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Judges and the future of elections By Lasisi Olagunju

Monday, 11 September, 2023

Opeyemi Bamidele was the candidate of the Labour Party in the June 21, 2014 governorship election in Ekiti State. He thought he had worked hard enough to earn a victory but on the D-Day, he learnt a lesson profound enough to last him a lifetime. At exactly 7a.m. on the day of the election, a bulk SMS bearing his name was released to every phone user in Ekiti State announcing that he had withdrawn from the election. “The message said I, Opeyemi Michael Bamidele, hereby wish to thank all my supporters and to let them know that due to persuasion by party leaders as well as a lot of my supporters home and abroad, I have decided to step down for Chief Ayo Fayose of the PDP. I apologise for the inconveniences this might cause and I want to assure you that all would be well with us and I mean well for you. A lot of people have talked to me, including the Ewi of Ado Ekiti and other paramount leaders to which I cannot say no.” (See Olagunju, L. 2017 Ph.D thesis on page 83). The candidate said he was shocked to receive that message ostensibly from himself. He scrambled to counter it with his own bulk SMS but at exactly 12 noon when accreditation ended and ballot casting was to start, another bulk SMS was out restating the fact of his withdrawal from the race: “At exactly 12 noon, another bulk SMS was circulated in my name telling everybody to disregard the counter-statement I had earlier issued saying it was not me that sent it….”(ibid, page 84). Bamidele said he wanted to take up the telecoms company “but they could not even trace the source of the message…”

That Ekiti election drama happened nine years ago. Between that time and now, a lot has happened in technology and to politics of electoral contests big enough to make Opeyemi’s 2014 experience mere child’s play. Those who staged the drama would laugh today at how ‘rustic’ technology was in 2014 and the bigger possibilities they can toy with today. If you are a victim of tech in 2023 and you whine, curse and complain, know that tomorrow promises greater challenges. Only those smart enough to hurry into the Noah’s Ark of technology shall be saved.

Which is why I laughed and shook my head at some justices of the Court of Appeal last week. They apparently had stayed too long on the social media to read all sorts of negative posts and therefore had very harsh words for petitioners whose cases they decided. They acted like a row of men taking turns to slap a row of pigs because of a splash of mud. One of the justices pointedly accused the petitioners of attempting to get the court “persuaded or intimidated by threats on social media.” That was an open accusation. I read the words and I wondered if they were necessary in a political judgement. I do not think any of the parties officially endorsed any of the negative social media vibes that preceded the delivery of last Wednesday’s judgement. Yes, he who acts through another does the act himself (qui facit per alium facit per se). But online supporters of candidates cannot be reasonably, legally labeled their agents. More importantly, in a contest in which both sides are vicious and destructively creative, you don’t pick a side to excoriate. It creates more problems.

Every era carries the child it sires (omo tí ayé bí ni ayé npòn). The technology that rules this age does not understand the idea of judges being Kabiyesi. With technology opening new doors of engagement, it is difficult to imagine how the judiciary will cope in four years time if it remains laboriously archaic and combative, and if we conduct our election affairs the way they were done this year. Many people voted for the first time in February because of the trust they had in the deployed technology and the official assurances over their inviolability. Last week, the court loosened the vital bolts. The Court of Appeal ruled that the Electoral Act and INEC’s Regulations recognise the popular iReV and its uploaded results as merely for viewers’ enjoyment. “INEC Results Viewing Portal (iReV) is not a collation system,” the court ruled (see page 687 of the judgement). We now know through the Court of Appeal that there is nothing like electronic transfer/transmission of election results for the purpose of vote collation in our laws. Unless the legislature quickly fixes the ‘glitch’ before the next elections, election results will suffer ambush on the way to collation centres and the polls will be tugged between street gangs at collation halls and hackers in cyberspace.

