The last presidential and National Assembly election was as crucial
to our democracy as it was controversial. A lot was riding on it,
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 , PDP and LP presidential candidates
have made it clear they are approaching the courts to “correct what
was not properly done” on 25th February. Apart from the two
presidential candidates, many National Assembly candidates have
also indicated an interest in approaching the courts. 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.
These issues range from constitutional and electoral acts
interpretations, malfeasance and criminal disruptions of polling
processes which have made some question the validity of the
electoral outcome.
The assumption, based on INEC narratives, before the elections
was that we would have few reasons to drag the judiciary into the
simple constitutional exercise of the people electing our Leaders.
This hypothesis has turned out to be incorrect.
Avoidable slips by 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 “choose” our political leaders but that this
will put our judiciary on 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 – the most common denominator for crisis and chaos for
nations. Examples abound where the collapse of proper
constitutional processes yields failed states. Therefore, we will
focus on the judiciary in the next few weeks to stabilize and
salvage our democracy.
Aside from the alleged malpractices during the elections, a few
constitutional issues are at stake in this last election. Prominent
among them is the contentious issue of 25 per cent 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 electronic upload and transmission of election results at the
polling unit/booth level. The court will interpret these laws and
establish whether INEC or any candidate or party breaks them. The
court also must adjudicate on the claims filed by these candidates,
which are in three broad categorisations: 1) Allegations of a “stolen
mandate” in which other candidates claim that they won the
elections based on their own collated results from the polling units
by their agents and must be declared winners by the courts. 2) The
candidates may be calling for cancellations of the election. 3) The
court maintains the status quo and allows the president-elect and
winner of the last presidential elections to lead Nigeria because the
opposition could not prove their case, or the level of infractions is
insufficient to have changed the outcome of the election.
The national elections is technically over and the battle for
consolidation of democracy has shifted to the courts. The judiciary
must take all necessary steps to shield itself from being brushed by
the tar of politics. Leaders of the bench must admit that they need
much work to regain its reputation 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 most such
electoral cum political cases.
The impartiality of the courts and its principled stand on key
politically related constitutional cum 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 elections 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.
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 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 is to
uphold the constitution and the rule of law and not essentially a
substitute for the collective will of the people expressed through
their votes. Any judicial decisions of the supreme court are final
and can only be changed by 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 it
derives its 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 apex
national level, the presidency, for example, purely technical and
legal arguments may not suffice. Judicial decisions come to be
conditioned by 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, provisions of the electoral act that
was greeted with fanfare by all Nigerians, and the promises of INEC
to conduct a free and fair election in 2023 because of the BVAS and
IREV provisions, we are still going to depend on the judiciary to
determine the validity or otherwise of the polls. We will 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 election and
learn from it 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.
