Chapter Seven: Aftermath of Elections–
Seeking Accountability

Post-Election Violence

In the aftermath of elections, while supporters of the victorious party celebrate with jubilation the announcement of results, unease over the credibility of the election outcome may trigger violent protests by disappointed citizens. As previous chapters have shown, election violence is generally goal-oriented; upon announcement of the results, the intensity of protests depends on endogenous factors to the election process: a narrow margin of votes between candidates, a widespread perception that the electoral process was flawed, or the willingness and capacity of political leaders to mobilise supporters. Exogenous factors, such as the existence of deep-seated communal grievances, a governmental repressive culture, or the presence of armed groups beyond state control that are eager to profit from the chaotic situation generated by an election crisis, also aggravate the situation.

The zero-sum nature of electoral processes in Africa increases the likelihood that candidates will not accept the results, even when they have no evidence that the election was rigged, but as a strategy to influence political events or simply due to egotistical unwillingness to accept defeat. On the other hand, ruling parties may engage in violent reprisals to silence opposition in the aftermath of elections that were widely perceived as rigged. Claiming that protesters disrupt social peace, repressive regimes make use of post-election tension and confusion to clamp down on political rivals and their followers.

Furthermore, as national and international human-rights organisations underline in their reports on election violence in countries such as Nigeria, Kenya, Côte d’Ivoire, Togo, and Ethiopia, a social perception of widespread impunity does not help to break the cycle of election violence. African states seldom hold perpetrators of election violence accountable. Perpetrators and their sponsors pursue their electoral goals by violent means without fear of punishment. Criminal courts or ad hoc election tribunals rarely investigate serious human-rights abuses perpetrated by either state or non-state actors, and victimisers hardly ever serve long prison sentences. Culprits are not held accountable because rule-of-law institutions, security forces, and courts of justice cannot operate independently of political power and discharge their constitutional duties to uphold the law and protect the innocent.

Countries experiencing recurrent episodes of electoral violence lack tribunals with adequate means and autonomy to prosecute electoral offenses and settle petitions in due course. Judicial processes on electoral cases defeat their own intent by failing to disqualify in a timely manner those who took their post by illicit means. CSO calls for the establishment of electoral courts to address election-related cases are often unmet, and when such tribunals are set up they often lack resources to fulfil their mandate effectively. Governments also tend to establish commissions of inquiry without judicial powers and issue recommendations that executive and legislative branches of power rarely adopt. The lack of accountability for electoral crimes feeds the cycle of violence in recurrent elections. Case studies of electoral violence during the period under review in Côte d’Ivoire, Nigeria, Togo, Ethiopia, Zimbabwe, and Kenya illustrate this argument.

Case Studies: Dealing with Election Violence

Côte d’Ivoire

Hostilities broke out in Côte d’Ivoire between combatants loyal to Laurent Gbabo and those supporting Alassane Dramane Ouattara after the Constitutional Council, the highest court in the country, invalidated the provisional results of the 2010 election announced by the chairman of the Commission Electorale Indépendante (CEI), Youssouf Bakayoko, who declared Ouattara the winner. The President of the Constitutional Council, Paul Yao N’Dré, a founder of the ruling party and widely perceived as a staunch supporter of Gbagbo, went on to cancel the vote in seven departments in the north, where he alleged that irregularities compromised election results. He subtracted from CEI’s provisional results the votes received by both runoff candidates in those departments, over 600,000 votes, and proclaimed Laurent Gbagbo the winner, with 51.45 percent of the vote (Bassett 2011; Zounmenou and Lamin 2011). On 3 December, as Gbagbo was sworn in as president in an official ceremony, the Head of the United Nations Operation in Côte d’Ivoire (UNOCI), Choi Young-jin, made a statement ratifying that according to data certified by the United Nations, even if all complaints made by Gbagbo’s camp were taken into account, the outcome of the runoff would be in favour of candidate Ouattara.71

In the weeks following the polls, pro-Gbagbo and pro-Ouattara fighters perpetrated violent attacks and atrocities against political opponents to silence claims of electoral victory from the opposing side. Perpetrators linked to groups involved in previous political violence took part in post-election reprisals in rural and urban areas across the northern and southern regions. Thus, violence fit into a wider strategy of political domination through the combination of ballots and the barrel of a gun (Straus 2011). About 250,000 residents of Abidjan and over 100,000 persons in the western part of Côte d’Ivoire fled due to rising violence, adding to hundreds of thousands of internationally displaced persons and refugees prompted by the long internal conflict. The crisis had humanitarian consequences in northern Côte d’Ivoire, too; electric power and water supplies were cut off, and hospital operations were crippled (Cook 2011).

