Context

As colonial rule ended in the mid-twentieth century, many newly independent African countries adopted Western-style democratic systems. However, these early experiments were fragile, susceptible to manipulation, and prone to reversion to systems of power inherited from former colonial powers. In the 1970s, numerous military coups reshaped African politics. While many entrenched authoritarian rule, some were framed as attempts to replace discredited, colonial-influenced systems with more effective governance.Footnote ¹ Weak electoral institutions, susceptible to fraud and executive interference, further eroded public trust. When judiciaries also failed to act independently, voter disillusionment grew, fueling these unconstitutional changes of governments.Footnote ²

The post-Cold War era saw Western powers push liberal democracy as a condition for aid, leading to stronger democratic norms.Footnote ³ As a consequence, over the past three decades, sub-Saharan Africa has emerged as a key player in shaping international democratic law, building institutions, and refining legal frameworks.Footnote ⁴

Democracy and Africa

Democracy involves government by the people in a political sense, but the peoples’ will cannot govern meaningfully without institutions that translate electoral choices into accountable governance. Democracy in Africa has been analyzed through competing frameworks. Richard Sklar’s “guided democracy” emphasizes accountability,Footnote ⁵ while Samuel Makinda focuses on electoral competition and civil liberties.Footnote ⁶ Saliba Sarsar adds that functional democracy requires participation, accountable leadership, economic openness, and independent judiciary.Footnote ⁷

Judicial oversight is therefore essential to the integrity of democratic governance and the development of democratic norms. Courts play a crucial role in ensuring that elections are free from manipulation and that political power remains subject to legal constraints.Footnote ⁸ In many African countries, frequent and sometimes violent election disputes reveal the need for impartial institutions. While electoral commissions manage logistics, they often lack authority or trust to resolve conflicts. Courts step in as neutral arbiters, providing legal remedies and strengthening public confidence in electoral outcomes.Footnote ⁹

Most African legal systems have integrated international law into domestic adjudication, either through a monist framework adopting treaties as enforceable upon ratification or a dualist system where enabling legislation facilitates domestic application.Footnote ¹⁰ With these adoptions, courts have turned to international instruments and regional governance protocols to adjudicate key rights issues, from electoral fairness to executive accountability. Courts not only apply national constitutional provisions, but also draw from international and regional legal norms, including those related to elections and democratic governance. The election cases in Kenya, Senegal, and Malawi demonstrate how domestic courts’ decisions grounded not only in constitutional safeguards but in international law are advancing democratic norms within the international legal landscape. In Nigeria, Kenya, and Malawi, domestic courts have invalidated election results marred by fraud, violence, or administrative failure, thereby affirming the principle that no political actor is above the law. While these decisions are grounded in national constitutions, they often reflect and reinforce democratic standards embedded in regional and international instruments such as the African Charter on Human and Peoples’ Rights, African Charter on Democracy, Election and Governance, and the International Covenant on Civil and Political Rights (ICCPR). Therefore, the development of an African international law of democracy requires a nuanced approach that prioritizes domestic courts as key actors in ensuring checks and balances, and protecting against unconstitutional changes of government.Footnote ¹¹ Evolving case law from Kenya, Malawi, Senegal, and Nigeria shows how domestic judicial intervention not only shapes national outcomes but also articulates principles of transparency, accountability, and procedural fairness that align with broader treaty-based commitments and contribute to the development of international legal norms on elections and governance.Footnote ¹² Without robust judicial intervention, democracy becomes vulnerable to manipulation, and elections risk devolving into ritualistic affirmations of power.

