This week, the opening salvo will be fired to signal the onset of the final round of voting in Nigeria’s electoral marathon. This is not a reference to the state-level ballots that occurred around the country on Saturday, March 18. I refer instead to something far more consequential.

Democracy may be about choices and decisions by citizens in theory. As practiced in Nigeria, however, citizens are mostly spectators. In every election, Nigeria’s judges have the final votes.

Every election cycle in Nigeria has three seasons. The campaign season belongs to the parties, the politicians, and godfathers. This is followed by the voting season, during which the security agencies, thugs, 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. All three are separate but interdependent.

Of 1,490 seats contested federally and in the states in 2019 (excluding the CT Area Council ballots), the courts decided 805 (54.02%). This is higher than just over 45% recorded in 2015 and 51% recorded in 2011 but lower than the high of 86.35% from the nadir of 2007. So, by 2019, Mahmood Yakubu’s INEC had bled all the confidence that Attahiru Jega, his predecessor, had built in the electoral process. In 2023, he shamelessly pulverized what was left of it.

With elections to federal offices concluded on 25 February and to state offices on 18 March, election petition season is now formally open. On 22 March, the first landmark will be reached with the expiration of the 21-day deadline for filing petitions arising from the presidential election results announced on 1 March.

Already, every piece of evidence points to the likelihood that this will be no ordinary season. On March 3, 48 hours after the announcement of the results, the Court of Appeal ordered the INEC to grant access to the parties to inspect the materials generated from the presidential elections. Three days later, the order was served on the INEC. Instead of complying, the commission stone-walled.

On March 13, INEC chairman, the execrable Mahmood Yakubu, informed lawyers for the parties who demarched him at the INEC headquarters in Abuja, that he had nothing to hide before quickly reminding them that most of the documents that they wanted were in the states and not at the INEC Headquarters. As with all the acts of infamy to which this INEC chairman has become habituated, he said this with a straight face.

This decentralization of obfuscation is original but unlawful. Under the Constitution and the Electoral Act, Nigeria is one constituency for the presidential election and the INEC Chairman is the only returning officer. The idea that documents used in the election are in the custody of INEC states offices is quite simply nonsensical. It is his place to organize custody in such a manner that the standards of access to them is uniform and predictable. By sending the lawyers on an obstacle course through 36 states and the FCT, Mahmood makes manifest his design to frustrate election dispute resolution.

Livy Uzoukwu, the SAN leading the legal team for Labour Party’s Peter Obi, credits INEC’s stone-walling with forcing them to reduce the scope of their inspection of materials from 36 states to just nine. Even then, by March 16, they had granted the lawyers access to only two states.

In Nigeria, every election petition is heard by a panel of three, five, or seven judges. If they all don’t agree, the judges will decide by majority vote. To win, a party must have the votes of two judges out of three (first instance); three justices out of five (appeal), or four justices out of seven (Supreme Court). Where there is such disagreement, there will be dissents.

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. Six of the seven Justices, led by Chief Justice Atanda Fatayi-Williams, ruled that the elections were in “substantial compliance” with the law, but Eso, the junior Justice on the panel, filed a memorable dissent.

Sometimes, the decisions of the courts inexplicably diverge. Following elections in September 1983, Nigeria’s Supreme Court heard 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 rigging the elections in both states, enabling the Federal Electoral Commission (FEDECO) to announce NPN candidates as winners when they lost. In Anambra, the citizens mostly went back to their businesses.

In Ondo State, the citizens decided to make the state ungovernable by burning everything in sight. On December 30, 1983, the Supreme Court upheld the Anambra governorship election by a majority of six to one but invalidated the Ondo Governorship result by the same margin. Hours later, on the night of the same day, soldiers sacked the government. By the time the court issued its reasons on January 6, 1984, Maj-Gen. Muhammadu Buhari was already one week old as a military ruler.

It is not only in Nigeria that election courts can announce incomprehensible outcomes. In 2006, Uganda’s Supreme Court considered a petition by the 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.

Sometimes, the decisions in election petitions are 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 August 29, 2013, Ghana’s Supreme Court announced a majority of six against three in favour of upholding the declaration of President Mahama as the winner. Economist, George Ayittey, wrote 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 six–three 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 a 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.

More recently, miracles have occurred. In August 2017, Kenya’s Chief Justice, David Maraga, led the Supreme Court to strike down a presidential election in Africa for the first time. In May 2020, Malawi’s Supreme Court did the same. In Nigeria four months earlier, the Supreme Court on January 13, 2020, declared Hope Uzodinma governor of Imo state despite his having been returned fourth in the election.