After three months of fighting and significant gains made by the pro-Ouattara Republican Forces that headed towards Abidjan after taking control of Yamoussoukro, UN Secretary-General Ban Ki-moon asked French President Nicolas Sarkozy to authorise the deployment of French troops, in line with UN Security Council Resolution 1975 to support military operations conducted by the United Nations Operation in Côte d’Ivoire (UNOCI) to neutralise heavy weapons used against civilians and UN personnel. On 10 April, UN and French troops launched aerial attacks targeting the residence of Gbagbo, who surrendered the following day to Ouatarra’s forces and was subsequently arrested under UN protection (Security Council Report n.d.). Two days later, Gbagbo’s army chief and the national security agencies pledged allegiance to Ouattara, whom the Ivorian Constitutional Council at last recognised on 5 May as the winner of the presidential polls. Yet, skirmishes continued between factions loyal to Gbagbo and to Ouattara; since Gbagbo’s arrest, human-rights organisations have documented crimes against humanity (i.e., sexual violence, enforced disappearances, torture, and extrajudicial executions) committed by the Forces Républicaines de Côte d’Ivoire (FRCI) in Abidjan and the west of the country alongside pro-Gbagbo militias, the Dozos, and Liberian mercenaries (Amnesty International 2011).

At the time, the absence of national proceedings against those bearing the greatest responsibility for these crimes prompted the International Criminal Court (ICC) Prosecutor, Luis Moreno Ocampo, to request authorisation from the Pre-Trial Chamber to open an investigation of crimes against humanity, under article 7 of the Rome Statute and war crimes under article 8, committed in the Republic of Côte d’Ivoire during the period following the runoff election held on 28 November 2010.72 In a move consistent with this initiative, the United Nations Human Rights Council established at its sixteenth ordinary session an independent, international commission of inquiry to identify those responsible for serious abuses and violations of human rights committed in Côte d’Ivoire following the presidential election of 28 November 2010 and to bring them to justice. The commission established, on the basis of cross-checked information gathered through field work conducted shortly after Gbagbo’s arrest, that some 3,000 individuals may have perished following the presidential election (Human Rights Council 2011).

On 25 October 2011, the ICC prosecutor filed an application for the issuance of a warrant arrest for former president Gbagbo on four counts of crimes against humanity, based on his responsibility for the crimes of murder, rape and other forms of sexual violence, persecution, and inhumane acts committed as part of the post-election violence. The ICC chamber concluded that there were reasonable grounds to ascertain that pro-Gbagbo forces planned and executed widespread and systematic attacks against the civilian population in Abidjan and in the west of the country. The chamber also found reasonable grounds to believe that Gbagbo bore individual criminal responsibility as an indirect co-perpetrator of these crimes. Ultimately, the ICC justified his arrest to ensure his appearance before the court and to ensure that he neither used his resources to obstruct or endanger the investigation nor committed further crimes. Gbagbo was transferred to the ICC’s detention unit in the Hague in November 2011, and he attended pre-trial hearings in February 2013 (The Telegraph 2013).

The ICC procedures are currently ongoing, and a warrant of arrest was issued on 22 November 2012 against the wife of the former Ivorian president, Simone Gbagbo, for four counts of crimes against humanity (International Criminal Court n.d.b.). Yet, she remains in the custody of Ivorian authorities in a detention centre in the northern part of the country. Supporters of Gbagbo’s political party, the Front Populaire Ivorien (FPI), have threatened to cause mayhem if Simone, who is the party’s vice-president, or any other pro-Ghagbo leader, is extradited to the Hague (Da Silva 2013). On the other hand, Human Rights Watch criticised that the ICC’s “one-sided approach legitimized the same approach by Ivorian judicial authorities and undermined perceptions of the ICC’s impartiality” (HRW 2013b).

Despite Ouattara’s pledges to bring to justice all those involved in serious crimes and to establish national institutions to shed light and provide justice for the post-election crisis, Ivorian authorities have only detained or charged individuals from pro-Gbagbo factions so far (HRW 2013e). The country continues to face attacks by militants loyal to Gbagbo, and the military has used these security threats to justify human-rights abuses committed by their commanders who were already previously involved in serious crimes. As the UN group of experts emphasised in 2013, former rebel commanders use their key positions as top officers of the national army to engage in illicit economic activities such as extortion and smuggling (HRW 2013a). The promotion of economic interests and political power by coercive means hinders the chances for accountability for previous human-rights abuses perpetrated by both factions. In sum, the institutional framework set up to hold victimisers to account has failed to address impunity, as Ivorian courts have so far only pressed charges against pro-Gbagbo militants, while neither Ivorian nor international prosecutors have charged FRCI and pro-Ouattara militants involved in human-rights abuses and crimes against humanity.

