The court must be able to see that what is more important at every point before making its decisions is the importance of legitimacy and popularity.

The roles of the judiciary in pre- and post-election matters will never stop to beg the question of what should be held supreme: legality or legitimacy? Of course, both concepts cross each other’s borders semantically, but to what extent should the extremes of each be tolerated? What should decide legitimacy? Is it the quantum of legal compliance and due processes or the invested aggregated public interests?

To run for an election in Nigeria, as you raise the money you need, now in billions of naira, remember one thing: divide the money into two — one for the elections and the other for legal matters. If you win, the loser will take you to court. If you lose, take the winner to court. If the winner had the money for the election and no money for the legal matters, his fortune would be reversed.

Three sets of people now decide on our leaders for us: the voters, the lawyers, and the judges. Democracy is no longer solely about the legitimacy of votes but also the legality of how those votes are obtained and counted. Legality is now above legitimacy. Please allow me to explain.

The history of elections in Nigeria has always been of interest, but that of its aftermaths creates crescendos of the former, which are far more important sometimes and far more disappointing most times. In several instances, a party’s candidate would be elected with some level of presumed or deducible public support, and when the lens or the “VAR” of the judiciary looks at it, the people’s results get dashed. Sometimes, the supposed winner could be one who does not have the people’s approval, and after much process of vetting, the judiciary installs who it wants or thinks has fulfilled the law the most. Some other times, there is not much difference.

The roles of the judiciary in pre- and post-election matters will never stop to beg the question of what should be held supreme: legality or legitimacy? Of course, both concepts cross each other’s borders semantically, but to what extent should the extremes of each be tolerated? What should decide legitimacy? Is it the quantum of legal compliance and due processes or the invested aggregated public interests?

And should election results be held within the bustles of Electoral Acts, constitutional provisions, court rules, practice directions, and other legal reality checks? This dilemma has been a perennial occurrence and has severally and severely brought the people to some antagonistic vantage points, pitched against Milord’s Temples of Justice.

For instance, it is close to a month since the results of the petition at the Court of Appeal against the supposed victory of the APC at the 2023 Nigerian presidential election, and the people of Nigeria are nowhere near satisfied.

It is incredible how a country with a unique history of the repeated final determination of election results at the courts, as opposed to the polls, still keeps getting it wrong. The situation is evidence that the people take the judiciary as a betting house and take the chaos of doubts to its temple, as this has run throughout the history of Nigerian democracy.

Take also, for instance, the notorious case of the 2019 Imo State gubernatorial election, in which the Supreme Court annulled the victory of the Peoples Democratic Party (PDP) candidate, Emeka Ihedioha, and installed the All Progressives Congress (APC) candidate, Hope Uzodinma as governor; a candidate who did not just lose to Ihedioha in the initial race but finished a distant fourth position, and the reaction of the people to the situation.

The What about the Adeleke election saga in Osun State in recent history? This, however, seems to be an accepted decision by the people because of the supposed popularity of the candidate and the finesse of his dancing steps.

Another very controversial case was the court’s decision in the Bayelsa State election, in which the Supreme Court also annulled the victory of the winner of the election because it was discovered that his running mate had presented some fake documents. He was, therefore, disqualified, and his opponent was installed as governor.

But are fraudulent elections and mandates conferred on people unjustly not worth the similar care given to human rights issues? Where legality and procedures are reconsidered on cases from Chapter IV of the constitution, how many more issues are traced back to legitimacy, the people’s future, and the nation’s progressive projections? Isn’t an election fraud injustice to the generality of people and a collective breach of the collective rights of the people? 

This history of judicial intervention in elections is no short one. Since the petition originating from the election between Shehu Shagari and Obafemi Awolowo in 1979, Nigerians have had to severally vest their hopes in the judiciary and watch as they act as umpires in matters that were originally designed to be settled by the public vote.

There is a cross-road between legality, which informs the court’s decision, to the extent that irregularity would amount to fundamental decisions that affect the fate of the people and aid an illegitimate and unpopular government.

The people would then be left to struggle with a largely unwanted government or such that could not be ascertained to have won the popular confidence of the generality of the electorate. The court is the home of determining matters on the basis of some objective parameters, which explains why laws are set to guide every matter brought before the court.

From history, it is quite clear that many decisions made on election and election-related matters are either won or dismissed on the basis of irregularities, technicalities, and procedural errors, that would deny justice on substantive matters.

Of what benefit is a suit that was dismissed based on its lack of conformity with an established form or because it was instituted by a writ of summons, rather than being brought by way of a petition? When a matter is determined based on this and other preliminary fulfillments or procedures, the substance, which goes to the root of the legitimacy and desires of the people, is buried or forgotten.

The Constitution and the Fundamental Rights (Enforcement Procedure) Rules have established that fundamental rights issues should not be discountenanced based on mere irregularities and that as sui generis issues, the standard of expectation should be brought lower, in comparison to other matters before any court.

