Judicial activism in electoral matters is now prevalent in Nigeria. Abraham Lincoln famously defined democracy as “the government of the people, by the people, for the people”. But instead of “government by the people”, we are seeing “government by judges”, with the growing phenomenon of judge-made governors. The recent Supreme Court rulings overturning the results of the Imo State and Bayelsa State governorship elections are latest instances of such judicial overreach.
In the case of Imo State, the Supreme Court, on 14 January 2020, controversially removed Emeka Ihedioha, of the People’s Democratic Party (PDP), as governor and replaced him with Hope Uzodinma, the All Progressives Congress (APC) candidate, who, according to the Independent National Electoral Commission (INEC), came fourth in the March 9 2019 governorship election. And in the case of Bayelsa State, the Supreme Court, in another controversial judgment, on 13 February 2020, stopped the APC candidate David Lyon, who had been declared winner of the state’s gubernatorial election of November 2019, from being sworn in, and installed Douye Diri, the PDP candidate, as governor instead.
Of course, no one should shed tears for Nigerian politicians. Hardly any of them comes to equity with clean hands. Elections in Nigeria are akin to a game-theoretic Prisoners’ Dilemma. Everyone cheats in the fear that their opponents would cheat, but, in end, everyone risks being a loser. It’s always a question of who can outsmart the other. So, this is not a sympathetic piece for either Ihedioha or Diri; it is about the danger that judicial activism poses to representative democracy in Nigeria.
Judicial activism occurs when judges are too willing to overturn decisions of a political or democratic nature. In a more negative sense, it’s defined as when judges overturn such decisions based on subjective judgements. Of course, courts are a necessary part of the checks and balances in any democratic constitution. But the law must not be the continuation of politics by other means.
Of course, no one should shed tears for Nigerian politicians. Hardly any of them comes to equity with clean hands. Elections in Nigeria are akin to a game-theoretic Prisoners’ Dilemma
In his BBC Reith lectures last year, Lord Sumption, a retired Judge of the UK Supreme Court, argued that the principles of consent and legitimacy that underpin representative democracy should not be eroded by judicial processes. Judicial restraint should be exercised in political matters, he cautioned. He went on to acknowledge, however, that it’s “the decline of politics” that leads to “the rise of law to fill the void”, adding that “as politics has lost its prestige, judges have been ready to fill the gap.” Lady Hale, the outgoing president of the UK Supreme Court, made the same point in a separate lecture, arguing that law inevitably rises where politics fails!
Of course, it’s precisely because of the utter failure of politics that judges are installing governors and legislators in Nigeria. This is a country where elections are too often blatantly rigged or marred by significant irregularities. Where would someone turn to if he or she feels cheated politically? As Lady Hale said, “the premise of all constitutionally entrenched human rights is that ultimately the courts have to be the arbiters”.
But that puts a huge responsibility on judges. The judicial processes should not become a tool for perverting the will of the people. Judicial activism or overreach can be an enemy of democratic legitimacy. Judges have enormous discretionary powers, but they should exercise them carefully within the ambit of liberal democratic values. Given their subtlety of mind and learning, judges can justify any decision as being based on sound legal principles. But judges only derive their superior authority from their dispassionate evaluation of evidence and argument in reaching decisions. Yet, the Supreme Court’s rulings in the Imo State and Bayelsa State governorship cases seemed to defy such objectivity evaluation.
Let’s start with Imo State. The main argument in the case was that INEC excluded the results from 388 polling units from the total votes. Uzodinma argued that he secured 213,695 votes from the polling units and that if that votes had been added to the 96,458 that INEC originally assigned to him, his total score would have been 310,153, compared to Ihedioha’s 273,404, and he would have won the election. Uzodinma submitted that Ihedioha secured only 1,903 votes from the 388 polling units, which seems strange, given that PDP was also strong in the state and that APC went into the election a deeply divided party, with Uche Nwosu, son-in-law of the former governor, Rochas Okorocha, contesting under another party, which would have split APC’s votes – divided parties rarely win elections!
Ihedioha and INEC rejected Uzodinma’s claims, and both the Election Tribunal and the lower court dismissed his petition. But the Supreme thought differently. The court’s reasoning was two-fold. First, it said that Ihedioha didn’t produce facts and figures to disprove Uzodinma’s claim that he secured 213,695 votes from the 388 polling units. Second, the court argued that INEC didn’t tender the actual results for the polling units. And on the basis of the two arguments, the Supreme Court awarded the 213,695 votes to Uzodinma and declared him winner of the election.
But did the Supreme Court dispassionately evaluate the evidence – the votes – to convince itself of their probative value? The Tribunal and the lower court apparently did – and rejected Uzodinma’s case. But the Supreme Court didn’t; rather, it seemed determined to punish Ihedioha and INEC for failing to produce their own results of the 388 polling units. But that didn’t make Uzodinma’s results valid. Two wrongs can’t make a right. The will of the people and democratic legitimacy are too important for election cases should not be won on technicalities.
Interestingly, after the Supreme Court added the 213,695 votes to Uzodinma’s score, the total valid votes rose to 950,952, exceeding the 823,743 total accredited voters by 127, 209. Did it not matter to the Supreme Court that, after it awarded the 213, 695 votes to Uzodinma, the total valid votes exceeded the total number of accredited voters by 127,000? There were essentially more votes than voters!
The British playwright Tom Stoppard once said that “It’s not the voting that makes a democracy, it’s the counting”. The counting in the Imo State governorship poll was clear dubious. How could Uzodinma secure 213,695 votes and Ihedioha 1,903 in the 388 polling units? The Supreme Court should simply have ordered another election in the polling units. It’s always helpful, from a democratic legitimacy point of view, for courts to err on the side of caution, of judicial restraint, in such matters. But clearly, the Supreme Court didn’t!
Well, the court also didn’t err on the side of caution in the Bayelsa State case. The Supreme Court’s reasoning for nullifying the election of David Lyon, of the APC, and making Douye Diri, of the PDP, governor was that Lyon’s deputy, Biobarakuma Degi-Eremienyo, presented forged certificates to INEC. Indeed, it seems that Degi-Eremienyo had a way with name mutations, using different names on different documents.
But the Supreme Court had discretion and it exercised it harshly. It could have ordered the replacement of Degi-Eremienyo as deputy governor or, if that was impossible given the joint-ticket, it could have ordered another election. Again, I come back to the issue of democratic consent. The people of Bayelsa State didn’t vote for Diri and his running-mate, Lawrence Ewrujakpor. To make them governor and deputy-governor of the state, as the court did, amounted to overturning the will of the people.
A democracy is not truly representative if it doesn’t guarantee direct electoral links between the voters and their elected representatives; if it doesn’t ensure that governments only emerge through the explicit consent of the governed expressed by votes in elections. Sadly, the judicialisation elections, with the growing phenomenon of judge-made governors, is eroding the basis of representative democracy in Nigeria. It should.