Women in Court-Led Mediation for Pre-Election Disputes: ADR, Democracy, Gender Equality, and Access to Justice

Fair, competitive, and inclusive elections are pivotal to the quality of democracy. While challenges to results are most likely to make the news, electoral disputes at every stage of the process significantly burden election judges, who must adjudicate these claims fairly and efficiently. If they do not, the credibility of the elections, acceptance of the results, and stability of the country may all be at risk.

Recent elections in Africa illustrate this challenge. Election judges faced tight deadlines to address inter- and intra-party election disputes over nominations, hate speech, and allegations of political and gender-based violence. Unfortunately, formal electoral dispute resolution (EDR) bodies are not always accessible. Women candidates, who are underrepresented (and often unsupported) within their parties, have difficulty accessing electoral justice. This can contribute to the broader absence of women leaders throughout political and public life.

Similarly, women in positions of power in the justice sector remain low across Africa. Although four in ten judges are women — a statistic that suggests judiciaries are approaching parity — women judges are frequently appointed to lower court positions and more remote rural courts. It is challenging for women judges to be assigned to settle electoral disputes when they are not provided the opportunities to strengthen their skills to advance in their roles.

An impartial, independent, and effective EDR system that considers women's needs, experiences, and perspectives can promote citizens' trust in justice services, address gender bias and discrimination, and increase womens' willingness to enforce their rights. An EDR system that reflects the image of the people it serves can ensure that fundamental political rights, the integrity of elections, and the rule of law are protected.

The International Foundation for Electoral Systems (IFES) has long supported electoral management bodies (EMBs), civil society, and courts to strengthen the adjudication of election disputes, including through alternative dispute resolution (ADR) mechanisms, in order to provide access to peace, justice and effective institutions. ADR methods are one potential solution to help minimize political instability or election-related violence and assist peaceful government transitions. ADR can be useful in fragile and post-conflict states; in new democracies where election disputes must be resolved quickly to avoid violence; or where "the legacy of decades of tyranny, dictatorship, absence of the rule of law, abuse of human rights, and war can lead to a fundamental mistrust of the legal system by citizens." Introducing ADR mechanisms into the judiciary for pre-election disputes could also contribute to making justice more people-centered, allowing voters, parties, or candidates, especially women, with election grievances to mediate disputes quickly rather than going through lengthy and potentially intimidating court action.

As stressed by Justice Maria Mapani Kawimbe of the Zambia Constitutional Court: "A lot of issues can be effectively disposed of through ADR during the pre-election phase through mediation…. the process and mandate should be adequately explained to the voters to avoid misperception about the mandate of the ADR body."

The practice of ADR to address pre-electoral disputes within the judiciary remains rare. Senegal, Kenya, and Nigeria have the few court-led processes. However, EMBs and election judges showed greater interest in further exploring this mode of resolution for pre-election disputes. Where mediation is conducted by a well-designed and trained quasi-judicial or judicial body to resolve certain types of pre-election disputes, it could lead to greater community engagement, enhance the role of women, and reduce burdens on the courts and the EMBs.

Judges are the final arbiters of post-election disputes and are also crucial to the pre-election phase. Dedicated women judges, whose presence enhances the legitimacy of courts, are advocating for innovative practices to improve the effective, timely, and transparent resolution of election disputes. For example, the Honorable Justice Monica Bolna'an Dongban-Mensem, President of the Nigeria Court of Appeal, has led the charge to promote mediation and other ADR mechanisms to resolve disputes in the Nigeria Court of Appeal.

ADR in elections in Nigeria

Nigeria is a highly litigious society with a history of costly and lengthy election petition proceedings. Justice Dongban-Mensem identified the need for ADR in the Court of Appeal: "I saw that many of the cases were crying out for ADR…a lot of parties were one leg in, one leg out" of the traditional proceedings, opening the judiciary to abuse and frivolous cases.

During the period before the 2023 general election, 304 justices of the Court of Appeal handled over 800 pre-election petitions. The court had previously raised the idea of implementing ADR. ADR is not unusual for legal professionals in Nigeria; it aligns with the traditional dispute resolution methods. Despite this, ADR was not immediately accepted. Justice Dongban-Mensem felt that the Court of Appeal had "waited too long." While pre-election cases were ongoing, some for up to a year, all other appeals cases in the country were at a standstill, adjourned until the election judges had completed the election petition tribunals. She recalls: "It was desperately needed to consider using ADR now."

Justice Dongban-Mensem's persistence paid off. The Court of Appeal Mediation Centre, launched in 2021 as the first in West Africa, received political parties that opted to address intra- and inter-party disputes before the 2023 general elections. The process, led by Justice Elfrieda Williams-Dawodu, was the first time in Nigerian general elections history that the courts offered mediation to resolve pre-election matters. Justice Dongban-Mensem hopes that "as election matters come and tribunals dole out judgments, parties will think of their alternatives and consider the [Court of Appeal] Mediation Centre."

Mediation, according to Justice Dongban-Mensem, brings about "harmonious solutions." "Mediation occurs in an informal process that allows privacy and equalizes power among the parties…The person who wants to take it all is often willing to compromise and let go of some things. The person afraid of losing everything walks away with something. The mediation process reduces the acrimony and bitterness [that usually comes with elections]." Using ADR to resolve pre-election intra- and inter-party disputes could also defuse the politicization of the court. "If you mention ADR in court, you're accused of taking sides. However, when you talk about the benefits of mediation and conciliation in the Mediation Centre, parties take the process more seriously."

Justice Dongban-Mensem believes more resources are required to make mediation the logical alternative in election disputes. She would like to see the Court of Appeal Mediation Centre have its own personality and stand on its own. Most importantly, she would like to raise awareness of mediation among lawyers and judges, including through vigorous training and reaching out to law schools to incorporate mediation and conciliation in their moot courts and other programs.

ADR in elections in Kenya

While judicial mediation in election disputes is new in Nigeria, it has been used in Kenya for pre-election-related disputes. In preparation for the 2022 elections, the Political Parties Dispute Tribunal (PPDT) – a quasi-judicial body mandated to address intra/inter-party, party lists, or party nomination-related disputes – clarified its procedure to allow for a conference meeting to determine the possibility of ADR after the close of pleadings. The PPDT also established decentralized panels in seven regions and offered litigants an avenue to file complaints online and access virtual hearings, thus increasing access to justice for the 2022 elections. Kenya's voters, candidates, and political party agents welcomed these open panel hearings at the regional level, allowing them to observe the adjudication process and build trust in the outcome. Moreover, out of the seven permanent PPDT members, four were women, including the chairwoman. Despite the limited use of this procedure in previous elections, the PPDT provided women candidates participating in party primaries an opportunity to mediate claims at the local level before women-led panels quickly.

Increasing the Role of Women Mediators and Enhancing Access to Justice

ADR mechanisms like those in Nigeria or Kenya could lead to opportunities in other countries to appoint women as mediators and enhance access to justice for women candidates or party members aggrieved in the election process.

In the context of an increased role of judges in elections, we could reflect on the words of Justice Kawimbe mentioned earlier. Introducing ADR in elections can allow women like Justice Dongban-Mensem and Justice Williams-Dawodu to strengthen their role as advocates of and participants in court-led mediation for pre-election disputes. The increased visibility of women in senior judicial positions may encourage women to raise their claims, feel less intimidated, and make the process more sensitive to the needs and experiences of women. The introduction of ADR, representation of women, and consideration of women's disputes will enhance the quality and fairness of the overall election dispute resolution process.