‘Citizens can vote but winners are decided in the courtroom by conclaves of Judges’
YESTERDAY
The author looked at how the courts in Africa have overreached themselves and the consequences. Today, he identifies the essence of democratic elections which he says is free and fair election where ‘voters must be allowed to freely go to the polling booths and cast their votes unmolested’.
By Chidi Anselm Odinkalu
In 1968, Stanislav Andrzejewski, the former Polish soldier and prisoner-of-war, who 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,” including “politicians and even judges.” 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 that should not be determined by the marketplace laws of buying and selling. One is the legitimacy of government; the other is the authority of the courts in the administration of justice. In Nigeria, however, public perception of public institutions as well as official literature of high level government inquiries,’ holds that authority to govern is now conferred not by the people but by the courts. For the most part, decisions as to persons on whom the judges decide to confer the mandate can be traded, bought and sold. This outcome has been achieved by judicial overreach now anchored in the jurisprudence of election dispute resolution and judicial appointments practices evolved in response thereto. The major landmarks in the evolution of this jurisprudence are the focus of this chapter. A later chapter considers the patterns of judicial appointments as they have now evolved in the radically altered normative and institutional landscape of Nigeria’s politics.
The Big Business of Judging Elections
Nigeria’s Constitution explicitly declares that the foundation of the country is “based on the principles of democracy and social justice,” and accordingly proclaims that “sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority.’ Curiously, the constitution omits a guarantee of the right to vote as a fundamental right as such. However, the African Charter on Human and Peoples’ Rights, which is domestic law in Nigeria, guarantees to every citizen “the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.” The exercise of this right is regulated by the provisions of successive electoral acts as well as by the relevant constitutional text governing electoral contests to various offices. Nigeria’s Supreme Court affirmed the supremacy of the sovereign will of the people in election in 1983, declaring that:
The essence of democratic elections is that they be free and fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who, in their deliberate judgment, they consider possess the qualities which mark them out as preferable candidates to those others who are contesting with them. The voters must be allowed to freely go to the polling booths and cast their votes unmolested.
In a decision on a case from the 1983 general elections, Anthony Aniagolu, a former election administrator, who later became a senior Justice of the Supreme Court, warned judges against the “arithmetical computation of votes cast.” He suggested that where an election is found not to be substantially free and fair or where the voters – as the electorate – have been unable to exercise free choice in determining on whom to confer the mandate, then the court must order a fresh ballot.
The logic behind this is sound in theory and well founded in law. Ordinarily, the conferment of electoral legitimacy as well as its renewal or denial, should depend on the votes of the people. With the return to elective politics especially after the 2003 elections, however, Nigeria’s courts increasingly took centre stage in decisions over eligibility to run for office as well as in deciding the winners and losers of elections. A senior scholar in political Science and former INEC Commissioner, Adele Jinadu, has described this as “big business” for all involved in terms of both the pecuniary pay offs and of the benefits of access to office.
In its 1986 report, the Babalakin Commission of Inquiry equally recommended that wherever an election petition succeeds, the court should “order that another election be held in the constituency where the election is the subject of such election petition,” arguing that the courts must “leave to the electorate the ultimate choice of a winner in an election contest.” In so saying, the Babalakin Inquiry report recognised that the judicial role in election dispute resolution should be to fashion remedies that preserve the sovereignty of the people as to how to dispense the contingent legitimacy of elections.
Inherent in this is an important distinction between jurisdiction and remedy in the exercise of the judicial function of election dispute resolution. Over the years, as election dispute resolution has risen in salience in Nigeria, the courts appear to have confounded this distinction, fashioning remedies that substituted the will of the judges for the will of the people. Quite often, this was done in a manner that created perverse incentives conducive to corroding the essential pillars of both judicial independence and electoral credibility. The judges achieved this by transferring to themselves the prerogative of adding or subtracting votes as they determined and then declaring winners based on judicial arithmetic. Of course, the question whether a court can grant a remedy can be a jurisdictional one but, as will become evident below, the origins of this new trend by which judges became the ultimate determinants of winners and losers in elections were laid in the aftermath of the 2003 elections. The scale and intensity of election-related litigation were both altered in relation to the contest that followed in 2007. The jurisprudential and political landmarks on the path to this destination deserve attention.
