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December 11, 2008
 The Supreme Court of Nigeria, the highest court of this country, has spoken on the 2007 General Elections. Although it has spoken with a divided voice, its word is undoubtedly the law.  As a lawyer who practices in that court, it is my duty not only to respect the majority judgment but also indeed to encourage my fellow citizens to abide by the decision.

 Nevertheless, there would be reactions to the decision of the court to affirm the judgment of the Court of Appeal and the result declared by the Independent National Electoral Commission (INEC) in the election that was generally and widely believed to be manipulated and rigged in favour of the candidate of the PDP, Alhaji Umaru Yar’ Adua. The decision affords yet another opportunity to examine the role of the judiciary in the democratization process.

A preliminary point that one is compelled to make is that the fact that the decisions are split confirms that the 2007 General Elections were conducted in controversial circumstances. That there was no unanimity on the issues agitated before the court ought to impel those who direct affairs in this country towards real, serious and genuine electoral reform. This is especially the case as the dissenting opinions deprecated the failure of INEC to serialize the ballot papers. The time appears ripe to take seriously the suggestion that on sensitive cases of this nature all justices of the apex court should sit in order to have the full complement of the opinion of the court.

Another point is that the Electoral Act needs urgent amendment to specify the type of non-compliance that should lead to the nullification of the result of an election.

The judgment in my respectful view demonstrates beyond any shadow of doubt that it is unreasonable to expect the Supreme Court, nay any apex court in a class-divided society, to deliver a technically pure decision on an election petition. I do not question the competence of the justices, who are clearly some of the best in the Commonwealth, but the point that is being emphasized is that legal purism has no place in the determination of election petitions. One does not need to be a jurist to see this point, I presume. An election petition is not just about any kind of dispute. It is about a dispute that affects an entire country. The life of the country in a number of respects depends on how it is resolved. It is therefore irrational to expect that factors such as political stability would not operate on the minds of the justices, even if they do not like the Court of Appeal say so in their judgments. 

Now the interpretation of the possible impact of their decision on the stability of the country is a different matter altogether. It is quite possible to take the view, as I do, that unless elections riddled with malpractices and non-compliance with the enabling law are nullified at the highest judicial level, the country would remain politically unstable. Of course, implicit in this conclusion is the assumption that the country is not politically stable just because there is a civilian regime or simply because there are no protests on the streets. We can interrogate these issues on another occasion. 

For now, I am content to show that it is naive to analyze the decision of the court by placing it side by side with the Electoral Act or even the Constitution. That would be grossly unfair to the justices, as it would depict them as judicial robots, which they certainly are not. Our justices, particularly, those who heard the Atiku and Buhari’s appeals, I dare repeat, are some of the most cerebral jurists that are available in common law jurisdictions, to suggest that they are impervious to environmental stimuli would not be a compliment.

 Whether they weighed properly the impact of their decisions on real and long time political stability is a matter for the people to decide. Speaking for myself I would have loved a situation in which the election is nullified for failure of INEC to comply with section 45(1) on serialization. For as Justice Oguntade, in his brilliant and incisive opinion pointed out it is difficult to see how a decent election that answers to the tag ‘democratic’ can be conducted without serial numbers. I think there is a lot of force in his admonition that courts must move in the direction of giving effect to provisions of our laws that are aimed at democratic elections. It is better for President Yar’ Adua to win a fresh election than to live with the moral burden that the citizens think he is the beneficiary of judicial as opposed to electoral victory. It appears that the opportunity to call our politicians and INEC to order has been missed again by the Supreme Court and that is regrettable. But then I recognize that there are other people that might think that the majority of the court acted wisely. We would have to leave history and time to decide who is right.

The Supreme Court has done its duty and it has done it speedily. I commend the speed and the industry, although I regret like Justice Oguntade, to register my opposition to the spirit of its judgment. It is my hope that the decision would act as a tonic to energize the President to act so our people may benefit from our peculiar kind of democracy. The alibi for non-performance is now gone. We would all support him to work towards genuine electoral reform and social development of our country. That is our duty.

 The central lesson for our people is that ultimately it is their responsibility to straighten out the political process. The creases in the succession process are not a task for the court to deal with. That is not a function for the court. We may speak in glowing terms about the Obama phenomenon or even the Ghana’s decent electoral process.

Until and unless we resist electoral malfeasance, the courts can only try; they cannot do much. They have been trying their best. And let no one make any mistake the latest decisions of the Supreme Court represent advancement over previous decisions. But the point is that courts don’t build democracy, they can only contribute to strengthening it. It is the people that can and must build our democracy.

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