Case Studies

Senegal, Kenya, and Malawi offer compelling illustrations of how national judiciaries can both uphold and undermine democratic governance, depending on institutional context and political pressure.Footnote ¹³ They show that the success of enforcing international legal norms developed by the regional courts has been questionable and inefficient compared to efforts undertaken to enforce democratic norms through the national courts. First, in each country, courts intervened in high-stakes electoral processes despite intense political pressure to remain passive or defer to incumbents. In Kenya, for instance, following the contested 2017 presidential polls, the Supreme Court under Chief Justice Maraga nullified Uhuru Kenyatta’s re-election despite threats and widespread expectations that the court would uphold the status quo.Footnote ¹⁴

Again, Kenyan court’s ruling was upheld under fierce resistance from high-level actors, including the executive and electoral commission, symbols of entrenched authority.Footnote ¹⁵ That institutional resilience reinforced the legitimacy of judicial authority. Similarly, in Senegal, the Constitutional Council declared President Sall’s postponement of the 2024 presidential election unconstitutional even as the executive and legislature attempted to legitimize the delay.Footnote ¹⁶

In these cases, the judicial outcomes were implemented, sometimes leading to fresh polls. For instance, Kenya conducted a new presidential election within sixty days of the court’s annulment.Footnote ¹⁷ In Senegal, public pressure and judicial enforcement led to a timely election in March 2024, resulting in a peaceful transfer of power.Footnote ¹⁸ These implementations underscore the court’s capacity to convert judicial decisions into democratic outcomes. At the same time, the judiciary can betray democracy when institutional weaknesses prevail.

Senegal

The West African nation of Senegal, described as one of the most stable democracies in Africa,Footnote ¹⁹ achieved a significant milestone in 2000 with a transition of power between opposing parties.Footnote ²⁰ However, Senegal’s democracy faced substantial political challenges in 2023 during President Macky Sall’s second term, when rumors surfaced that he would seek an unconstitutional third term. Political tensions escalated quickly following the arrest and imprisonment of leading opposition figure Ousmane Sonko in July 2023 on charges of “corrupting youth.”Footnote ²¹ This resulted in deadly demonstrations and the loss of protesters’ lives at the hands of security agents.Footnote ²²

In 2024, following a series of street protests in which over sixteen people were killed by security forces, President Sall announced that he would not seek another term, igniting a surge of political activity in anticipation of the upcoming presidential elections. However, the country was plunged into another round of protests and violence when Sall postponed the elections from February to December 2024, the first such postponement in Senegal’s history.Footnote ²³ Senegal’s constitutional court delivered a landmark judgment on February 15, 2024, declaring President Sall’s decision to postpone and reschedule the election “contrary to the constitution,” and cancelled the postponement.Footnote ²⁴

This ruling emphasized the centrality of the constitutional term limit rules and affirmed that presidential eligibility cannot be manipulated for political expediency. In doing so, it sent a powerful message about the supremacy of constitutionalism over partisan interests. The decision calmed a volatile political climate, restored confidence in democratic institutions, and rescued the electoral process from collapse. By asserting its independence and functioning as a robust check on executive overreach, the Court not only reinforced domestic rule of law but also contributed to the evolving international legal consensus that term limits and judicial autonomy are essential to democratic governance. This move was seen as a significant check on the executive’s power, a demonstration of judicial independence, and a victory for democratic principles in Senegal. The judgment ultimately paved the way for elections in March 2024, in which the opposition candidate defeated the ruling party’s candidate.Footnote ²⁵

Kenya

Kenya gained independence in 1962. The East African country functioned under a de facto one-party system until 1991, when it faced post-Cold War pressure to transition to a liberal multiparty political system.Footnote ²⁶ Kenyan politics has often been influenced by ethnic interests, which have led to tensions and violence, particularly following the 2007 elections. The disputed results ignited clashes between the Kikuyu and Luo ethnic groups, resulting in thousands of deaths and instances of police brutality.Footnote ²⁷

Allegations of widespread misconduct also marred the 2017 presidential elections. These included the illegal transmission of results through unverified forms, allegedly hacked systems, and a lack of proper scrutiny of polling station results. These allegations caused a nationwide upheaval that threatened the country’s security through ethnic clashes and brutal police crackdowns.Footnote ²⁸

