Held on 25 February 2026
Free and fair elections remain the backbone of democratic governance. Yet across East Africa, elections have repeatedly generated disputes that test not only legal systems, but also public trust, political stability, and national cohesion. In countries such as Kenya, Uganda, Tanzania, and Rwanda, electoral contests have at times been followed by litigation, institutional strain, political tension, and even violence. Against this backdrop, the question is no longer whether electoral disputes exist, but how best to resolve them in ways that preserve peace, uphold rights, and sustain democratic legitimacy
In the webinar on electoral dispute resolution in East Africa, the discussion focused on whether alternative dispute resolution (ADR) mechanisms, such as mediation, negotiation, conciliation, arbitration, and alternative justice systems (AJS), could strengthen the handling of election-related disputes across the region. The conversation was anchored in the East African context, where elections have often been accompanied by legal contestation, political tension, and, in some instances, violence. The panellists, Ms Lucianna Thuo, Mr James Tugee, and Ms Serah Gathoni, all agreed that ADR had an important role to play. They also stressed that its place had to be carefully defined within constitutional and electoral frameworks.
Institutionalisation of ADR
At the start of the discussion, Mr Tugee stated that electoral dispute resolution should indeed be institutionalised within formal legal systems. He explained that ADR was already recognised to some extent within existing frameworks, giving the example of the Political Parties Disputes Tribunal in Kenya, where parties are often encouraged to pursue mediation at an early stage, especially in internal party disputes. He suggested that because ADR can, in some cases, achieve outcomes more effectively than adversarial litigation, it should be formally integrated into electoral justice processes. In his view, the answer, plainly, was that it should be institutionalised.
Ms Lucianna Thuo agreed that ADR should be institutionalised, but she qualified that view by insisting that it had to be done with a strong understanding of context. She underscored that not all countries or disputes receive ADR in the same way: both the political and legal environment of a country matter. She observed that in Kenya, although many general disputes are resolved outside the courts, most electoral disputes are still handled within the formal judicial structure. By contrast, she noted that in Tanzania, where presidential election disputes cannot be taken to court in the same way, ADR has had greater relevance. She argued that institutionalisation was useful because it creates clarity on what ADR is for, who can access it, how it connects with other mechanisms, and how far it can go. She also said that institutionalisation builds trust because it reduces ad hoc decision-making and allows for better planning, resourcing, and ownership.
Ms Sarah Gathoni also supported this, stating that elections are legal processes with political consequences, and that this means that disputes arising from elections must be handled in ways that preserve democratic stability without undermining constitutional supremacy. She argued that when ADR mechanisms are properly designed, they can protect public confidence in the electoral process and help de-escalate tensions that arise from election conflicts. In her contribution, she aligned herself with the broader view that ADR has value, but only when it is carefully designed within an election-sensitive framework.
As the discussion developed, Ms Thuo gave one of the clearest policy formulations in the webinar. She said that any serious policy for integrating ADR into electoral systems should begin by distinguishing between pre-election and post-election disputes. She explained that most post-election disputes concern the rights of the entire electorate and the wider public, rather than only the immediate litigants. Because of that, she said those disputes are not suitable for mediation or informal settlement in the ordinary sense. In her view, once election results have been declared, especially where public office and the will of the electorate are in issue, the law generally requires those disputes to be handled through formal judicial processes. She stressed that elections are not merely events but processes; yet even so, the dividing line between pre-election and post-election remains fundamental for determining what ADR can and cannot do.
On the other hand, she highlighted that mediation had worked relatively well across jurisdictions in pre-election settings because of its informality and flexibility. She contrasted mediation with arbitration, noting that arbitration leads to binding decisions, which many stakeholders find less attractive in the electoral context. She said that if East African countries were to adopt mediation more deeply, they would need formal registries to track the number and nature of mediated disputes, trained personnel, and clearly defined structures showing who may participate, what decisions may be made, and how records are kept. She warned that weakly-designed systems undermine trust and cited the Kenyan experience of peace committees, which were supposed to be mediative but had at times issued punitive outcomes. For her, this showed why training, role clarity, and record-keeping matter.