Nigeria

After Nigeria obtained independence in 1960 from Britain, democratisation efforts were short-lived. A military coup overthrew the coalition government led by Prime Minister Sir Abubakar Tafawa Balewa on 15 January 1966. Balewa’s murder triggered rioting in his northern homeland, leading to a counter-coup by Lieutenant-Colonel Yakubu Gowon. The military ruled the country almost consecutively for three turbulent decades until 1999, when parliamentary and presidential elections were held and former dictator General Olusegun Obasanjo was sworn in as president.

Since the return to civilian rule, serious electoral malpractices have tainted all electoral contests held in Nigeria. The Carter Center and the National Democratic Institute for International Affairs sent a joint mission to the 1999 Nigerian elections; based on the findings of their observers in the field, these organisations warned in their joint observation statement that the elections had been marred “by electoral irregularities, and sometimes, outright fraud.” Most important, they highlighted that electoral reforms were necessary to “remove this corrupting strain from the new Nigeria’s political life” (Carter Center and NDI 1999, 8–9). However, substantial reforms have not occurred so far, and as observer reports highlight, irregularities and fraudulent practices remain a defining feature of Nigerian electoral contests. Moreover, a wide array of criminal practices have become entrenched in Nigerian electioneering, including intraparty disputes, clashes between rival gangs, vigilantism, godfatherism, political kidnappings, political assassinations, harassment, intimidation, acts of terrorism, vote buying, ballot box stealing, ballot stuffing, among others.73 “Do or die” electoral competition coupled with protracted communal disputes over rights, land, and resources turn Nigerian polls into violent processes.

Public authorities are unable or unwilling to tackle this situation due to widespread corruption and weak rule-of-law enforcement capacity. As a result, impunity over electoral crimes and human-rights violations prevails. In addition, members of the security forces and government officials involved in election violence are not held to account. Following the 2007 elections, the late president Yar’Adua established an Electoral Reform Committee (ERC), chaired by Honorable Justice (ret.) Muhammadu Lawal Uwais, to make recommendations on electoral reform. Among the ERC’s recommendations was the establishment of an Electoral Offences Commission to investigate and punish electoral crimes. Nevertheless, Yar’Adua’s administration refused to implement some of the key reforms proposed, such as the presidential appointment of the INEC chair, and the National Assembly never enacted the Electoral Offenses Commission Act drafted by the ERC.

The ERC underlined that not a single Nigerian had been convicted and punished for electoral offenses since the country achieved its independence in 1960 (HRW 2011a). In the aftermath of the 2007 elections, at least 300 people were killed in election-related crimes, but few people were tried. Moreover, the International Crisis Group (ICG) highlighted that little attention was paid to arresting or prosecuting those who masterminded the acts of election violence (ICG 2007, 14). A Human Rights Watch report on electoral crimes committed in 2007 accused federal institutions of working “actively to prevent individuals accused of human rights abuses from being held to account.”

The Electoral Act of 2010 made the INEC’s legal officers or legal practitioners appointed by the electoral body responsible for the prosecution of electoral offenders, to be tried in the High Court or the Magistrate Court. However, INEC lacked the resources and capacity to prosecute electoral offenders, organise the elections, and handle post-election challenges. The absence of effective reform fed societal mistrust of the system and paved the way for the outbreak of violent contestation in subsequent electoral contests (Onwudiwe and Berwind-Dart 2010; Human Rights Monitor Nigeria 2012).