When the incumbent president, Uhuru Kenyatta, was declared the winner by the electoral body, violent protests broke out, especially in opposition strongholds in the Nairobi slums, resulting in at least twelve deaths.Footnote ²⁹ However, in a decisive judgment, the Kenyan Supreme Court nullified the presidential election and ordered a fresh poll within sixty days, citing “irregularities and illegalities.”Footnote ³⁰ This ruling, marking the first time an African domestic court overturned a presidential election result, helped restore public calm and bolstered citizen confidence in the judiciary as a guardian of democratic norms. Yet, while the judgment advanced core democratic values such as electoral integrity and rule of law, it did not perfect Kenya’s democratic experiment. The repeat election, held amid an opposition boycott and low voter turnout, reignited debates about systemic flaws and unresolved political divisions.Footnote ³¹

Malawi

In 2019, Malawi’s Election Commission declared incumbent president Peter Mutharika the presidential election winner. However, the poll results were announced several days late, leading to allegations of irregularities, particularly from opposition candidate Lazarus Chakwera.Footnote ³² Dubbed the “Tipex election” because of accusations that result sheets were severely manipulated with the popular ink cleaning fluid, Tipex, thousands of Malawians gathered to protest, leading to clashes with the police.Footnote ³³ The opposition filed a suit in the Constitutional Court seeking to annul the elections as tensions escalated.

In 2020, the Constitutional Court annulled the elections and ordered that new elections be held, citing grave and widespread irregularities.Footnote ³⁴ Public resistance and judicial oversight jointly reinforced constitutionalism during former President Bakili Muluzi’s attempted bid for a third term; widespread protests signaled popular opposition, while the Constitutional Court ultimately upheld term limits, blocking the extension of presidential tenure.Footnote ³⁵

The Malawian court’s ruling marked a significant shift compared to Kenya and Senegal. Malawi’s judiciary positioned itself not just as a protector of constitutional rules, but as a proactive force ensuring institutional accountability, thereby actively shaping and strengthening democratic legitimacy rather than merely managing crises. Unlike the Kenyan case, where a new election was contested and political boycott followed judicial intervention, and the Senegalese case, where the court preserved constitutional limits without directly annulling an election, the Malawian court’s ruling signaled a deeper shift. It positioned the judiciary not merely as a guardian of constitutional boundaries, but as an assertive architect of democratic legitimacy. The decision helped restore public trust, ensured a genuinely competitive election, and led to a peaceful transfer of power. In doing so, Malawi’s courts advanced a bold interpretation of judicial responsibility, elevating courts as co-creators of democratic norms and strengthening the global discourse on the role of domestic courts in safeguarding democracy.

Courts and Democracy in Africa: Navigating a Fine Line

The role of the judiciary in African democracies is complex; it presents opportunities to exert checks on excessive executive power, but granting too much power to the judiciary also warrants caution. While the judiciary has the potential to promote democratic governance, scholars have noted a growing trend of courts validating flawed elections, a phenomenon Chidi Odinkalu terms “the judicialization of elections.”Footnote ³⁶ This can undermine democracy, erode citizen trust, and create fertile ground for unconstitutional changes in government.

The dangers of over-judicialization of elections in Africa are multifaceted. One primary concern is that it can lead to the politicization of the judiciary, where courts become tools for political manipulation rather than impartial arbiters of the law.Footnote ³⁷ This can erode public trust in the judiciary and undermine its legitimacy. Courts must be circumspect, not overreach their authority, and focus on upholding electoral processes rather than determining outcomes.

