IFES Practitioner Brief on Alternative Dispute Resolution in Elections The Political Parties Dispute Tribunal (PPDT) in Kenya is composed of judges responsible for adjudicating inter- and intra-party disputes related to party nomination. The PPDT revised its regulations in preparation for the 2022 elections and is now offering mediation to disputants on a consensual basis. If ADR fails, the PPDT will hold a hearing and decide the case. The goal of offering mediation is to limit lengthy court proceedings and encourage parties to settle their intra-party disputes rather than involving judges in internal party politics. It is an initiative that, if successful, could present an example of judge-led mediation in electoral matters and expand to other pre-election complaints filed before the judiciary, such as hate speech or campaign-related disputes. A novelty of the 2022 election is that the Parliament amended the Political Parties Act to provide that the complainant should first attempt to raise disputes with the internal dispute resolution party mechanism prior to filing a dispute with the PPDT. 89 For post-election disputes, Senegal features the use of mediation techniques by election officials, candidates’ representatives, and judges during the verification and tabulation of results. The consensus-building techniques used by judges in their supervision of the results process enhance acceptance of the results by all candidates. The former president of the Senegalese Appeal Court noted that the low level of petitions filed against the results with the Constitutional Court since the introduction of this procedure shows the success of the procedures. Aside from the Senegalese example, the use of mediation by judges at the time of tabulation of results remains rare. But the reduction in post-election disputes filed before the courts may encourage EMBs or courts to adopt similar mediation procedures before publishing the preliminary results. In Malawi, the civil procedure rules provide for ADR. While they support EMB led ADR mechanisms, some legal election experts interviewed by IFES expressed some skepticism about how these rules could be adapted to preelection disputes by the courts. Some judges and electoral experts expressed concerns about judicially led mediation because of the need for speedy adjudication and voters’ difficulties in accessing the courts for mediation. The legal director of MEC stated, “A court-led ADR process could defeat the true nature and purpose of ADR in pre-polling matters, which call for promptness in bringing the parties in dispute together.” Courts are already facing an important backlog, and therefore introducing ADR in the election courts would create an additional burden on the judiciary to manage these ADR proceedings and will likely not lead to timely mediation. While judges appeared mostly supportive of the introduction of ADR in their courts during the Africa Electoral Jurisprudence Network consultation, others raised concerns about the timeliness of the mediation process and its impact on the election process. This divergence of opinions shows the need for a clear timeline in the pre-election phase to determine disputes—whether through the formal or informal resolution mechanism. The lack of a legal framework for ADR in elections may be another reason why so few judiciaries have introduced or piloted mediation in election disputes. While an EMB may be more used to flexibility and adaptability in its operations due to the broad nature of its mandate, it is more difficult for the judiciary to operate or pilot a mediation project without a clear legal framework. Discussing judicial mediation in Ukraine, a Council of Europe policy paper noted that some judges piloted mediation projects by drawing on the support of the presidents of their courts and general provisions allowing for settlement of a case, but emphasized that, “… many judges stated that they would feel more comfortable The law used to state that the complainants were required to exhaust this internal remedy first. But in practice, they were either not aware of this requirement, or their application remained unanswered. This practice created a challenge for the PPDT when assessing the validity of the dispute. 89 40