INTRODUCTION
In our last installment we examined the position of political parties and the court’s jurisdiction in pre-election matters. Today, we shall commence with a definition of post-election matters and later examine the grounds for questioning an election, patterns of judicial intervention in electoral outcomes- the 1999 and 2023 elections in focus. We will then consider the clash between judicial authority and democratic legitimacy. Enjoy.
Post-elections matters
These are matters which arose from the actual conduct of elections and are founded on alleged irregularities in the conduct of those elections. For example, Section 130(1) of the Electoral Act, 2022, puts it thus:
“No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
Grounds for questioning an election
In Nigeria, an election may be questioned on any of the following grounds:
That the person whose election is questioned was, at the time of the election, not qualified to contest the election; the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or The respondent was not duly elected by majority of lawful votes cast at the election. (See Section 314(1) of the Electoral Act, 2022.). Thus, no matter how aggrieved a party is about the conduct of an election, he does not have the locus to bring an election petition unless –
(a) He is a candidate in an election; or
(b) It is a political party which participated in the election.
A pattern of judicial intervention
The role of the judiciary in Nigeria’s electoral process has since evolved from a mere neutral adjudicator to a decisive body that has repeatedly overruled or altered electoral outcomes, upturning the will of the people as expressed through the ballot. Several cases in recent history illustrate this growing trend.
The 2007 presidential election
The 2007 presidential election, which saw the election of Umaru Musa Yar’Adua, was one of the most controversial in Nigeria’s history. Widespread allegations of voter intimidation, rigging, and malpractices led to numerous petitions challenging the results. The late President Umar Musa Yar’Adua admitted that the election that brought him to power left much to be desired. Despite compelling evidence of electoral fraud, the Election Petition Tribunal upheld the victory of Yar’Adua. However, following an appeal, the Supreme Court eventually ruled in favor of Yar’Adua, effectively solidifying the outcome of a patently flawed election. This judgment raised concerns about the judiciary’s ability or willingness to ensure electoral integrity. Many critics argued that the judicial process had been compromised and that the final decision reflected a political compromise rather than a commitment to justice. The 2007 case illustrated a pattern in which the judiciary was seen as an extension of the political establishment rather than an independent body upholding the rule of law.
The 2019 presidential election
A more recent and equally contentious example is the 2019 presidential election, in which President Muhammadu Buhari was re-elected for a second term. Atiku Abubakar, the main opposition candidate, challenged the results of the election, alleging that the process was marred by widespread irregularities, voter suppression, and illegal alterations of votes. The Presidential Election Petition Tribunal (PEPT) initially ruled that the election was not conducted in accordance with the law, but nonetheless dismissed Atiku’s petition on the grounds that he had not provided sufficient evidence to prove his claims.
The decision was appealed to the Supreme Court, which ultimately upheld Buhari’s victory, despite the myriad allegations of electoral fraud and the failure of the Independent National Electoral Commission (INEC) to address key concerns about the integrity of the electoral process. In its judgment, the Supreme Court asserted that Atiku had failed to prove his case beyond a reasonable doubt, even though many observers believed that the election was far from free and fair.
The 2023 presidential election
The 2023 presidential election, which saw Bola Ahmed Tinubu of the All Progressives Congress (APC) declared as the winner, followed a similar trajectory. The election was marred by significant “technical glitches”, delayed results, and widespread accusations of voter suppression. The Labour Party and People’s Democratic Party (PDP) candidates, Peter Obi and Atiku Abubakar, respectively, filed petitions challenging the results.
In their petitions, the opposition candidates argued that the election was massively rigged and that INEC had failed to comply with the provisions of the Electoral Act, particularly regarding the transmission of election results through the Bimodal Voter Accreditation System (BVAS). However, despite the compelling evidence and widespread public distrust in the electoral process, the Supreme Court ruled in favour of Tinubu, dismissing the petitions and affirming his victory. His votes of 36.61% to Atiku’s of 29.07% and Peter Obi’s 25.40% represent the lowest percentage of victory votes ever recorded by a Nigerian President.
The judgment sparked outrage, with many Nigerians questioning the independence and impartiality of the judiciary. Critics argued that the court’s decision was more about political convenience than the pursuit of justice, raising concerns that the judiciary was undermining the democratic process by siding with the ruling class rather than protecting the will of the people.
