Concerning Courts Of Electoral Kleptocracy

 By Chidi Odinkalu

In 1968, Stanislav Andrzejewski, the former Polish soldier and prisoner-of-war, who later founded the Sociology Department at the University of Reading in England, coined the word ‘kleptocracy”, which he defined as “a system of government [that] consists precisely of the practice of selling what the law forbids to sell.” He saw in the system of Nigeria’s First Republic, “the most perfect example of a kleptocracy” in which “power rested on the ability to bribe.” 

According to Andrzejewski, the defining characteristic of a kleptocracy “is that the functioning of the organs of authority is determined by the mechanisms of supply and demand rather than the laws and regulations.” In a democracy, there are two things access to which should not be determined by the economic laws of buying and selling. One is the legitimacy of government; the other is the authority of the courts in the administration of justice. Today in Nigeria, however, the authority to govern is conferred not by the people but by the courts and, for the most part, we now know that the decision as to whom the judges decide to confer the mandate in most cases is traded, bought, and sold. 

To be sure, courts always have a legitimate role in the democratic process and this was so before Nigeria embarked on the experiment in presidential politics. The electoral process everywhere is established by law and the courts exist to interpret law. Ideally, the rules that govern elections should be determinate and determined by the courts while the outcome of elections should be indeterminate until the votes are cast. In Nigeria, however, the cone has been inverted so that the courts ensure that the rules are indeterminate in order that the outcomes can be pre-determined. 

This outcome has been achieved by judicial overreach resulting in a jurisprudence of kleptocracy. The four major landmarks in the evolution of this outcome occurred in cases arising from Anambra, Rivers, Zamfara, and Imo states. First, the courts granted themselves the powers of an electoral umpire to add and subtract votes in order to pick, choose, and determine who was declared winner in elections. A defining landmark in this trajectory was the decision by the Court of Appeal in March 2006 rightfully striking down the declaration of Dr. Chris Ngige in the 2003 as the Governor of Anambra State. 

In its judgement, the Court re-computed the numbers declared by the Independent National Electoral Commission, INEC, and found that Peter Obi had actually won the election. On the facts, the judgement looked unimpeachable. No one could question the powers of the courts to strike down an outcome procured by electoral debauchery. What this case also did was to establish that the courts could compute electoral arithmetic with greater finality than the INEC. The courts were to exercise this power subsequently in governorship elections in Ondo, Ekiti, and Edo ostensibly to check a perception of habitual abuse of the electoral process by the then ruling Peoples Democratic Party, PDP.

 Next, in October 2007, the Supreme Court determined in the case involving the governorship election in Rivers State that a person could be elected as Governor even when his name was not on the ballot. In that case, the then ruling party had arbitrarily replaced the winner of its governorship primaries with a loser in the primaries and acted in defiance of a court order. The Supreme Court struck down the substitution but, in a poorly reasoned fit of judicial pique, went further to say that a person who was not on the ballot actually won the election. To justify this, the court claimed that it was political parties alone who ran for office in Nigeria and not candidates. In so doing, the court established a dubious principle that candidates do not matter in Nigeria’s version of elective politics. Judicial kleptocracy was about to take off on a horse girdled with good intentions.

If the interventions of the courts in Anambra and then in Rivers appeared well-intentioned on the facts, the next two were evidence of courts amok. In May 2019, the Supreme Court ruled to confer the mandate to govern Zamfara State in North-West Nigeria on a man who had been hopelessly beaten into second position, losing in every local government area in the state. It held that the votes of the winning candidate were “wasted votes” because of some pre-election infraction. Now, votes are the only currency of an electoral process and a judiciary committed to upholding the people as the source of legitimacy in a democracy will not venture a jurisprudence that consigns any votes to the dustbin, but that is exactly what the Supremes ordered. So, today, Nigerian courts – many induced by material benefit – talk about “wasted votes” with undisguised glee.

 Then, in January 2020, the Supreme Court nullified the election of Emeka Ihedioha as governor of Imo State, replacing him with a man who had been well beaten to fourth place in the election and substituting the computation of the INEC in that case with that of a rogue police officer who claimed to have the true results of the ballot. Miraculously, these results just happened not to have been available to any other except the person for whom six Justices of the Supreme Court (none of whom was registered to vote in Imo State) cast their votes. In this decision, the Supreme Court effectively ruled that when it suits them, the courts could usurp or retrench the INEC as electoral umpire.

So, according to Nigerian courts, you can undertake an election without candidates; administer an election without INEC; and produce winners without votes. Acknowledging the extent of the resulting judicial overreach, former Vice-Chairman (North-West) of the ruling All Progressives Congress, APC, Salihu Lukman, describes Nigeria as a place in which “citizens can vote but winners are decided in the courtroom by conclaves of Judges”. In 2011, for instance,

Alphonsus Igbeke who had never won an election, secured a court order returning him to the National Assembly for the third successive election cycle. On each occasion, he had relied on judges to send him to the National Assembly without any need for the votes of citizens. It was all transparent electoral kleptocracy perpetrated by judges.

The role of adjudicating election petitions has, therefore, become a very prized one in the judicial system. Judges lobby to be put on them. There, many of them indulge in trading in electoral outcomes and getting in bed with politicians and political parties. Recent results from the election petition tribunals present a confetti of decisions that simply cannot be explained rationally except with reference to a jurisprudence of buying and selling judgements.

There have been clear instances of judicial kleptocracy in Abia State, for instance. But perhaps the state that evokes the greatest attention by far is Plateau State, where there appears to be a clear judicial design to overturn the will of the people and re-assign their mandate to candidates and parties for whom they did not vote. It could be entirely coincidental that the President of the Court of Appeal who oversees election petitions just happens also to come from the state.

There will be time to take a deeper dive into these outcomes sometime soon. What seems evident right now is that through a series of jurisprudential manouvres over the past decade and a half, Nigeria’s courts have become places where, to hark back to Stanislav Andrzejewski, the two things that no one should sell – electoral legitimacy and judicial authority – are now bought and sold in the courts.

*A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu