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When judges vote on elections 07 Feb 2023

In the runup to the 2007 general election, I argued in an opinion piece that it was the judges who will select the winners. I made the point after observing how party leaders brazenly hijacked their party leadership structures, distorted elective primaries, and imposed their cronies as candidates of the parties. They did not just impose candidates at will, but also changed them at will. I concluded that obstruction of due process would incense the judges to hit back at party leadership and impose candidates. The prediction turned out to be right. From Senator Ifeanyi Ararume to Rotimi Amaechi, the Supreme Court brazenly overruled the party leaders. Sadly, they also overruled the electorates.

In the Ararume case, the Supreme Court nullified the nomination of the Charles Ugwu as the PDP governorship candidate for Imo State and declared Senator Ararume as the lawful candidate of the party. The PDP hit back by campaigning to its supporters to support the candidate of another party and not its own Supreme Court-imposed candidate. The PDP had its way. Its candidate was defeated. In the Rotimi Amaechi case, the Supreme Court learnt the lesson. It didn’t only declare that Amaechi ought to be the candidate, but it also installed him Governor even without Amaechi being a candidate in the elections. After being castigated for this unprecedented judicial recklessness, the Supreme Court asked that its decision should no longer be considered as good law.

The trend of judicialisation of politics and elections in Nigeria has not abated. The new electoral law has tried to insert the electoral management body, not the courts, at the heart of elections. But the courts continue to be more determinative than even the electorates. The judicialisation of electoral politics raises serious concerns for democracy and governance.

First, the more courts decide outcomes of electoral contests, they may make politicians focus on the management of judicial outcomes rather than political engagement in their quest for political power. This is dangerous for democracy. It weakens the legitimacy of judicial review as a non-partisan, counter-majoritarian framework to manage politics when it draws away from basic rights, and not to override politics when it does not threaten fundamental rights of minority groups. The idea of representative democracy is that the people, ordinary people, should rule themselves through those they choose, not those that enlightened elites prefer. It is right as Alexander Bickel said, that one does not want to be ruled by a ‘Platonian Guardians’ but by elected representatives. When judges usurp the right to elect representatives, they empty electoral democracy of its meaning.

Furthermore, as judges continue to insert themselves into electoral management through unprincipled determination of winners, they corrupt themselves. It is noteworthy that corruption surveys show that the judiciary is competing with police for the top spot on the corruption perception index. The increasing corruption in the judiciary may bear relation to its intermingling with politician on electoral matters. The temptation from desperate politicians wishing for favourable decision from the court is one that many Nigerian judges are not ethically and intellectually fitted to overcome. It is better to get them farther from the politicians than closer if we want to control judicial corruption.

It is a difficult task to walk the fine lines between a judicial review that is compatible with judicial deference to politics and one that crowds out the will of the people and the political branch in choosing representatives. I think one rule of thumb for not crossing the red line is to develop a coherent and intelligent theory of electoral democracy and build a deferential election jurisprudence from it. Democracy requires that the people govern themselves. The spatial complexities of a modern state means that citizens cannot gather at the Agora to make law and take turns to execute and adjudicate on the law. They choose amongst themselves a few to do so on their behalf.

Every democratic order should always aim at upholding the right of the people to explicitly make the decision on who represents them. The court’s role is ancillary: it reinstates this power where usurped by bureaucracy and correct the exercise of majority power that damns the minority. The court should only intervene to determine winners and losers of an electoral contest when it must restore the choice the people have made. The court should never assert its choice in whatever guise against the choice of the people.

The requirement of judicial deference to the people and the political branch in matters of choice of representatives of the people does not mean the nonsense about the internal affairs of the party that the Nigerian Supreme Court has wrongly elevated to a doctrine of law. Where party leaders violate the electoral law and present candidates for election different from candidates that members of the party had proposed in democratic primaries, it is part of an enlightened jurisprudence of electoral democracy for the court to step in and reverse the fraud against the people. The court should not allow party bureaucrats to take over the right of party members to select candidate in the name of deference to internal management of the party.

If Judges must vote, they should vote to restore the right of the people to choose their representatives. That includes the right of party members as against party bureaucrats to select the candidates of the party.

Sam Amadi, PhD, a former Chairman of the Nigerian Electricity Regulatory Commission, is the Director of Abuja School of Social and Political Thoughts.