2019 Election and Judicial Activism By Dr. Sam Amadi

The famous French political philosopher, Alexis Tocqueville, in his classic: Democracy in America, wisely observes that in the United States no sooner does a political controversy arise than it transforms into a legal dispute.

In that disputatious society, the law court is an extension of the public square. Now that the US model of constitutional democracy has traveled across the world and reached Nigeria, we are in the Tocquevillian world where the hooded sages will be asked to determine the most important question of political Nigeria: who should govern?


 It is official. Vice President Atiku Abubakar has filed a petition at the Presidential Election Tribunal, seeking to nullify the Independent National Electoral Commission’s (INEC) declaration of President Buhari as elected for another four years tenure.

As the elections wind up across the country, so many aggrieved politicians are heading to election tribunals to seek relief from a grossly flawed electoral process. Of course, we are used to flawed elections where the incompetence and corruption of the electoral management body result in the overburdening of the judicial system.

But the 2019 elections are really flawed, even by Nigerian standard.
We have witnessed the court sending away elected governors two or three years into their tenure. We have witnessed tribunals sacking legislators who have almost finished the four-years tenure and requesting them to refund humongous salaries and allowances collected for unlawful duties.

In 2015 there was little litigation on the elections. For the first time there was no case against the winner of the presidential election. The sitting president magnanimously accepted his defeat in an election that many of his party leaders believed was rigged in favour of the opposition. The nation heaved a sign of relief. As if taking a cue, many politicians who lost legislative and governorship elections refused to challenge their defeat in the tribunals. Perhaps, the far lower number of cases filed against the results of 2015 elections reflects an upgrade in its credibility or a domino effect of President Jonathan’s extraordinary sportsmanship. With the poor quality of the elections in 2019 and the fact that the defeated presidential candidate has rushed to the tribunal, we will expect a rich harvest of litigation at the various election tribunals.

Now, the role of the courts in election matters call into question the legitimacy and desirability of judicial review of elections. Elections are part of political discourse and actions by citizens to decide who exercises political authority in the commonwealth. So, elections are political. The conventional conception of the judicial action is that it is both principled and apolitical. By ‘principled’ it means that its decision draws consistently from general value propositions that have universal validity. By ‘apolitical’ it is meant that the court stays away from contestation as to who gets power and exercises it. The court deals with corrective justice while the legislature and executive deal with distributive justice. The convention is that the merit of the court is that it shields itself from partisan contest to regain the neutrality and independence to settle disputes between the contestants. A partisan court loses the credibility and legitimacy to settle disputes between politically misaligned individuals and entities in the society.

So, some have advanced the logic that the judiciary should not insert itself too deep in the political battlefield through electoral disputes because such disputes are, to use the Lon Fuller’s word, polycentric, and defies effective resolution through the typical analytical resources of the adjudication.

Therefore, from the foregoing perspective, electoral disputes are inherently non-justiciable. But this assertion is false or exaggerated in many ways. First, conventional conception of adjudication as merely determination of private rights amongst private parties with bipolar interests and where reliefs flows interdependently from harm has been superceded as the courts responds to the exigence of social justice and stability.

The idea of public interest litigation has shifted the role of judges from merely declaring the rights of contestants to ‘legislating’ rules that should guide social interaction and distributive justice in society. This has shaped the court as a political institution, albeit one that acts impartially and on principles and reasoned elaborations.

In matter of election, the court ought to embrace its responsibility as a non-partisan political institution. Political scholar, Robert Dahl, in his classic article, The Supreme Court as a National Policymaker, developed the idea of the court as a political institution. According to Dahl, “To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system, an institution, that is to say, for arriving at decisions on controversial questions of national policy”. The court is an ‘unusual’ political institution. It is unusual because it is non-partisan and arrives at decisions in a principled manner without resort to violence and illogic. This is what makes the court legitimate and credible as a political institution to intervene in terms of national crisis.

The last election may bring Nigeria to such a crisis. The reports of daylight brigandage and open manipulations of state institutions by politicians who have access and resources to do so beggars belief. Desperate politicians brushed aside the rules of the game and corrupt and incompetent electoral managers aided and abetted heinous violations. This might probably be our worst election since 1999 as candidates forced returning officers to declare them victors at the threat of loss of life. These candidates cynically challenged the other candidates to go to court, imagining that the arm of the court is too short to retrieve these stolen mandates in electoral matters. Should the court play dead-brain? Should the court restrict itself to the passive mode of private law litigation or should it step up to the role of an undertaker of democratic stability built on the sanctity of the electoral process in a country where political desperation and institutional manipulation threaten to tip the country over the cliff?

We need to understand what is at stake in the 2019 elections to understand the need for judicial activism. Scholars and political philosophers have tried to distinguish between a mere regime of elections and a democratic polity. It is true that democracy goes beyond periodic elections as has become fashionable in many of the world’s pseudo democracies. But there can be no democratic polity without free and fair elections. Where elections are abrogated or cynically reduced to competitive oligarchy then democracy has died.
In his masterpiece, War, Guns and Votes: Democracy in Dangerous Places, Oxford Scholar, Paul Collier argues that bad electoral system acts as a gravitational force to attract criminal elements who alone can optimize the criminal environment it offers. By a natural selection, ethical and competent persons will shun the electoral process because they are not competitive in exploiting the criminality and violence of the electoral system. So, the fastest way to kill a nascent democracy is to institutionalize bad electoral system.
This means that if we don’t fix the flaws in the electoral process the only direction our elections will go is from bad to worse because the criminal environment of election will breed sophisticated criminals who will push it to higher levels of criminality in order to out-compete other criminals.

