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Elections in Nigeria: Bedrooms, Back Pockets, and Beck-and-Call by Chidi Anselm Odinkalu

Oct 2, 2023 | 2023 Elections | 0 comments

Nigeria’s Nigeria’s Supreme Court decided a remarkable appeal on April 3 2003. It began in September 1983 with the Niger State governorship election results. The incumbent and ruling National Party of Nigeria candidate, Auwal Ibrahim, was the main candidate (NPN). His main opponent was Nigeria Peoples Party candidate Alhassan Abubakar Badakoshi (NPP). After the election, Auwal Ibrahim was declared governor for another four years by the Federal Electoral Commission (FEDECO).

Unhappy, Alhassan Badakoshi went to the election petition tribunal. The military removed all elected civilians on December 31 1983. Alhassan Badakoshi died on March 16, 2003, nearly 20 years later. On April 3, 19 days after his death, the Supreme Court declared him the rightful winner of the 1983 Niger State governorship election.

This case, in many ways, shows how the elective government has treated Nigeria’s Nigeria’s courts. Each election cycle in Nigeria has three seasons, as previously mentioned. Parties, politicians, and godfathers rule campaign season. After that, security agencies and the Independent National Electoral Commission rule voting season. Then, lawyers (mostly Senior Advocates of Nigeria) and judges resolve disputes in court.

The result has been to over-judicialize politics and politicize the judiciary, with three notable effects.

First, an exponential increase in political cases has clogged the courts, rendering them unfit to decide justice and outsourcing the role to hucksters and vigilantes.

Second, judicial corruption is common because politicians want judges to crown them winners. ICPC confirmed this in a 2020 report.

Third, these factors have led to biased and corrupted judicial preferments, compromising the judiciary’s independence, integrity, and trust. The enforced removal of the two most recent Chief Justices of Nigeria shows that judicial tenure is no longer secure (CJN).

We must look back to understand how this happened.

Since Nigeria returned to civil rule in 1999, the judiciary’s role in election outcomes has grown beyond reasonable predictions. The military regime of General Muhammadu Buhari appointed Bolarinwa Babalakin, a senior judge who later served on Nigeria’sNigeria’s Supreme Court, to chair a judicial commission of inquiry into FEDECO operations after sacking the civilian government on the last day of 1983. The Bolarinwa Babalakin Commission of Inquiry first noted the corruption of election dispute resolution in its 1986 final report, saying that “the verdicts in a number of instances constituted a rape of democracy perpetrated through the law courts.”

This trend deepened in 1999 when the elective government returned after 15 years of military rule. In 2003, Obi Nwabueze, a prominent Nigerian public law scholar, accused the Supreme Court and judiciary of eroding judicial credibility by legitimizing rigged elections.

In 2007, 85.7% of elective offices in Nigeria were contested, resulting in election petition tribunals. The Economist referred to this as “democracy by court order”. Critics claim that the courts rigged elections in Nigeria, undermining voter faith in democracy.

However, 2015 was the first time Nigeria’s presidential elections were not challenged in court, indicating that the elections were well-organized and reflected the people’s will. For the first time, less than 50% of elections ended up in court (663 petitions, 44.32%). The 2019 elections saw 766 petitions (51.2%), similar to the 2011 election’selection’s 769 (51.4%). Last week, the Court of Appeal President reported 1,209 petitions from the 2023 elections. With 80.82% of offices contested, the 2022 elections are as bad as the 2007 ones.

The exhaustive election dispute resolution process has drained Nigeria’s judiciary of character, credibility, impartiality, and independence. As the judicial role in elections increased, senior politicians and political parties openly competed for old judicial office. A crisis arose in 2011 when the then Chief Justice and the Court of Appeal President fought over allegations of influence peddling in the Sokoto State governorship election petition.

In April 2009, the then-Governor of Kwara State, Bukola Saraki, removed Chief Judge Raliat Elelu-Habeeb by claiming to act on a summary resolution of the State House of Assembly, which he controlled. That she was too independent was her crime. The Supreme Court ruled on February 17 2012, that the removal was unconstitutional due to the lack of a disciplinary investigation by the National Judicial Council (NJC).

This judgement appeared to reassure about judicial tenure’s independence, but contemporaneous developments negated it, intensifying state and federal politics of judicial branch headship. The reason is apparent: the presiding judicial officer controls appointments, capital projects, budgets, and court system influence. This person also assigns cases or forms panels for sensitive patients. The presiding judges decide who sits or is excluded from election petitions. Presiding judicial officers must form committees of investigation when Governors or Presidents (or their deputies) are impeached. Politicians can’t afford uncontrolled people in such positions.

When Jacob Ugwu retired as Chief Judge of Enugu State in 2004, the NJC initially recommended Raphael Agbo, the state’s most senior active judge, to succeed him. Chimaraoke Nnamani, the then-governor of Enugu State, elevated Agbo to the Court of Appeal, allowing his preferred candidate, Innocent Umezulike, even though he was only sixth in seniority among the judges on the High Court.

After former Rivers State Governor Rotimi Amaechi failed to appoint his preferred Chief Judge candidate in 2012-2013, courts were locked up for the final two years of his term.

To avoid appointing Patricia Mahmoud, a Christian from Benue and independent judge on the High Court of Kano State since 1991, as substantive Chief Judge, an arrangement was made to elevate her to the Court of Appeal. In 2015, Justice Mahmoud was interim Chief Judge of the State.

The seniority rule that favours the most senior active judge for Chief appointments when vacancies are declared has failed. In this perpetual political season, this is political fodder. Politicians initially believed they needed good lawyers in multi-dimensional power struggles. This is no longer acceptable as Nigeria’s electoral process becomes more judicialized. They must also have judges in their bedrooms, back pockets, and at their disposal to succeed.

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