Lecture delivered at the INEC Conference held at
Nigeria has had a chequered experience with the ballot box. For a country that, one way or another, began having encounters with elections since 1922, it is somewhat ironic or paradoxical that we should still be agonizing over democratic praxis, especially the modalities of selecting our public office holders. Nevertheless, if a head is dirty, you do not for that reason cut it off. What you do is wash it. Accordingly, we should not stop trying to reform or improve on the way and manner the electoral process operates even if we seem to have demonstrated a rather steep learning curve. Besides, as apologists of our inadequacies would be quick to remind us,
Nonetheless, we have to admit that the long incursion by the military into the political landscape has left a near indelible imprint on the national consciousness, so much so that, like pavlovian dogs, we seem to have developed reflexes symptomatic of a high tolerance level for arbitrariness and misuse of power by those in control of the state apparatus. The general lack of a history of resistance among the people and the national penchant for compromise would seem to have rendered the ordinary Nigerian a fatalist, ever ready to leave the redress of any injustice to the Almighty instead of, at the very least, pursuing a course of action through the law courts. The aversion of our people for recourse to the judicial process while generally in consonance with the traditional African preference for conciliation rather than adjudication, should, in the context of this discussion, be considered as dysfunctional and counter-productive. The litigious spirit clearly evident in say, the US, which had been observed as late ago as the 1830’s by Alexis de Tocqueville, has contributed, in no small measure, to the growth and development of the democratic ideal in that country.
Notwithstanding, our jurisprudence has been enriched somewhat by litigants who, despite all odds, had decided to take their grievances to court rather than resort to the uncertain, precarious rule of the mob. To the extent that many more aggrieved persons would pursue legal action, can it be envisaged that Nigerian democracy would thrive. Indeed, if the electoral tribunals and the courts lose their allure in the consciousness of the people generally, the portents would be truly bad for due process of law and democratic governance in the country. For where and when elections are conducted in a transparent manner, that is to say, elections are considered as ‘free and fair’, contestants would be compelled to congratulate the winners and losers would have no choice other than to bear their defeat with equanimity. In such circumstances, the tribunals and courts would only exist as final arbiters over any manifest acts of malfeasance which could impugn the sacred right of the electorate to determine who should preside over their affairs for a term.
It hardly needs be emphasized that the sanctity of the ballot box in the democratic process should be safeguarded, hence the necessity for the existence of the judicial process in case there was anyone who feels aggrieved by the way and manner an election has been conducted. It is only by so doing that the people can be truly said to have had their day in court. Accordingly, it is perhaps best to begin this presentation by examining the adjudicative functions of the courts generally before focusing on their role in the electoral process.
The Judiciary and the Dispute Settlement Function
The role and place of the judiciary in the scheme of things are pretty well-known in any system of democratic governance. As I once observed,
‘…a political system can be considered as democratic on the basis of the
extent to which the judicial arm is permitted to hold the scales of justice
over and above the other arms of government…For, if good governance
has become a modern day desideratum, human ingenuity is yet to devise
a better means of preventing arbitrariness and ensuring social well-being
than that of separation of powers, due process of law and independence of
the judiciary which, taken together, constitute the hallmarks of a well
functioning democratic system.’ 3
The 1999 Constitution outlines the adjudicative function of the judiciary.4 Accordingly, the primary function of the judiciary is to resolve disputes between all persons or between government and persons, except the matter pertains to the Fundamental Objectives and Directives of State Policy. However, in case of disputes between the Federation and a State or between States, only the Supreme Court has original Jurisdiction.5
The preeminence of the courts in the scheme of things is self-evident. The world has come a long way from the state of nature where each was his own law-maker and enforcer. The transition from the state of nature to that of civil society entailed transfer of the right of auto-determination to the state via the social contract such that an independent judiciary becomes the protector of the individual rights of members of society. The notion of separation of powers and the in-built system of checks and balances ensure that all abide by the dictates of the law. Since the judiciary is pre-occupied with interpretation or indeed, application of the law, there is merit in the view that the judiciary is the most powerful of the three arms of government.
However, the centrality of the judiciary is acknowledged only where and when there is a deeply ingrained tradition of fidelity to the rule of law. A law-governed society would think twice before challenging the law as adumbrated by the highest court in the land. Even decisions of inferior courts remain the law until set aside by a higher court. Where and when there is a consensus on the rule of law, everyone quite easily comes to terms with the overarching role of ‘the least dangerous branch.’6 On the other hand, a country lacking such a tradition is apt to be suffused with instances of disobedience to court orders, selective enforcement and what has since passed into literature as ‘executive lawlessness.’7 Failure by misguided elements to pay credence to the overarching role of the courts, more often than not, leads to a state of anomie or normlessness, with cataclysmic consequences for the entire polity. The reason for this is obvious: law is the glue that holds society together and when this fact is ignored, the tendency is for a reversion to the state of nature.
