How to stop judicial coups against democracy in Nigeria – Farooq Kperogi

The Civil Society Legislative Advocacy Centre (CISLAC), one of Nigeria’s most prominent pro-democracy NGOs, invited me to make a virtual presentation from my base in Atlanta to a national seminar it organized last Thursday on “targeted judicial reforms and enhanced judicial integrity in post-election litigation.” Unfortunately, I couldn’t make it, but here are the thoughts I would have shared on the topic.

It’s oddly ironic that the judiciary, which should be the bulwark of democracy, has become such a dreadful terror to democracy that people are seeking to protect democracy from it. The courts have become the graveyards of electoral mandates. Judges have not only descended to being common purchasable judicial rogues, but they have also become juridical coup plotters.

The major preoccupation of pro-democracy activists is no longer how to keep the military from politics and governance but how to save democracy from the judiciary. In other words, in Nigeria, our problem is no longer fear of military coups but the cold reality of frighteningly escalating judicial coups.

A “judicial coup,” also called a juridical coup d’état, refers to a situation where judicial or legal processes are deployed to subvert the choice of the electorate or to unfairly change the power structure of an existing government.

In other words, a judicial coup occurs when the courts are used to achieve political ends that would not be possible through standard political processes. In a judicial coup, the courts make rulings or interpretations of the law that drastically alter the balance of power, often favoring a particular political group or leader.

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This can include invalidating election results, removing elected officials from office, altering the constitution through interpretive tyranny, or other significant legal actions that have profound political implications.

Before 2023, judicial coups happened in trickles and were barely perceptible. The big, bad bugaboo used to be INEC. When the Supreme Court made Chibuike Rotimi Amaechi the governor of Rivers State on October 25, 2007, without winning a single vote, we thought it was merely a curious, one-off democratic anomaly that was nonetheless morally justified because Celestine Omehia—who won the actual votes cast on April 14, 2007, and sworn in as the governor on May 29—was illegally replaced as PDP’s candidate after Amaechi won the party’s primary election.

Our collective toleration of this strange supersession of normal democratic procedures to produce a governor conduced to more aberrations.

On January 14, 2020, the Supreme Court produced its first unofficial “Supreme Court governor” in Hope Uzodimma of Imo State when it used dazzlingly fraudulent judicial abracadabra to subvert the outcome of the governorship election in the state.

The Supreme Court’s judicial helicopter zoomed past PDP’s Emeka Ihedioha who won 273,404 votes to emerge as the winner of the election; flew past Action Alliance’s Uche Nwosu who came second with 190,364 votes; zipped past APGA’s Ifeanyi Ararume who came third with 114,676 votes; and glided gently into the yard of fourth-place finisher Uzodimma of APC with only 96,458 votes.

It then declared that the fourth shall be the first, enthroned Uzodimma as the governor, and dethroned Ihedioha whom Imo voters and INEC had chosen as the legitimate governor.

I recall being too numb by the scandal of the judgment to even experience any sensation of righteous indignation. Then came the Ahmed Lawan judgment, and I was jolted to my very bones. A man who didn’t run for an election, who admitted he didn’t run for an election, and who gave up trying to steal an election that he himself admitted he didn’t run for, much less win, was declared the “winner” of the election.

Because I closely followed the case and shaped public discourse on it, I was so incensed by the judgment that, in a viral February 6 social media post, I called Supreme Court justices “a rotten gaggle of useless, purchasable judicial bandits,” which prompted an unexampled official response from the Supreme Court, which dripped wet with undiluted bile.

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However, many judges, including some conscientious Supreme Court judges, agreed with me. For example, in his farewell speech last month, Justice Musa Dattijo Muhammad re-echoed my sentiments about the Supreme Court and cited former Court of Appeal justice Oludotun Adefope-Okojie who, in her own farewell speech, approvingly quoted my description of Supreme Court justices as “a rotten gaggle of useless, purchasable judicial bandits.”

The judicial banditry I talked about has assumed a different, worrying dimension. It has now become full-on judicial sabotage against the soul of democracy itself. In unprecedented judicial roguery, the Appeal Court has invalidated the election of all 16 PDP lawmakers in the Plateau State House of Assembly and handed unearned victories to APC. It also nullified the victory of PDP’s Governor Caleb Mutfwang and asked that APC’s Nentawe Yilwatda Goshwe, who lost in the actual election, be declared the winner.

In all these cases, the judiciary invoked matters that were extraneous to the actual vote (called “technicalities”) to decide whom to crown as winners of the elections.

It’s now so bad that courting the votes of the electorates is no longer an important component of the democratic process since politicians can get from the courts what they lost at the ballot box. That’s a dangerous state for any democracy to be in.

The judiciary is becoming an unacceptably treacherous but overpampered monster that is exercising powers that are beyond the bounds of reason. It needs to be stopped through a holistic reworking of the electoral act.

The first thing that needs to be spelled out more clearly and more forcefully in a revised electoral act is that pre-election matters are not litigable after the winner of an election has been announced. All pre-election petitions should be litigated before the conduct of elections. Post-election litigations should be limited to the conduct of the elections. Since this happens once in four years, it should not be too much of a burden for the judiciary.

