As Nigeria’s Judges Get Set to Cast the Final Votes in the 2019 Elections By Chidi Anselm Odinkalu

Every election cycle in Nigeria has three seasons. The campaign
season belongs to the parties, the politicians and their
godfathers. This is followed by the voting season, during which the
security agencies and the Independent National Electoral Commission
(INEC) hold sway. Thereafter, matters shift to the courts for the
dispute resolution season, which belongs to the lawyers (mostly
Senior Advocates of Nigeria, SANs) and judges.

Democracy may be about choices and decisions by citizens in
theory. As practised in Nigeria, however, what is clear from these
three seasons is that there is very little room in it for the
average citizen. If they are anything, citizens are mostly
spectators.

Election tribunals generally have about six months to decide on
contested declarations by the INEC. With elections to federal
offices concluded on 23 February and to state offices on 9 March
2019, we are now approaching the season where the courts must begin
to announce their decisions. This is usually an uneasy time for
candidates, parties, lawyers and judges alike.

Election petitions have become a major part of the work of
judges around Africa and a defining moment in the public perception
of the courts. Quite apart from being a moment of serious stress
for the judges and lawyers who participate in them, election
petitions are major sources of disagreements among judges.

In every election, the judges have the final votes. Of 1,490
seats contested federally and in the states in 2019, 776 (52.08%)
will be decided by the courts. This is higher than 46.1% recorded
in 2015 and 51% recorded in 2011 but lower than the high of 86.35%
from the nadir of 2007.

Elections entail both choices and disagreements among all
involved, including judges. In Nigeria, every election petition is
heard by a panel of three, five or seven judges. Where they don’t
agree unanimously, the judges will decide by majority vote. To win,
a party must have the votes of two judges out of three (first
instance); three judges out of five (appeal) or four judges out of
seven (Supreme Court). Where there is such disagreement, there will
be dissents. Disagreements among judges in elections petitions can
mirror disagreements among citizens in the elections. More than any
other area, election dispute resolution is replete with
dissents

Few things are as interesting in judicial decision making
generally as dissents, a subject matter on which sentiments
diverge. Some judges and lawyers take the view that judicial
dissents are “something like judicial treason.” William Douglas,
whose 36 years as an Associate Justice make him the longest serving
judge in the history of the United States Supreme Court described
the right to dissent as “the only thing that makes life tolerable
for a judge.”

The heightened role of judges in elections is essentially a
feature of the presidential system of government. In Nigeria,
Kayode Eso handed down the first notable dissent in this field in
the Supreme Court  decision in Obafemi Awolowo’s challenge to
the victory of Shehu Shagari in the 1979 presidential election.
While six of the Seven Justices led by Chief Justice Atanda
Fatayi-Williams, ruled that the elections were in “substantial
compliance” with the law, Eso, the junior Justice on the panel,
filed a memorable dissent disagreeing with both the conclusion of
the Court and its reasoning concerning the applicable burdens of
proof.

The quality of decision making in election petitions has not
always been clear. Sometimes, the decisions of the courts appear
mutually contradictory or inexplicably divergent. Following the
elections in September 1983, the Supreme Court of Nigeria was
presented with two cases arising respectively from the governorship
elections in Anambra and Ondo States. The issues were broadly the
same. The then ruling party, the National Party of Nigeria (NPN)
was credibly accused of having rigged the elections in both states,
enabling the Federal Electoral Commission (FEDECO) to announce NPN
candidates as winners when they should have been losers. In
Anambra, there was a murmur of protest but the citizens mostly went
back to their businesses. In Ondo State, the citizens decided to
make the State ungovernable. On 31 December, the Supreme Court
upheld the Anambra governorship election by a majority of six to
one but by the same margin, the same court invalidated the Ondo
election. Hours later, on the night of the same day, the military
sacked the elected government in Nigeria, announcing Major-General
Muhammadu Buhari as military Head of State.

It is not only in Nigeria that courts can announce
incomprehensible outcomes in election petitions. In 2006, Uganda’s
Supreme Court considered an election petition by opposition
candidate, Kizza Besigye, against incumbent President, Yoweri
Museveni. In its decision, the Court concluded that “there was
non-compliance with the provisions of the Constitution,
Presidential Elections Act and the Electoral Commission Act, in the
conduct of the 2006 Presidential Elections”; that there was
“disenfranchisement of voters by deleting their names from the
voters register or denying them the right to vote” and that “the
principle of free and fair elections was compromised by bribery and
intimidation or violence in some areas of the country.”
Nevertheless, Chief Justice Benjamin Odoki led three other judges
in a majority of four to uphold the outcome in favour of
Museveni.

William Hirt wrote that dissents among judges “like homicide,
fall into three categories – excusable, justifiable, and
reprehensible.” The decision of Nigeria’s Court of Appeal in the
case concerning the contest over the Anambra South senatorial seat
in 2004 produced a dissent in the justifiable category. It turns
out that Justices Okwuchukwu Opene and David Adeniji apparently
accepted gratification from or on behalf of Senator Ugochukwu Uba
to hand him a favorable outcome. In May 2005, following the
recommendation of the National Judicial Council (NJC), President
Obasanjo fired them as Justices of Appeal. Justice Kumai Akaahs,
who dissented in that case, currently sits on the Supreme Court and
will retire on 12 December 2019.

Sometimes, the decisions in election petitions are plainly
dodgy. When it decided the election petition against the outcome of
the December 2012 presidential election filed by then opposition
candidate, Nana Akuffo-Addo, on 29 August 2013, Ghana’s Supreme
Court announced a majority of six against three in favour of
upholding the declaration of President Mahama as winner. Economist,
George Ayittey, would later write that the announced decision was
“bungled. There was an inexplicable 4-hour delay in announcing the
verdict, fueling speculation that something fishy was going on
behind the scenes. Then Justice Atuguba announced a 6-3 verdict
dismissing the petition. A day later, the verdict was changed to
5-4.” In a study of the judgment published in 2014 under the title
The Burdens of Democracy in Africa: How Courts Sustain
Presidential Elections, late Nigerian lawyer, Bamidele Aturu,
showed that five of the nine Justices who sat on that election
petition in fact ordered partial or total rerun of the election. In
effect, rather than the announced majority of six –three in favour
of President Mahama, the verdict was in fact five-four against
him.

Election petitions often, if not nearly always, involve what Olu
Adeniran of the Obafemi Awolowo University, Ife, described in a
1982 article as “compromise between law and political expediency.”
The ways in which these compromises are struck vary from case to
case. The reasons and motives of the judges involved are also
diverse. Quite clearly, however, the politicians watch the judges
closely and do take notice. In 2007, Muhammadu Buhari, then
opposition candidate who lost to Umaru Yar’Adua in Nigeria’s
Presidential election, petitioned a tribunal. In the Court of
Appeal, Sylvanus Nsofor dissented from the panel of three Justices.
When the case went to the Supreme Court, George Oguntade, Aloma
Mukhtar and Walter Onnoghen also dissented from the panel of seven,
which ruled in favour of Yar’Adua.

When he eventually won the Presidency in 2015, Muhammadu Buhari
appointed Oguntade, by the long retired from the Supreme Court, as
his Ambassador to the United Kingdom and Nsofor, also long retired
from the Court of Appeal, as his Ambassador to the United States.
For some inexplicable reason, Buhari showed marked reluctance in
appointing Onnoghen as Chief Justice in March 2017. In January
2019, shortly before another election that was fated to end up
before the courts, Buhari brutally terminated Onnoghen’s judicial
tenure.