Yet, it hardly needs emphasis that the interests of a developing country, such as ours, are better served by untrammeled and unwavering commitment to the rule of law and general acceptance of the strictures of due process rather than a descent into arbitrariness and self-help. The more people avail themselves of the judicial process, the brighter the prospects for democratic governance and social stability and general well-being.
It needs be pointed out also that in the adversary system that we operate, the judiciary is not expected to descend into the controversy before it or join issue with the parties. Judges are by oath required to dispense justice to all parties without fear or favour, affection or ill-will. Not only can they not initiate legal action, which is a prerogative of litigants, they cannot improve the claims of parties or grant them more than they seek.8 This is unlike in civil law jurisdictions where judges are generally allowed greater interventionist roles. The implication of this is that complainants should not fight shy of bringing their grievances to court and ensure that they engage competent counsel since they would be held bound strictly to their pleadings.
However, all this is subject to non-interference by extraneous bodies in the judicial process or what generally passes for independence of the judiciary. Except and unless and only to the extent that litigants have confidence in the impartiality of the judges would they see any wisdom in taking their matters to court. Besides, it is necessary to bear in mind that the applicable law in a dispute should be without reproach be it in content or form. In other words, if there are, for example, infelicities of drafting in the statute, a timorous judge might decline from ironing out the creases of the legislation on the basis of not wishing to usurp the place of the law-maker.9 Therefore, the legislature must do its own homework if the judiciary is to live up to its reputation as ‘the last hope of the common man.’10
The Centrality of the Electoral Process in the Task of Deepening Democracy
If, as Churchill observed, democracy was the worst form of government apart from all the others, then no effort should be spared in nurturing it wherever it has taken root. However, the beginning of wisdom as far as democracy is concerned is an awareness of the need to ensure full confidence of all and sundry in the electoral process. Once the electorate has confidence in the ballot box, all those who extol the virtues of democratic governance can rest assured that voters would always turn out in large numbers whenever the exercise of their franchise is required. On the contrary, where and when there is voter fatigue, indifference or people start voting with their feet, that is indicative of a failing democratic project and all lovers of democracy should immediately set out to renew the people’s confidence in the ballot box.
Admittedly there is growing evidence of voter apathy and even disillusionment in certain parts of the democratic world but that is not enough to suggest the obituary of the ballot box. The simple reason for one’s optimism is that periodic elections serve as the festival or elixir of democracy. Although Marx once observed that elections in bourgeois societies merely afford the masses once every four or five years the chance of selecting their executioners, experience has shown that governments which are a product of free and fair elections endeavour to stick to their manifestos or else face the prospect of defeat at the polls next time around, more so as electoral promises have become akin to covenants between the government and the governed. Thus, if the principle of self-determination is to be given full rein, the people should have the assurance that they can always vote out a government that fails to demonstrate sensitivity to their yearnings and aspirations whenever the opportunity presents itself.
Sovereignty really belongs to the people and the earlier politicians got reminded of that fact, the better for the democracy project. Those who treat the electorate with disdain or askance as soon as elections are over could find it difficult if not, in fact, impossible to be returned for another term except they dip into their bags of tricks. The recent reluctance by the out-going Italian Prime Minister, Silvio Belusconi to admit defeat and surrender power to his successor, Romano Prodi is not one to be emulated by all committed democrats. It should, in fact, be condemned unreservedly as conduct unbecoming of any true democrat.
In our own circumstance, the electoral process seems to be under assault by enemies of democracy and the open society. A situation where ballot boxes are reportedly hijacked by armed, uniformed persons and substituted with previously stuffed boxes is surely not one that can recommend itself to lovers of democracy anywhere or engender confidence among the electorate in the electoral process. Furthermore, the proposed electronic machine voting system does not appear to enjoy the support of many stakeholders. The fact that the experience of some countries where such devices had been used has not been altogether encouraging, coupled with the deletion of provisions for electronic voting from the Electoral Bill currently being debated at the National Assembly suggests that we are still a long way off from forging a consensus regarding ways and means of strengthening democracy through the electoral process. The central task facing the Nigerian electoral process today is how to devise a cheap, simple, fool-proof, rigging-free system of voting which would at the same time ensure secrecy of the ballot, guarantee prompt release of election results and regain the waning confidence of the electorate in the electoral process. While some have extolled the Option A4 employed during the 1993 elections, many have reservations against asking people to line up openly behind symbols of their preferred parties or candidates, especially in view of the inherent socially disruptive potential of such a system.