In 2008, hundreds of people died following local elections in Jos, Plateau State. Military and security leaders were allegedly involved in 133 cases of unlawful killings, but no one was prosecuted. Observers judged the 2011 electoral process to be more credible and better managed than previous polls had been. Nonetheless, in the aftermath of presidential polls, over 800 people died in three days of clashes in twelve Northern States, and 65,000 were displaced according to Human Rights Watch. Although the incumbent PDP presidential candidate, Goodluck Jonathan, received a large majority of votes, the presidential candidate of the Congress for Progressive Change (CPC), Muhammadu Buhari, refused to accept the results, and violent protests spread in some Northern States. According to the Civil Rights Congress, police and soldiers systematically beat people after riots broke out in the Kaduna, Gombe, and Bauchi states (IRIN News 2011). However, even though numerous deaths were attributed to the security forces, police and military personnel have not been investigated so far, and precedents suggest that most officers involved in the clashes are unlikely to be charged in the coming years. Moreover, the INEC’s chairman, Attahiru M. Jega, admitted that despite efforts to prosecute offenders, the commission detected 870,000 cases of multiple registrations out of the 73.5 million voters registered in the 2011 elections; yet, only 270 offenders had been prosecuted by the body by mid 2012. According to Jega, these limitations justified the creation of a special elections offense tribunal, which the ERC had already proposed four years earlier, as noted above (Jega 2012; Premium Times 2013).

The federal government set up another committee to investigate the 2011 election violence and civil disturbances. The committee led by Sheikh Ahmed Lemu comprised twenty-two members, who conducted investigations in the states affected by election violence, including Kaduna, Adamawa, and Akwa Ibom. The so-called Lemu report concluded that post-election violence reflected people’s frustration with past governments’ inability to improve their living conditions and politicians’ will to win polls at all costs. The report indicated that zoning policies turned the election into an ethno-religious contest, particularly in the northern regions of the country, where people felt that the presidency should have remained in northern hands from 2007 to 2015, after the tenure of the southern president, Olusegun Obasanjo, from 1999–2007, and the death of the last northern president, Umaru Yar’Adua, after long illness, in 2010. In addition, the report raised concerns about negative campaigning and specifically mentioned that CPC candidate Buhari’s comment to his supporters “to guard their vote” was “misconstrued by many voters to include recourse to violence which they did.” Furthermore, the Lemu report stressed that the government’s failure to act on recommendations of previous investigation panels and prosecute victimisers “facilitated the widespread sense of impunity in the culprits and perpetrators of crimes and violence in the Nigerian society” (HRW 2011b).

Human-rights organisations denounce the fact that although federal and state governments establish committees and commissions of inquiry in the aftermath of election violence, their recommendations and white papers are eventually shelved. According to Innocent Chukwuma, executive director of CLEEN foundation, a civil-society group that works on justice sector reform, “panels of inquiry have become a tunnel through which the government runs away from their responsibility to bring the culprits of violence to book… going to these panels buys the government time and when the problem drops from the headlines they go back to business as usual” (HRW 2011b). The high number of petitions and court delays means that in most cases, winners are officially inaugurated before cases are resolved. Nonetheless, as Suberu underlines, “judicial review of elections—even if carried out by honest and efficient courts—cannot take the place of credible and competent electoral administration” (Suberu 2007, 104). In sum, the Nigerian authorities have failed to break the cycle of killings because electoral reforms have not occurred and those responsible for electoral crimes are not held accountable (HRW 2011b). At the same time, electoral contests are prone to violence because authorities struggle to address underlying socioeconomic conflicts rooted in class, religious, ethnic, and regional cleavages.

Zimbabwe

According to human-rights groups, widespread political violence has characterised successive election periods in Zimbabwe since 1985, while President Robert Mugabe has granted amnesty to state agents convicted of politically motivated crimes committed since the early 1990s. After the 2002 presidential polls, opposition parties, independent media, and members of civil-society groups claimed that ZANU-PF supporters, young people, and war veterans targeted polling agents and other opposition members and supporters; observers reported cases of assault, beating, arson, looting, and torture. In most cases, police took no action against those carrying out the reprisals (Vollan 2002). Amnesty International and local human-rights groups gathered evidence showing the links among the government, the ruling party, and militias responsible for numerous instances of election violence, including the abduction and torture of individuals who had worked as polling agents during the 2002 election (Makumbe 2002, 92; Amnesty International 2002).

According to investigations conducted by Human Rights Watch, up to 200 people died, 5,000 were beaten, and approximately 36,000 were displaced as a result of widespread abuses during the 2008 elections. The so-called Joint Operations Command (JOC) led by Mugabe orchestrated the violence against activists and supporters of the Movement for Democratic Change in the weeks before the 2008 runoff presidential election. No members of the security forces involved in intimidating or abusing MDC supporters were disciplined or prosecuted (HRW 2013c).