Alternative Justice Systems (AJS)
Esther Mwangangi, the moderator, raised the possibility of employing AJS, particularly at the community level, Ms Thuo responded that these too had a role, but only within carefully limited boundaries. She stated that electoral law already defines the kinds of disputes that count as electoral disputes, and that AJS cannot simply be used for anything. She explained that once election results are declared, post-election disputes are effectively outside the realm of ADR because they concern the public interest and the whole electorate. However, she added that certain pre-election matters, especially those arising under the Electoral Code of Conduct, could be suitable for AJS. She mentioned issues such as campaign rule violations, misuse of party names or images, hate speech, false information, and disruption of rallies, as examples of matters that community-based or informal dispute mechanisms might address.
At the same time, she was firm that some matters should never go to AJS. She spotlighted disputes involving constitutional rights, exclusion from candidature, or the interpretation and enforcement of the Bill of Rights, as disputes which must go to the High Court. She used the examples of disputes over Article 38 (political rights) and the attempted dissolution and merger of political parties, explaining that these raise wider constitutional issues that cannot be handled through alternative justice systems. She also maintained that anything involving public interest, systemic concerns, or rights under Chapter Four of the Constitution required definitive judicial determination. In simple terms, she stated that AJS may help in certain practical and local disputes, but not in matters where the Constitution had already assigned jurisdiction elsewhere.
Power Imbalance
On the question of power imbalances, Mr Tugee averred that ADR could both help and/or harm, depending on the context and the nature of the process. He explained that sometimes ADR is discussed because people want a less hostile way of resolving disputes, especially minor pre-election disputes. But in post-election settings, he held that ADR often emerges because of a lack of trust in formal institutions. He cited Kenya's 2007 electoral crisis as an example, arguing that a primary reason necessitating ADR was the opposition's mistrust of the legal system and its ability to produce timely and fair justice. He recalled that the older petition process was too slow and procedurally difficult, making it ineffective as a real remedy.
However, he added that where a judicial system is functioning reasonably well, as he believed Kenya's Supreme Court has attempted to do since 2013, formal litigation is preferable for major post-election disputes. He opined that an independent judiciary with security of tenure is generally better positioned to determine such disputes than informal actors. Still, he cautioned that if a judiciary is not independent, ADR may become more attractive, especially if it involves international actors who are less easily influenced by those already in power. He then warned that if ADR is run by individuals or institutions vulnerable to local political pressure, it can reinforce existing inequalities, allowing dominant actors, wealthy candidates, or ruling parties to influence outcomes. Mr Tugge argued that if ADR is to be encouraged, the law must take these imbalances seriously and provide safeguards, including careful selection of decision-makers and processes that are less vulnerable to outside influence.
Enforceability of ADR mechanisms
When asked about enforceability, Mr Tugee admitted that this is a general challenge for ADR. He observed that some mechanisms, such as arbitration, can lead to binding and enforceable awards; although he did not think arbitration was especially valuable in electoral disputes because a judge might as well make a binding determination. He stated that when one speaks of ADR in electoral matters, one is usually referring more to negotiation, mediation, or AJS, all of which depend significantly on goodwill. He explained that many such processes are effective because the parties, the electorate, or the community accept the settlement and informally enforce it. He gave the example of negotiated democracy in parts of northern Kenya, where elders and communities may agree on who should run for certain positions. While these agreements may not be legally enforceable in the strict sense; they often carry social force as the community believes in them.
He again referred to Kenya's 2007 crisis, saying that the agreement brokered at the time only became truly enforceable after it was transformed into legislation. Mr Tugee explained that ADR may begin as a political or mediated settlement, but it gains legal authority only when it is formally incorporated into the legal system. For him, this demonstrated that ADR outcomes can be important, but they often need legal recognition to achieve the same force as a court-backed arrangement.
