Three baseline observations. First, politics has effectively become the chief subject of litigation and adjudication in Nigerian courts, thereby exposing judges and the judiciary to politics and political influence. Second, because no two political cases are exactly the same, the courts are dishing out very contradictory rulings even for seemingly similar cases, at least in the lay perception of the public. Third, the combined effects of the first two phenomena will ultimately destroy the integrity of Nigeria’s judiciary, and Nigerian democracy and society along with it.
It is difficult to imagine any category of persons more important for social stability than judges. Consider, for a mild analogy, another kind of judge: the referee in a footballing game. The referee is on the pitch but does not play the game. They follow the ball everywhere on the pitch, but go to great lengths to avoid touching the ball or being touched by the ball. The referee’s primary job is to balance the expectations and conduct of the opposing players, coaches and fans against the rules of the game, independently and impartially.
The referee’s fidelity is to the game and its rules only, but also to both sides and no side at once. Without the referee, there is literally no football game, and the pitch soon turns into chaos or anarchy, since each side wants to win by all means, and therefore cannot be trusted to play fair at all times. Even when you have a referee in the game, and they breach either their independence or impartiality, the same outcomes of chaos or anarchy will likely obtain.
But here is the catch. Even when the referee does not deliberately breach their independence or impartiality, but is just perceived to have done so by one or both of the sides in the game, for example through a series of genuine mistakes by the referee, chaos or anarchy could still ensue. Thus, the referee’s independence and impartiality must not only be enacted at all moments of the game, but must be seen to have done so by all players, coaches, fans or critics in the game. For this reason, football organisations take the greatest care to insulate referees from even the slightest hint or perception of bias by players, coaches, reporters or fans.
Otherwise, the whole game will collapse. But notice that my emphasis is not on the actual instances of deliberate show of bias by referees, but on merely the perception of bias that other players in the game will have good reason to perceive them to be. It is not an empty statement the saying that justice must be seen to be done, not just done. When extrapolated to the society’s system of courts of law, this simple analogy stands, only several thousand times more significant, since unlike a football game, cases before a judge in court of law can often be a matter of life and death.
In Nigeria today, the judicial system is being increasingly drawn into politics and the political arena, and therefore by direct implication, judges are becoming increasingly open to political influence, which all of us must work hard to prevent, because of its attendant dangers for the stability of the whole social order.
This dangerous process starts with the politicians themselves, and I mean all Nigerian politicians of whatever party or ideological colour. The average Nigerian politician does not accept defeat, even where defeat is genuinely the hand they were dealt by the voters in an election. They must go to court not only to keep their supporters in line but also in the hope that some flimsy legal technicalities will help turn defeat into victory; to get from a decision by a handful of judges what they could not get from thousands or millions of voters.
For example, even before this year’s general elections in February and March, the Independent National Electoral Commission (INEC) revealed that it faced over 1,000 “pre-election litigations” in various courts throughout the country. Even were INEC lawyers to spend just a day each in court over those cases, it will take them upward of three years to deal with just pre-election matters; time that the election body should have used to work on conducting the elections proper. But since February and March, hundreds of cases, a majority of them probably frivolous, have been filed in court, and in nearly all of them, INEC is joined.
But the point here is not that INEC is being drawn into politics, where it should not, but that politics is becoming the chief subject of adjudication in our courts. When last did anyone hear about any landmark rulings in the areas of business or social issues coming out of the courts in Nigeria? When judges and justices in our courts increasingly have to hear and rule on political cases, they become open to political and monetary influence one way or another, since in Nigeria, if we must be honest with ourselves, politics and politicians ruin everything in their way.
Nigerian politicians induce fellow politicians to change sides; they induce voters to buy votes; they induce election officials to turn the other way, and they induce thugs and security officials alike to work things their way during elections. What is the guarantee that politicians will not also seek to induce judges to upturn elections their way? What is the realistic chance that judges will stand their ground in every occasion, after all they are also human and Nigerians like the rest of us?
This leads us to the recent rulings in governorship elections in Kano, Plateau, Nassarawa, Zamfara and other states, where the perception is rife in society that the ruling All Progressives Party (APC) is scheming to take through the courts what it could not get through the ballot. The point here is that the legal facts in these cases are less important than their public perceptions, which could corrode the very fabric of our judicial and social order. If ordinary voters believe that their votes are being taken away and handed over to those who lost at the ballot, then the social health of society as a whole, not just the democratic system, is doomed.
The Kano case is particularly galling. The idea that a judge dismissed the petition of one party and goes ahead to award a fine to the tune of N1 million in writing, against that party, only to turn round to say the ruling was in fact in favour of the party fined, and that the dismissal and fine were only typographical or clerical errors in the first place, could in fact be true. It leaves, however, an odious taste in the public mind that our judicial and democratic systems may not recover from for years to come. Worse than that, if as many as over 160,000 votes from a single or a handful of local governments could be voided for not being signed and stamped by election officials, shouldn’t that, by all logic, void the entire election?
Rulings are for the courts, but perception of those rulings are for everyone. And where public perception consistently goes against the rulings of the courts on political matters, then society as a whole is in danger of complete collapse. Like football, the most important thing about democratic politics is the general perception that the game is being played according to the rules. Otherwise, no game.
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