Networked Justice: Preparing for the 2024 Super-Year of Elections
After Senegalese President Macky Sall suspended the country’s presidential elections three weeks before their scheduled date and moved the elections originally set to be held in February to December, the Constitutional Council, under intense pressure from all sides, declared the government’s postponement unconstitutional. Ordering the elections to be held as soon as possible, the Council upheld the rule of law in a country where many feared that the suspension of the election process would mark the beginning of backsliding in one of Africa’s beacons of democracy.
In 2024, more than one billion people will cast their votes in more than 100 elections across 68 countries. We are under no illusion that there will be significant challenges to free and fair elections. Hate speech, disinformation, illicit financial flows, and conspiracy theories on social media platforms will become even more consequential to democracy[1].
Like Senegal’s Constitutional Council, judges in Indonesia, Pakistan, Nigeria, and the United States are already on the frontline to hear political sensitive election cases to resolve pre-election disputes or to interpret election law provisions. This mega election year represents a significant litmus test for global democracy.
How do democracies withstand the storm? For one, by ensuring their independent judiciaries continue to be an effective means against attempts to undermine electoral processes and be resilient to any form of backsliding.
Over the past few years, we’ve witnessed attempts by governments in Mexico, Brazil, and Poland to undermine the guarantee of judicial independence by amending the appointment process, removing immunity provisions, and implementing politically motivated budget cuts. The executive branch in Tunisia and the Central African Republic are applying pressure to dismiss judges or force them into retirement across different jurisdictions, with sometimes little reaction from judicial associations. Election management bodies and election judges in Nigeria, Brazil, and Kenya have faced a series of attacks on their integrity including fake allegations of corruption and bias, as well as direct threats of violence.
Judiciaries are a threat to governments attempting to usurp power because courts are the final arbiters to resolve election disputes and adjudicate cases on electoral crimes.
How judges handle these disputes – ideally fairly, impartially, and effectively - is critical in maintaining public trust in election outcomes- as well as in the courts themselves. The judiciary will play an integral role in ensuring that elections in 2024 do not contribute to the increased democratic backsliding we have witnessed over the past decade. This sometimes-overlooked function goes to the very essence of providing people centered justice – to ensure that citizens are provided a legal avenue to solve their grievances and that the will of the people expressed at the ballot box is not subverted by autocrats and others seeking to seize power and subvert the rule of law.
Fortunately, in some jurisdictions we are seeing a robust response from the judiciary to navigate these difficult paths. In their detailed ruling on the 2022 election results, judges of the Kenyan Supreme Court declared, “[w]e shall dispense justice without any fear. We do this to protect the Institution not only for the present but also for the future: Judges serve their term and leave, but the institution of the Judiciary is there to serve today and for posterity.” The swift delivery of this judgement in Kenya – less than one month after the election was finished – helped avoid conflict and the transition power.
Judges have also made concerted efforts to hold bad actors accountable – and deter others from engaging in the same behavior. Kenyan judges issued a detailed judgment rebuking fake allegations and warning lawyers of code of professional conduct breaches, which could lead to disciplinary or criminal sanctions. Judges in the US and Brazil imposed sanctions – ranging from pecuniary fines to bans on running for office for up to 8 years - on lawyers and political parties for filing frivolous claims[2].
These are good examples but the very fact of judicial independence – meaning both the independence of the judiciary as an institution from the legislature and executive as well as the independence of each judge in their own courtroom – which is a bedrock of the rule of law, means that judges and the judiciary can be easy targets for attack. Individual judges can become isolated from the support needed deal with attacks on them, while the judiciary as an institution usually is not allocated sufficient human and financial resources to resist attacks from the executive – particularly when supported by malign foreign actors.
To overcome their isolation, more needs to be done to share good practices and lessons between judges at both the regional and global level. Some good examples of this include during the 2022 elections in Brazil, when members of the Global Network on Electoral Justice (founded in 2017 as an international collaborative forum for judges, EMBs, and academics involved in electoral disputes to exchange knowledge) traveled to Brasilia to observe the process and offered support and shared good practice on deterring and addressing violations. We at IFES have helped support these meetings and have observed the effectiveness of the learning that comes from them.
The judiciary also increasingly needs to engage with the public to explain the issues they are facing and the rationale for their decision. This dialogue is crucial to also better understand people’s struggle to effectively access justice – particularly marginalized people who are often excluded from wider democratic processes. Judiciaries need to seek allies among the public and civil society to enhance the understanding of the challenges the courts face, particularly when confronted by attacks on their integrity both before and after contentions rulings.
One of the elections the whole world will be watching in 2024 is the U.S. presidential election. In past years, election management bodies from around the world have been invited to observe, share lessons and learn from the election process in the U.S. This lesson learning should also be extended to judiciaries who are keen to see how the courts in the U.S. will be preparing for and responding to what may very well be another highly contested election.
It’s time to recognize the critical role of judges in defense of democracy. Support from the wider international community, including the United Nations and its mechanisms, regional institutions, and the community of legal practice, can help raise awareness or create incentives to curb these attacks. To respond to the threats the UN Secretary General has raised, the international community needs to increase support to the judiciary as an essential investment in the rule of law, political accountability and democratic resilience.
1. Opening of the 2023 UN General Assembly, UN Secretary General Antonio Guterres warned, “Democracy is under threat. Authoritarianism is on the march. Inequalities are growing. And hate speech is on the rise.”
2. The Guardian. Brazil Judge Fines Bolsonaro. 2022 ; Matter of Giuliani, 197 A.D.3d 1, 146 N.Y.S.3d 266 (2021).
