The national elections are technically over and the battle for the consolidation of democracy has shifted to the courts. The judiciary must take all necessary steps to shield itself from being tarred by politics. Leaders of the bench must admit that they need much work to regain its reputation of the judiciary in the minds of Nigerians. No love is lost between Nigerians and judicial intervention in politics, due to some judgements related to past political contests.
The last presidential and National Assembly elections were as crucial to our democracy as they were controversial. A lot was riding on them, delivering more drama than anticipated. Our present reality is that going by the posturing of key political gladiators, the 2023 presidential and National Assembly elections have triggered direct judicial intervention as the final phase of the electoral process. This is fine. At least it is the only legitimate channel to address grievances against the conduct of the elections and to seek redress.
Two major political parties, the Peoples Democratic Party (PDP) and Labour Party (LP) presidential candidates have made it clear they will be approaching the courts to “correct what was not properly done” on 25th of February. Apart from the two presidential candidates, many National Assembly candidates have also indicated interest in going to court. Without claiming to be a prophet, the number of cases may be less than we had in 2019 because of the dwindling faith of contestants in the judiciary, among other reasons, but the issues will be more contentious this time around.
These issues range from interpretations of the Constitution and Electoral Act, alongside electoral malfeasance and criminal disruption of polling processes, which have made some question the validity of the electoral outcomes.
The assumption before the elections, based on INEC narratives, was that we would have few reasons to drag the judiciary into the simple constitutional exercise of the people electing their leaders. This hypothesis has turned out to be incorrect.
Avoidable slips by the Independent National Electoral Commission (INEC) created these triggers for the option of judicial intervention. What is worrisome is not that political gladiators are approaching the court to help fix our electoral process and may help us decide our political leaders but that this will put our judiciary on the edge. This is a judiciary that, objectively speaking, cannot claim it is enjoying the best public standing before Nigerians. In an environment suffused with corruption, even in the judiciary, the democratic process is at risk if it must depend on judicial outcomes to determine the validity of electoral processes.
One way to bring down democracy in any society or country is to have a compromised, incompetent, pusillanimous, and politically exposed judiciary. This invariably gives citizens only one option – self-help, which is the most common denominator for crisis and chaos in nations. Examples abound where the collapse of proper constitutional processes yielded failed states. Therefore, we will focus on the judiciary in the next few weeks to stabilise and salvage our democracy.
Never in the history of Nigeria has the apex court cancelled, nullified, or changed the outcome of a presidential election. We assume that it was because no such cases of presidential elections before the Supreme Court have convinced it that there was a prima facia justification for such. However, we have a precedent in Africa of such cancellation.
Aside from the alleged malpractices during the elections, a few constitutional issues are at stake in this last poll. Prominent among them is the contentious issue of 25% of votes cast in the Federal Capital Territory (FCT) as part of the requirements to be declared winner of a presidential election, and the position of the law on the electronic uploading and transmission of election results at the polling unit/booth level. The courts will interpret the relevant laws and establish whether INEC or any candidate or party has broken them.
The courts must also adjudicate on the claims filed by candidates, which are in three broad categorisations: (1) allegations of a “stolen mandate”, in which other candidates claim that they won the recent elections on the basis of their own collated results from the polling units by their agents, and that they must be declared as winners by the courts. (2) Calls for the cancellation of the presidential election by candidates. (3) Calls for maintaining the status quo and allowing the president-elect and winner of the last presidential election to lead Nigeria because the opposition is incpabale of proving their case, or that the level of infractions recorded during the poll is insufficient to have changed the outcome of the election.
The national elections are technically over and the battle for the consolidation of democracy has shifted to the courts. The judiciary must take all necessary steps to shield itself from being tarred by politics. Leaders of the bench must admit that they need much work to regain its reputation of the judiciary in the minds of Nigerians. No love is lost between Nigerians and judicial intervention in politics, due to some judgements related to past political contests. The crisis of credibility afflicting the judiciary is evident to all and has taken a severe toll on the institution. It is trite to say that over time, the Nigerian court has not lived up to a decent reputation in many electoral-cum-political cases.
