DEMOCRACY BY COURT ORDER

Voters should determine outcomes of elections, not the courts, writes JOSHUA J. OMOJUWA

On Tuesday, five political parties returned from the dead. The African Democratic Congress, the Action Peoples Party, Action Alliance, the Accord Party and the Zenith Labour Party were restored to legal existence by a three-member panel of the Court of Appeal in Abuja. This was via a unanimous decision. Six weeks earlier, a Federal High Court had ordered the Independent National Electoral Commission to deregister all five, to reject any candidates they nominated, and to shut them out of the 2027 general elections. The appellate court did not merely disagree with that judgment. It called it a nullity, delivered without jurisdiction, on a suit filed by an entity that does not exist in law, by a judge who had been ordered in May to stay proceedings and pressed ahead anyway. The panel reached for language appellate courts rarely permit themselves. Judicial rascality. Judicial impertinence.

The celebrations followed the usual script. The restored parties hailed the rule of law. Politicians declared victory for democracy. The commentary moved on within a day. It should not. We should be bothered that the existence of a political party is something a courtroom can switch off on a Monday and switch back on six weeks later. This cannot be the democracy we desire for our country.

Consider what actually happened here, stripped of the legal upholstery. A suit was filed asking a judge to remove five opposition parties from the ballot less than a year before a general election. The Court of Appeal has now corrected the outcome. It cannot correct the ambition. The courts have now become the arbiter of our democracy, not the Nigerian people.

Nigerians have seen this film before, and we know it does not require a villain in robes to keep playing. In 2019, the Supreme Court nullified every All Progressives Congress candidacy in Zamfara over a botched primary and handed the state, from the Government House to the National Assembly seats, to candidates who had lost at the polls. In 2020, David Lyon rehearsed his inauguration dance in Yenagoa and was removed as governor-elect the night before the ceremony, over the contents of his deputy’s certificates. The Labour Party spent the better part of two years litigating the question of who its national chairman was. The Peoples Democratic Party has fought court battles over its own primaries in nearly every cycle since 1999. Whole classes of legislators have been sacked and restored by judgments delivered hundreds of kilometres from any ballot box. This is how anomalies become norms: by repetition without consequence.

Each of these cases had its own facts, and some of the judgments were plainly correct on the law. That is precisely the trouble. The judicialisation of Nigerian politics is not sustained by bad judges alone. It is sustained by a political class that has learned a simple lesson: the courtroom is cheaper than the campaign. Why organise a congress when you can procure an injunction? Why persuade delegates when a friendly forum can disqualify your rival? Why build a party structure across 774 local governments when the structure that matters is a single originating summons? Litigation has become a campaign strategy, and for some politicians it is the only one they have ever successfully run.

The Constitution did not design it this way. The Fourth Alteration gave INEC the power to deregister political parties on defined grounds, including electoral performance. Whatever one thinks of that power, it belongs to the electoral commission, exercising its own mandate, subject to review by the courts. It does not belong to a trial judge acting on the invitation of a litigant. When the Court of Appeal noted that the trial court ignored evidence that the affected parties had won elective offices, it was making a legal point. The political point is larger.

There is a warning here for the winners too, and they should not celebrate past it. Some of the ruling party’s supporters cheered in June when the parties were struck off. The opposition cheers now that they are restored. Both sides are applauding the same machine, and the machine is agnostic. A judiciary powerful enough to delete your opponent’s party today is powerful enough to delete yours tomorrow, and the precedent does not check party membership cards before it applies. Every politician who has ever smiled at a convenient injunction has helped to build the weapon that will eventually be pointed at him. In a country where election petitions already run longer than election campaigns, we are steadily constructing a democracy in which the decisive constituency is not the electorate but the cause list.

What would it take to hand elections back to voters? Three things, none of them mysterious. First, consequences. The National Judicial Council should treat a judge who defies a superior court’s stay order as a disciplinary case. The Court of Appeal served the language on Tuesday. The NJC should deploy the follow-through. Second, internal party democracy with teeth, because most political litigation in Nigeria begins life as a rigged primary or an imposed candidate, and parties that cannot count their own delegates honestly will always end up outsourcing their disputes to judges. Third, an INEC that exercises its constitutional powers itself, transparently and defensibly.

Until then, we should at least be honest about what we are running. The 2027 election has already begun. Its first battles were not fought in Kano, Ibadan, Onitsha or Port Harcourt. They were fought in Abuja, before a judge, over whether the voters would be permitted to see certain names on the ballot at all. Tuesday’s judgment restored five parties. It did not restore the principle. The principle is that in a democracy, parties are retired by voters, not by court order. Any politician, of any party, who cannot win under that principle has told us everything we need to know about his mandate. Beyond specific politicians, we must come to a consensus as to what sort of democracy we really want. For now, it looks more like democracy by court order.

 Omojuwa is chief strategist, Apha Reach/ BGX Publishing