In the final analysis, however, the fact must be grasped by all and sundry that except and unless and only to the extent that the distortions and rough edges of the electoral process are removed, all efforts to deepen democracy in this country would amount to a chimera. A stop must have to be put, one way or another, to a situation of trying to operate democratic norms without a large army of true and tested democrats. It would seem the beginning of our road to a proper, well-tuned electoral process lies in the enactment of a well thought-out electoral law which would ensure the neutrality of all state agents involved in the electoral process in order to restore the confidence of the people in
The Judiciary and the Electoral Process: A Tentative Score Card
Resort to the courts and electoral tribunal has always been a feature of
The real test of the judiciary as an intermediating force in the electoral process came at the outset of the Second Republic when the electoral tribunal and, ultimately, the Supreme Court were called upon to solve the riddle of what should constitute two-thirds of 19 states in the celebrated case of Awolowo v. Shagari and FEDECO.11 The decision of the Court, emphasizing as it did ‘substantial compliance’ rather than the reasonable meaning of the relevant words of the statute and its admonition for the judgment not to be considered a precedent paradoxically set a bad precedent for subsequent actions brought before the courts on matters bordering on politics.
It does not require great intellect to surmise that had the Court adopted the logic of the dissenting opinion of Kayode Eso and the presidential election allowed to go the whole hog right to the electoral college as provided under the Electoral Decree, the history of the
The erosion of the people’s confidence in the judiciary, regrettably, was not limited to n political cases. Stories were now being bandied about that justice in the country had been put on sale to the highest bidder, with devastating consequences for the image of our judiciary. This explains why even Chief Awolowo, a firm believer in the rule of law if there was one, could not see any point in pursuing any relief in the courts when he once again felt cheated out of victory at the 1983 presidential election, preferring instead to leave everything to God since ‘ the judiciary had become terribly corrupt.’ 13 Accordingly, the low esteem in which the judiciary is held by many people today, especially with regard to election petition cases has its foundations in the skepticism of the past.
The elections of 1993 should be seen generally in the context of the desire of the people to see the back of our praetorian rulers after nearly thirty years of authoritarian rule. However, this is not to take anything away from the winner of the presidential election, M.K.O.Abiola, whose “Farewell to Poverty” programme had earned him wide support across the country. That those seeking political offices but lost out at the polls had decided to lick their wounds quietly instead of embarking on costly and, ultimately, fruitless efforts in court houses would seem to have underscored the relegation of the judiciary in the electoral process. Besides, the compromised status of the judiciary under military dictatorship and the contrived and convoluted transition programme of the Babangida regime could not encourage any wise political actor then to put much stock in the courts.14 It took the dramatic turn of events during the 2003 elections to bring the aggrieved back to the courts.
As would be remembered, the last set of elections in the country became a veritable test of the maturity and resilience of
The case of Buhari v. Obasanjo16 became perhaps one with the most number of witnesses, averments and affidavits in support ever in
as happened in one particular case.17
It was bad enough that the matter ran into nearly half of the tenure of President Obasanjo, thereby becoming, in effect, a clog in the democratic process. However, it is instructive that the Supreme Court was once again haunted by the bogey of “substantial compliance” which had constituted the gravamen of the Awolowo v. Shagari case. What is more, the reinstatement by the Supreme Court of election results voided at the Court of Appeal sitting as the Electoral Tribunal and the reported dismissal without retirement benefits of Hon. Nsofor, the sole dissenting judge in the case,18 if true, must have cast a pall on the role of the judiciary in the electoral process.
When to all this is added the recent decision upholding the election of Peter Obi as against the putative Governor Chris Ngige who had exercised executive powers in Anambra State for nearly three years after the elections, none would be in doubt that the nation is confronted with a serious crisis of confidence with respect to the judiciary and the electoral process. While there might have been some notable decisions concerning issues such as interpretation of electoral petitions,19 nature of petitions,20 nature of election tribunals,21 it must be stated that the general thrust of judicial intervention in electoral matters has been less than satisfactory. In sum, one is constrained to say that the way and manner the judiciary has acted with regard to election petition cases has not altogether been reassuring in terms of the growth and development of the nation’s electoral process and the fortunes of democracy generally.
Nevertheless, perhaps one should be charitable enough to acknowledge that one should not heap the entire blame for the nation’s inadequacies on the judiciary since the courts are bound to operate within both the extant substantive and adjectival law. Matters such as eligibility to be a candidate, preliminaries like campaigning for office, filing of nomination papers, the voting procedure, impersonation, declaration of results, dereliction of duty by polling officers, etc. should be properly spelt out in the electoral law in order to facilitate the judicial process with regard to electoral matters. At present, the greatest challenge facing judges in election petition cases would seem to be a hard and fast time frame within which to conclude such matters.