What is coming next? Nice Cheeseman and Brian Klaas, authors of ‘How to Rig an Election’ (published in 2019) ask that question in their interrogation of what they called ‘the future of election rigging.’ They say they have “more bad news” for the democratic world. They stress that “we’re about to enter a much more dangerous period: the era of ‘deep fakes'” when almost everything is faked and “nothing is real” (page xxii). They hinted at the capacity of Artificial Intelligence (AI) to very soon alter the course of politics and get leaders elected. They wrote all that four years ago. AI is already disrupting the universe of everything and politicians appear to have noticed it, their old dogs are in school learning the new tricks. So, for judges handling election cases, the fasten-seatbelt light will no longer flicker throughout the flight of their careers. Whatever pains their lordships bear today, courtesy of social media and its possibilities, will get worse going forward. Judges will be asked to account for every word they utter (or do not utter), and for every point they make (or do not make). They will be forced to learn of AI’s Generative Adversarial Network (GAN) by the time it makes them see videos of themselves delivering judgements they never did. So, instead of composing words of abuse for a generation that is light years ahead, people of privilege like judges should sit up, clean up, ensure they do the right thing, hold it up for reasonable people to see and then leave the rest to God and their conscience.

The presidential election was held on February 25, 2023, the winner was sworn in more than three months ago. Legal challenges to the legitimacy of his mandate have not stopped shadowing everything he does. The Court of Appeal finished its own bit last week; the Supreme Court is taking over now. It has 60 days to deal with the cases. By the time these dusts settle, even if Tinubu wins eventually, he would have been thoroughly battle-beaten to be useful (if he wants to be useful) to Nigeria. A madman sets out for the backyard but the front door is the route he takes. That is Nigeria’s judicial route to presidential election validation. Should we not ask why it was possible for Kenyans to dispense with their own presidential election litigation a week before President William Ruto was sworn in in September 2022? The reason is their constitution; it has no “job for the boys” at the lower court. Section 140 (1) of the Kenyan constitution says: “A person may file a petition in the Supreme Court to challenge the election of the president-elect within seven days after the date of the declaration of the results of the presidential election.” In Nigeria, you have 21 days to file a petition, not at the Supreme Court, but at a bus stop called the Court of Appeal. Kenya is not the only country with its Supreme Court having original jurisdiction in presidential election petitions. As it is in Kenya, so it is in Ghana. Article 64 (1) of the Ghanaian constitution says “The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the result of the election in respect of which the petition is presented.”

Between now and the next election, we have enough time to beg our husbands in the parliament to copy Kenya and Ghana by amending the constitution. I do not think we will lose anything by asking the final court to do at the beginning what it will eventually do.

The Appeal Court has spoken and the dust won’t settle soon. I saw some university teachers dancing online because Tinubu won. They are the president’s men. University teachers are very rugged people; they are Fela’s Nigerians, suffering and smiling. But, let me appeal to the victorious president to please pay these university teachers their almost one-year salaries withheld by his friend and bedmate, Muhammadu Buhari. If he doesn’t pay them and they remain with him, their enemies will mock them. Enemies will not only ask them where their god/president is; they will be asked if they are well at all. There is a condition called Stockholm Syndrome – cooling off with your captor and abductor. How did Stockholm Syndrome get its name? One day in 1973, there was a bank robbery incident in Stockholm, Sweden. The robbers had a six-day standoff with the police and for those six days, many employees of the bank were held captive. Then the robbers set the captives free. But some of the victims had “fallen in love” with their captors so much that when the robbers were arrested and put to trial, the bank employees refused to testify against the suspects in court; the extreme ones among them even raised money for the defence of their tormentors.

The struggle for the soul of Nigeria has moved to the Supreme Court. We wait for the final word from there. But should the courts continue to have the final say on who should be our leaders in Nigeria? The way to political sanity is an electoral process that obeys the law. Court judgements never bring closure to bitter contests. Even if the court does the right thing, because it is politics and a contest for power, the side that loses will always believe that factors other than law informed the court’s decision. In a trust-deficit, money-loving country like ours, nothing is believed fairly done by any operative of the state’s institutions. Quid pro quo is always inserted into discussions of piety – it means something for something or this for that. The courts and their judges are therefore the losers in election cases. No matter what decision they take and how they arrive at it, their garments of respect and reverence get rent. Politicians are spirits of the night (òru ni wón, won ò mo eni òwò); they neither recognise nor respect the sacredness of any cassock when their vital interests are threatened. In 2017 when the Kenyan Supreme Court, in a 4-2 decision, annulled the presidential victory of sitting President Uhuru Kenyatta, his reaction was a regret that “six people have decided they will go against the will of the people.” To President Kenyatta, the Supreme Court was no longer his nation’s highest court; it had become just “six people” violating the democratic space of the country. In Nigeria, the full court is made of seven people. We wait to see how their final answer to a question which 25 million voters failed to crack on February 25 will bring peace to Nigeria – and to the court itself.

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