Election Petitions: Nigeria’s Judiciary Must Redeem Itself

 By Olu Fasan

In Nigeria, elections almost always end up in court. To stem this tide, the Electoral Act of 2022 introduced the Bimodal Voter Accreditation System, BVAS, a technology that would drastically reduce electoral malpractices. If that happened, election results would be more credible and less prone to legal challenge, although election matters remain justiciable, that is, subject to trial in a court of law.

Indeed, BVAS reduced the number of petitions arising from this year’s general elections, compared to the six previous elections since 1999. However, the Independent National Electoral Commission, INEC, wilfully refused to use BVAS in the presidential election and in some governorship elections. Consequently, several results announced by INEC raised issues of process values and substantive justice that are now subject to trial in the election tribunals and the courts, ending up, inevitably, in the Supreme Court.

But would the judiciary ensure substantive justice so that their decisions reflect the will of the people, as expressed in elections, instead of perverting it? Or would the tribunal or the court be the continuation of politics by other means, whereby judges give subjective judgements that are not defined by law, evidence and justice? Sadly, based on the past, few can vouch for the judiciary to do right thing. 

In 2020, I wrote a piece titled: “Judicialisation of elections erodes democratic legitimacy in Nigeria”, reacting to two controversial Supreme Court decisions. In one, the court removed as governor the person who scored the highest votes in the election and replaced him with the person who came fourth. In another, the court removed a duly elected governor and substituted him with the loser because the winner’s running mate presented forged certificates to INEC. 

Last year, the Supreme Court affirmed Ahmed Lawan, current Senate President, as the valid candidate for his senatorial district even though he didn’t contest the party’s primary. In all these cases, the Supreme Court overrode the will of the people. Crucially, all the cases were decided on technicalities! As an English Barrister, with a PhD in Law, I know a thing or two about legal matters. I know that if a lawyer can’t win a case through substantive arguments, he would try to win it through procedural arguments, or technicalities. Indeed, here’s how Professor Joel Trachtman, at Tufts University, puts it in his book The Tools of Argument: “If your opponent has the better substantive argument, counter with procedural arguments.” Which is why a criminal can “get off on a technicality”, why technicality often trumps substantive justice. 

But that’s dangerous for democracy. Technicality must not become a tool for subverting the will of the people. The Supreme Court cannot treat politicians as if they are fungible, as if they are substitutable, like you substitute one N1 note for another N1 note. No, they are not. If the people voted for “A”, imposing “B” or “C” on them undermines democratic consent and legitimacy. Instead of deciding a case on a technicality, thereby making loser winner and winner loser, the Supreme Court should annul the election and order a rerun. There should be direct electoral links between the governed and those governing them.

Curiously, while the Supreme Court has annulled several governorship elections, it doesn’t seem to have the courage to alter the outcome of a presidential election. Why? Are the irregularities that lead to cancellations of governorship elections not present in larger scale in a presidential election? Of course, they are, as evident in this year’s sham presidential poll. But the system is heavily skewed against petitioners in a presidential election. 

Think about it. Once INEC declared someone “winner” in a presidential election, everyone, particularly the media, begins to call him “president-elect”; foreign leaders, after being heavily lobbied, send congratulatory messages to him, and the “winner” himself begins to act like an incoming president. In those circumstances, only a brave Supreme Court, like that of Kenya, can annul the election if it’s deeply flawed or fraudulent. Secondly, once the Chief Justice of Nigeria, CJN, swears in a “president-elect” as president, can the Supreme Court later annul the election and ask the president to vacate the office? Utterly implausible!

That’s why I agree with Dr. Olisa Agbakoba, SAN, former president of the Nigerian Bar Association, NBA, that presidential election petitions should be concluded, including at the Supreme Court, before the inauguration of a new president, as done in many countries. But I go further. Given that the Supreme Court, not INEC, has the final say on the outcome of a presidential election, the INEC-declared “winner” should not enjoy a fait accompli, an aura of inevitability, through endlessly calling him “president-elect”. He’s only, for now, INEC-declared “president-elect” until the Supreme Court speaks, for goodness’s sake!

But, let’s face it, the elephant in the room is the integrity of the judiciary. This is a country where two CJNs were removed from office on corruption allegations, this is a country where security agents invaded the houses of judges and arrested them on corruption allegations. According to a UN report, “judges who cannot be corrupted inspire and compel corruption-free conduct in society as a whole”. Sadly, the judiciary is not unimpeachable. Of course, there are incorruptible judges. But, on the whole, the judiciary lacks the independence, impartiality, and courage to safeguard Nigeria’s democracy through credible decisions.

Recently, Dr. Agbakoba said on Channels TV: “I’ve lost confidence in what the courts have been doing lately,” adding that “facts and law no longer form the basis of Supreme Court decisions.” For me, that comment by an SAN and former president of the NBA is more harmful to the judiciary than the political statement of Dr. Datti Baba-Ahmed, Labour Party’s vice-presidential candidate, in which he asked the CJN not to swear in Bola Tinubu as president on May 29. Professor Wole Soyinka called the statement “fascist”; one columnist said it’s aimed to ”denigrate, intimidate and delegitimise” the judiciary. They overreacted!

Truth is, Nigeria needs fearless and incorruptible judiciary that can act as a countervailing force against electoral fraud and corrupt politics. No one can denigrate, intimidate, or delegitimise such a judiciary. With this year’s election petitions, the judiciary has an opportunity to redeem itself. It must seize it! 

*Dr. Fasan is a commentator on public issues