Domestic election observers usually involve non-governmental organisations. Domestic election observers have a longer history of election observation in Africa than international observers. In South Africa, Nigeria, Kenya, Ghana and Senegal, domestic observers have been essential to successful elections. Experience in Africa and Asia has demonstrated that domestic election monitors have certain advantages over their international counterparts.

In both Kenya and Ghana, domestic organisations are rooted in the society, have a longer history of engagement and have cultural advantages (e.g. language) over their international counterparts, most of whom to tend to be election junkies or tourists. Domestic election observers also have the advantage of lessons learned over a long period of time.

CIVIC EDUCATION

The role of civic education in promoting a free and fair election cannot be downplayed. Democracy requires informed participation of the electorate, but before this can happen, and to lessen conflict and confusion about the democratic process, citizens must remain informed and engaged. The electorate in any given situation needs knowledge, information and understanding of the competing political forces to make informed decisions about policy choices and avenues to voice their concerns. Civic education is the process by which the public is made aware of social and political rights and responsibilities, as well as the principles and practices of action. Civic education is used to create awareness of the various issues posed by politicians and candidates during an election, but more than that it, empowers voters and community actors with the tools, information, mobilisation skills and understanding of the political dynamics necessary to influence change during the electoral process.

In some countries, this role is reserved for government-approved institutions with the mandate to provide impartial civic education and awareness to the general public (e.g. Ghana), in others, this role is reserved for the Electoral Commission (e.g. Kenya). Civil society organisations also provide civic education to large segments of the population using various creative methodologies. Civic education enables various interest groups – both state and non-state actors – to engage in a non-partisan education of voters using various methodologies, ranging from seminars and discussions to plays, poetry and drama. Civic education creates awareness of the electoral process, allowing political parties and competing candidates to set out their policies, thereby helping the electorate to make an informed choice.

Elections remain the key avenues for changes of the guard. But this requires an institutional framework within the context of the country in question. Sometimes, ‘global norms’ are not enough and can overlook local realities. The important consideration for the state, the media, civil society and political parties is to work within an African framework, and for international supporters and interlopers to recognise the local reality, and not impose conditions based on geopolitical and economic interest.

Kenya presents a lesson for other African countries, having organised more elections than many African countries. There are lessons to be learned. This can inform the election management authorities in planning for 2012. Kenya has the institutional capacity to organise and promote free and fair elections, however, some of the conditions enumerated above, are crucial to the process. In the case of Kenya, and in most countries, political will is usually in short supply. This needs to be addressed in preparation for 2010, if the country is to organise free and fair elections that will serve as an example to other African countries.

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* A version of this paper was presented at the Civil Society Conference in Nairobi, 10–11 May 2010.
* Zaya Yeebo is programme manager for the UNDP Civil Society Democratic Governance Facility. He writes in his own capacity.
* Please send comments to [email protected] or comment online at Pambazuka News.