NIGERIA'S DEMOCRACY: THE DANGERS OF JUDICIAL INTERVENTION
There can hardly be any more improbable consequence of Nigeria's democratic contestation than the latest judgment that has granted at least five incumbent governors an extension of their tenure because they were adjudged to have held office illegally for a portion of it.
In the meantime this judgment also creates the grounds for a sixth and possibly a seventh governor to challenge the Independent Electoral Commission (INEC) over its determination to subject them to a contest at the constitutionally stipulated end of a four year term measured from the date of the last General Elections in 2007. It is true that the court judgment favouring the extension for the five governors is eminently justified based on the letter of the electoral law prior to its most recent amendment.
It is however difficult to justify this immutable decision on the grounds of either common sense or natural justice. These Governors who were once found guilty of holding office illegally are now to be rewarded for this illegality by being allowed to serve beyond the constitutionally stipulated term of four years. In the case of the Governor of Delta State who did not join the five governors in challenging the decision of INEC to force them to face the electorate in 2011 the judgment has created a precedent that will enable him insist on serving nearly four years more and still remain eligible for a second term. We have already raised doubts over the actual relevance of the finding against Dr. Emmanuel Uduaghan the Delta State governor.
We believed that the judgment was not only unfair but also did not address the fundamental issue of whether he did or did not win the election in 2007. That notwithstanding (and our confessed bias in favour of the Delta State Governor's interests aside) we have to admit that the consequence of this latest judgment does not favour the principle of public goodwill.
The extension of any electoral mandate beyond a constitutionally stipulated duration should be subject to public choice rather than the esoteric standards of judicial interpretation. In at least one of the five states immediately affected by this latest judgment a groundswell of public disenchantment with the incumbent Governor was manifest.
The electorate in that state appeared poised to stage an unprecedented upset. If they did not succeed in booting the incumbent out or at least coming close to doing so the results would have been keenly scrutinised and contested after the polls. In that event the judiciary would be the instrument of corrective judgment on the performance of the Governor. Instead this particular Governor has been granted a reprieve because after having benefited from a flawed election he was returned to office almost half way through his first term through a re-run election that many observers regarded as being even less credible than the first one.
The blanket abrogation of their obligation to face the electorate four years after their first annulled election is a legal peculiarity since each of the affected governors had their first elections overturned for different reasons. As we have stated earlier the eventual annulment of Dr. Emmanuel Uduaghan's first election was attributed to doubts raised by his legal team's defence of the challenge against his election even after these doubts had been rejected by two other tribunals. Both that judgment and his subsequent return preceded a legislative amendment which asserts that if the affected Governor wins a re-run on the ticket of the same party on which he won the earlier poll the tenure must be considered continuous. He was returned to office barely a week before the amendment was passed and so should benefit from this judgment rather than be affected by the amendment.
The judgment under scrutiny asserts that when the annulments were handed down the electoral act stated that any governor so removed would have their tenure calculated from the date of their return to office if they won a re-run election. This provided an opportunity for some governors to take advantage of the judiciary's professional fastidiousness to remain in power by depending on judicial introspection rather than on the popular will.
It is becoming increasingly obvious that this is now an integral, not to say overwhelming, element in the practice of democracy in Nigeria. Unfortunately this strategy heralds a negative rather than a positive trend in the democratic process. It suggests that many of those who intend to seek the public mandate will work to enhance their chances of success by plotting how to manipulate judicial strictures rather than how to appeal to the voters.
Apart from the unfortunate effect on the relationship between the judiciary and the polity over the long term it also creates an aura of documentary impunity around the process. For example, since the annulment of an election carries no penalty except the inconvenience of having to run again a truly unscrupulous candidate might plot to have the first poll annulled in order to gain an extension of tenure.
We have suggested elsewhere that the consequence of any annulment should either be the transfer of the mandate to the contestant adjudged to have scored the next highest amount of votes or that a rerun of the election should be carried out without the participation of the candidates so removed or their party. Sanctions of this nature will serve to prevent such candidates from using the power of a stolen mandate to return to office and also punish the party that condoned and organised the earlier violations of the process. As it stands now the new amendment does not penalise the party or its candidate for claiming a fraudulent victory.
This cannot be right either in law or in morality.
This judgment could perpetrate a major injustice against one particular governor if he is not allowed to benefit from it. Governor Chibuike Rotimi Amaechi of Rivers State was restored to office by a landmark Supreme Court judgment barely six months after the date of the elections in 2007. His fellow PDP member Celestine Omehia had been elected on the ticket of their party even though he had not won the ticket at the party primaries.
However since he had not served an illegal term or been adjudged guilty of doing so Amaechi is not considered eligible to measure the commencement of his term from the date of his own swearing in. This suggests that the success of his struggle to reclaim the mandate of his party does not give him the right as an individual to enjoy the judicial extension of his tenure because he did not serve an illegal term.
This is a strangely convoluted and improbable interpretation of the moral imperative of legal sanctions over political conduct. Governor Amaechi seems to be far less inclined to challenge this anomaly than he is to pursue a new popular mandate that will remove the stigma of his first tenure being regarded as one imposed by the judiciary rather than won by a popular vote. His conduct during his first tenure has shown that he wishes to use policy implementation as a basis for seeking the popular mandate.
The challengers who have emerged to confront him are mainly former members of his party who were blamed for his loss of its mandate in the first instance. This time around they are no longer in the same party with him. It will be interesting to see what role the judiciary might play in Rivers State again if, as is widely speculated, Amaechi trounces his opponents in a straightforward contest. It is dangerous for the dignity of the judiciary for it to continue to be regarded as the final arbiter of Nigeria's democratic order, a role that properly belongs to the ordinary voter