Between Democracy and ‘Judiciocracy’

In our last piece, we embarked on the process of showing that in Nigeria, the Doctrine of Separation of Powers as enshrined in the nation’s Constitution has been hopelessly skewed in favor of the Judicial Branch of Government, to the utter consternation of many Nigerians.

We have shown that at the collapse of the political party structure that we once knew, which came with party supremacy, the Judiciary quickly moved in to usurp the citizen’s role of occasionally coming together to decide who would represent them in governmental affairs. Of course, that was supposed to be the original essence of Representative Government.

At the death of the original party structure with the concomitant party leadership, political parties became pseudo-departments of the Executive Branch of Government. That was how it was planned to be. The process was simple.

Too much freedom destroys freedom. Up to the end of the Second Republic, the political parties were not only strong, but they also had owners and leaders.

When the military was beating a retreat to the Barracks in 1999, it quickly pinned together extracts from the Reports of various Constitutional Conferences impaneled by the military administrators since the end of the Second Republic.

Each of these reports was for the self-succession bids of the Heads of States that impaneled the Constitutional Conferences.

They killed the political parties and buried their remains in one obscure department of the Executive Branch.

With the hope of coming back, and perhaps in perpetuity, the past military leaders had left virtually all powers, particularly political powers, concentrated at the Presidency and the Governors’ Offices.

At the return to democratic experiment, so-called, in 1999, the original parties and their leaders were already dead! In the absence of a defined leadership as we used to have, what the politicians were able to quickly assemble were ramshackle assemblages that have not, and may not, find any firm footing anytime soon.

That was how the judges became involved. Since then, every issue, no matter how minute – from the election of Ward Executives to the nomination for any office, from dog Catchers to the President of the Country, etc – has been irrationally ending up in Court.

The worst aspects here are the issues of elections, so-called where under the rain and in the sun, some 80 million people would come together to decide who will represent them in Government, and at a later date, seven odd fellows would in the comfort of their air-conditioned chambers in a single stroke, simply veto the collective decision of the 80 million citizens and install a different person. This is not Democracy. At best, it is Judiciocracy. It has no place in our Constitution. Yet, it goes on every time.

We are not swift to heap the total blame here on the Judiciary. We know of no time when the Judiciary has been going around seeking for election and political cases to adjudicate on. Theirs is merely the case of the river only having to wash the clothes brought to it!

Evidently, the taste of the pudding is in the eating. Having tasted the political pudding, some Judges might readily admit that it is more lucrative to handle those political cases than to be in that seemingly solitary confinement where petty thieves of goats and chickens constantly blow hot air on you.

Judges may scramble for assignment to Election Petitions Tribunals. Of course, some jobs are more risky than others. Again, the higher the mountains, the more the joy in climbing to the top.

In all this, our country is the worse for it. For one thing, the Courts are overwhelmed with the case that’s coming from the political angle. At the same time, the same Courts of Superior Record have indirectly abandoned the other criminal and civil cases for which they were originally set up. To whichever direction we turn, we are losers!

Admittedly, things will get worse before they get better. We must also admit that we have had enough of this rumble in the jungle where every day, things are getting worse. An end is not in sight. The Doctrine of Separation of Powers enshrined in our Constitution has been thrown to the dogs!

Representative Government presupposes that the people would have periodic elections to decide who governs them. This role has been totally usurped by the Judiciary.

Having become overburdened by an assignment that was not originally given to it, our Judiciary has abandoned the criminal and civil adjudications for which it was originally set up. Consequently, our Courts and prisons are clogged up with cases of awaiting trial – with all the concomitant evils.

Good riddance to an unrepresentative Assembly. The Ninth National Assembly has been anything but representative. This shall be remembered as one Assembly that caught a cold each time the President sneezed. It tied itself to the apron string of the President to the extent that each time the President assented to a Bill that it worked so hard to pass, members could be seen celebrating and backslapping themselves for the favour the President had done to them.

In a good system, the opposite should be the case –  the President should be happy each time the Assembly gives him the measure required to carry out the task before him. This was also one Assembly in which, each time a Bill was presented to the President for assent, he constituted the Attorney General and Minister of Justice with some other Ministers into another Committee to repass the Bill, and the legislators saw nothing wrong with that.

The ELECTORAL ACT, 2022, was one measure that the Ninth National Assembly worked so hard to bring about. That Act has now been hopelessly skewed at implementation. Up till now, no member has raised a voice against the atrocity except the scattered voices of two senators in the penultimate week. What a height of docility!

The over-concentration of powers in the hands of the Executive Branch, and by extension, the Judiciary is an open invitation to tyranny. We must quickly return political parties to their pre-Third Republic status. This will also be a return to civilization. Parties cannot continue to be appendages of the Executive Branch. They should be independent – raise their own funds and have leaders who will instill discipline in members and bring about party supremacy.

When that happens as was the case before the Third Republic, only very few election cases will get to the Courts. Not only will our Courts cease to be the main determinants of our elections, they will also devote full attention to the other criminal and civil cases that come before them. There will be sanity in our electoral and general justice systems.

Desperate situations demand desperate solutions. The Justices of our Courts of Superior Records as well as the Chairman and Members of the Independent National Electoral Commission, INEC, should come into office through elections.

After being cleared by the Judicial Service Commission, they should stand for election, not on any party platform but At-Large, so that their allegiance will not just be to the President and party but to the people.

Omorotionmwan writes from Canada