JAE Volume 17 Number 2 Oct 2018

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Editor: Denis Kadima
Managing Editor: Heather Acott

Contributors: Hoolo 'Nyane, Ransford Edward Van Gyampo, Tom Lodge, Ricky Appah, Isaac Owusu-Mensah, Joanna Rice, Joseph Kwaku Asamoah, Olajide O Akanji, Tshepo Aubrey Manthwa, Lefa Sebolaisi Ntsoane

Key terms: elections, adjudication of election petitions, electoral system, electoral law, Lesotho, constitution, substantial effect doctrine, ethnicity, voting, rational choice, party identification, ideology, Ghana, democracy, judiciary, Electoral Commission, Supreme Court, principal-agent theory, agency cost, electoral agency theory, moral hazard, adverse selection, public accountability, political parties, Independent National Electoral Commission, electoral malpractices, election outcomes, Nigeria, public participation, community, formal and traditional mechanisms, election disputes, conflicts

A Critique of Proceduralism in the Adjudication of Electoral Disputes in Lesotho

Hoolo 'Nyane

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Hoolo 'Nyane is Associate Professor and Head of Public and Environmental Law, School of Law, University of Limpopo

ABSTRACT: One of the characteristic features of electoral democracy in Lesotho is disputed elections. Since 1993, when the country returned to constitutional democracy after a long haul of dictatorship and monarcho-military rule, every election has been subjected to one form of discontent or another. The aggrieved parties use various ways to vent their dissatisfactions, and more often than not, disputes end up in the courts of law. The courts are then called on to determine the validity or otherwise of the election results declared by the election management body. All seven elections since 1993 have been challenged in the courts of law. Despite this determination by political players in Lesotho to resolve electoral disputes through the courts of law, amongst other means, there is no court in Lesotho that has overturned an election result or ordered the reallocation of seats since 1993. The petitions are almost invariably dismissed on procedural grounds or on the basis of misapplication of the substantial effect doctrine. This approach to the adjudication of disputes in Lesotho has not only jeopardised substantive electoral justice in the country but has also arguably perpetuated the electoral violence that has been one of the characteristic features of electoral politics in Lesotho. The purpose of this article, therefore, is to critique this approach. Methodically, the paper uses the politico-legal approach to critique the pattern as it manifests itself through the many court decisions that have been handed down on election petitions since 1993.

Is Voting in Ghana Ethnically Based?

Ransford Edward Van Gyampo, Tom Lodge and Ricky Appah

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Ransford Edward Van Gyampo is an Associate Professor of Political Science, University of Ghana
Tom Lodge is Professor of Peace and Conflict Studies at the Department of Politics and Public Administration, University of Limerick
Ricky Appah is a PhD Candidate at the Department of Political Science, University of Ghana

ABSTRACT Ghanaian scholars often argue that ethnicity is the leading factor shaping the electoral choices of voters in Ghana, and that voting in Ghana, like that of many other African countries, is ethnic-based. This paper seeks to test the validity of these perceptions. Voters in three key constituencies were selected and asked about considerations that shaped their voting preferences in Ghana's latest election in 2016. Their answers indicate a complicated mixture of motives which suggest that in areas believed to have been politically shaped by ethnic identities, voter choice is instrumental and rational, influenced more by bread and butter concerns than by ethnic loyalty.

The Judiciary and Democracy in Ghana's Fourth Republic

Isaac Owusu-Mensah and Joanna Rice

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Isaac Owusu-Mensah is a senior lecturer in the Department of Political Science, University of Ghana
Joanna Rice is a PhD candidate in the Department of Political Science, University of Toronto

ABSTRACT: Since the advent of multi-party elections in 1992, Ghana has successfully held six free and fair presidential and parliamentary elections, including the peaceful alternation of power on three occasions. Despite this impressive record, transparent and peaceful elections are never a guaranteed outcome in Ghana. General elections in the country are highly competitive and tightly contested by the two main political parties, the New Patriotic Party (NPP) and the National Democratic Congress (NDC) and their support bases. The 2016 general elections season was a fierce fight marked by apparent attempts at fraud and corruption on the part of the Electoral Commission. Although there was a tense lead-up to the vote, the elections proceeded without incident, largely due to the actions of the Supreme Court. These Supreme Court rulings on electoral transparency and fairness during the 2016 elections continue a long history of judicial intervention in electoral disputes. Nearly three decades of judicial activism has effectively constrained the major political parties in their ongoing attempts to use fraud and corruption for gains at the polls. This study thus supports the early work of Ruti Teitel on judicial policymaking in transitional states by demonstrating how an activist Supreme Court has effectively preserved and advanced democratisation in the face of weak political institutions.

