Dear Chief Justice of Nigeria,
Like many other observers, I read with interest your latest intervention at the opening of the All Nigeria Judges’ Conference of the Lower Courts recently held in Abuja. A major part of your intervention, as reported by newspapers, is a message to your brothers on the bench telling them you are not unaware of their plight in absolving their roles; the word you used was “oblivious”. You assured those judges that you are not oblivious of their challenges and implied that you will do something about it. Very well, I not only agree but I will also join you in advocating for a free, independent, fairly enumerated, and well-serviced judiciary.
Your Lordship also took his time to appreciate the efforts of his brothers for what he termed the “contributions of the Judiciary to the sustenance of Nigeria’s s democracy” and therein lies, my Lord, the crux of today’s epistle addressed to you: the role of the judiciary in a democratic system.
Ordinarily and summarily, most people are used to assuming and hoping that the main role of the judiciary in a democracy is that of interpreting the law in a way that ensures that the least of us can get justice regardless of what we are in contention for and against who we are contending. It is not often said, this assumption and hope are however built on the idea that the judiciary will make sure that all acts of the state to whom we all, governed and governors, submit ourselves are not in violation of the highest of laws that bind us all together. Those laws more than any other laws are the few ones that make up what we call the constitution.
I am sure that Your Lordship will agree with me that in public conversations around governance and the rule of law, there is, to me a sad and fascinating, tendency to talk about democracy without using the term and referring to the concept of sovereignty. It is sad and fascinating because the concept of sovereignty is to me the one concept that reminds us that legislators make laws in the name and on behalf of the people, the executive act and administer in the name and on behalf of the people and that your brothers of the bench deliver their sentences in the name and on behalf of the people too. It was worth reminding us at this point of two things. One is that what differentiates the ruled from the rulers are elections, the latter conceived here as the source of and legitimacy of sovereignty, as well as a form of contract in which manifestos are the offers and majority of votes, are the consent. Second point is that the most solemn, clearest, and most participated moment in which sovereignty is exercised and conferred is during elections.
It is therefore wise and useful in my view that we all remember that each time the judiciary intervenes in matters of elections, we must remember that sovereignty is at stake. We need to note that interventions in electoral matters more than any other intervention opens the judiciary to the scrutiny of the many in the land as it goes beyond the dispute beyond two private or individual parties in contention.
Your Lordship allow me to remind the courts through you that this scrutiny puts the judiciary on trial in matters of election and that in that trial it is natural for people to remember that of all powers of a democratic state, the judiciary is one power that is not elected by the people. More than other powers of the state the judiciary is one power whose acts and utterances must easily and generally be perceived as fair, clear, logical, timely, and based on common sense.
With facts at hand, I am sad to report that so far so bad for the judiciary, as the courts have on too many occasions transferred the will and voice of the people formulated via votes from one politician to the other and replaced one ruler with another not based on elections but based on rulings informed by persuasive skills and other capacities of lawyers.
The case of the ousted Imo state governor Emeka Ihedioha who was summarily replaced by another contending politician who got less votes from the people is an informative example from our recent past. It is not the only example but I have chosen the Imo case because some of the people of Imo state call the sitting governor a Supreme Court governor. Maybe they are foes of the sitting governors and friends of the ousted governor but the point is that the court needs to make sure its name does become linkable to such dichotomies.
If Emeka Ihedioha’s case is history, the case of Ikechi Emenike is current affairs. Printed papers and digital publications of the past days a full of the details of how the APC came up with Ikechi Emenike through an election certified by INEC as their candidate and how the court decided that the candidate of the APC should not be Ikechi Emenike but Dr. Sampson Ogah. In the historical case of Emeka Ihedioha, power was transferred from PDP to APC, in the case of Ikechi Emenike power is been transferred from one faction of the APC to another faction of the APC. In both cases, like other cases, power is being transferred by the judiciary with no regard or indeed in violation of the will and expressions of voters. What are we dealing with here, a government of the judiciary by the judiciary?
Your Lordship, such government is not acceptable in law, it does stand well with logic and it does not sit well with tradition and common sense. Even where a politician is deemed devil incarnate, a lunatic, a scoundrel, or a renowned dullard, the best and highest the judiciary should do is to send his or her mandate to the people who own sovereignty and tell them to express their wishes again through elections. Even INEC, the body charged with regulating elections, should not decide who rules or run, all it should do is make sure that the process is free and fair and take note of who wins.
Join me if you can @anthonykila to continue these conversations.
Anthony Kila is Centre Director at CIAPS Lagos. www.ciaps.org.
