How to stop judicial coups against democracy in Nigeria

By FAROOQ  A. KPEROGI
Twitter: @farooqkperogi

“Second, at least at the presidential level, once someone has been declared the president and is inaugurated, they automatically assume enormous symbolic power that is almost impossible to reverse. They also have access to enormous resources that they can deploy to influence the course of justice.”

The Civil Society Legislative Advocacy Centre (CISLAC), one of Nigeria’s most prominent pro-democracy NGOs, invited me to make a virtual presentation from my base in Atlanta to a national seminar it organized last Thursday on “targeted judicial reforms and enhanced judicial integrity in post-election litigation.” Unfortunately, I couldn’t make it, but here are the thoughts I would have shared on the topic.

It’s oddly ironic that the judiciary, which should be the bulwark of democracy, has become such a dreadful terror to democracy that people are seeking to protect democracy from it. The courts have become the graveyards of electoral mandates. Judges have not only descended to being common purchasable judicial rogues, but they have also become juridical coup plotters.

The major preoccupation of pro-democracy activists is no longer how to keep the military from politics and governance but how to save democracy from the judiciary. In other words, in Nigeria, our problem is no longer the fear of military coups but the cold reality of frighteningly escalating judicial coups.

A “judicial coup,” also called a juridical coup d’état, refers to a situation where judicial or legal processes are deployed to subvert the choice of the electorate or to unfairly change the power structure of an existing government.

In other words, a judicial coup occurs when the courts are used to achieve political ends that would not be possible through standard political processes. In a judicial coup, the courts make rulings or interpretations of the law that drastically alter the balance of power, often favoring a particular political group or leader.

This can include invalidating election results, removing elected officials from office, altering the constitution through interpretive tyranny, or other significant legal actions that have profound political implications.

Before 2023, judicial coups happened in trickles and were barely perceptible. The big, bad bugaboo used to be INEC. When the Supreme Court made Chibuike Rotimi Amaechi the governor of Rivers State on October 25, 2007, without winning a single vote, we thought it was merely a curious, one-off democratic anomaly that was nonetheless morally justified because Celestine Omehia—who won the actual votes cast on April 14, 2007, and sworn in as the governor on May 29—was illegally replaced as PDP’s candidate after Amaechi won the party’s primary election.

Our collective toleration of this strange supersession of normal democratic procedures to produce a governor conduced to more aberrations.

On January 14, 2020, the Supreme Court produced its first unofficial “Supreme Court governor” in Hope Uzodimma of Imo State when it used dazzlingly fraudulent judicial abracadabra to subvert the outcome of the governorship election in the state.

The Supreme Court’s judicial helicopter zoomed past PDP’s Emeka Ihedioha who won 273,404 votes to emerge as the winner of the election; flew past Action Alliance’s Uche Nwosu who came second with 190,364 votes; zipped past APGA’s Ifeanyi Ararume who came third with 114,676 votes; and glided gently into the yard of fourth-place finisher Uzodimma of APC with only 96,458 votes.

It then declared that the fourth shall be the first, enthroned Uzodimma as the governor, and dethroned Ihedioha whom Imo voters and INEC had chosen as the legitimate governor.

I recall being too numb by the scandal of the judgment to even experience any sensation of righteous indignation.  Then came the Ahmed Lawan judgment, and I was jolted to my very bones. A man who didn’t run for an election, who admitted he didn’t run for an election, and who gave up trying to steal an election that he himself admitted he didn’t run for, much less win, was declared the “winner” of the election by the Supreme Court.

Because I closely followed the case and shaped public discourse on it, I was so incensed by the judgment that, in a viral February 6 social media post, I called Supreme Court justices “a rotten gaggle of useless, purchasable judicial bandits,” which prompted an unexampled official response from the Supreme Court that dripped wet with undiluted bile.

However, many judges, including some conscientious Supreme Court judges, agreed with me. For example, in his farewell speech last month, Justice Musa Dattijo Muhammad re-echoed my sentiments about the Supreme Court and cited former Court of Appeal justice Oludotun Adefope-Okojie who, in her own farewell speech, approvingly quoted my description of Supreme Court justices as “a rotten gaggle of useless, purchasable judicial bandits.”

The judicial banditry I talked about has assumed a different, worrying dimension. It has now become full-on judicial sabotage against the soul of democracy itself. In unprecedented judicial roguery, the Appeal Court has invalidated the election of all 16 PDP lawmakers in the Plateau State House of Assembly and handed unearned victories to APC candidates. It also nullified the victory of PDP’s Governor Caleb Mutfwang and asked that APC’s Nentawe Yilwatda Goshwe, who lost in the actual election, be declared the winner.

The case of the judicial theft of Kano State’s governorship election from NNPP to APC is too well-known to warrant restating. In all these cases, the judiciary invoked matters that were extraneous to the actual vote (called “technicalities”) to decide whom to crown as winners of the elections.

It’s now so bad that courting the votes of the electorates is no longer an important component of the democratic process since politicians can get from the courts what they lost at the ballot box. That’s a dangerous state for any democracy to be in.

The judiciary is becoming an unacceptably treacherous but overpampered monster that is exercising powers that are beyond the bounds of reason. It needs to be stopped through a holistic reworking of the electoral act.

The first thing that needs to be spelled out more clearly and more forcefully in a revised electoral act is that pre-election matters are not litigable after the winner of an election has been announced. All pre-election petitions should be litigated before the conduct of elections. Post-election litigations should be limited to the conduct of the elections. Since this happens once in four years, it should not be too much of a burden for the judiciary.

The second change that needs to be enshrined in a revised electoral act is a provision that divests courts of the powers to declare winners and losers of electoral contests. I am the first to admit that this is problematic because it limits the mechanism for redress available to politicians in cases of INEC-engineered electoral robberies. But in situations where courts can glibly overrule the will of the electorate by invoking procedural inanities that are extrinsic to elections to declare winners and losers, I would rather deal with INEC alone.

The conduct of elections can be improved in the future to the point that manipulations can be significantly reduced. But I can’t say the same for a rapacious, unjust, and mercenary judiciary such as we have today.

In any case, in all functional democracies, it is voters, not the courts, who elect and remove people from positions of political power. If the courts find sufficient evidence of irregularities in the conduct of elections, they can order a rerun. But they should never be invested with the power to declare winners and losers.

The last suggestion I have for the revision of the electoral act is to constitutionalize the imperative to finalize the adjudication of all election petitions before the inauguration of elected officials into their offices. There are two reasons for this.

First, it is disruptive to put elected officials through the hassles of post-election litigation while they are already officially in office. Governance is often put on hold during the pendency of litigations, and lots of state resources are expended to bribe judges, hire lawyers, and bring witnesses. That’s unfair to Nigerians.

Second, at least at the presidential level, once someone has been declared the president and is inaugurated, they automatically assume enormous symbolic power that is almost impossible to reverse. They also have access to enormous resources that they can deploy to influence the course of justice.

Whatever we do, we must curb the excesses of our out-of-control judiciary before it finally murders what remains of our democracy.

*Farooq A. Kperogi wrote in his paper for Thursday November 30, 2023 “National Seminar on Targeted Electoral Reforms and Enhanced Judicial Integrity in Post-Election Litigation” organised by the Civil Society Legislative Advocacy Centre (CISLAC), one of Nigeria’s most prominent pro-democracy and accountability advocacy groups. Source: farooqkperogi.com