Ethiopia

The current political regime in Ethiopia gained power after the Ethiopian People’s Revolutionary Democratic Front (EPRDF) captured Addis Ababa in 1991 and overthrew the Derg regime, forcing its leader, Mengistu, to flee the country. The EPRF established an incipient system of multiparty democracy in the mid 1990s and maintains its grip on political power to this day (Smith 2007). The 2005 general elections unfolded after an unprecedented period of political openness, which enabled opposition parties, CSOs, and independent media to organise and participate in political campaigning and voter-education activities. In the aftermath of the elections held on 15 May 2005, while counting was occurring, both the ruling party, the EPRDF, and the Coalition for Unity and Democracy (CUD) claimed victory. While the minister of information and EPRDF campaign manager, Bereket Simon, announced via national media that the ruling party had won most of the parliamentary seats, CUD representatives accused the government of conducting widespread rigging. Moreover, a delay in the official announcement of results fed the widespread perception that electoral authorities were colluding with the ruling party to tamper with the results. On election day, popular protests broke out in spite of a month-long ban on demonstrations in Addis Ababa announced by the Ethiopian Prime Minister, Meles Zenawi. On 6 June, one day after university students began protests, 520 young people were arrested. Two days later, security forces killed at least thirty-six people at demonstrations in the capital city. A wave of arrests of pro-democracy activists, opposition leaders, and journalists followed, and although exact figures are unavailable given the absence of official numbers, in late June the federal police reported that 3,132 people were held at Ziway prison, near Addis Ababa. In fact, although government spokesman Zemedkun Teckle declared that anyone who was not involved in political unrest would be freed, detainees were held without trial for a long time (Associated Press 2005).

On 10 June 2005, under the auspices of the international community, a nonviolence pact was negotiated between the EPRDF and the opposition parties (CUD and UEDF). Two days later, police allegedly killed a newly elected opposition politician, Tesfaye Adane Jara, and others were put under house arrest and prosecuted (HRW 2010). As a result, opposition parties refused to abide by the nonviolence pact while their members remained in jail. Nonetheless, after donors exerted pressure, the parties, in line with the agreement, agreed with the National Electoral Board of Ethiopia (NEBE) that two new bodies would settle election complaints: the Complaints Review Board (CRBs) and the Complaints Investigation Panels (CIPs). In total, 466 complaints were filed involving intimidation, ballot stuffing, ballot snatching, and ballot boxes––including cast ballots exceeding the number of registered voters. The CRB rejected most complaints lodged by the opposition parties and accepted most complaints put forward by the ruling party. On the other hand, based on the CIP’s investigation of complaints, the NEBE decided to re-run elections in 135 constituencies. Opposition parties boycotted the re-run elections, and the ruling party won all of them. EPRDF political adversaries claimed that in the constituencies where they applied to re-run, their applications were rejected on the grounds of insufficient evidence. In addition, opposition parties protested that their members had actually been harassed out of CIP panels. In sum, they did not perceive the panels as impartial bodies, and this controversy triggered further dissent (Teshome 2009).

Security forces severely repressed the waves of opposition protests that occurred between June and November 2005. Subsequently, a commission of inquiry was established to investigate whether the security forces’ use of force was excessive and the handling of human rights was in accordance with the constitution. Over seven months, the inquiry commission interviewed over 1,300 witnesses and concluded that the government police and other security forces had used excessive force. In total, according to the commission, six security officers and at least 193 civilians were killed, and 763 were injured. Before the commission submitted its findings to the national parliament, its most prominent members, including the commission’s president, Frehiwot Samuel, and its vice chairman, Woldemichael Meshesha, left the country, claiming intimidation and harassment by the ruling party, and sought political asylum in Europe and America. Only months later, a revised version of the report was submitted to parliament, exonerating the security forces and the government of human-rights violations (Teshome 2009; Smith 2007). Those responsible for killing, injuring, or unlawfully detaining protesters and political opponents in 2005 and afterwards have not been prosecuted to date (HRW n.d.). In the absence of accountability for electoral crimes, disgruntled groups might resort to coercion to challenge EPRDF’s power in Ethiopia. Nonetheless, as Arriola underlined in his work on antigovernment protests in Oromia Region in 2005, multiparty elections in multiethnic authoritarian states can actually bring stability, at least for the short term, because they “can reveal the local distribution of political preferences making it more difficult for political entrepreneurs to convince others to mobilize when repression is the government’s likely response” (Arriola 2013, 165).

