An Incoherent Electoral Jurisprudence

By Sam Amadi

Apart from corruption, which has become the badge of the Nigerian judiciary, the other defining characteristic of Nigeria’s judiciary in electoral petition is incoherence.  Decisions of the Nigerian judiciary in electoral petitions are grossly incoherent with the fundamental principle of electoral democracy: to give the people the power to choose those who will make and execute laws on their behalf.

Incoherence in this sense is about the lack of unity in decisions on electoral petitions. This lack of unity can be logical or structural or both. Logical incoherence is a mortal failure of adjudication because the chief merit of adjudication is that it is not whimsical. Judges are not politicians. They are not ordinary folks either. They are Hercule, Robert Dworkin’s mythical judge with the extraordinary ability to unify all disparate principles of law into a coherent moral universe. Judges do not make decisions by instinct or inclination; or by fancy; or even in pursuit of a strategic personal objective. They make decisions that are COMPELLED by the gravitational force of logic. They always strive to make the RIGHT decisions. And the RIGHT decisions cohere and explicate a consistent theory of either the constitutional text or the moral code.

It is the fact that judges are not whimsical or fanciful that makes them trustworthy. The people accept judicial decisions because, although they may not understand the fullness of the reasoning of judges, they trust that they will apply logical principles to established facts. Citizens who are legally enlightened may dispute judicial application of principles to facts, but they do not doubt that judges are coherent and consistent even in their misapplication of the law. The claim that judges are not making law in the guise of adjudication rests on the fact of logical coherence. Without it, the mythology collapses.

Sadly, in recent times, some of the decisions of the Nigerian appellate courts indicate that there is a crisis of coherence in whatever passes as electoral jurisprudence in the country. Every now and then there is a judgement from the higher courts that contradicts the previous decision in terms of the principles they establish. But more dangerous that the inconsistence is the incoherence with fundamental ideas and principles of democracy. This incoherence is dangerous because it demystifies the idealism of judicial decisions, presents them as politics by other means and invites the conclusion that judges are abrogating democracy in the guise of adjudication. We should never forget that the only justification for allowing a few bewigged elites to decide something as fundamental as a dispute about who gets to exercise political authority in a society is that judicial decision-making is assumed to be a search for what is right and wrong. Judges find the RIGHT answers to disputes.

The incoherence of the Nigerian adjudication of electoral disputes lies in the failure to relate decisions on election to principles of democracy. Anyone who reads through some of the notable decisions from the Court of Appeal and the Supreme Court would wonder what the point of it is. What theory of democracy are these decisions explicating. For example, where the court announces that a person who did not contest election should be declared the winner of the election because he or she ought to be the candidate to emerge from a properly conducted party primary, what concept of democracy is the court trying to articulate? The legality of such a decision may be evident, but the principle of democracy it explicates is missing. What element of democracy is served by installing a non-candidate to any election as a Governor? How can a person the citizens did not vote for be their choice as Governor?

Before we look at some of these instances of confusing jurisprudence, it is necessary to note that the real problem of incoherent electoral adjudication in Nigeria is that it undermines democracy and creates pernicious forms of both the politicization of judiciary and the judicialization of politics. If decisions by judges do not make moral and logical sense, then it means that we ought to see judges as political actors whose decisions reflect prior strategic commitment to preferred outcomes. It then justifies efforts to mobilize them to our political wagons through inducement or coercion. When this happens, judges themselves conscript the political space and make decisions that citizens should make as voters. This is politicization of the judiciary leading to the judicialization of politics. Either way, democracy is undermined.

The problem starts with not understanding the core elements of an electoral jurisprudence that is fit for a democracy. The starting point for such understanding is to know that elections are an instrumentalization of the principle of self-determination. Shorn of its technicality, election is an enablement for people in a complex society who can no longer come together to determine their wellbeing by their deliberations and choice to still do so by appointing some of their fellow citizens to act on their behalf. In legal terms, election confers a power of attorney on fellow citizens to represent others in making and executing laws. In olden, small city-states, these citizens could all come together at the Agora or townhall as adult males to exercise the power of rule daily. This is the case with the direct democracy of Athens or of the acephalous Igbo villages. But as society expanded and complicated, direct democracy was no longer possible, necessitating representative democracy, hinged on the right of the people to choose representatives through the ballot.