The Concept of Agency Theory in Electoral Democracy

Joseph Kwaku Asamoah

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Joseph Asamoah is the Director of Finance, Electoral Commission of Ghana, Electoral Commission of Ghana, Accra

ABSTRACT: This essay analyses the doctrine of the law of agency in the context of electoral democracy in assessing the rights and liabilities of the political elite and the voting public. The principal-agent model was employed to expatiate challenges in the relationship between the agent's performance and how the principal can reward or punish the agent through competitive elections. In doing so, the elected political authorities are deemed to be agents of state governance while the voters, and by extension the population, are seen as principals of the state. The principal-agent relationship generates the electoral accountability of representatives to constituents by checking and controlling the behaviour of the political elite to ensure that national programmes, policies and laws are applied for the benefit of the general public. The study concludes that voters, as principals, expect political agents to deliver public goods and services to their benefit and that failure do so attracts a vote of censure. This means that competitive elections create a relationship of formal accountability between political leaders and voters. This accountability minimises the ability of political leaders to use the advantage of information asymmetery.

Election Administration in Nigeria: A Researcher's Account of the 2015 General Elections

Olajide O Akanji

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Olajide O. Akanji is a senior lecturer in the Department of Political Science, University of Ibadan, Nigeria

ABSTRACT: Using empirical field accounts of the 2015 general elections in the Ibadan South-East local government area, this article investigates the problems and prospects of election administration in Nigeria. It argues that while the Independent National Electoral Commission (INEC), Nigeria's electoral management body, made elaborate preparations for the conduct of the general elections across the country, the conduct of the elections in Ibadan South-East local government area was characterised by logistics, manpower and security challenges. The combination of the character of the electorates and that of the electoral officials, as well as the attitude of the dominant political parties at grassroots level, shaped the outcomes of these elections.

Public Participation, Electoral Dispute and Conflict Resolution Mechanisms: The Case of Moutse, South Africa, Wards 5 And 6, 2013-2016

Tshepo Aubrey Manthwa and Lefa Sebolaisi Ntsoane

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Tshepo Aubrey Manthwa is a lecturer in the Department of Public, Constitutional and International Law and affiliated with the Institute for Dispute Resolution in Africa (IDRA), University of South Africa
Lefa Sebolaisi Ntsoane is a lecturer in the Department of Private Law and affiliated with the Institute for Dispute Resolution in Africa (IDRA), University of South Africa

ABSTRACT: This study examines the concept of public participation and the dispute resolution mechanisms that can be utilised to resolve electoral disputes and conflicts at the level of local government in South Africa. The study stems largely from community-based participatory action research, also referred to as café conversations. This research project was conducted in Moutse, Wards 5 and 6 of the Ephraim Mogale Local Municipality, a category B municipality that is the smallest of the four municipalities in the Sekhukhune district. It is a cross-border district that extends across the north west of Mpumalanga and the southern part of Limpopo. Sekhukhune is 94% rural and 5.3% urban and approximately 50% of the population are under the age of 18. Moutse comprises four villages: Mamaneng-Matatadimeng, Ga-Matlala Ramoshebo, Mokgwaneng and Tshikannosi. Research data collected in the form of community dialogues are used in this article together with relevant journal articles, books and media reports on the same subject. The aim of the article is to explore the importance of public participation by community members in the affairs of their community. The article argues that enhanced public participation can properly facilitate members of the community to take part in the resolution of disputes and conflicts in their community. The findings of the research are that public participation remains an important element of a democracy, and that the public at all times wants to be involved in making decisions that affect their rights.