To Judge and to be Judged


Anthony Kila writes that much is expected from the nation’s judiciary headed by the Chief Justice of Nigeria, Justice Kayode Ayoola, as post-election cases arising from 2023 general elections are heard across the country.

Dear Justice Olukayode Ariwoola,

Today’s epistle is directed at you and through you to other members of the judiciary for two major reasons both centred around your roles on one seat.

Our missive today is about the role of the judiciary in our lives as a people generally speaking and logically thinking, there is no other person in the land that represents the whole of the judiciary more than you in the country today by virtue of your role as Chief Justice of Nigeria.

Our missive today is also about the upcoming electoral judicial cases, again in such cases, there is no other person in the land that represents the whole of the judiciary more than you in the country today because it is not only possible but it is expected that you chair the most popular of such cases.

Though habit and history have made too many Nigerians get used to the idea that judiciary is part of the electoral process and by so doing mentally designing and practically accepting what has been and is still presented as the judicial phase that comes after the voting and counting phase of the electoral process, let us pause to remind all that such phase is a Nigerian peculiarity and that it is alien to general democratic practices across the world and in history.

Whilst every presidential election since 1979 to date with exception of the 2015 election has ended up in court in Nigeria, elsewhere in time and space, going to court for electoral cases is a rarity that make observers and citizens cringe.

It is important to remind all, every time possible, that an electoral process that requires so much security presence and judicial input from the primary stages to the general election phase is not just a system that is far from normal, it must be labelled as an unhealthy system that needs serious treatment.

Lest we become guilty of what we accuse others of doing it is important that we state clearly and without mincing words that the illness the Nigerian system is suffering is caused by, spread by and complicated by politicians.

Violence, rigging and spreading of fake news are not something you can in conscience and in knowledge term as accidental occurrences, they are neither done out of error nor carried out spontaneously. Rather they are designed, encouraged supervised and rewarded by those that that benefit from it.

Let us be clear, benefitting from violence, rigging and spreading of fake news are not just crimes against the state but a total attempt to subvert the state and to cheat other members of the society.

Democracy is based on free choice of and by majority of voters. It is based on the assumption that contenders will behave well and that since the winners (eventual office holders) will be the expression of majority of the people and that choices made by such eventual office holders, good or bad will reflect the wish of the people. Democracy, in the voting stage, is that process in which we all admit that choice trumps reason and number trumps wisdom as long as that choice is free. The founders of the modern democratic system which Nigeria claims to practice did not foresee a situation wherein a group of few wise people will sit to have the final say over the choices of millions of citizens.

Your Lordship’s presence therefore on the electoral field of play is an unwelcomed strange but required entrance. You are called to adjudicate on matter of elections because some people led by contenders in the just concluded electoral contest believe others have violated the laws of the land and corrupted the system for their own benefit.

Such idea is possible where there is no trust in the system, and there is no trust among the people and where there are reasons to believe that the system has been corrupted for the illicit benefit of a part of the whole.

It is therefore useful for your Lordship to realise that your presence in this process is a peculiar one and that your main duty is to restore trust in the system by restoring of a clear sense of justice.

Allow me to remind myself and other readers that it is not enough to deliver justice but justice must be seen to be done in all cases but above all in electoral cases.

Beyond all we have seen so far, there are two other major factors among them related that make electoral cases very peculiar even for your Lordship and your brothers.

One is quantitative and the other qualitative. It is worth noting that in terms of quantity, electoral cases are followed by millions of people who feel directly affected by your eventual judgement.

In terms of quality, it is worth noting that there are millions of people who feel that just a few of you and your legal brothers on the bench are deciding for them, for a democratic mind that is a pathological situation. The millions of people following electoral cases will also be judging you as you judge electoral cases. With their limited knowledge of the law, they will be waiting to see if your judgment delivers justice.

To come out victorious or at least unscathed from the scrutiny and judgement of the masses it is crucial that your Lordship give a judgment that all can understand and see as justice.

Technicalities will not cut in the public opinion, any judgement that you give on matters that will affect millions of people that will not read your sentence or speak directly to lawyers that were present in court during deliberations.

To ensure that justice is seen to be done in an era where TV is more real than reality, I recommend that your Lordship allow electoral cases to be televised so that more people can in real time and in details know how judgment was reached. Though the law does not mandate your Lordship to do so yet, let me strongly recommend that you treat all court cases and deliver judgement before the swearing in date so that anybody sworn into power will be fully legitimised to act in the name of all.

As we move to the judicial phase of our electoral process it is important to remember in all we do that to judge is to be judged.

Join me if you can @anthonykila to continue these conversations.

-Prof Kila is Centre Director at CIAPS Lagos.

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