The courts are increasingly playing the role of the electorate, argues Josef Omorotionmwan

By the Division of Labour arrangement in our Constitution, Nigeria stands on a tripod – the legislature makes policies; the policies are executed by the executive branch; and any matter of interpretation is referred to the judiciary.

These divisions are, however, not made into watertight compartments – one branch occasionally performs roles that are otherwise reserved for another branch. For instance, to become law, any bill validly passed by the National Assembly must be assented to by the President. When executive agencies make subsidiary regulations to facilitate the implementation of any Law, they engage in a legislative function.

When the courts strike down a law validly passed by the legislature and introduce amendments instead thereof, they carry out what is clearly a legislative function.

And when the legislature ousts the role of the judiciary in carrying out the impeachment of its members, the legislature certainly takes on the role of the judiciary.

Lately, we have come to hear of the nebulous constituency projects, under which legislators get money to provide projects in their respective constituencies. This is clearly an executive function.

It is instructive to note that rather than produce a situation of total independence, the Doctrine of Separation of Powers enshrined in our Constitution introduces a situation of a healthy interdependence. The idea here is that no particular branch of government should be too strong to become tyrannical.

Representative government implies that there must be periodic elections in which the citizenry determines the people to represent them in government. This elective role is reserved specifically for the citizenry.

Party discipline died years ago and money took over. That was when we descended to the realm of what the Americans call MAKING YOU AN OFFER YOU CAN’T REGRET. When money talks, nobody walks!

Our first reflection goes to the days of our founding fathers – Ahmadu Bello, the Sardauna of Sokoto and Sir Abubakar Tafawa Balewa of Northern Nigeria, Chief Obafemi Awolowo of Western Nigeria; and Dr. Nnamdi Azikiwe of Eastern Nigeria, as recently as the First and Second Republics. Those men were the leaders of their political parties. They instilled discipline and commanded loyalty. The men have since played their part and left the stage. The political parties died and party discipline died as well.

The natural consequences that followed the death of the political parties and the twin brother, discipline, are what we are experiencing today.

From the formation of the so-called political parties of today, to the nomination of party officials; and from the selection of candidates for election at all levels, to the determination of winners and losers at the elections, everything is now determined by the courts!

Party primaries at all levels, both for party and government positions, have become chance games since the final determination can be made only by the courts!

At the election proper, 80 million Nigerians would stand in the sun and under the rain to vote for their preferred candidates, only for them to be vetoed by five odd fellows at the courts and the judges would install their preferred choice. This is an aberration!

At times, the Courts have had to award victory to somebody who did not contest the election in question. This is JUDICIOCRACY at best. We have not seen its type anywhere. The rate at which we are going, we shall soon arrive at the point where the judiciary will work directly with INEC and leave the electorate alone. The sooner, the better!

As things stand today, of the hundreds of thousands of pre-election cases in our courts, many of the actual candidates will not be known far beyond May 29, 2023 – even granting that all the courts in the land will be devoted to only those cases! It is a rumble in the jungle. The courts are simply overwhelmed with election cases at the detriment of the other criminal and civil cases for which they were originally setup.

The way it was: In the era of party discipline, only a few exceptional Intra-party cases of nomination went to the courts. Intra-party cases of the nomination of candidates were settled in-house and not taken to any court. As the saying goes “who born you to say you are taking your fellow UPN member to court when Chief Obafemi Awolowo had initialed the nomination list?”

Look at all the imbroglio playing out today in all the parties from Yobe to Akwa Ibom; and from Calabar to Maiduguri, of cases involving the nomination of dog catchers and councillors as well as presidential candidates and others! Everything must now be decided at the Supreme Court! And yet, when the entire process becomes one of cash and carry, we wonder why.

Let’s look at a few instances of how discipline worked in those good old days: One fateful morning in 1982 or thereabout, the late Olaiya Fagbamigbe (UPN/Akure) rushed to my office at the Red Brick Building in the House of Representatives, looking dejected and frustrated. What happened? He took an idea to Chief Obafemi Awolowo at his Park Avenue residence, Apapa. After listening to him, he said Baba kept quiet for about five minutes and pronounced his verdict: “I’ll rather wait to attend your send-off party. Goodbye.” Fagbamigbe knew he had been fired from the UPN!

Second Case: We were working on the amendments to the ELECTORAL BILL, 1982. Opeyemi Ola, a profound Professor of Political Science came to my office with some amendments that he wanted me to put on the ORDER PAPER.

I looked at the amendments and advised against including them on the ORDER PAPER because similar amendments had been defeated in the House the previous day and if they were put before the House, they would collapse, Mutatis Mutandis.

In a rather pensive mood, Prof. replied, “I know but that’s how Baba wants them.” Chief Awolowo was one man who believed that it was better to say this was where a man died, rather than this was where he ran into the bush. He would rather see it defeated than it was not included. Very early every morning, Baba would send somebody to the Paper Office to collect the ORDER PAPER, THE DEBATES and the VOTES AND PROCEEDINGS; and if he found traces of disobedience of his instruction, you were in trouble.

We saw that in the beginning, political leaders had a grip on their members and such members were appropriately whipped into line.

From that giddy height, we are now down to the ground level where politicians at all levels, both inter-party and intra-party, drag themselves to the courts at the least prompting and on every issue.

As a direct consequence, the courts have totally displaced the electorate and have effectively taken over the role of periodically electing the people to represent them.

The cause and effect of this sorry state will be topic for another day.

While we glide down the slippery slope, the aphorisms are steadily on the rise – Why pay a Lawyer when you can buy a Judge? Why strive for good elections when you can buy a Judgment? It is so sad that with our own hands, we have dethroned Democracy and enthroned Judiciocracy! Nigeria is still the worse for it all.