The impartiality of the courts and their principled stand on key politically and electoral issues should not leave anyone in doubt about the courage to do justice. The belief in the judiciary as the ultimate sanctuary of justice in a democracy is founded on the supposition that judges will be above reproach.
Never in the history of Nigeria has the apex court cancelled, nullified, or changed the outcome of a presidential election. We assume that it was because no such cases of presidential elections before the Supreme Court have convinced it that there was a prima facia justification for such. However, we have a precedent in Africa of such cancellation. In the 2017 Kenyan presidential polls, the Supreme Court annulled the presidential election result, citing irregularities and that the election had not been “conducted in accordance with the constitution”. This judgement was a landmark one and was reached to save democracy in Kenya.
Their job of the court is to uphold the constitution and the rule of law and it is not essentially a substitute for the collective will of the people expressed through their votes. Judicial decisions of the Supreme Court are final and can only be changed by the Court itself or God. Therefore, the Supreme Court judges must be circumspect and convinced in their choices, based on the laws and constitution of Nigeria, from where they derive their powers.
Admittedly, in a democracy, nobody can underestimate the judiciary’s role in correcting malfeasance. Advisedly, the court must allow technical issues to take the back seat and allow substantial justice to prevail. That is the only way we can correct a dysfunctional system and win the trust of Nigerians. This point is vital because in essential cases that attract the attention of the nation and citizens eagerly waiting for justice to be served, it is difficult for everyone to understand why legal technicalities will be the basis of judgements, instead of the substance of the law. Only lawyers understand these technicalities, and decisions based on them are often difficult to sell to the public.
Communicating judicial pronouncements to the lay audience have been the bane of judicial reporting in Nigeria and it is one of the major causes of public distrust of the judiciary in recent times. These presidential election cases allow the court to show its power and clear separation from the executive and legislature. Their job of the court is to uphold the constitution and the rule of law and it is not essentially a substitute for the collective will of the people expressed through their votes. Judicial decisions of the Supreme Court are final and can only be changed by the Court itself or God. Therefore, the Supreme Court judges must be circumspect and convinced in their choices, based on the laws and constitution of Nigeria, from where they derive their powers.
It may be convenient for electoral disputes at sub-national and sub-sovereign levels to be determined by judicial processes, as we have seen in cases where the Supreme Court has altered the destinies of governors and states. It is common and understandable that at this level, whatever decisions the Supreme Court makes may not undermine the state so much, given that the states are intertwined and linked with the federal and, as such, can withstand the sudden change of governors by the Supreme Court. But at the national level of the presidency, for example, purely technical and legal arguments may not suffice. Judicial decisions must be conditioned by the higher considerations of jurisprudence, national interest, and national security. At that level, judges of the Supreme Court must protect the Nigerian state and its sovereign security over and above matters of justice concerning the rights of individual contestants for partisan pre-eminence. There must be a nation before partisan contestants acquire the right to win an election. Nigeria cannot afford to pour out dirty water with the baby. Nigeria’s existence and growth far outweigh the issue of who leads it. We must always remember that there will be another election in four years if Nigeria survives the furore caused by the last election.
It is a pity that after all the plans and provisions of the Electoral Act that were greeted with fanfare by all Nigerians, and the promises of INEC to conduct a free and fair election in 2023 due to provisions on the BVAS and IREV, we are still going to depend on the judiciary to determine the validity or otherwise of the polls. We all admit that BVAS worked and contributed to more transparency and likely reduced disputation of electoral outcomes, especially in the National Assembly polls. We must do a post-mortem of the elections and learn from them to improve subsequent polls.
And the Supreme Court and the judiciary must be conscious that all eyes in and outside the country are on them. They are carrying the hope of a nation and must not dash that hope.
We look forward to a new Nigeria where judicial incursion into politics will be minimal, if not completely eradicated.
NB: Dr. Dakuku Peterside, a writer, author and newspaper columnist is the immediate past Director General & CEO of NIMASA, and a former member of the House of Representatives.