Nigeria’s 2023 presidential election illustrates this concern. Despite rising tensions and serious electoral management issues, the Supreme Court’s ruling in favor of Bola Tinubu, the ruling party’s presidential candidate and president-elect, raised eyebrows. The election had involved a shutdown of the digital result viewing portal, as admitted by the electoral body, the Independent Electoral Commission (INEC). Despite this significant irregularity, the Nigerian Supreme Court issued a judgment in favor of the ruling party’s candidate.Footnote ³⁸ Critics argue that Nigeria’s electoral processes have become overly judicialized, with winners often declared by courts rather than the election management body, as several local elections for National Assembly members have been overturned by the judiciary.Footnote ³⁹ This trend highlights a core challenge: courts must protect elections without overriding voters, using principled and transparent rulings to strengthen democracy. By grounding its interventions in transparent reasoning and constitutional mandates, the judiciary can reinforce, not erode, the democratic order it seeks to preserve.Footnote ⁴⁰

Toward a Pan-African Jurisprudence on Electoral Integrity

African courts, though operating within domestic frameworks, are developing a shared jurisprudence grounded in democratic values like transparency and electoral integrity, which increasingly align with and influence international legal norms. This emerging pan-African jurisprudence, built through cross-referencing and shared struggles rather than formal treaty mechanisms, contributes to the evolution of international law from the grassroots level.Footnote ⁴¹ For instance, Kenya’s Supreme Court affirmed that elections must meet the constitutional and international standards of transparency, verifiability, and legal compliance, or they may be invalidated. Malawi’s Constitutional Court decision to nullify the 2019 presidential election adopted similar principles of procedural integrity grounded in the ICCPR, the African Charter on Democracy, Elections and Governance (ACDEG), and SADC electoral guidelines thereby affirming the right to effective remedies for electoral violations, including annulment and fresh elections, and embedding procedural safeguards into the very concept of democratic legitimacy. In Senegal, litigation over presidential eligibility and term limits drew on ACDEG and Economic Community of West African States governance norms to reinforce that constitutional rules on tenure and candidacy are integral to democratic governance, thus advancing the emerging continental and international prohibition on tenure manipulation.

Judiciaries in sub-Saharan Africa are increasingly influencing each other, marking the emergence of a robust pan-African jurisprudence that could significantly shape global legal standards. This cross-pollination of judicial ideas and precedents highlights the importance of African courts in promoting democratic values and electoral integrity. It also establishes a powerful precedent and offers new pathways for judiciaries worldwide to uphold democracy and protect electoral integrity at the national level. These landmark cases demonstrate that domestic courts are crucial in ensuring electoral integrity and realizing African democratic norms beyond the excitement that supranational actors generate. They also emphasize the need for greater focus on international rules and institutions that support domestic actors, rather than on international institutions attempting to enforce constitutionality or democracy from above.

Conclusion: Reimagining the International Law of Democracy from Below

The evolving landscape of democracy in Africa underscores the vital role of the judiciary in safeguarding electoral integrity and reinforcing democratic governance. The Malawian judiciary’s transformative annulment of its 2019 election, the Kenyan Supreme Court’s precedent-setting nullification of the 2017 vote, and Senegal’s constitutional court’s decisive reversal of presidential overreach in 2024 all demonstrate that independent and courageous national institutional action can serve as a bulwark against authoritarian drift and unconstitutional changes in government.

The Malawian Constitutional Court’s decision to nullify the 2019 presidential election exemplifies this trend, citing the Kenyan Supreme Court’s precedent.Footnote ⁴² Their rulings affirm democratic values and prevent the subversion of elections by incumbents. This demonstrates that African countries are not merely recipients of global norms, but active contributors to the international law of democracy. However, the risk of over-judicialization remains. Courts must balance intervention with restraint to preserve democratic credibility. Without this balance, the judiciary risks becoming a political actor rather than a neutral guardian of legality.

Ultimately, the consolidation of democracy in Africa and centrality of national institutions in realizing the aspirations of the African international law of democracy—particularly national constitutional courts will hinge on the continued development of strong, independent national institutions, the rule of law, and legal frameworks rooted in local contexts but resonant with universal principles.