Conflict transformation
On conflict transformation, Ms Gathoni drew from her research and explained that mediation should not be seen merely as a tool for ending disputes, but also as a means of addressing deeper relational and historical tensions. Referring to conflict transformation theory, she explained that some disputes, especially around party nominations or representation, may reflect wider ethnic or communal divisions. If such disputes are mediated early, before they escalate, the process can reduce hostility between groups and prevent local disagreements from becoming broader communal conflicts. Her view was that ADR, especially mediation, can help transform the conditions that make electoral disputes more dangerous, particularly at the pre-election stage.
At the same time, she acknowledged that many post-election disputes remain unsuitable for mediation. She asserted that the law and courts must be left to handle heavily procedural disputes, such as those involving ballot stuffing, vote counting, or transmission of results. In such cases, there is little room for mediation as the issues are tied to legal standards and constitutional interpretation. In that respect, she agreed with the distinction earlier drawn by Ms Thuo between disputes that can be de-escalated politically and those that must be judicially determined.
The 'Handshake'
The panel also addressed the now-familiar issue of the handshake and elite bargaining in Kenyan politics. Mr Tugee held that such arrangements were both useful and dangerous. He argued that on one hand, they can allow the government to function and reduce unrest; on the other, they can weaken constitutional structures by collapsing the distinction between government and opposition and by leaving too much reliance on the judiciary to check a broad political coalition. He suggested that one reason these handshakes happen is that a candidate who comes in second in a presidential election may still command support from nearly half the country yet hold no formal office. He advised that one possible response would be to create a formal office of Leader of the Opposition, so that strong opposition is institutionally recognised rather than informally negotiated.
Ms Thuo responded to this point by agreeing that handshakes may create temporary stability, but she warned that they also create incentives for undermining the government after elections, to negotiate power. She held that this kind of elite bargaining risks subordinating public interest to the interests of the political class. In her view, these arrangements often fail to reflect the constitutional vision of a multi-party democratic state and instead reinforce exclusion and elite control. She pointed to the way political discourse around coalitions often centres on positions and power rather than on the benefit to citizens. Her position was that negotiated democracy and elite bargaining can undermine the constitutional promise that citizens, not elites, should determine governance outcomes.
Role of Regional Economic Communities
According to Ms Thuo, regional bodies, such as the East African Court of Justice and regional economic communities, can play a useful role, especially where domestic systems are closed or weakened. She argued that regional mechanisms help facilitate dialogue and create external pressure for internal reform. However, she was also realistic about their limitations: regional courts are constrained by treaty mandates, and the enforcement of their decisions often depends on political will. For that reason, she did not present them as substitutes for strong domestic institutions. Rather, their greatest contribution lies in applying political pressure and the ability to signal that unresolved electoral grievances do not simply disappear at the national level.
Neutrality and confidentiality
Finally, on neutrality and confidentiality, Ms Gathoni affirmed that election disputes are not ordinary private disputes because they affect constitutional order, public confidence, and the sovereignty of the electorate. She therefore argued that while confidentiality may be useful during negotiations, it cannot be absolute in electoral matters. Final settlements should be transparent, documented, and open to public scrutiny, and where necessary, subject to judicial confirmation so that they become public law instruments rather than private bargains. She also argued that mediators in electoral disputes need specialised skills beyond ordinary commercial or family mediation. In her view, they must understand election law, the timing and stages of electoral conflict, the limits of ADR, and how to manage politically sensitive parties and disputes.
Conclusion
Taken together, the panellists presented a nuanced position. Mr Tugee argued that ADR should be institutionalised because it can resolve some disputes more effectively than litigation, but he stressed the need for safeguards against coercion and imbalance. Ms Thuo argued that ADR has value, especially before election day, but insisted that public-interest and post-election disputes belong in formal judicial forums. Ms Gathoni argued that ADR can protect democratic stability, de-escalate tensions, and transform underlying conflict, but only when used within constitutionally-appropriate limits. Across the discussion, the shared message was not that ADR should replace courts, but that it should complement them carefully, lawfully, and contextually.
Prepared by Megan Tess Anduru, Chair of the Webinar Committee, the ADR Club and Pereso Cornelious, Member of the ADR Webinar Committee.
Webinar link: (https://youtu.be/lqfB8wvpDMM?si=gaCOaq1qubnKqhIZ)