Fundamental rights issues in Nigeria can be brought before the State High Court, Federal High Court, or National Industrial Court. It could also be brought by any means, making it quite easy for a person whose right has been trampled upon to seek justice.

But are fraudulent elections and mandates conferred on people unjustly not worth the similar care given to human rights issues? Where legality and procedures are reconsidered on cases from Chapter IV of the constitution, how many more issues are traced back to legitimacy, the people’s future, and the nation’s progressive projections? Isn’t an election fraud injustice to the generality of people and a collective breach of the collective rights of the people? 

The consequence of elections to the sociopolitical consciousness of a people must not be taken lightly. Not just because elections are the system through which the next leader of a democratic nation is decided but because that system is in and of itself the embodiment or the defining expression of the democratic soul of the society.

The iconic 16th president of the United States of America, Abraham Lincoln, famously defined democracy as the “rule of the people, by the people and for the people”; a concise yet comprehensive capturing of the essence of the ideology.

The court must be able to see that what is more important at every point before making its decisions is the importance of legitimacy and popularity. The political and social consequences that decisions of the court can cause. This is because every institution is established on the back of the people, and since people are the law themselves, the law should never be clogged to their wheel.

No society can claim to be democratic in principle without having its people come together to decide who its leaders are. Because those elected are not just “leaders,” but in a more honest sense, are representatives of the people.

And since they are representatives of the people, it would be an undeniable logical inconsistency, as well as a great political absurdity, if the people’s will were to be ignored in the selection of their next leader, no matter how legal, constitutional or judicially viable that process of selection is.

It is this understanding that should primarily guide the decision-making of the judiciary that elections are an expression of the will of the people, and so in their decisions, their foremost objective must be the protection and enforcement of that will.

When you see that the entire nation is not only interested but has a stake in the matter, one would expect that the judiciary takes a decision that is the most accurate reflection of the will of the people. Instead, we saw the judiciary dismissing what seemed to be worthy petitions because one preliminary matter was not filed or one issue arising from the whole pool of matters was supposed to be decided by another court.

This system and mentality is an outright mockery of the people’s desires. They ignore important, weighty arguments on the grounds of minor, less significant matters of procedure, thereby sacrificing justice on the altar of technicalities.

My question to the Justices who sacrificed justice for technicality is this: Was the law made for man, or man made for the law? The obvious answer to this question is a foundational concept of law, which ought to guide their reasoning.

Law is very important to ensuring order and progress in society. But when that law is exalted at the expense of the best interests of the men it was created to serve, then that law is pointless and nothing more than a stumbling block to the progress of society.

Law is good because it ensures legality. But man is ultimate because it is man that gives legitimacy. Legitimacy to other men, legitimacy to a government, and legitimacy to even the law itself. So, to all those who view the judiciary’s actions through the mediocre lens of legality, here is a better question: It may be legal, but is it legitimate?

Do not get me wrong; I do not mean that the law should be thrown to the winds and be disregarded at every instance; of course, “he who comes to equity must come with clean hands,” and “he who wants equity must do equity.” However, there should be a relaxed line, so as not to run into the dangers of positivism.

The court must be able to see that what is more important at every point before making its decisions is the importance of legitimacy and popularity. The political and social consequences that decisions of the court can cause.

This is because every institution is established on the back of the people, and since people are the law themselves, the law should never be clogged to their wheel. The law should be for the men and not men for the law.

When questions like this are taken more seriously, we will begin to see changes in this country. Our democratic institutions need to be recalibrated and strengthened. Judicial recourse is useful, but when it becomes repeated, it insults and nullifies the point of the precious will of the people.

Going forward, we must ensure that we fight to protect that will. All involved from the government to INEC, to the courts, must do better. To close, the preamble of the Nigerian constitution opens with “We the people of the Federal Republic of Nigeria…Do hereby make, enact, and give to ourselves the following constitution”.

If it is we, the people, who give ourselves the law, then it must be we, the people, who give ourselves our government. We must defend that right, always.

Toyin Falola, a professor of History, University Distinguished Teaching Professor, and Jacob and Frances Sanger Mossiker Chair in the Humanities at The University of Texas at Austin, is the Bobapitan of Ibadanland.

"..Three sets of people now decide on our leaders for us: the voters, the lawyers, and the judges. Democracy is no longer solely about the legitimacy of votes but also the legality of how those votes are obtained and counted. Legality is now above legitimacy.."

The court must be able to see that what is more important at every point before making its decisions is the importance of legitimacy and popularity. The political and social consequences that decisions of the court can cause.

To close, the preamble of the Nigerian constitution opens with “We the people of the Federal Republic of Nigeria, Do hereby make, enact, and give to ourselves the following constitution”. If it is we, the people, who give ourselves the law, then it must be we, the people, who give ourselves our government. We must defend that right, always.