Deciding who wins elections should not be left to courts — Odinkalu

HUMAN rights activist and writer, Chidi Odinkalu, has expressed disapproval of the trend that sees judges upturning the outcome of elections as announced by the Independent National Electoral Commission (INEC) across Nigeria.

During an interview with The ICIR on Thursday, the professor of law said part of the problems the country is facing is that the judiciary is introducing “tremendous uncertainties” into electoral processes and increasingly destroying the confidence people have in them.

He made reference to Supreme Court rulings involving gubernatorial elections in Bayelsa, Imo, and Zamfara states. The court had, yesterday, sacked the All Progressives Candidate in Bayelsa, David Lyon, a day to his scheduled inauguration and declared the People’s Democratic Party’s Diri Duoye as the duly elected governor.

“Quite honestly, it is not up to judges to decide who wins or loses an election,” Odinkalu said. 

“And you can see what is happening. Politicians no longer celebrate the declarations that come from elections. They wait until the tribunal, court of appeal, and supreme court [have ruled], and that is when they start celebrating. That is just destructive. 

“Of course, we are responding to a reality that INEC has not been the kind of independent umpire that we expect, but you know democracy never promised magic. It promised that you will make mistakes, you will struggle, you will learn. So you don’t have a median graph of progress, you have reversals.”

He explained that his view is that the court can nullify an election but should not extend its powers to determining who the winners are.

“The right to institute a government cannot be [left to] a majority of two judges out of three or three judges out of five or four judges out of seven. And you can end up with a situation in which four judges from states totally unrelated to any part of the country where the issues are sit down and decide what happens in a state,” he said.

“That is the system we run but I frankly believe that is wrong. Let them strike down the elections and tell people to, under certain conditions, go back and conduct fresh elections. ‘INEC, you do it right this time.’ It seems to me that is the remedy; not you go and conjecture numbers that are manufactured, and then decide.”

Odinkalu complained about the inconsistent way judges are excluded from sitting on particular matters because of a possible conflict of interest. He said the Supreme Court now has a habit of licensing faulty petitions or rigged electoral processes.

“With the judgment in Osun, you can actually go and get kidnappers or anyone to lock in a judge and make sure he doesn’t go to court on a day and any judgment procured is gone, the proceedings of the tribunal can be gone. And it totally endangers the system. I don’t think the degree of contemplation required for that level of decision-making exists,” he noted.

“When the people lose faith, when they are made to begin to question decisions of the judiciary for reasons other than legitimate disagreement, there is a problem. We have a deep problem.”

He further suggested that retired judges should be favoured above serving judges to decide electoral petitions. This he said will allow judges to focus on their regular work while also making sure “the incentives to over-monetise the system may well be reduced”.

The former chairman of the National Human Rights Commission also encouraged the digitisation of party membership, which he said will increase political participation by intelligent, well-meaning Nigerians and increase their chances of getting into public offices.