In political science, the ‘trias politica’ model for the governance of the state, popularised in modern democracy recognises the separation of powers, the division of state powers into three branches – legislature, executive and the judiciary. The idea contrasts with the fusion of powers in the parliamentary system, where the executive and legislative branches overlap.
The ‘tripartite system’ is commonly ascribed to the French political philosopher Baron de Montesquieu, who in his 1748 famous book, ‘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 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 of 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, based on the recent pronouncements by Supreme Courts or Constitutional Councils/Courts on electoral disputes in a growing number of African countries – Nigeria, Cote d’Ivoire, Kenya, Malawi, Guinea Bissau, and counting.
Political historians and legal experts will recall the “twelve two-thirds” 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 Second 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 his case and the Supreme Court presided by Justice Atanda Fatai Williams in a majority verdict affirmed the decision of the tribunal on 26th September 1979, with Justice Kayode Eso, giving the lone dissenting judgement. That apex court ruling remains a precedent in Nigeria’s jurisprudence.
There have also been numerous equally controversial, judicial pronouncements over electoral disputes since Nigeria returned to democracy in 1999 after a prolonged spell of 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 poll, eventhough his name was not on the ballot.
Nigeria’s former labour leader Adams 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 during the election proceedings.
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 declaring Alassane Ouattara winner of the second round of the 2010 election against sitting President Laurent Gbagbo, the Ivorian Constitutional Council (or Constitutional Court in some African countries), insisted that the CEI had no authority to announce any results, because it had already missed the deadline, and consequently the results were to be invalid.
At the heart of the dispute is 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 proclaim the final results of 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 is in power with the support of the UN and French Forces while Gbagbo ended up in prison at The Hague after his conviction by the International Criminal Court.
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. The country’s 2013 presidential election in which President Uhuru Kenyatta was declared the winner was eventully settled by the Supreme Court after his veteran opposition rival Raila Odinga challenged the result.
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 eventually won.
Malawi, a southern African country, has also not been spared judicial intervention in its national election. The county’s Constitutional Court on 3rd February 2020 declared the election of sitting President Peter Mutharika a nullity. On 12th February the same court threw out Mutharika’s appeal and insisted on a re-run of the 21st May 2019 vote within 151 days. While Mutharika remains in power until a new election takes place, Malawi is in political anxiety.
Voters in Guinea-Bissau also went to the polls on 29th December 2019 to elect their president but it only took the decision of the Supreme Court to affirm the people’s will by rejecting a challenge brought by the runner-up Domingos Simoes Pereira of the ruling party, against the victory of opposition president-elect Umaro Cissoko Embalo. Politial observers fear that that legal victory is unliktely to end the perennial political instability in that country.
Back in Nigeria where the 23rd February 2019 presidential contest involving sitting President Muhammadu Buhari and 72 other candidates also ended up at the Supreme Court at the instance of the main opposition candidate Alhaji Atiku Abubakar. The apex court upheld the lower courts’ verdicts that declared Buhari victorious and like the presidential poll, several results of the 29 out 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 verdicts on the election disputes in the Eastern state of Imo, and the Southern state of Bayelsa stood out, not only for their surprise or shock but also for their potential conseuqences on the polity.
On the Imo poll, the Court of Appeal had earlier upheld the election of PDP’s Emeka Ihedioha, but the Supreme Court on 14th January 2020, overturned that decision and gave victory instead to APC’s Hope Uzodima. The Supreme 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 were excluded from the original tally.
Reactions to that Supreme Court’s decision, both local and international are as diverse and varied as those offering them, but more telling is the implication that adding the excluded votes would mean there were more votes cast than the number of registered voters in Imo state (over-voting), which is an infringement of the electoral law. The PDP candidate has since returned to the Supreme Court, seeking a review of the case.
But 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. That state’s APC governor-elect, David Lyon, and his running mate, Biobarakuma Degi-Eremienyo, were already preparing to be inaugurated on 14th February, when the Supreme Court nullified their election and ordered the Independent National Election Commission (INEC), Nigeria to withdraw the Certificates of Return issued to them. The Court cited inconsistencies in the qualification certificates tendered by the APC deputy governor-elect Degi-Eremienyo. The PDP candidate Douye Diri and his running mate Lawrence Ewhrudjakpo, the beneficiaries of the that Supreme Court’s decision have since been sworn in as governor and deputy governor of Bayelsa state. The APC has also returned to the apex court for a review of its ruling.
Before then, the Supreme Court had previously intervened in disputes over the governorship elections in Nigeria’s northern state of Zamfara and southern state of Rivers, by upholding the verdicts of the lower/appellant courts that disqualified the APC candidates that emerged from flawed party primaries.
Doubtless, the involvement of the judiciary in resolving electoral disputes is well-intentioned and derives from the provisions of national constitutions or electoral laws, but the frequency of such interventions is becoming a troubling ‘new normal’ in Africa, raising a fundamental question whether judicial verdicts, which in some cases, are based on ‘legal technicalities’ can deliver democracy? Or whether through these controversial decisions, the judiciary is playing its role as the bulwark, facilitator or a hindrance to democracy in Africa?
Some might argue that the recruitment process of judges or judicial officers could or do in fact encourage the intervention of the judiciary in politics and therefore, the electoral process. For instance, some constitutions confer on the executive arm of government the power to appoint and dispense with the judges and judicial officers. Therefore, political interference no matter how subtle, cannot be ruled out. It could also be argued that the judiciary is not entirely to blame for the hijacking of the political process, more than politicians who stand accused of corrupting the judicial system or “buying” court judgements. Indeed, it has become fashionable for politicians to undermine or manipulate the electoral process, claim ‘electoral victory’ and then ask aggrieved opponents to go to court to seek redress, knowing that they would ‘get their way’ in the courtroom.
And where do the electoral commissions, the scapegoat of every politician who loses any election stand in this equation vis-à-vis their core function of delivering credible elections and the spiralling costs of elections in Africa? For instance, Nigeria’s INEC is made to attend to more than 800 different legal suits emanating from electoral disputes within one electoral cycle, some of which are deliberately orchestrated by politicians to buy time. The tactic 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 late Justice Chukwudifu Oputa, one of Nigeria’s legal luminaries, described by former Chief Justice Mohammed Bello as “the Socrates of 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 coveted 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 the Greco-Roman mythology, the Scales of Justice represent the balance of the individual against the needs of society and a fair balance between the 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, the court is the ‘Temple of Justice,’ and the temple here connotes 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 wrongful 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 to resolve 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.The trend if unchecked could lead to disillusionment and disenfranchisement of voters. Votes may no longer count if politicians can obtain from courtrooms what they fail to get through the ballot box.
It cannot be over-emphasized, that the judiciary is the light, which dispels anti-democratic darkness. A miscarriage of justice, bias, corruption or transactional justice facilitated by court or the judiciary, is like lighting a candle and hiding it under the bed made of combustible materials. The room and the entire house (in this case, democracy and nation-state), are emperiled! And God forbid that Their Lordships or the judiciary, the bastion of hope and beacon of light should engage, or become a tool for a catastrophic arson against the state and citizens they have sworn to protect.
–––Paul Ejime is a Media and Communications Specialist.