BOOK SERIAL
By Chidi Anselm Odinkalu
A Democracy in the Hands of the Judiciary To be sure, courts always have a legitimate role in the democratic process, and this was so well before Nigeria embarked on the experiment in presidential politics. The electoral process everywhere is established by law and the courts exist to interpret law. Ideally, the rules that govern elections should be determinate and determined by the courts while the outcome of elections should be indeterminate until the votes are cast and counted. In Nigeria, however, the cone has been inverted so that the courts ensure that the rules are indeterminate in order that the outcomes can be pre-determined. Some of the landmarks on the path to this destination deserve to be charted.
First, the courts – contrary to the decades-long counsel of both Anthony Aniagolu and Bolarinwa Babalakin – granted themselves powers over electoral arithmetic to add and subtract votes to pick, choose and determine who to declare winner or loser in elections. As we have already seen, this thread of jurisprudence evolved in a line of cases that originated in Anambra State with Ubanese Igbeke and the Uba Brothers as the pioneering exponents.
A defining landmark in this trajectory, however, was the decision by the Court of Appeal in March 2006 rightfully striking down the declaration of Dr Chris Ngige in the 2003 election as the governor of Anambra State. In its judgment, the court recomputed the numbers declared by the INEC and found that Peter Obi had indeed won the election. On the facts, the judgment looked unimpeachable. No one could question the powers of the courts to strike down an outcome procured by electoral debauchery. What this case also did was to establish that the courts could compute electoral arithmetic with greater finality than the INEC. The courts were to exercise this power subsequently in governorship elections in Ondo, Ekiti and Edo states ostensibly to check a perception of habitual abuse of the electoral process by the then ruling PDP.
Second, following the 2007 presidential vote, a dispute ensued over the question of whether an election organised with non-serialised ballot papers was compatible with the principles governing the conduct of a credible election under the Electoral Act. This time, the majority of the court complained that the word “principles” in this provision was “vague, nebulous and large” as well as confusing. It decided that there was no problem with organising an election with non-serialised ballot papers and held that “non-serialisation, if it had benefits and advantages, was not exclusive to the respondents.” In other words, the court set up a practically impossible standard of proof, requiring anyone complaining in these circumstances to prove that non-serialisation benefited one party more than the other.
In actuality, the court did not have to struggle to realise that by affording a judicial stamp of approval to alleged elections without serially numbered ballot papers, it was about to reorder the landscape of elections and to wilfully destroy the people’s will as the foundation of legitimate government. It should be evident that if ballot papers are not serialised, it is impossible to control in such circumstances for ballot contamination, all but licensing ballot-stuffing. The question of whether any party has benefitted from the failure of serialisation should, therefore, not arise in the first place. In validating the 2007 presidential election in this manner, Nigeria’s Supreme Court did not just miss an opportunity to define normative values to underpin electoral governance; it effectively legalised ballot contamination, ballot stuffing and elections without rules.
Third, in May 2019, the Supreme Court ruled to confer the mandate to govern Zamfara State in north-west Nigeria on a person who had been hopelessly beaten into second position, losing in every local government area in the state. It held that the votes of the winning candidate were “wasted votes” because of some pre-election infraction connected with party primaries. Now, votes are the only currency of the democratic process and a judiciary committed to upholding the people as the source of legitimacy in a democracy will not venture a jurisprudence that consigns any votes to the dustbin, but that is exactly what the Supremes ordered. Following on this line of jurisprudence, Nigerian judges now appear gleeful in treating the votes of millions of Nigerian voters as “wasted,” affording them the opportunity to substitute their own predilections for the will of the voters without a pause to consider the consequences.
Fourth, in January 2020, the Supreme Court nullified the election of Emeka Ihedioha as governor of Imo State, replacing him with a man who had been well beaten to fourth place in the election. To accomplish this, the court substituted the computation of the INEC in this case with that of a rogue police officer who claimed to have the true and authentic results of the ballot. Miraculously, those rogue results just happened not to have been available to any others except the person for whom six Justices of the Supreme Court (none of whom was registered to vote in Imo State) cast their votes. In this decision, the Supreme Court effectively ruled that when it suits them, the courts could usurp or retrench the INEC as electoral umpire.
The cumulative effect of these judicial decisions is essentially that judges dismantled the incentive systems that underpin the democratic process in rational relationships between the mandate to govern and the welfare of the people. In the new logic invented exclusively for and by judges, it is now routine to organise an election without candidates; undertake voting without ballot papers; administer an election without the INEC; and produce winners without the votes of the people. In the end, the judges make the final call retrospectively as to the winners and losers with no regard for the will of the people or indeed to any rules except their subjective say-so underpinned by no coherent set of principles or norms. Under the influence of this new logic, Nigeria’s electoral jurisprudence became entirely situational. This in turn created an open market in the buying and selling of judicial decisions on election disputes. Chapter II of the constitution may have instituted the people as the electorate, and section 13 thereof requires all branches of government to comply with that. Defying these stipulations, however, Nigeria’s judges invented for themselves an exceptionalism from the constitution and remade the rules to install themselves above the people as the unquestioned “Selectorate”.
