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As Nigeria’s judges get set to begin voting, By Chidi Anselm Odinkalu

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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

Strictly Personal

Don’t cry for Mandela’s party; ANC’s poll loss is self-inflicted, By Jenerali Ulimwengu

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There is losing, and then there is losing. The loss that the African National Congress suffered in the recently concluded elections in South Africa is a loss of a special type. It is almost as if the erstwhile liberation movement willed this loss on itself.

This is Africa’s oldest political organisation, which, with its longevity and the special task imposed on it by history, became more than a party or a movement but rather became more like a nation — the nation of Black South Africans.

I mean, if you were a Black man or woman in South Africa and you wanted to identify as somebody who wants to be respected as a human being, you were automatically ANC.

True, this is somewhat exaggerated, but it is not very far from the truth. For most of its life since its founding in 1912, it always identified with and represented the people of South Africa, taking an all-inclusive approach to the struggle for all the racial, ethnic, and confessional groups in the country, even when the exactions meted on the country by the most nefarious ideology on the planet could have suggested, and did indeed, suggest a more exclusivist outlook in favour of the majority racial cohort.

It sought to unite and to mobilise energies nationally and internationally, and create a more equal society for all, that would be in sync with the most advanced and progressive thought of the world at different stages of its career. It became home for all South Africans regardless of colour, creed or social station.

Even after Apartheid was officially promulgated as the philosophy and practice of the national government after 1948, the ANC hardly veered from that steadfast philosophical vision. To galvanise adhesion and grow ownership, the ANC adopted strategic blueprints for the future, including the Freedom Charter of 1955, setting out the basic things the movement would do when it came into power.

In the face of intransigence on the part of the Boers, the ANC saw the need to alter strategy and accept that armed struggle was inevitable, and launched the MK (Umkhonto we Sizwe, or Spear of the Nation) to spearhead armed insurrection.)

Though MK was more effective as a propaganda tool than a fighting force, it did the job of getting the white minority in the country to realise that their lives of comfort were numbered as things stood, and that it made more sense to seek some form of accommodation with the Blacks.

Once that was effected, even those Whites who had been diehard supremacists suddenly realised, with regret, how stupid they had been all along: Not only were these Blacks, long considered subhuman, not only fully human but also corruptible—just like the Whites.

And so the White establishment set out to work on their old enemies, corrupting them to the core with the luxurious goodies that up to then the nouveau riches had not imagined, with things like the erroneously termed “Black Empowerment”, a programme designed to yank from the bosom of the people a handful of individuals with sufficient appetites to make them forget about the Freedom Charter.

Probably more than anything, it was this that spelled the start of the demise of the ANC. In the past, we had seen former freedom fighters in Mozambique, Angola and Guinea Bissau scramble into the blinding lights of Lourenco Marques, Luanda and Bissau, to be destroyed by the perils of Original Sin.

But South Africa was different in that the erstwhile oppressors simply took even the former “terrorists” by making them filthy rich, detached from the depressing realities of the masses of their people, by making them, in effect, traitors. So much so that when the workers at Marikana went on strike against a company owned by the current president of the country, the latter had absolutely no qualms about sending in the police to kill scores of protesters!

Now, the phenomenon of two sitting presidents being replaced by their party is spectacular in itself, but it belied a body politic that was groaning under its dead weight of sleaze and factionalism.

It may seem to some observers that the only thing that kept the various hungry factions together was the white-run oppressive system, and that after this was replaced with money-making cabals of ex-comrades, we found an ANC that was ideologically bankrupt and politically rudderless.

Now the ANC has to deal with the electoral result that has denied it an absolute majority for the first time, its crimes and misconduct have caught up with it. It has been sent to a political purgatory to atone for its sins, but while there, it must choose whom to work with among its sworn enemies:

Will it choose the DA, a lily-White party whose feeble attempt to ‘bronze’ itself with the recent choice of Mmusi Maimane as its head failed miserably? Will it rather be Jacob Zuma’s MK party, which is shamelessly an ethnic outfit bent on rehabilitating a misfit who has been disgraced multiple times as a rascal and a thief? Or could it be the EFF’s Julius Malema, whose day job has become, for some time now, to lambast the person of the current president and chief of the ANC?

We shall see.

Ulimwengu is now on YouTube via jeneralionline tv. E-mail: jenerali@gmail.com

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Appraising 25 years of return to democracy, By Jide Ojo

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Last Wednesday, May 29, 2024, marked exactly the silver jubilee of Nigeria’s return to civil rule. However, the celebration has been shifted to June 12 in commemoration of the 1993 presidential election won by the late Chief MKO Abiola which the military junta of Gen. Ibrahim Babangida annulled. It was the immediate past President, Muhammadu Buhari, who did that. In a tweet posted on his X handle on June 6, 2018, Buhari said inter alia “Dear Nigerians, I am delighted to announce that, after due consultations, the Federal Government has decided that henceforth, June 12 will be celebrated as Democracy Day. We have also decided to award posthumously the highest honour in the land, GCFR, to Chief MKO Abiola. In the view of Nigerians, as shared by this administration, June 12, 1993, was and is far more symbolic of democracy in the Nigerian context than May 29, or even October 1.”