Togo

After Gnassingbé Eyadéma seized power in 1967, he ruled the country as a dictator for decades. The country experienced recurrent episodes of political violence characterised by crackdowns on opposition leaders and protesters. In 1993, thousands fled to neighbouring countries, following protests and clashes with the police. In 2001, a UN-OAU inquiry concluded that systematic human-rights violations had occurred after the 1998 presidential election. The report highlighted that the victims were mainly members of opposition parties, and perpetrators were police officers or armed groups under their control (IRIN News 2001). In 2005, President Gnassingbé Eyadéma died, and the military appointed his son Faure as President. Two months later, he won the presidential elections, widely perceived by the opposition parties as rigged. As soon as the results were announced, an angry crowd of protesters took to the streets. Hundreds died as a result of clashes between protesters and security forces, and the number of Togolese who took refuge in neighbouring Ghana and Benin in the following months surpassed 40,000 (IRIN News 2005; UN High Commissioner for Refugees 2005). On 25 May 2005, the newly elected Togolese president issued a decree to establish the Commission Nationale Spéciale d’Enquête Indépendante (the so-called Koffigoh commission) concerning the acts of violence and vandalism that had emerged prior to, during, and after the presidential election held on 24 April. The commission was empowered to take legal action against those responsible for committing violent acts and human-rights violations.

The Koffigoh commission submitted to the president a list of names of perpetrators and alleged sponsors mentioned by the victims. Over one-hundred victims joined efforts to combat impunity through the Collectif d’Associations Contre l’Impunité au Togo (CACIT), including victims belonging to the Rassemblement du Peuple Togolais (RPT), and they lodged complaints in the courts. However, the UN Special Rapporteur on Torture, Manfred Nowak, on his visit to Togo in April 2007, verified that not a single victimiser allegedly involved in election violence had been brought to justice (Action des Chrétiens pour l’Abolition de la Torture et al. 2007, 2009).

On the other hand, the High Commissioner for Human Rights nominated Doudo Diène as his special envoy to lead a fact-finding mission to report on election violence and alleged human-rights abuses. The mission concluded that human-rights violations in Togo were fed by a culture of violence based on the principle of impunity and the use of force as a means to preserve or take power, and on a gradual process of ethnic and xenophobic polarisation. The experts substantiated widespread human-rights violations, including between 400 and 500 deaths, thousands of injured, many disappearances, the regular use of torture and other degrading treatment, and the systematic destruction of goods and property. The mission found that those mainly responsible for political violence and human-rights violations were the repressive state apparatus (police, gendarmerie, and armed forces) with partisans organised by the government and the ruling RPT and, to a lesser extent, by militants of opposition political parties involved in violent attacks, looting, and destruction of goods (UN 2005b).

In 2004, the Togolese government and the European Union began consultations, by virtue of article 96 of the Cotonou Agreement, to resume development aid, which had been suspended since 1993 to press for democratic reforms. The government pledged to make efforts in democracy promotion, human rights, and respect for basic freedoms. In the framework of the national dialogue, the RPT, five opposition parties, and civil-society organisations met regularly from April until August 2006. Stakeholders committed to promote democracy, national reconciliation, and social peace and to combat impunity. Among the recommendations of the so-called Accord Politique Global was the creation of a commission to shed light on acts of political violence committed from 1958 to the present. The new body was to report on the nature, extent, and causes of political violence. Furthermore, the commission was to identify perpetrators and organisations involved in violence and human-rights violations and make recommendations to the government regarding both reparation of grievances suffered by victims and measures to ensure that those who had committed the gravest violations did not commit them again (Dialogue Inter Togolais 2009). Only in 2009 did the council of ministers pass a resolution to establish the Truth, Justice, and Reconciliation Commission (CVJR) (Ministère des Droits de L’Homme de la Consolidation de la Démocratie et de la Formation Civique 2009). The CVJR heard approximately 500 victims and gathered over 20,000 testimonies (Commission Vérité, Justice et Réconciliation 2012).

Nonetheless, opposition groups raised concerns about the reconciliation process because the institutional attempt at transitional justice did not entail criminal prosecutions of perpetrators. Hence, the lack of accountability meant that there was no deterrence against wrongdoers. The UN Human Rights Committee also stressed that independent and impartial investigations had to be conducted to shed light on the human-rights violations committed in 2005 and to prosecute those responsible. Likewise, the committee echoed the findings of the National Human Rights Commission regarding inhuman and degrading acts of violence committed against detainees and against individuals allegedly involved in plotting a coup in 2009.

