By Paul Ejime
In political science, the trias politica model for the governance of state, popularized in modern democracy, recognizes the separation of powers, the division of state powers into three branches: legislature, executive, and the judiciary. This contrasts with the fusion of powers in the parliamentary and semi-presidential systems, where the executive and legislative branches overlap.
This “tripartite system” is commonly ascribed to French political philosopher Baron de Montesquieu, who in his 1748 famous work The Spirit of the Laws espoused the theory of “distribution” of powers. According to him, “When the legislative and executive powers are united in the same person or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
Montesquieu and other political philosophers/scholars made a special case for the judicial arm of government as a critical pillar in the tripod of democracy. He emphasised: “there is no liberty, if the judiciary power be not separated from the legislative and executive.” “…There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” Specifically, he argued that “the independence of the judiciary has to be real, and not merely apparent.”
It is against this background that we can situate the role or function of the judicial arm of government within the context of the consolidation of democracy in Africa, against the backdrop of recent pronouncements by apex courts on electoral disputes in several African countries, whether in Nigeria, Cote d’Ivoire, Kenya, Malawi, Guinea Bissau, and counting.
Political historians and legal experts will recall the “twelve-two-third” legal mathematics in the Awolowo v. Shagari lawsuit instituted by the then opposition leader Chief Obafemi Awolowo against President-elect Alhaji Shehu Shagari following Nigeria’s 11th August, 1979, presidential election during the first Republic.
Awolowo had mounted the legal challenge on the grounds that Section 34 A (i)(c)(ii) of the Electoral Decree No 73 of 1977 was not met (winning one-quarter of the votes in two-thirds of all the states of the Nigerian federation). The Election Tribunal dismissed the appeal and the Supreme Court presided by Justice Atanda Fatai Williams in a majority verdict affirmed the decision of the tribunal and dismissed the appeal on 26th September, 1979, with Justice Kayode Eso, giving the lone dissenting judgment. That apex court ruling remains a precedent in Nigeria’s jurisprudence.
There have also been numerous equally controversial judicial pronouncements on electoral disputes since Nigeria returned to democracy in 1999 after a prolonged military rule. There was the Chibuike Amaechi’s case following the Rivers State governorship election of 2007. Amaechi had contested and won the People’s Democratic Party (PDP) primary, but his name was substituted by the party, an action which he challenged in court. That case progressed to the Supreme Court, which on 26th October 2007, ruled that Amaechi was the rightful PDP candidate and therefore the winner of the April 2007 election, even though he did participate in the election proper.
Nigeria’s former labour leader Adams Aliyu Oshiomhole also ran in April 2007 for Governor of Edo State under the Action Congress Party, with which his Labour Party had entered an alliance. PDP candidate Oserheimen Osunbor was declared the winner by the electoral commission, but on 20th March 2008, an Edo State election tribunal nullified Osunbor’s victory and declared Oshiomhole the winner. A Federal Appeal Court sitting in Benin City on 11th November 2008 upheld that ruling based on several voting irregularities cited in the vote.
In Cote d’Ivoire, the spill-over effects of the 2010/2011 post-election conflict are still festering. While the Ivorian Commission Electorale Indépendante (CEI), had announced provisional results showing that Alassane Ouattara had won the election of 2010 in the second round with 54.1%, against 45.9% for sitting President Laurent Gbagbo, the Ivorian Constitutional Council (or the Constitutional Court, the equivalent of the Supreme Court in Anglophone West Africa), countered by saying that the CEI had no authority to announce any results, because it had already missed the deadline, and consequently the results it announced were invalid.
At the heart of the dispute lies Article 94 of the Constitution of Côte d’Ivoire, which states that: The Constitutional Council shall control the regularity of the operations of the referendum and proclaims the final results of the presidential elections. The rest, they say, is history. Cote d’Ivoire ended up with two presidents and descended into unending constitutional and political crises. President-elect Ouattara remained in power with the support of UN and French Forces, while Gbagbo, who refused to concede defeat, ended up in prison at The Hague following his conviction by the International Criminal Court for alleged violent protests and killings. (He was later discharged but after several years in jail).
