Litigation

Elections in Africa during the COVID-19 Pandemic

Court
African Commission on Human and Peoples’ Rights
Status
Active
Case Lawyer

The spread of COVID-19 and the need to take public health precautions to protect populations from the virus have impacted multiple elections across Africa, and are likely to affect at least a dozen upcoming contests. The pandemic has, and will, impact the timing of elections, how they are organized, and the acceptability of electoral outcomes. While decisions on when to hold elections are within the domestic jurisdiction of every country, the manner in which they are conducted is regulated by African treaty law, including the African Charter on Human and Peoples’ Rights and the African Charter on Democracy, Election and Governance.

On May 2, 2020, the Pan-African Lawyers Union (PALU) submitted a request seeking guidance from the African Court on Human and People’s Rights for states and regional institutions on how to hold elections during the COVID-19 pandemic. The request asks that the court provide opinions on necessary measures to ensure fairness and transparency in the conduct of elections during the COVID-19 pandemic and indicate mechanisms for enforcing international law should elections fail to meet international standards.

Facts

The COVID-19 pandemic has affected several general elections in Africa throughout 2020. In Ethiopia, despite the postponement of national elections until 2021 due to COVID-19, the northern region of Tigray nevertheless proceeded with parliamentary elections, escalating tensions. In Burundi, in addition to downplaying the coronavirus threat prior to the country’s May 20 general election, the government announced that it would quarantine election observers from the East African Community for 14 days upon arrival, causing many observers to stay home. In Malawi, which faced a rerun of presidential elections on June 25, a national state of disaster declared by the president banned gatherings of more than a hundred, effectively prohibiting political rallies.

The fact that the African Charter on Democracy, Election and Governance has been accepted as a treaty falling under the purview of the African Court on Human and People’s Rights since 2016 is worth emphasis. Earlier this year, the government of Benin disregarded an April 3 order from the court that it postpone elections, arguing that the court lacked jurisdiction. The court had found that vote should be suspended on the basis that that it would not be inclusive.

Open Society Justice Initiative Involvement

The Justice Initiative is the co-counsel on the request to the Court.

Arguments

While the timing of elections are within the domestic jurisdiction of the states, the manner of their conduct is a matter of continental treaty law. The responsibility for upholding these laws is within the primary jurisdiction of the African Court on Human and People’s Rights.

The court should assess the question of elections during COVID-19 within the framework of Article 25(b) of the International Covenant on Civil and Political Rights, which guarantees the right to vote and to be elected.

June 2020

All state parties to the African Charter are invited to comment on the request, and are given 90 days to respond.

June 03, 2020

The Justice Initiative files a request for an advisory opinion from the court regarding states' obligations to ensure effective elections during the pandemic.

May 02, 2020

The Pan-African Lawyers Union (PALU) submits a request seeking guidance from the African Court on Human and People’s Rights for states and regional institutions on how to hold elections during the COVID-19 pandemic.

May 02, 2020
Request for Advisory Opinion Download the 16-page document. Download

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