The Serial Legislator Who Never Won an Election
Once described by a leading Nigerian broadsheet as a “shadowy figure” Ubanese Alphonsus Igbeke was a serving member of the House of Representatives – the lower chamber of Nigeria’s National Assembly – when he reportedly told friends that he was not going to run to represent Anambra North in the election into the senate in 2007, but that whoever won “will serve for half of the term, while he – Igbeke – serves the remaining two years.” A curious judicial order procured Igbeke’s seat as a federal legislator at the time. Having run unsuccessfully for the ticket of the then ruling Peoples’ Democratic Party (PDP) in the contest for the Anambra East/Anambra West Federal Constituency in the 2003 election, Igbeke defected to the opposition Alliance for Democracy (AD). After the election, Igbeke went to court and “got the court to rule that he was the candidate of the PDP” Armed with that order, Igbeke got himself sworn into parliament as a member of the PDP caucus.
Four years later, in 2007, Igbeke had upgraded his political ambitions, and his methods only got more refined. He was again roundly defeated in the contest for the ticket of the PDP in Anambra North senatorial constituency and defected to the All-Nigeria Peoples’ Party (ANPP). Voting took place in the Seven LGAs of Anambra North on 28 April 2007 to determine the person to represent the constituency in the senate. At the end of the contest, the INEC returned Joy Emordi of the PDP as the winner. Five of the losing candidates, including Ubanese Alphonsus Igbeke of the ANPP lodged petitions before the Election Petition Tribunal in Awka, the capital of Anambra State, challenging the result. On 14 June 2008, the tribunal dismissed the petitions and upheld the return of Senator Emordi. Eight months later, on 10 February 2009, a Court of Appeal panel comprising Victor Omage, Ladan Tsamiya and Olukayode Ariwoola as Justices of Appeal dismissed the appeal by one of the candidates, Jessie Balonwu, against the decision of the first instance tribunal. The court determined in particular that there were elections in the seven LGAs of the constituency.” This was significant because the crux of the appeal by Ubanese Alphonsus Igbeke in his own appeal was that there were no elections in two of the seven LGAs in the constituency, specifically in Anyamelum and Onitsha South, respectively. At the same time, Igbeke also asked the Court of Appeal to find that Joy Emordi had failed to score the highest number of lawful votes in the election and to instead declare that he had in fact scored the highest number of lawful votes in the election and return him as the winner. The year after their first decision in the appeal by Jessie Balonwu, in March 2009, the Court of Appeal, this time comprising Amiru Sanusi, Ladan Tsamiya and Olukayode Ariwoola found in favour of Ubanese Igbeke on all issues and returned him as duly elected.” It was more than curious that a panel of the Court of Appeal that included two of the three justices who decided the earlier case could change their own decision on the pivotal issue of whether balloting in fact occurred in all the LGAs in the constituency with no need to justify themselves. Having found in Igbeke’s favour on that point, they proceeded nevertheless to award the election to him when a more appropriate order would have been to order a rerun in the constituencies where the court claimed that no balloting in fact occurred. Curiously, the court did this without significant advertence to its earlier decision in the case of Jessie Balonwu, in which two members of this latter panel were also involved.
At the time, the Court of Appeal had the final say on disputes concerning parliamentary elections. Senator Emordi lost in her effort to appeal against this to the Supreme Court.” On 25 May 2010, Ubanese Igbeke took the oath as Senator representing Anambra North. Just as happened after the 2003 election, Igbeke left the ANPP and took his seat in the senate as a member of the PDP.
This was far from the last time that he would be sent to the National Assembly on the back of a curious court order. In 2011, another court in Abuja also issued an order requiring the INEC to return him again as Senator for Anambra North. This time, the Attorney-General of the Federation had him arraigned before the Federal High Court in Abuja on charges of forging and altering the outcome of the party primaries that he lost, misrepresenting to the High Court in Abuja that he had in fact emerged as the winner.
TOMORROW…
The author looks at what is probably the height of electoral fraud in Nigeria enabled by the courts – winning elections without being on the ballot.
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