Chief Abiola’s running mate, Babagana Kingibe, was also awarded a GCON. Furthermore, the late Chief Gani Fawehinmi (SAN), a tireless fighter for human rights and democracy, and for the actualisation of the June 12, 1993 election was posthumously awarded a GCON. Buhari said further that, the June 12, 1993, election was the freest, fairest and most peaceful election since Nigeria’s independence.

1999 to date has been described by political historians as the Fourth Republic. Recall that the First Republic was between October 1, 1960 and January 15, 1966. The Second Republic was between October 1, 1979, and December 31, 1983, when the military struck. The Third Republic was between 1990 and June 23, 1993, when IBB annulled the June 12 presidential election. Thus, the Third Republic was inchoate and inconclusive as it was aborted without a president being sworn into office. Out of Nigeria’s 64 years as a sovereign nation, 29 years were administered by military junta.

How has Nigerian democracy fared under civil rule in the last 25 years? Poorly. Leadership remains a bane of Nigeria’s progress. Although there are 11,082 elective political offices in Nigeria, the occupiers have been more concerned about personal aggrandisement than selfless service. That is why our elections are heavily monetised and prone to violence. Politicians, more often than not, adopt the Machiavellian principle of ‘the end justifies the means.’ They do all they can to compromise the electoral process and manipulate it to their advantage. For instance, campaign finance laws are breached as they spend far above the legal spending limits. Though there are copious laws against electoral violence with stringent penalties, the masterminds and the arrowheads more often than not do not get caught while their minions who get caught are bailed out of detention without prosecution.

If the Independent National Electoral Commission should publish the list of those successfully convicted for electoral crimes in the last 25 years, most Nigerians will be surprised at the infinitesimal number. This has sustained the culture of impunity in our electoral process. Little wonder INEC has been in the forefront of asking for the setting up of the Electoral Offences Commission and Tribunal. Will Nigeria’s devious political class allow that law to be passed? That will be political hara-kiri!

So, since many of Nigeria’s political leaders ‘bought’ or procured their electoral victory, their loyalty does not lie with the electorate but to themselves and their rapacious political class. Because of the heavy spending on elections, the primary objective of Nigeria’s political class is to recoup their investment with super profit. Thus, there is a nexus between unbridled political spending and corruption. The truth is that if all the political officeholders were to live and survive on their basic salaries, there would be so much left for infrastructural development and good governance. However, while they are quick to show us their pay slip, the humongous amount they receive as allowances, estacodes and kickbacks are never mentioned.

Does it not occur to you that nobody will spend billions of naira to contest for a political office only to collect a sum of money that will not defray his or her political expenses? The truth is that not all politicians are bad but the good ones are very few. According to the former American President, Abraham Lincoln, “The true rule, in determining to embrace, or reject anything, is not whether it has any evil in it; but whether it has more evil than good. There are few things wholly evil or wholly good.”

I watched a vox pop conducted by a lady in the United Kingdom asking Nigerians in that country if they would like to get £100,000 and move back to Nigeria. All the respondents said no to the offer. She probed further why they didn’t want to come back home, and unanimously they said it was because of our leadership problem. They all fingered leadership as Nigeria’s number one challenge. The irrefutable fact is that Nigeria is a crippled giant to borrow the words of renowned Professor of Political Science, Eghosa Osaghae. Yes, while I admit that we are not where we used to be, we are at the same time not where we ought to be. For many years, Nigeria laid claim to being the biggest economy in Africa but today we are number four after South Africa, Egypt and Algeria according to the International Monetary Fund.

Twenty-five years into this Fourth Republic, we have had seven general elections in 1999, 2003, 2007, 2011, 2015, 2019 and 2023. We have also had five presidents namely, Olusegun Obasanjo, Umaru Yar’Adua, Goodluck Jonathan, Muhammadu Buhari and the incumbent, Bola Tinubu. Two political parties have ruled at the centre; the Peoples Democratic Party which governed from 1999 to 2015, while the All Progressives Congress has taken over the leadership mantle at the centre from 2015 to date. Unfortunately, whether you’re talking of the APC or the PDP, or the three tiers of government namely, federal, state and local; what is common to all of them is poor governance. All the development indices that are pointing south are a cumulative non-performance of all the former holders of political offices and the incumbents. As we say, governance is a continuum.

I have said, time and again, that no individual has the magic wand to turn things around for the better in this country. The President, being the overall boss should work collaboratively with state governors and local government chairpersons. However, the president must lead by good example so he can serve as a moral compass to helmsmen and women at the sub-national level. I’m not comfortable with the spending spree of our political office holders who luxuriate in ostentatious lifestyles with their families while the majority of my compatriots languish in poverty.

Nigeria’s political leaders should imbibe the culture of prudence in the management of public finance. The borrowing binge should also stop. Many in the executive arm holding political offices are indulging in reckless borrowing under the guise of funding developmental projects. At the end of the day, there is nothing much to show for the huge public debts. It is important to block revenue leakages and stop oil thefts. It is an act of selflessness, not selfishness, of our political officeholders that will lead the country out of its current economic doldrums.

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