Three key elements of elections emerge from this intellectual history of democracy. First is that since elections are an instrumentalization of the right of citizens to choose leaders, it is fundamental in a democracy that all adults should be entitled to vote. This element is institutionalized in Nigeria in the constitutional right of all adult citizens to vote. The second element focuses on the quality of the environment in which citizens vote. The essence of self-determination is autonomy. There is no valid election if the citizens do not have the right to form opinions and beliefs, express them freely and organize themselves to advocate such through peaceful means. This constitutes the edifice of political rights, otherwise called fundamental rights in our constitution. The final element of election from the genealogy of democracy is equality of votes. All votes must count equally. No one vote should count more than the other. Therefore, accuracy in counting votes is the heart of electoral democracy. From this perspective, it might be true as Stalin reportedly said that those who count the votes are more important than those who cast the votes. This is why we clamor for an independent and honest electoral management body to supervise elections.

This is the moral universe of electoral democracy which our constitution embodies, and which electoral law and electoral adjudication should explicate and apply in electoral disputes. For adjudication of electoral petitions to promote democracy, it must express these fundamental elements of election. Elections are credible, free, and fair only if these elements are present. The electoral process must be conducted in a political economy of political freedom; citizens must be free to vote without intimidation or violence and the result declared must reflect the actual choices they made at the polls. Electoral jurisprudence is therefore a judicial effort to search out and uphold the will of the people in the choice of their leaders as reflected in actual votes. Any judicial search that ends up substituting the will of people with the will of a technocratic elite, or that pursues a mission of establishing any other form of legality that does not result in confirming the decision the people have made about who governs them is a misnomer. Judges do not have authority in a democracy to decide who rules. They only have authority to enforce the choice the people have made through their votes. If they do otherwise, they fail the coherence test.

The above statement of the essence of electoral jurisprudence appears simple and non-controversial. But it has been several violated even by the Supreme Court. Electoral adjudication in Nigeria could easily be read as an audacious violation of this simple principle. Let us start with the notorious case between Rotimi Amaechi and Celestine Omehia. Here, the Supreme Court held that the winner of the PDP governorship primary was not Mr. Omehia who stood for the governorship election, but Rotimi Amaechi who was not presented to the electorates as candidate. The court ordered Amechi to be sworn in as ‘elected’ Governor of the state. Now, the argument of the Supreme Court for sanctioning such a travesty of justice is that Amaechi who apparently won the primary election was wrongly replaced by Omehia. To avoid a situation where the party will frustrate its decision like in the Ararume case where the PDP still campaigned against Ararume even after the Supreme Court had imposed him as its candidates, it declared Amaechi elected rather than order a fresh election.

The decision has earned deserved ignominy. But it remains an important example of failure to apply the right electoral jurisprudence. We see aspects of this illogic in some other electoral decisions that lose focus on the central principle of electoral democracy, which is to allow citizens to choose leaders through votes. In many of these decisions, the court imposed those who did not contest elections because they OUGHT to be candidates. Part of the supporting logic of this misstatement of the principles of electoral democracy is a statement in the constitution that it is a political party that sponsors candidates for elections and the votes belong to the party. In the reckoning of some of the justices, the court can transfer the vote of the party to the person who ought to be its candidate.

This is a gross error. It is true we do not have independent candidacy. Every candidate is sponsored by a party. But electorates vote for candidates, albeit candidates sponsored by political parties. The essence of election is that the people are afforded the opportunity to choose a candidate. If the people as electorates never had the chance to choose a candidate, the court should not give such a person the mandate to rule under any form of adjudication. This also applies to candidates who stood for elections and are chosen by the people through valid votes. Such candidates should never be removed from office based on procedural failures unconnected with invalid votes. The only reason to remove from office a person who participated in any election and was voted for by the people should be that he or she did not win the election by proper count of valid votes, and never because he or she ought not to be candidate ab initio.  This relates to some of the recent cases like the governorship election in Plateau. It defeats democracy to override the votes of the people on the pretext that relevant agencies that ought to certify candidature failed in their job. If the failure was not rectified before the people went to vote, it stays. The votes of the people trump over any other legality. This means that pre-election matters should be resolved before voting. Votes are supreme in a democracy and should never be upset in pursuit of any other formal legality.

This may look like an abridgement of legalism. Yes, it is, and rightly so. The point of electoral jurisprudence is to uphold the votes of the people, not to promote legalism. The parties and INEC have work to do to ensure regularity. The courts can judicially review what those agencies do before election and determine eligibility. It is the responsibility of INEC to review the emergence of candidates before certifying them fit for elections. Citizens have the right to challenge any of those procedures in court based on the provisions of the electoral law. Once INEC certifies candidates and presents them to the people as fit and proper to be considered for election, and the people make a choice, the time has passed for the legality of eligibility. What now matters is the choice the people make. The court’s province after election has been conducted is to validate the choice the people have made, not to make its own choice in any guise, be it in the guise of legal compliance.