Following the 2007 post-election violence that killed more than 1,000 people in Kenya, the country in 2010, adopted a new constitution, which in addition to entrenching the concept of separation of powers with checks and balances, significantly reduced the powers of what had been perceived as an “imperial presidency.” Then came the 2013 presidential election in which President Uhuru Kenyatta was declared the winner. But his veteran opposition rival Raila Odinga mounted a legal challenge, and the Supreme Court upheld Kenyatta’s victory.
Again, the August 2017 presidential contest between the two perennial political opponents also ended up at the Supreme Court, which this time, nullified the victory of candidate Kenyatta, citing irregularities, and ordered a vote re-run which Kenyatta also won, and Raila boycotted.
Malawi, in southern Africa, has also not been spared judicial intervention in its national election. The county’s Constitutional Court in February 2020 declared null and void the election of sitting President Peter Mutharika following a legal challenge mounted by Lazarus Chakwera and Saulos Chilima, two opposition leaders in the 21st May 2019 presidential vote. The Court ordered a re-run of the vote within 151 days and while Mutharika remained in power until a new election took place, Malawi was left in political anxiety.
Back in Nigeria where again the 23rd February 2019 presidential contest between sitting President Muhammadu Buhari and the main opposition candidate Alhaji Atiku Abubakar also ended up at the Supreme Court, which upheld the lower courts’ verdicts that declared Buhari victorious. Like in that presidential poll, a number of results of the 29 out of the 36 states’ governorship elections held on the 9th of March 2019 also received the attention of the Supreme Court.
However, the Supreme Court’s verdict on the election disputes in the Eastern state of Imo, and the Southern state of Bayelsa stood out, not only for their surprise and shock but for their potential ramifications.
On the Imo poll, the Court of Appeal had earlier upheld the election of PDP’s Emeka Ihedioha, but the Supreme Court on the 14th of January 2020, overturned that decision and gave victory instead to APC’s Hope Uzodima. The apex court in reaching its decision appeared to rely on the argument by Uzodima’s legal team, which canvassed the addition of votes from more than 300 polling units, which the Independent National Election Commission (INEC), Nigeria, had excluded from the original tally. Based on INEC’s tally, Uzodima came a distant fourth, but the Supreme Court decided otherwise.
Reactions to that Supreme Court decision, both local and international are as varied as those offering them, but more telling is the implication that adding the excluded votes would put the number of votes cast on Election Day over and above the registered number of voters in Imo state, which will amount to an infringement under the electoral law.
The PDP’s candidate returned to the Supreme Court, seeking a review of the case, but that effort fell through. While Nigerians were still waiting for the final word on the Imo gubernatorial poll dispute, the Supreme Court on the 13th of February 2020 dropped another controversial verdict on the 16th November 2019 governorship election in Bayelsa. The state’s APC governor-elect, David Lyon, and his running mate, Biobarakuma Degi-Eremienyo, were already preparing to be inaugurated the following day, 14th February, when the Supreme Court nullified their election and ordered INEC to withdraw the Certificate of Return issued to them. This was because of “inconsistencies” in the qualification certificates tendered by the APC deputy governor-elect Degi-Eremienyo. The PDP’s candidate Douye Diri and his running mate Lawrence Ewhrudjakpo, the beneficiaries of that Supreme Court’s decision were later sworn in as governor and deputy governor of Bayelsa state, while APC’s request for a review of the apex court’s ruling failed.
The Supreme Court had also intervened in the electoral disputes over the governorship elections in Nigeria’s northern state of Zamfara and southern state of Rivers, upholding the verdicts of lower/ appellant courts that disqualified the APC candidates that emerged from flawed party primaries.
The involvement of the judiciary in resolving electoral disputes, no doubt, derives from the provisions of national constitutions or electoral laws, but the frequency of such interventions are becoming the “new normal” in Africa, raising a fundamental question whether judicial verdicts, no matter how legally sound, or in some cases based on “technicalities” can deliver democracy? Or by the far-reaching and sometimes disruptive verdicts, whether the judiciary is actually playing its role as the bulwark, a facilitator or as a hindrance to democracy in Africa?