Judicial Selectoralism
In the beginning, judicial intervention in candidate selection and election outcomes appeared to enjoy some support, perceived largely as a counterweight to rogue election results that were widely regarded as heavily manipulated by the then ruling party or politicians. Indeed, one body of opinion took a sanguine view of the early immersion of Nigeria’s judges in political and election dispute resolution, describing it as “an instrument of democratic advancement and stability.”
In the years since that opinion was offered, however, it has now become evident that this development “has grave consequences for competitive electoral politics in the country,” and has the effect of being “likely to contaminate and detract from the credibility of competitive elections and electoral governance generally.” Even judges at the highest levels now complain that
“the entire Nigerian judicial system is inundated with electoral litigation and adjudication almost all year round,” which are “taking a monumental toll” on the courts.
The exponential growth in the interposition of judicial intervention to decide winners and losers of elections altered the calibration of incentives in political competition. Inherently, this appeared to encourage political competitors to shift attention and resources to influencing the judiciary in post-election litigation rather than convincing the voters before that. The judiciary has thus been accused of institutionalising “rigging through the courts,” and of undermining the faith of voters in the democratic process. Another expert has described the country as “a democracy in the hands of the judiciary.”
The result is a relocation of the site for the determination of election outcomes from the polling booths and collation centres run by the INEC to the courts presided over exclusively by judges. This showed in the growth in the scale of election dispute resolution as a judicial industry. In 2007, for instance, Nigerian courts through the election petitions process determined 1,299 petitions out of 1,496 offices (86.35%) available to be contested in elections. This number fell to 769 or 51.4% in 2011 and to 663 or 44.32% in 2015. After the departure from office of the leadership of the INEC that delivered the 2011 and 2015 elections, the number of contests decided by the courts rose again to 811 (54.4%) in 2019, and then to 1,209 or 80.82% in 2023.38″ These numbers reflect first instance proceedings in election petitions, excluding appeals, and suggest the existence of a system of electoral legitimacy nearly reliant in its entirety on the machinations of the judiciary.
To be sure, this re-engineering of incentives in elections was long in the making. The Babalakin Commission of Inquiry reported as far back as the dispute resolution process that followed the 1983 elections, the existence of a public perception which viewed some of the verdicts from the courts as “a rape of democracy perpetrated through the law courts” with attendant “allegations of corruption in high places.” The imputation of undue externalities in judicial decision making in this context even then was unmistakable.
In 2009, a senior beneficiary of the judicial re-engineering of the incentive system in electoral outcomes summed up the implications in a narrative of five “mini-gods” and “the godfather” who must be “appeased” for electoral success in Nigeria. He listed these as the INEC, security agencies (including the police and the military), political “thugs and bandits,” the judiciary, the “Money God” and the “Godfather complex” and characterised them together as useful “analytical categories in explaining why elections go the way they do in Nigeria with unpopular candidates ’emerging’ as ‘winners’ in questionable elections.”
It is notable that in the implicit hierarchy of this taxonomy, judges are located between the money god and the thugs and bandits. Even more notable is who is missing from this list – the voters or the people. As sources of electoral legitimacy and mandate for office, the people have first been eviscerated and then usurped and supplanted by the judges. As politicians discovered suddenly that it was possible to become the winner of an election without necessarily being the choice of the voters, they turned their attention to the officials who have the last and only effective say in making them successful — the judges.
One more implication of this is that it stretches the electoral season in Nigeria beyond campaigns, voting, collation and declaration of results by the INEC. This, therefore, makes elections a lot more expensive than usual. It also gives politicians incentives to divert public resources away from the public good to amass the financial war chest needed to purchase the cost of entry into political contest. In a manner of speaking, the real fun and games, therefore, begin after the conclusion of those rituals with the onset of the dispute resolution season. As this writer has summarised elsewhere:
Every election cycle in Nigeria has three seasons. The campaign season belongs to the parties, the politicians, and godfathers. This is followed by the voting season, during which the security agencies, thugs, and the Independent National Electoral Commission (INEC) hold sway. Thereafter, matters shift to the courts for the dispute resolution season, which belongs to the lawyers (mostly Senior Advocates of Nigeria, SANs) and judges. All three are separate but interdependent.
Consummating the “most perfect” scenario foreseen by Stanislav Andrzejewski at the beginning of this chapter, it seems that Nigeria has managed to achieve that situation in which the two things that should never be bought and sold in a democracy – the mandate to govern and the credibility of the courts – are now on auction to the highest or best-connected political bidders in the country. As a result, the judiciary — having wrested ultimate sovereignty from the people – has become widely seen as denuded of its constitutive claims to independence, integrity and trust. For their part, the politicians on whom they now choose to confer the mandate through judicial transactions sanctioned by the courts have increasingly lost the legitimacy and credibility to govern.
The outcome is a country in deficit of capable institutions and of accountability. Fulfilling the dystopian predictions of Paul Collier, being a crook has become the standard person-specification for a successful politician and an overwhelming capability to purchase and corrupt the system, the standard method. The judiciary, supposedly the arm of government best equipped to ensure consequences and levy accountability, has itself become the place where accountability goes to die. This can happen in two ways. One is by creating a jurisprudence that actively discourages accountability. The other is through engineering a capture of the judiciary. The next two chapters address these two in that sequence.