The UN Human Rights Committee in 2011 and 2012 provided further evidence on the extent to which human-rights violations were committed with impunity in the country. Its reports raised concerns regarding allegations of torture and ill treatment in detention facilities and fatalities resulting from abuse in prison (Collectif pour la Vérité des Urnes 2012). Notwithstanding encouraging institutional attempts to deal with past abuses, Togo’s path towards reconciliation remains elusive because there is a lack of accountability to prosecute state actors suspected of having committed acts of political violence.

Kenya

Successive Kenyan governments have denied using informal repression and vigilante groups to secure their grip on power for more than two decades. In 1993, the government rejected evidence collected by a parliamentary report on the 1991–1993 clashes. The government also refused to release a report produced in 1999 by a commission led by an appeals court judge, Justice Akilano Akiwumi, on the ethnic clashes during 1991–1998 (Kagwanja 2003). Since the early 1990s, no high-level figures have been tried in cases of election-related violence in Kenya (Mueller 2011).

To overcome the political deadlock emerging from the troublesome general elections held in 2007, former UN Secretary-General Kofi Annan and the African Union team brokered a power-sharing agreement. Rival parties agreed that incumbent Mwai Kibeki would maintain the presidency and Raila Odinga would take the new position of prime minister. As part of the National Accord, the parties also agreed that there should be criminal accountability for post-election violence, and a Special Commission of Inquiry into Post-Election Violence (CIPEV), the so-called Waki commission, was established.

The CIPEV verified that of 1,133 individuals killed in post-election violence in Kenya, the police had initiated prosecutions for only nineteen homicides (Waki et al. 2008). Four years later, Kenya’s Directorate of Public Prosecutions reviewed thousands of pending cases highlighting the challenges in obtaining evidence, as investigations were conducted in the aftermath of abuses committed by police officers, and many victims or witnesses who tried to file criminal complaints were turned away (HRW 2013d).

The Waki commission also recommended a thorough investigation and eventual prosecution of those who allegedly masterminded the violence. In this regard, the CIPEV proposed the establishment of a hybrid Special Tribunal for Kenya that included national and international judges and staff, to try post-election victimisers. Although evidence gathered by the commission did not meet the threshold of proof “beyond reasonable doubt” required for criminal matters, the Waki commission took down “the names of powerful individuals in politics, government, business, the police and elsewhere whose capacity for interference with its evidence can neither be assumed nor dismissed” (Waki et al. 2008, 17). The names were placed with supporting evidence in a sealed envelope. Pending the establishment of the Special Tribunal, the sealed envelope was kept in the custody of the AU Panel of African Eminent Personalities, chaired by former UN Secretary-General Kofi Annan. In default of establishing the tribunal, the commission left to the panel’s discretion whether to forward the alleged perpetrators’ names to the Special Prosecutor of the International Criminal Court (ICC).

At the end of 2008, both President Kibaki and Prime Minister Odinga agreed to submit a bill to the National Assembly to set up the Special Tribunal. To this effect, Kenyan parliamentarians drafted the statute for the establishment of a Special Tribunal and an amendment to the Constitution of Kenya. Article 3 (a) of the proposed amendment bill (2009) gave the tribunal special jurisdiction to deal with “cases of genocide, gross violations of human rights, crimes against humanity and such other crimes as may be specified in the Statute, committed in Kenya in connection with the December, 2007 General Election.”74 In case of conflict or inconsistency with other constitutional provisions or national laws, the Statute of the Special Tribunal was rendered the supreme law.75 However, the Special Tribunal was not established because Kenya’s parliament voted not to adopt the amendment bill, by 101 to 93 votes, in February 2009. Five months later, the ICC Special Prosecutor, Luis Moreno Ocampo, received the sealed envelope and the evidence compiled by the Waki commission. Ocampo announced in November his decision to request authorisation to investigate the situation since all the statutory criteria were fulfilled (Office of the Prosecutor of the International Criminal Court n.d.).

Despite NGOs’ pressure in Kenya and elsewhere, to date the ICC is making slow progress in its proceedings against those criminally responsible, pursuant to the Rome Statute, for crimes against humanity (Brown and Sriram 2012). The current Special Prosecutor, Fatou Bensouda, has complained about Kenyan authorities’ unwillingness to hand over relevant documents and provide access to potential witnesses. The trial of President Uhuru Kenyatta of Kenya was scheduled to begin in February 2014, but the Special Prosecutor postponed it due to insufficient evidence after the withdrawal of two key witnesses. In addition, difficulties have also hindered the ongoing trials of Deputy President William Ruto and of Joshua Sang, Kass FM head of operations. In August 2013, the ICC issued an arrest warrant for a Kenyan journalist who allegedly bribed witnesses to drop out of the case against Ruto. According to Human Rights Watch, this case exposed the weakness of the ICC witness protection programmes (Evenson 2014). On the other hand, a lawyer representing hundreds of victims complained to ICC judges that “the prosecution has periodically made statements suggesting deliberate obstruction of access to evidence by the government, but appears not to have taken all steps available to it in relation to that.”76 On 8 October 2014, Uhuru Kenyatta became the first head of state to appear before the International Criminal Court (ICC). Nevertheless, Kenyatta was not summoned to face trial but to discuss allegations that the Kenyan government was withholding evidence against him (BBC 2013a).