Some might argue that the recruitment process of judges or judicial officers could or do encourage the intervention of the judiciary in state governance and therefore, the electoral process. For instance, some national constitutions grant the executive arm of government the power to appoint and dispense with the judges and judicial officers. Political interference cannot be ruled out in such situations.
It could even be argued that the judiciary is not completely to blame for hijacking the political process, more than politicians who accuse themselves of corrupting the judicial system or “buying” court judgements. Indeed, it has become fashionable for politicians to undermine or manipulate the electoral system, claim electoral victory, and ask aggrieved opponents to go to court to seek redress, knowing full well that they would “get their way” in court.
And where does the electoral commission, the scapegoat of every politician who loses any election stand in this equation vis-à-vis the spiralling costs of elections in Africa? For instance, Nigeria’s INEC is made to attend to more than 800 different legal cases emanating from electoral disputes within one electoral cycle, some of which are considered frivolous and orchestrated by politicians to buy time. This is not only time-consuming, but costly and unhelpful to the conduct of credible elections or consolidation of democracy.
But the bottom line is that while the executive and legislative arms of government can afford to falter, and they should not, the judiciary remains the last hope of the common man and to whom much is given, they say, much is expected.
According to the late Justice Chukwudifu Oputa, one of Nigeria’s legal luminaries, described by former Chief Justice, Mohammed Bello as “the Socrates of (Nigeria’s) Supreme Court:” “If the legislature is corrupt, you go to the judiciary for redress. If the executive is corrupt you go to the judiciary for remedy. (But) If the judiciary itself is corrupt, where do you go from there?
Their Lordships of the apex courts in any country that practices democracy do not only interpret the law, they make laws. Judges in all cases, and more so on electoral matters, bordering on the control and distribution of state power and national resources, the rule of law and human rights, must be apolitical, independent and beyond reproach. This is because their judgements are legal precedents that guide the evolution of law and jurisprudence. Hence, Justice Oputa in a famous lead judgement in the Adegoke Motors Ltd. v. Dr Babatunde Adesanya & Anor (1989) emphasised that: “(The Supreme Court verdicts) …are final not because we (judges) are infallible; rather we are infallible because we are final.”
It is not for nothing that the statue of justice is depicted as a blindfolded woman (Themis, the Greek Goddess of Law and Justice) holding a sword or scroll in one hand and scales in the other. Under Greco-Roman mythology, the Scales of Justice represent the balance of the individual against the needs of society and a fair balance between interests of individuals. The Scroll on the other hand, represents learning and knowledge; while the Sword of Justice is the active force, a symbol of power, protection, authority and vigilance. The Blindfold, symbolizes Blind Justice, equality, knowing no differences in the parties involved.
While the executives operate from Mansions or Villas, and the Legislature from Hallowed Chambers, Judges refer to the courts as the Temple of Justice, and the temple denotes sacredness, sanctity and closeness to God!
The celebrated British Judge, Alfred Thompson Denning, or Lord Denning, could not have been more brutal in defence of the integrity and independence of the judiciary when he insisted, while commenting on the convictions of the Birmingham Six in 1988, that: “… It is better that some innocent men remain in jail than that the integrity of the English judicial system be impugned.” That view might be controversial but only goes to demonstrate the esteem at which the judicial arm of government is held.
The framers of national constitutions and electoral laws could not have contemplated that the exceptional intervention of courts in determining electoral disputes should become “so frequent, normal and overwhelming” such that the courtroom will replace the ballot box or render elections inconsequential in a democracy to the extent that voters are disillusioned and disenfranchised, and their votes will not count while politicians grab from the judiciary what they fail to get through the ballot box.
It cannot be emphasized enough, that the judiciary is the light, which does not only dispel anti-democratic darkness. A miscarriage of justice, bias, corruption or transactional justice facilitated by a court order, is like lighting a candle and hiding it under the bed with combustible materials. The room and the entire house (in this case nation state or democracy), is under peril! And God forbid that Their Lordships or the judiciary, the bastion of hope and beacon of light should engage, or become a tool for premeditated arson against the state and citizens they have sworn to protect.
Paul Ejime is an Author and Media and Communications Specialist.
(This article was first published on 8th March 2020 The Judiciary: A Facilitator Or Hindrance to Democracy in Africa? – THISDAYLIVE )
