Judicial proceduralism: the application and exploitation of the substantiality rule in presidential election petitions in Africa

Abstract

Presidential candidates who have faith in judicial supremacy often turn to the courts for redress when they lose presidential elections, because the courts often rely on technicalities and the substantiality test to determine the elections. One such technicality is the substantiality test. This paper examines, with the use of selected examples, the application and exploitation of the materiality, otherwise known as the substantiality test, by courts while adjudicating presidential election petitions in Africa. The paper first examines the meaning and origin of the substantiality test before venturing into the legal and constitutional provisions for this rule in selected countries. The paper then turns to the key Supreme Court decisions on presidential election petitions in Africa, focusing on evaluating how the substantiality test has been applied or misapplied. Finally, the paper examines legal and policy implications before making the concluding remarks.