In the meantime, there will be no basis for any significant and sustainable commitment to good governance because you can always win without good performance in office if the electoral system remains violent and criminal. Check out the profile of those elected to govern in executive or legislative offices. Since 1999 they grow from fair to bad to worse.

For those who think that after the fiasco of the 2019 election we will work hard to reform the electoral system there is bad news. There is little chance of exiting this reinforcing cycle of doom. We have seen that since 1999 politicians have refused to execute comprehensive reform of the electoral system. The reason is obvious. Politics is a career. To advance your career in politics you must win and win. Manipulable electoral system favours mostly incumbents- president, governors and legislators. So, collectively they won’t want to change the game much because it could enable a successful challenge next time and end their career progress. So, things would probably get worse in 2023.

We can’t look to civil society to rescue us from the tragedy of flawed electoral system. Civil society is either too weak or compromised to effect transformation bottom-up. In 2023, things will get worse. You would need a contingent of Nigerian army or a well-armed private militia to win election. You would need to invade the Central Bank of Nigeria and pull through 10 bullion vans to be able to unseat an incumbent. What will be the result? The triumph of warlords and the end of the prospect of democracy and development in Nigeria. The North will remain the poorest part of the world. Most Nigerian children will be illiterates and hungry militants bombing themselves and every other thing in sight. IPOB youths will be chanting down Nigeria in the streets of the southeast while being killed by Nigerian soldiers. Niger Delta youths will still be destroying gas pipelines and increase poverty and instability. Instability will aggravate poverty and poverty will escalate violence. This could be Nigeria after 2023 election if we don’t fix the electoral system.
The state of affairs today is that the two branches of government have been captured by virulent and desperately wicked special interests. They are not allowing the people make their choice. The legitimacy and legality of the legislative and executive exercise of power in a democracy rest on the fact that the people actually chose their leaders. That is the core ideal of the constitution which the judiciary is mandated to protect. The ‘governance’ theory of judicial function argues that whenever the prospect of democratic change of leadership is made impossible through the capture of the electoral process, the judiciary should ‘politically’ intervene through public law adjudication to free the polity from the ‘procedural freeze’ and restore electoral process to its democratic character.

That is, the judiciary should step up and assert its right to govern whenever the two ‘partisan’ political branches conspire to derail democracy and make the threat of instability clear and present.

It is the judiciary that can save us from the crisis of violent and roguish elections in Nigeria. The court has the institutional integrity and political independence to stop the politicians from nullifying the voice and the will of the people. But what could stand against the judiciary from sorting out Nigerian electoral mess is a passive and retrogressive jurisprudence that fashions the court as only competent to redress private wrongs and not public wrongs.

The courts and election tribunals in Nigeria need a new jurisprudence in 2019 that starts with the acceptance of the view of the judiciary as an ‘unusual political institution”, one that its invested with legal authority and popular faith to intervene in political conflicts whenever it seems that the other branches of government have been captured by special interests that frustrate the people from expressing their political preferences.

It is true that judges are no ‘Platonic Guardians’, as Judge Learned Hand of the US Supreme Court once said. But they are constitutionally authorized to police the political landscape and review the decisions of presidents, legislators and regulators. If these act in line with the constitution and the expression of the people through a credible electoral system, the judiciary defers to them. If they don’t so act, the judiciary reverses them. This has been the wisdom of constitutional adjudication since Marbury v. Madison. The Nigerian Supreme Court has endorsed this view in several cases.

Legal scholar Professor Itsa Sagay, in his magisterial A Legacy for Posterity- The Work of the Supreme Court 1980-1988, chronicled the work of the Supreme Court in this regard and concluded that the Nigerian Supreme Court has rightly pioneered rule of law, human rights and social justice even in the most difficult tyrannical regimes.

Today’s judiciary has its work cut out for it. It has to reverse the capture of the electoral system by reversing every electoral result that is procured by fraud, violence or manipulation by the electoral management board. The tribunals and the Supreme Court should consider themselves as exercising ‘the right to govern’ as and unusual political institution’. Just like the Nigerian Supreme Court in the 1980s and the Warren Supreme Court in the United States, the Nigerian judiciary must redirect governance towards justice and respect for the right of the people.

In deciding the many electoral cases before it, the judiciary should note that it is not just making decisions between contestants; it is reshaping the normative environment for democratic accountability in Nigeria beyond 2019. It is determining whether we move toward ‘Somalia’ or towards Botswana.

Already, by the destruction of the integrity of the electoral system we are on the road to Somalia. The judiciary can pull us back if it rediscovers courage and nullify every violation of the sanctity of democratic elections.

• Dr. Sam Amadi teaches law at Baze University, Abuja. He is a law and governance professional