BOOK SERIAL
By Chidi Anselm Odinkalu
YESTERDAY
The author examined the concept of rule of law, the judiciary and their relationships to elective government, beginning with Albert Venn Dicey.
Today, he looks at how the courts in Africa have overreached themselves and the consequences, citing Malawi, Zimbabwe and Mali as examples before dwelling on Nigeria where the problem appears to be worst.
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The Universal Declaration of Human Rights (UDHR) guarantees that “the will of the people shall be the basis of the authority of government,” and that “this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage.” This right to political participation is the anchor of electoral legitimacy, which is the basis of the right to govern. However, this norm is increasingly under threat from diverse forces leading to what has been described as crisis of so-called democratic recession.” Such forces include a global rise in populist authoritarianism and, on the African continent, increasing incidents of unconstitutional changes in government.
Regardless, a focus on these forces can downplay more subtle trends that have enabled the corrosion of democratic participation, especially in emerging or transitional democracies. Following an era of constitutional instability in the aftermath of independence, Nic Cheeseman suggests that by the turn of the millennium, “elections and term limits replaced death and coup d’etat as the most common ways in which African presidents and prime ministers left office.”’
The fact that presidents leave office through elections, however, does not mean that their successors necessarily get installed through the popular will. Across Africa, judges are increasingly involved in determining the winners and losers of elections. Depending on the extent of this involvement, the consequence could be, first, a transfer of the ultimate decision on the mandate to rule from the people to the judges; and second, the creation of an incentive for the erosion of the independence and impartiality of the judiciary as a longstanding foundation of the rule of law. This trend bears close attention.
Courts can overreach in determining not merely the rules governing the validity of elections but also in making calls as to the winners and losers of specific electoral contests. This degree of judicialisation of elections enables democratic recession in three ways. First, it vitiates the right to democratic participation and retrenches the popular will as the basis for democratic legitimacy. Second, it enables the courts to expropriate electoral legitimacy from the people and transfer it to the judges. Third, it provides perverse incentives for political interference with judicial independence, increasingly making the judiciary a site of contest over the pre-determination of election outcomes in many countries.
In Malawi in 2020, for instance, the people had to take to the streets to resist the effort by the president to remove the Chief Justice in order for the president to secure a Supreme Court panel more solicitous of his will in the run-up to a presidential re-run following a rigged contest that had been struck down by the courts. The following year, in neighbouring Zimbabwe, the ruling party pressured the Constitutional Court to overrule an earlier decision of the High Court blocking an extension of the tenure of the Chief Justice after he had attained the mandatory retirement age, placing him on a contract, which made him manifestly subject to presidential whim. Ahead of contentious national elections two years later, the same president decided to advance $400,000 to all serving judges in Zimbabwe as “housing loan” with no repayment obligations. The beneficiaries included the chair of the Zimbabwe Electoral Commission (ZEC), herself a serving judge.
Unsurprisingly, such developments can endanger a government founded on the will of the people. In April 2020, Mali’s Constitutional Court overturned the results in thirty-one parliamentary seats won by the opposition. Its decision to hand these seats over to the ruling party sparked an uprising that led to the dissolution of the Constitutional Court;’” and was followed by the overthrow of the government in a military coup.
Electoralism and Judicial Independence in Nigeria
Among political scientists, there is a point of view that when EMBs are incapable or compromised, institutions of “oblique accountability,” such as courts, can step in to cure their deficiencies. This argument appears to overlook three issues. First, looking to courts to cure habitual deficits of will or capacity in EMBs casts a shadow over elections and their legitimacy because in deploying courts to cure substantial failures in election administration, the risk is that the site of electoral legitimacy is relocated from the people to judges. Second, the question could arise as to whether the same forces capable of compromising the independence and integrity of an EMB would be reluctant to extend the same treatment to the judiciary. Third, this does not reckon with any sense of what the consequences could be for both the effectiveness of courts and for public perceptions of the judiciary.
Few countries have been overtaken by this trend like Nigeria. When Nigerian judges began overturning the results of elections and declaring their own, many took a sanguine view of the development, describing it as “an instrument of democratic advancement and stability.” Since then, however, opinions have evolved and 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. This toll resounds both in metrics of judicial service provision as well as in the credibility of the courts and judges.
In Nigeria, for instance, over 80% of the contested offices in elections in any cycle can be decided by the judges. Nigerian courts can set aside official electoral returns and substitute their own or routinely re-compute returns by the EMB. This has created a situation described by the Economist as a “democracy by court order.” In 2011, for instance, the courts for the third time returned to the upper chamber of the national parliament a man who had never won an election.
Two cycles of elections later, they conferred the mandate in a state governorship election on a man who had been well beaten into fourth position. When it decided to replace a duly elected candidate for the position of state governor in a state in North-West Nigeria in 2019 with a candidate who was well beaten into a distant second, Nigeria’s Supreme Court incredibly crystallized a doctrine that the votes of the winning candidate whom it had chosen to oust on a preelection technicality were “wasted.” Surely, a democracy cannot be founded on jurisprudence that renders votes so casually expendable. Under the cover of “judicialism”, the use of courts in this manner subverts the will of the people in a manner not dissimilar to the effect of a military coup.
Among transitional democracies in Africa, few are as significant as Nigeria. It is not just the most populous African country, it is also the African country with the most extensive record of judicial immersion in election dispute adjudication, with a history that pre-dates the onset of presidentialism in 1979, and a jurisprudence of election dispute adjudication influential beyond its shores. In over half a century, election dispute resolution in Nigeria has metastasized to a level that now suggests that it is the primary preoccupation of the courts.
On its own, the dysfunction of courts derailed from their primary mission by a preoccupation with election dispute resolution is very much deserving of attention. A bigger concern, however, lies in the reality that the primary reason for this dysfunction is the fact that in Nigeria, courts have emerged as the predominant venue for acquiring the mandate to rule and judges have become the only people whose votes count for that purpose. Put differently, the Constitution may designate the people as the electorate, but they have been toppled by the judges who have installed themselves as a Selectorate. This book examines and illustrates the origins of this trajectory and its consequences for both right to participation and for judicial integrity and independence. Before proceeding to this inquiry, a brief institutional context of the place of courts in the political economy of Nigeria is essential.
TOMORROW…
We skip many juicy pages to Chapter 6, where the author tells exactly how judges became the selectorate.
