The Judiciary and the Morality of the Rule of Law, By Majeed Dahiru
If the judiciary is to live up to its reputation as the last hope of the common man, and considering the fundamental importance of credible elections to a functional democracy, the judiciary should be guided more by the morality of the rule of law and less by its technicalities in adjudicating electoral disputes.
Since the transition from military to civil democratic rule twenty years ago in 1999, Nigeria’s constitutional democracy has suffered a stunted growth. The lofty promises of dividends of – the hard fought to attain – democracy, in the form of the improved welfare and security of lives and properties of citizens, remains unfulfilled.
These unfulfilled promises of quality service delivery in the form of a sustainable mechanism of good governance to the majority of the people by their elected political leadership, has led many to question the very relevance of democracy to the advancement of their socio-economic development. Interestingly, it is not democracy that is irrelevant to Nigeria’s socio-economic development but Nigeria’s unique brand of constitutional civil democratic rule, which is increasingly becoming undemocratic.
In the last twenty years, Nigeria’s constitutional democracy has been greatly undermined by a peculiar form of flawed electoral process, which is an anathema to the fundamentals of civil democratic governance, as it takes away from the people the power to freely elect their political leadership without any form of inhibition. The progressive retrogression of Nigeria’s political process to a degenerate criminal franchise of power grab by every means possible for self-service has succeeded in entrenching a sustained culture of political heist that has rendered democracy prostrate in Nigeria.
Consequently, the political leadership of the Nigerian state at all levels do not necessary enjoy genuine democratic legitimacy as their authority is not conferred on them by the power of the people. It is this tendency towards stolen mandates that has arrested the socio-economic development of the Nigerian state and its people. To make a bad situation worse, the power of the people to reward and punish their elected political leadership during Nigeria’s quadrennial electoral cycles has been completely taken away from them, thereby perpetuating a degenerate leadership status quo, which is averse to public service in its preoccupation with self-service.
Characterised by massive rigging through the stuffing of ballot boxes, under-age voting, widespread violence, vote buying, which were all collectively aided and abetted by a thoroughly compromised electoral management body, in concert with equally compromised security agencies, the 2019 general elections were clearly manipulated to retain the ruling party in power…
However, there was a successful attempt at reversing this ugly trend between 2011 and 2015 when the Goodluck Jonathan administration embarked on a series of reforms aimed at sanitising Nigeria’s flawed electoral process into a more credible one. It was the success of this attempt at electoral reform that resulted in a remarkably improved electoral process, which culminated in the unprecedented loss of then incumbent President Goodluck Jonathan to then opposition candidate, Muhammadu Buhari. Nigeria had taken its rightful place as the largest democracy in Africa at that point or so it seemed. Unfortunately, the modest gains of 2015 was to be drastically reversed in 2019.
The colossal failure of the Muhammadu Buhari administration to fulfil its ‘change’ promise of tackling corruption and insecurity, as well as improving the economy, was very clear on the eve of the 2019 general elections. Having violated the social contract it entered with the people to improve their lives between 2015 and 2019, thereby reducing them to the poorest and most insecure in the world, with corruption spiralling out of control, this required an alternative route for remaining in power, by avoiding popular sanction for a disastrous rule. Condemned by both local and international observer groups as falling short of the standards of the improved general elections of 2015, the 2019 elections can best be described as the worse in the twenty year history of the Fourth Republic.
Characterised by massive rigging through the stuffing of ballot boxes, under-age voting, widespread violence, vote buying, which were all collectively aided and abetted by a thoroughly compromised electoral management body, in concert with equally compromised security agencies, the 2019 general elections were clearly manipulated to retain the ruling party in power against the popular wishes of the majority of Nigerians, whose lives were made miserable by the current administration.
Arising from the widespread dissatisfaction with the 2019 general elections are over 1689 litigations challenging its outcome at all levels and most importantly at the level of the presidential election. Already, the major beneficiaries of the great electoral heist that was the 2019 general elections are already behaving like drunken sailors in a fast sinking ship, evident in the near inertia of governance in Buhari’s Nigeria. The current set of Nigeria’s political leadership is buoyed in their bad behaviour by the implicit confidence that they have a sustained flawed electoral system that shuts out popular participation and removes the power to punish and reward bad or good governance at the ballot from the people. Most importantly, they are encouraged in their bad ways that have shackled the Nigerian state to perpetual regression by a judicial process, which undermines the rule of law.
By giving moral force to judicial adjudications means that litigations in electoral matters must be weighed on the scale of the original intention of the constitution, which is the welfare and security of citizens, and any action or otherwise, which appears to go contrary should be interpreted as unlawful.
Whereas, the operating system of a constitutional democracy is hinged on the principles of the rule of law, this has not been the case with Nigeria. Judicial decisions in matters of litigations have often relied more on technicalities, rather than on the morality of the rule of law. And whereas technicalities of the rule of law are shallow, as they don’t address the subject matter of litigations beyond the letters of the law, morality encapsulates the spirit, intention and persuasion behind the crafting of the letters of the law.
The crafters of the law are imperfect mortals whose efforts may not always fully convey the full import of the spirit, intention and persuasion behind the letters of the law. Unfortunately, dealers in electoral heist have often taken advantage of these imperfections on the grounds of technicalities to get away with their stolen mandates. The exploitation of unintended loop holes in the law to get away with unlawful acts has been greatly aided and abetted by adjudications on technicalities. This situation runs contrary to the principles of the rule of law, which guarantees equality of every citizen of a constitutional democracy before the law, as adjudication of litigations on technicalities alone makes justice a privilege and not a fundamental human right.
If the judiciary is to live up to its reputation as the last hope of the common man, and considering the fundamental importance of credible elections to a functional democracy, the judiciary should be guided more by the morality of the rule of law and less by its technicalities in adjudicating electoral disputes. The interest of common people Nigeria is best served in functional constitutional democracy, which gives them power to place and replace their political leadership at will.
That the Constitution describes the fundamental duty of the state as the welfare and security of lives of its citizens suggests that all adjudications arising from electoral disputes should be in furtherance of the aforementioned. By giving moral force to judicial adjudications means that litigations in electoral matters must be weighed on the scale of the original intention of the constitution, which is the welfare and security of citizens, and any action or otherwise, which appears to go contrary should be interpreted as unlawful. Having been widely acknowledged that a flawed electoral process is injurious to socio-economic development of the Nigerian state and its people, as much as a single incidence of electoral malpractice, which compromises the independence of the electoral management body and security agencies acting at the behest of powers of incumbency should be considered substantial enough as a violation of the Electoral Act.