Of Supreme Courts and Electoral Outcomes

by Sheyi Oriade

It seems the fashion these days in advanced, as well as, fledgling democracies for Supreme Courts, rather than the people to have the last say and definitive word on the outcome of presidential elections. And depending on the particular orientation and angle of the prism through which such developments are viewed by observers, this development may be seen by some, as being beneficial, or by others, as inimical, to the overall prospects of, and for, the growth and survival of democracy and its practice in certain places.

For those observers who regard such judicial interventions in electoral outcomes as beneficial and essential for the strengthening of the roots of democracy, they will have no doubt come to this conclusion, on the basis of the demonstrable ineptitude of electoral bodies in the discharge of their functions in conducting free and fair elections. On the other hand, observers who view such developments as detrimental to the well being of democracy, uppermost in their minds, will be the concern that the voice of the people, no matter how discordant, is at risk of being supplanted by the voice of an elitist group of unrepresentative judicial egg-heads, upon whom it falls, to determine, in accordance with their particular and esoteric lights, who is to be victor, and who is to be vanquished, in disputed electoral contests.

Of course, it must be pointed out, that in reality and matter of fact, no blame can properly be apportioned to Supreme Courts for their involvement in such matters. For at no time, nor of their own volition, do they place themselves in the midst of electoral arguments between political antagonists. And neither do they of their own accord set out to appropriate or supplant the voice of the people. Rather, the combined ineptitude, incompetence, failure, connivance, and collusive behaviour of electoral officials and political candidates make such their involvement in electoral arguments inevitable.

And in such circumstances, not only is it necessary, it becomes imperative for Supreme Courts to enter into such disputes, at the behest of contending candidates. And in such circumstances Supreme Courts must oblige these entreaties in order to safeguard the survival and balance of democracy, no matter how teetering it may be. On such occasions, it is unlikely, that even Supreme Courts themselves cherish such engagements. Acutely, aware as must be of the grave responsibility on their judicial shoulders; and the potential consequences of their pronouncements on their nations in the course of time. These Superior Courts may very well be supreme in appellation and pronouncement, but they are not omniscient in knowledge or purview. And in buttress of this point, one only needs to consider the role of the United States Supreme Court in the resolution of the debacle that was the US 2000 presidential elections.

Back in 2000, the US Supreme Court in a majority verdict, but one lacking unanimity, the Court effectively handed the presidential mantle of power to the then Governor of Texas. Eight years hence, and an election in between, and with the benefit of the perfect vision of hindsight, the US Supreme Court may very well in the privacy of its inner sanctum recoil in embarrassment at the ramifications of its verdict.

Indeed, as one of the Judges in the matter, remarked with solemnity and apparent discomfort at the US Supreme Court’s role in that electoral dispute:

Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Mr. Justice John Paul Stevens’ above view perhaps encapsulates the private concerns of Supreme Court Judges everywhere when faced with similar circumstances. As bodies of largely incorruptible men and women, they can only be too aware, of the great weight of expectation upon their shoulders; and the ever present twin dangers of their motives being misunderstood and the possibility of their reputations being besmirched by the people.

So it is must have been against this type of background, that the Nigerian Supreme Court, found itself, when it too was called upon to determine the legitimacy or otherwise, of the outcome of Nigeria’s 2007 presidential election. In reaching its recent verdict – a majority decision, but one also lacking the unanimity of the presiding judges; it chose to confer judicial legitimacy upon an electoral process, widely adjudged by virtually all, on all sides of the political divide: participants; culprits; and bystanders alike; as being fundamentally flawed and lacking in credibility.

It is not clear what the ratio decidendi of the Supreme Court’s thinking and conclusion(s) is or are, and we will have to wait for the full text of its verdict to be released to the public. However, no matter what the ratio decidendi underpinning the verdict is, one can safely imagine that the Supreme Court, must have, at the very least, considered as part of its thinking process, three possible ‘end scenarios’.

First of all, it must have considered the possibility and ramifications of nullifying the elections. Secondly, it must have considered the viability of declaring one, or the other, of the petitioners before it, as the rightful winner of the election. And thirdly, it must have considered leaving matters as they stood; in effect leaving the current occupant of Aso Rock in office; which, of course, it ended up doing.

Its non-adoption of the first ‘end scenario’ is likely to have been based on a reluctance to plunge the nation into another wasteful electoral exercise in which enormous amounts of public monies would be expended. And particularly, as such an election, would yet again, be conducted by an electoral body, which has yet to demonstrate its appreciation of the seriousness of its failures in the conduct of the last elections. But most of all, one also suspects that the Supreme Court’s awareness of the fact, that such an exercise would in all probability result in a situation in which the same candidates are returned to office once again.

The second scenario, in which, one, or the other, of the petitioners, is declared the winner of the election in place of the present incumbent, would have involved a close look at the character of the petitioners and their role in the flawed elections. One of the petitioners, from all accounts, is one, whom anyone with their wits about them would not want to see in charge of, or anywhere near, their ‘petty-cash’ box, let alone the nation’s treasury. Whilst the other petitioner is of such an autocratic and narrow minded bent, as to fracture further the nation’s already fragile unity. So, it seems that neither of these outcomes would have appeared an attractive prospect against present day Nigerian realities.

In choosing to retain the status quo, by keeping in office a president, albeit one devoid of the public acclaim of the Nigerian people, the Supreme Court appears to have settled upon the best possible outcome out of a number of ‘worse case’ scenarios. It settled upon a man largely viewed as lethargic, but one who is unlikely to ‘pick the lock’ of our national treasury and reduce the nation to penury in the manner of some of his predecessors.

The Supreme Court, one feels reached the only viable decision that it could have in the circumstances before it. In the past, it has not shied away from being radical in its pronouncements. But this time the prospects before it were of such a nature, as to leave it with little room for judicial manoeuvre. I concede that the lack of unanimity in its decision shows that there was a divergence of views on the presiding bench; but this can only bolster our treasure trove of constitutional jurisprudence.

Now that the issue has been resolved, after a manner of sorts, it is time for the president to begin to act and govern for the good of the people. And while he begins to do so, he must also ensure that one of his principal objectives while in office – and this regardless of his having been the chief beneficiary of a flawed electoral process – must be to bequeath the nation with an electoral body fit for purpose and sufficiently competent to conduct future elections in and free and fair manner. So that in future the last word on electoral outcomes will be that of the people and not the Supreme Court.

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