What Nigeria’s Supreme Court does in 2023 will matter. Like the major parties, all actors in Nigeria’s election petition process have learnt to build “structures”. For the parties, their structures are in the infrastructure of election rigging, or what former governor of Ekiti State, Kayode Fayemi, once famously called the criminal network of “five gods and the godfather”, including the highest levels of INEC, the security services, thugs, and the judiciary. For INEC, it is in the ruling party and the power network of incumbency at the federal and state levels. For the judiciary, it is in the same mutual benefit network of incumbency in the various branches of government at various levels.

Election petitions have become a preoccupation of judges in Nigeria and around Africa and a defining process in public perception of the courts. In the past, they provided moments of high forensic and judicial drama. Increasingly, however, they have become performative rituals for sanctifying electoral burglary and celebrating judicial capture. The beneficiaries are the burglars and the judges. The best the victims can often expect to receive is a timorous Pontius Pilate mistaken as a valiant judge. In 2023, Nigeria’s judges can sculpt a different narrative.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu

Of the bold moves that have been undertaken in recent months to effect some détente in the political situation in Tanzania, this is probably the most daring. That the main opposition party would have the cheek to invite President Suluhu Hassan to officiate at its political rally, and that she would accept was, until it happened, unthinkable.

Now that it has happened it has raised a number of questions without answers, simply because of its novelty, given our recent history in all matters political. What is the game plan? people are asking. Who is pulling a fast one on whom? Who is the card and who is the dunce? What is the strategic aim of all this, and what is each party expecting as the outcome of the game?

All we mortals know is that the chairman of Chadema — probably the biggest opposition party in the country —announced out of the blue that he had invited President Samia, who is also chair of the ruling party CCM, to be the guest of honour at a Chadema symposium on March 8, commemorating International Women’s Day.

That was clearly unprecedented, and when it was confirmed that Samia had indeed accepted the invite, it was clear that we had moved away from the times when these two political formations were mortal enemies. The very thought that they would open the doors to each other’s activities was mutually anathema. At least that is how casual observers viewed the political chasm between these organisations.

Political culture

It has been the political culture in the country that opposition political parties have been registered but not openly allowed to operate, only being tolerated as an unnecessary evil that has been foisted on the country by circumstances “beyond our control.” The ruling party has had that stance all the time since former Chief Justice Francis Nyalali produced a report that was adopted by all the structures of the political system, leading to multiparty politics.

The multiparty system limped, huffed and panted under successive regimes headed by Ali Hassan Mwinyi, Benjamin Mkapa and Jakaya Kikwete, all of them presidents who paid lip service to the new dispensation but did everything to kill it. They were all too hypocritical to say openly what they wanted.

With the arrival of John Pombe Magufuli at the helm, and after being made chair of CCM, a new order was born —one of zero tolerance to opposition. His stance was clear for all to see: The opposition had to be killed, and he did his damnedest to make that a reality. By 2020, he had achieved that, only he died.

Undoing the system

Samia, as Magufuli’s successor, has had other ideas, and she has been meticulously undoing the system that the dead president had crafted, which wanted the single-party rule reinstated and his personal rule extended forever.

That is why he did not allow his own party cadres, who could have won without vote stealing; he replaced them with candidates who had polled far fewer votes in the preliminaries, and then stole the ballots at a strategic level, where his security operatives replaced the returning officers, election observers and even voters, wholesale.

We started hearing people saying they were going to “force him” to change the constitution to “allow him” to rule without end when, in fact, it was he who was making himself president for life. His henchmen/women were busy with all manner of stratagems, including killing or disappearing people who he wanted dead, stashing away slush funds for his project, and preparing a compliant base of sycophants who would never challenge him.

In those circumstances, when Magufuli died, Samia found herself with no real support from her own party, and the first steps she took included bringing together all elements of goodwill, notwithstanding political affiliation.

Help the country move on

It is not too crazy to think Samia and Freeman could have come to understand that the political conditions of the country require them to come closer together with a view to helping the country to move forward.

March 8 comes across as the ideal moment to break the ice, because the advancement of women’s issues is something there can be little disagreement over. For that reason, I think the choice of the occasion and the date was superb.

That did not stop tongues wagging on both sides of the spectrum. On the opposition side, it might appear that Chadema is selling out, while on the side of CCM, Mama is too eager to appease the very people who want her job and CCM’s comfort zone just to please their sworn “enemies.”

During the meeting, it was refreshing to hear the two main protagonists exchanging good-natured barbs in political conversations, emphasising competition without enmity. Freeman did not miss the opportunity to reiterate his party’s basic demands on political reforms, and Samia stressing the importance of the collaboration shown by the two parties to become a norm, because, she said, there were people who did not want conversations such as this one to take place.

This ice-breaking mode serves as a safety valve that will allow the nation to breathe, and should be encouraged. As they say, yaw-yaw is better than war-war.