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The second change that needs to be enshrined in a revised electoral act is a provision that divests courts of the powers to declare winners and losers of electoral contests. I am the first to admit that this is problematic because it limits the mechanism for redress available to politicians in cases of INEC-engineered electoral robberies.

But in situations where courts can glibly overrule the will of the electorate by invoking procedural inanities that are extrinsic to elections to declare winners and losers, I would rather deal with INEC alone.

The conduct of elections can be improved in the future to the point that manipulations can be significantly reduced. But I can’t say the same for a rapacious, unjust, and mercenary judiciary such as we have today.

In any case, in all functional democracies, it is voters, not the courts, who elect and remove people from positions of political power. If the courts find sufficient evidence of irregularities in the conduct of elections, they can order a rerun. But they should never be invested with the power to declare winners and losers.

The last suggestion I have for the revision of the electoral act is to constitutionalize the imperative to finalize the adjudication of all election petitions before the inauguration of elected officials into their offices. There are two reasons for this.

First, it is disruptive to put elected officials through the hassles of post-election litigation while they are already officially in office. Governance is often put on hold during the pendency of litigations, and lots of state resources are expended to bribe judges, hire lawyers, and bring witnesses. That’s unfair to Nigerians.

Second, at least at the presidential level, once someone has been declared the president and is inaugurated, they automatically assume enormous symbolic power that is almost impossible to reverse. They also have access to enormous resources that they can deploy to influence the course of justice.

Whatever we do, we must curb the excesses of our out-of-control judiciary before it finally murders what remains of our democracy.

How to stop judicial coups against democracy in Nigeria – Farooq Kperogi

Farooq Kperogi is a renowned Nigerian newspaper columnist and United States based Professor of Journalism.

Letter to Governor Ademola Adeleke, by Tunde Odesola

Published in The PUNCH, on Friday, November 24, 2023.

Your Excellency,

At the risk of being accused of ‘famzing’ the Osun State First Family, I will, nonetheless, stand at the Aisu Junction, off the Gbongan-Osogbo Road, which leads to a stretch of houses belonging to the Adelekes, open my mouth yakata and proudly declare myself a friend of the illustrious Adeleke clan of Ede.

My esteemed Governor, I have no relationship with you, but your eldest brother, the great Serubawon of Osun politics, Alhaji Isiaka Adetunji Adeleke, even in death, remains an unforgettable friend, who humbly related with me, despite his towering political height.

Having friends in equal measures within the Peoples Democratic Party and the All Progressives Congress in Osun State, I’m like the swivel door that sees indoor and outdoor secrets, but which remains dispassionate because I’m sworn to the journalism creeds of fairness and balance called s’òtún, s’òsí, ma ba ‘bìkanjé.

Permit me to clear the insinuation that the brouhaha drowning common sense in the State of the Living Spring, following your unwise sacking of the Osun State Chief Judge, Justice Adepele Ojo, is related to your relationship with Chief Ramon Adedoyin, the proprietor of Hilton Hotel in Ile-Ife, where a postgraduate student of the Obafemi Awolowo University, Timothy Adegoke, was killed in November 2021.

My investigation shows you have no such relationship with Adedoyin to warrant sticking your neck out for a murderer. I know that the son of a late Balogun of Ede, Chief Raji Ayoola Adeleke, can’t eat anything harder than plantain. Your round cheeks, chubby physique and break-dancing prowess should’ve told the perpetrators of the allegation that your passion doesn’t include murder.

If they allege that you danced on water or rolled on your head with your legs oscillating faster than a colonial ceiling fan, Osun people wouldn’t have doubted it. But it’s a lie that you want Ojo out as CJ because she jailed Adedoyin. 

Going by the judgment of the Osun State High Court, and as the Lord lives, Adedoyin will die by hanging, a method designed to break the neck and choke a person to death as efficiently as possible. To get his comeuppance, the hangman’s noose will first encircle Adedoyin’s neck. He will be dropped a distance higher than his height through a trapdoor and the rope will hold his body in sudden fatal suspension, as the noose snaps the cervical spine that connects his head to his neck. He will die like a cockroach within a minute or two.

Your Excellency, I wish to tell you the truth in a way that Serubawon wouldn’t see me as being too harsh or not respecting our relationship. I’m torn between the devil and the deep blue sea. But I won’t sell my soul to the devil nor jump into the sea. I’ll tell the truth in a palatable way and keep under lock and key the horsewhip I used on that hemp-smoking monarch who banned Oro worshippers from practising their religion.

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By birth and residency, I’m a citizen of Lagos but by ancestry, I’m an Osun indigene. I deliberately stay away from Osun politics and seldom comment on statecraft except on highly unignorable issues like when the immediate past Speaker of the Osun State House of Assembly, Rt. Honourable Timothy Owoeye, bathed with blood in public. Owoweye is my friend but I couldn’t overlook his indiscretion. I wasn’t as miffed with Owoeye as I was miffed with the APC leadership that made him Speaker despite the bath in a pool of blood. Even if Owoeye was a victim of swindlers, the APC shouldn’t have made him Speaker.

