Reliance on Judiciary to Decide Outcomes of Election Inimical to Democracy, Says Ozekhome

Emmanuel Ugwu-Nwogo in Umuahia

Legal luminary and human rights advocate, Professor Mike Ozekhome, has called for an end to the frequent reliance on the courts to decide the winner of election, saying that “the judiciary cannot substitute the ballot”.
He gave the warning in the lecture entitled the ‘Judiciary as the Final Arbiter of Electoral Outcomes: Aberrations and Judgments without Justice’ delivered at the 9th convocation of the Gregory University Uturu(GUU).
Ozekhome, who is an ardent advocate of judicial reforms, noted that adjudication of electoral cases had in many instances led to subversion of justice thereby supplanting the will of the people as expressed in the ballot box.

He argued that “while judicial independence is widely acknowledged as a cornerstone of electoral democracy, it cannot be assumed that courts are inherently equipped for this role, as they risk overstepping their mandate.”

Ozekhome decried the prevailing situation where the judiciary has increasingly become involved in election matters to create “the facade of adherence to normative processes while effectively engineering authoritarian outcomes.”

He used the 2023 Nigeria general election to substantiate his claim of overbearing influence of the judiciary in the electoral matters, saying that 94 per cent of contested electoral offices were decided by the judiciary at an unprecedented rate.
“This judicial overreach extends beyond validating electoral rules to determining outright winners and losers in specific contests,” he said, adding that “this judicialisation of electoral processes facilitates democratic recession.”
“When judges resolve such a significant proportion of electoral disputes, it signals judicial overreach and diminishes the Judiciary’s capacity to perform its broader responsibilities due to the sheer volume of election-related cases,” the law professor said.
Ozekhome, who is a constitutional lawyer and human rights advocate,  condemned the overreliance on technicalities in resolving electoral disputes thereby jeopardising both democracy and the judiciary’s credibility.

“Under the guise of judicial authority, such practices undermine popular sovereignty in a manner comparable to the outcomes of a military coup, subverting the electorate’s will and eroding democratic legitimacy,” he said.

According to him, such judicial outcomes “undermine the right to political participation and erodes the foundation of popular sovereignty as the cornerstone of democratic legitimacy.”

Christening the involvement of the judiciary in resolving electoral matters as “judocracy”, he stated that it “allows the Judiciary to curtail citizens’ democratic rights while abandoning even the appearance of electoral credibility.”

“It creates distorted incentives for political actors seeking to manipulate electoral outcomes through judicial channels, transforming the Judiciary in Nigeria into an arena for the pre-emptive determination of electoral results,” Ozekhome said.

He said that the Nigeria courts should strive to employ “judicial remedies that empower citizens rather than undermining their democratic rights,” citing Kenya and Malawi where presidential polls were overturned in 2017 and 2020 respectively.

“It would bode Nigeria positive results if the Judiciary were to emulate such strength in adjudicating electoral cases,” he said.

As a way out of the malaise of judiciary, Ozekhome called for “an urgent need to recalibrate the judiciary’s role in election oversight.”

He said that the judiciary should confine its mission “to enforcing electoral rules rather than assuming the role of election administrators or arbitrating electoral outcomes.”