The Kenyan case illustrates the present challenges in bringing to justice those in positions of power who are allegedly perpetrators or responsible for electoral crimes. Moreover, as discussed regarding the situation in Côte d’Ivoire, the international approach of prosecuting only those most responsible may unintentionally feed claims of bias by those who presume to be “witch hunted,” and may obliterate efforts to secure accountability for many victimisers involved with serious criminal offenses during the electoral period. In this regard, ICC efforts are no substitute for institutional reforms to strengthen the state’s legal mechanisms to hold political power and elected representatives accountable for their actions on behalf of the Kenyan people.

Concluding Remarks and Lessons Learned

All the case studies described above succinctly illustrate the extent to which most culprits of election violence are neither investigated nor prosecuted in the aftermath of electoral contests. Impunity is a common feature in countries most severely affected by election violence in recent years, such as Nigeria, Kenya, and Togo. The lack of accountability for electoral crimes has a twofold effect. First, it feeds the cycle of election violence by signalling to victimisers that they can continue to pursue their political goals by violent means. Second, such an environment discourages candidates and supporters who believe in obtaining power peacefully because they realize that only coercion can guarantee victory at the polls.

Alternative dispute-resolution mechanisms, such as conflict-management bodies and party-liaison committees, are increasingly used to address election disputes across Africa. Confidence-building measures help to deescalate quarrels by improving communication between party elites and electoral bodies. However, in some cases, their impact is limited because neopatrimonial agendas turn electoral contests into zero-sum games to be won by any means, including the use of violence.

In sum, developing effective strategies to achieve peaceful electoral outcomes requires soft and deep conflict-prevention measures. On one hand, electoral institutions need to strengthen their capacity to conduct electoral processes transparently and efficiently. Observation reports provide relevant data to identify pitfalls and extract lessons for improving election management procedures. In this regard, national and international efforts should focus on building autonomous, fully resourced EMBs, backed by institutional, judicial, and extrajudicial mechanisms to eradicate electoral malpractices and duly prosecute all electoral crimes. Nonetheless, electoral reform efforts can deter violence only if they are promoted alongside a broad conflict-prevention agenda targeting root causes, such as illiteracy, poverty, and extreme inequality. Ultimately, developing successful strategies at the national and regional levels to improve the living conditions of disadvantaged communities would substantially help certain African countries to run peaceful, credible electoral processes.

Lipset’s pioneering work and several subsequent studies found a correlation between socioeconomic development and the conditions for the sustainability of democracy (Lipset 1959; Wucherpfennig and Deutsch 2009). Election observation reports (2000–2011) to some extent corroborate this thesis because most middle-income countries in sub-Saharan Africa have been able to develop efficient EMBs that run regular, credible elections. Nonetheless, the project’s database also show that many lower-income African countries such as Malawi, Sierra Leone, and Benin have been able to organise elections that were reasonably credible and mostly peaceful. In this regard, Lipset warned that the consolidation of democracy depends not only on modernisation but on the effectiveness and legitimacy of the political system. From this perspective, most African political systems remain inefficient since they cannot satisfy their populations’ basic needs. As van de Walle points out, “state decay subverts genuine democracy all over the region,” and some African states such as Somalia and Guinea Bissau even “lack the minimal level of state capability that is necessary for democracy” (van de Walle 2002).

On this matter, Mkandawire suggests a need to think creatively about appropriate modes of social organisation and institutional structures so that African states can adopt a successful developmental agenda (Mkandawire 2001; Mamdani et al. 1988). I would add that only office holders who are responsive to people’s needs and interests can conduct this endeavour successfully; to this end, EMBs will continue to play a key role in organising credible elections for people’s representatives. In this respect, this study finds that greater political and financial commitments are required to support election management institutions, to implement procedures through which Africans can choose their own path to development.