Baba Bayo, I’ll give a few instances to show how differently Serubawon ran his show. He had given a car to the late highlife maestro, Ede-born Pa Fatai Olagunju aka Rolling Dollar, and had kept quiet about it. I was at the country house one day for an interview when he told me about the gift to Rolling Dollar. First, I was shocked that Dollar had no car. Second, I told Serubawon that the gift was newsworthy. “Tunde, shey o feel pe ka publish e?” he asked. I said yes. “Ok, let’s publish it,” he agreed.

The story made such a good read in PUNCH that Adeleke invited me to the permanent orientation camp of the National Youth Service Corps in Ede, where he donated cars, buses, motorcycles, sewing machines, grinding machines, deep freezers, etc to his constituents because Baba Dollar was present at the event. I had a lengthy interview with the octogenarian Dollar at the event.

Boda Nuru, you didn’t handle the CJ issue well at all. I’ll give you another example of how Serubawon handled a tricky case. While on a governorship campaign tour shortly after Osun State was created out of Oyo State in 1991 by ruthless ruler, General Ibrahim Babangida, Serubawon’s convoy was halted by some supporters at a stream in a town (name forgotten). Serubawon, who had returned from the US to contest the election, said, “They told me to step out of the convoy and come into the stream to drink water so I could feel their plight. Tunde, I had to alight o. The road divided the stream into two. On one side of the road was the ‘good’ water from the stream while on the other side of the road was murky water in which people washed cars, motorcycles and clothes. I walked to the ‘good’ side, cleared the water with my hands and drank o, Tunde.”

He asked, “Do you know what happened after I entered my car? We moved away from the stream and I quickly told my people to get me antibiotics from the First Aid Box in one of our vehicles in the convoy.” “Did you have stomach upset thereafter?” I asked. “No, I was fine,” he replied, smiling. 

Mr Governor, the political empire you inherited from your late charismatic egbon was united, with the whole of Ede-North and Ede-South local government councils always behind him. Today, Ede, the home of professors, SANs, technocrats, business moguls and military generals, is not as united as it was during the time of Serubawon. For instance, Nigeria’s Ambassador to Mexico, Chief Adejare Bello; Brigadier General Abiodun Adewimbi (retd.), Fellow, Nigerian Academy of Letters, Prof Siyan Oyeweso, among others, are some of Ede indigenes who were part of the Serubawon political family but who are not with you today.

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Last born, you will recall that the father of Chief Justice Ojo, Balogun Osungbade, became the Balogun of Ede after your father, who became Balogun in 1976, passed onto eternity in 1993. However, Ojo’s purported removal was as shoddy as the removal of the Rector, Osun State Polytechnic, Iree, Dr Tajudeen Odetayo, on July 11, 2023, and the removal of the Head, O-Ambulance, Dr Segun Babatunde, both of which started with unsubstantiated allegations of fraud. 

Baba B-Red, Serubawon, who was older than his immediate younger brother, the father of superstar singer Davido, Mr Adedeji Adeleke; his younger sister, Yeyeluwa Modupe Adeleke; and yourself, with a gap of two years between each sibling, wouldn’t have replaced Odetayo, who has a PhD with an Ede indigene, Mr Kehinde Alabi, who is less qualified than the rector, deputy rector and many other lecturers of the institution.

Mr Jackson, I pray your administration wouldn’t be remembered only for àlùjó, shaku-shaku and fàájì repete because your government appears lethargic to deep thinking. How do you explain, Your Excellency, that the petition written by one Comrade Damilola Esekpe, a director of communications of a faceless agency in Abuja, was what the Rt Hon. Adewale Egbedun-led Osun State House of Assembly used to decide the fate of Ojo? How? Also, the statement containing the allegations for which you suspended Ojo didn’t mention the agency that Esekpe works for in Abuja. And this was the statement used in deciding the fate of the CJ!? How more childish can a government be? The PUNCH correspondent in Osun State, Mr Bola Boladale, corroborated my investigation that the statement containing the allegations against Ojo, signed by Esekpe, and circulated by OSHA, didn’t say the agency Esekpe works for. How infantile!

This shoddiness strengthens the claim of victimisation against the CJ just as it raises an eyebrow at other sackings by the Adeleke government.

After he lost re-election into the Senate in 2011, Serubawon still went ahead to distribute hundreds of cars, buses, refrigerators, sewing machines, etc to his constituents. I asked him why he went ahead to distribute the largesse instead of returning them to the sellers and asking for refunds. He said, “Many of these people you see, their hopes depend on these things. I have promised them, I must fulfil my promise, win or lose.” That’s the largeness of Serubawon’s heart. He wasn’t petty and narrow-minded. 

Justice Ojo isn’t a saint. If Adeleke wants to catch the annoying monkey, he should come with clean hands. Knee-jerk reactions to issues show immaturity and unpreparedness.

Email: tundeodes2003@yahoo.com; Facebook: @Tunde Odesola; X: @Tunde_Odesola.