For instance, it is simply unheard of in the advanced democracies for election petition proceedings to go on for upwards of two years into the tenure of an office-holder. Accordingly, our judges must be put on a tight leash so that they can, in turn, call counsel to order if and when they are raising frivolous and unnecessary motions or employing sundry delaying tactics to the detriment of expeditious determination of cases. Litigants and judges should be equally aware that not only is delayed justice denied justice, prolonged hearing of cases is detrimental to the entire judicial process and could actually encourage self-help among citizens. In political matters especially, the resultant distrust could prove very costly indeed for public peace and social equilibrium.
The Judiciary and the National Conscience: A Prognosis
The judiciary occupies a unique position in modern society. As stated earlier, it is the most powerful of the arms of government since it is empowered to set limits to the authority of both the legislature and the executive. However, the power of the judiciary might remain latent where and when occupants of judicial office become timid or are reluctant to exercise their power. Accordingly, the growth and advancement of the democratic idea depend very much on an enlightened and conscientious judiciary, imbued with the spirit of the age as well as a sense of its proper role and capability. Where and when a nation is lucky to have men and women siesed of what needs to be done in order for society to tread the democratic path, the task of socio-economic and political transformation becomes so much easier.
The history of our country’s development is, at best uneven, littered as it has been with forcible interventions by elements paid to secure and defend the polity. Now that, hopefully, the era of seizure of political power by praetorian guards is now well behind us, we ought to invest considerably in the judiciary as the sentinels of our collective rights and freedoms. Not only is there a felt need for improving their existential conditions, we need to ensure that only the best legal minds occupy the Bench. Besides, the country should arm the judges with the necessary input for the optimal performance of their onerous duties of safeguarding the polity from the antics of undemocratic forces. A situation where the enemies of democracy taunt their political opponents by asking them to carry their grievances to court, knowing fully well that the courts have been incapacitated through all manner of shenanigans, not least among which are flagrant disregard for court orders and sundry acts of executive lawlessness, is, quite frankly, inimical to societal peace and national progress.
The problem with contemporary
However, for the judiciary to fulfill its appointed role in the scheme of things, there must be a consensus among the nation’s political actors to play according to the rules of the game and recognize the overarching importance of the judiciary in the entire process. If
Akin Oyebode is Professor and Head, Department of Jurisprudence and International Law,
3The Judiciary and Constitutionalism in a Democratic Sosiety in A. OYEBODE, LAW AND NATION-BUILDING IN
4 See s.6(6), Constitution of the Federal Republic of Nigeria, 1999.
6 Cf. A. BICKEL, THE LEAST DANGEROUS BRANCH passim (1962).
7 See e.g., supra note 1, at 85.
8 See e.g., Ige v. Olunloyo,  SCNLR 138.
9 See e.g., Okumagba v. Egbe, 1 All NLR 62.
10 Cf. Is the Judiciary the Last Hope of the Common Man? in supra note 1, at 128.
11 NSCC 87.
12 Compare e.g., Omoboriowo v. Ajasin,  1 SCNLR 108 and Nwobodo v. Onoh, 1 SCNLR 1.
13 T.FALOLA and J.IHONVBERE, THE RISE AND FALL OF 14 Cf. The Judiciary,Corruption and Democratisation in supra note 1, at 144. 15 See e.g., 1983, 1993, and 2003: The Quest for a Difference in supra note 1, at 101 16 13 NWLR (Pt. 941)1. 17 See Jerry Ugokwe v. Federal Republic of 19 See e.g., 20 See e.g., Bayo v. Njidda,  8 NWLR (Pt. 876) 544; Ajadi v. Ajibola, 16 NWLR (Pt. 898) 91. 21 See e.g.,Abubakar v. INEC,  1 NWLR (Pt. 854) 207; Buhari v. Yussuf, 14 NWLR (Pt.841) 446.
14 Cf. The Judiciary,Corruption and Democratisation in supra note 1, at 144.
15 See e.g., 1983, 1993, and 2003: The Quest for a Difference in supra note 1, at 101
16 13 NWLR (Pt. 941)1.
17 See Jerry Ugokwe v. Federal Republic of 19 See e.g., 20 See e.g., Bayo v. Njidda,  8 NWLR (Pt. 876) 544; Ajadi v. Ajibola, 16 NWLR (Pt. 898) 91. 21 See e.g.,Abubakar v. INEC,  1 NWLR (Pt. 854) 207; Buhari v. Yussuf, 14 NWLR (Pt.841) 446.
19 See e.g., 20 See e.g., Bayo v. Njidda,  8 NWLR (Pt. 876) 544; Ajadi v. Ajibola, 16 NWLR (Pt. 898) 91. 21 See e.g.,Abubakar v. INEC,  1 NWLR (Pt. 854) 207; Buhari v. Yussuf, 14 NWLR (Pt.841) 446.
20 See e.g., Bayo v. Njidda,  8 NWLR (Pt. 876) 544; Ajadi v. Ajibola, 16 NWLR (Pt. 898) 91.