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 broke 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 court.
2) The candidates may be calling for cancellation 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 election 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 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.
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 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.