Balancing the scales: The clash between judicial authority and democratic legitimacy
Emerging democracies, particularly in Africa and Nigeria, frequently experience compromised electoral processes, wherein judicial mechanisms are coerced into resolving electoral disputes. This trend inevitably raises concerns regarding the implications of increasing judicial involvement on the fulfilment of the democratic right to vote and the institutional legitimacy of the Judiciary. In response to these dynamics, courts bear the responsibility of devising remedies that safeguard and reinforce the populace’s right to elect their leaders.
The presumption that the legitimacy of electoral democracy hinges on and is exclusively derived from the populace, has increasingly been contested in numerous countries across Africa. Elections in various regions of the continent often exhibit imperfections, leading to post-electoral disputes. As evidenced by the aftermath of Kenya’s 2007 and Nigeria’s 2011 presidential elections, these disputes can escalate into violent hostilities, resulting in atrocities, including violations of international law. To avert such crisis’s, concerted efforts have frequently been made to encourage those dissatisfied with flawed elections in Africa to seek redress through judicial mechanisms. Political actors, particularly those declared victorious, often urge losing candidates to “go to court,” thus framing the judicial process as a dichotomous choice between stability and disorder. Consequently, electoral processes often extend beyond the casting of ballots, with ultimate resolutions increasingly determined by unelected judges. However, this tendency to channel electoral grievances exclusively through the Judiciary has limited broader deliberation on the systemic implications of positioning courts as the definitive arbiters of elections. The escalating judicialization of electoral processes threatens both democratic legitimacy and the independence of the Judiciary.
A growing concern in this domain is the pronounced judicialization of democratic legitimacy. This phenomenon involves the reliance on judicial mechanisms to confer legitimacy upon electoral processes that inherently lack it—a tactic frequently employed by both judicial actors and politicians to undermine the sovereignty of the populace. Such judicial intervention in electoral matters often exacerbates democratic recession, posing significant risks to judicial independence, a cornerstone of the rule of law. “The world has been in a mild but protracted democratic recession.” To comprehend the dynamics of electoral judicialization, it is imperative to emphasize that the Judiciary’s role in elections should remain narrowly circumscribed. The democratic process, as a rule-governed framework for the transfer and exercise of political authority, presupposes the existence of what Ernst Fraenkel termed the “normative state of the rule of law,” distinct from the “authoritarian, prerogative state.” This normative state is only viable in a sovereign polity with a reasonably independent Judiciary capable of adjudicating and interpreting the legal norms underpinning a democratic society. Accordingly, the Judiciary’s function is to ensure compliance with the regulatory framework governing electoral validity—specifically, to guarantee that all votes are duly cast and counted.
The judiciary cannot substitute for the ballot
To operationalize these principles, many nations establish election management bodies (EMBs) to oversee the organization, supervision, and certification of electoral outcomes such as the Independent National Electoral Commission (INEC) in Nigeria. When elections adhere to this structure, democratic legitimacy remains vested in the electorate. 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. Following the democratization wave across Africa in the 1990s, the Judiciary was largely regarded as a beacon of “hope” for consolidating nascent democracies. However, recent developments necessitate a reassessment of this assumption.
Judiciaries are increasingly being co-opted to create the facade of adherence to normative processes while effectively engineering authoritarian outcomes. This judicial overreach extends beyond validating electoral rules to determining outright winners and losers in specific contests. For example, in Nigeria, in the last election cycle 94.% of contested electoral offices in were decided by the Judiciary at an unprecedented rate. Courts frequently overturn official electoral results, substituting their own determinations or recalculating figures provided by the EMBs (such as INEC). 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. This phenomenon has led to what The Economist describes as “democracy by court order.” I call it Judocracy. In 2011, for instance, the Judiciary awarded a seat in the national parliament’s upper chamber to, Sen. Hope Uzodinma, an individual who had never secured an electoral victory. Similarly, in 2019, Nigeria’s courts declared the governorship of Imo State in favour of the same candidate who had demonstrably lost the election as aforementioned in this paper. 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.
This judicialization of electoral processes facilitates democratic recession in three keyways. First, it undermines the right to political participation and erodes the foundation of popular sovereignty as the cornerstone of democratic legitimacy. Second, it allows the Judiciary to curtail citizens’ democratic rights while abandoning even the appearance of electoral credibility. Third, 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. (To be continued).
Thought for the week
“All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous Judiciary”.
(Andrew Jackson).