‘All Eyes on The Judiciary’! Corruption Discourses, Judicial Transparency, and Nigeria’s Contested 2023 Presidential Election
Editors’ note: this article is the first in a two-part series of posts focused on judicial transparency, corruption and the integrity of democratic institutions against the backdrop of the contested presidential election in Nigeria.
On 10 June 2023, in the wake of an exceptionally acrimonious and disputed electoral cycle, a cohort of lame-duck legislators convened a valedictory session to draw the curtains on the proceedings of the ninth Senate of the Federal Republic of Nigeria since the restoration of civilian government in 1999.
A speech at this ceremony by Adamu Bulkachuwa, an outgoing senator, attracted extensive media coverage and provoked heated public discourse across the country. In a controversial address, Senator Bulkachuwa expressed his gratitude to ‘my wife whose freedom and independence I encroached upon while she was in office’.
He further stated that ‘she has been very tolerant and accepted my encroachment and extended her help to my colleagues’. It is significant that the senator’s remarks referred to a recently retired judge - Justice Zainab Bulkachuwa - who previously held office as a President of the Court of Appeal.
Considering that the Court of Appeal exercises substantial jurisdiction over several politically charged disputes, including high-profile election petitions, the contentious utterances at the valedictory session were regarded, in some quarters, as a belated Freudian slip that divulged purported judicial malfeasance on Justice Bulkachuwa’s part.
Several commentators on this incident — ranging from citizens, to legal practitioners, journalists, and other pundits — accordingly sought to unravel the nature of the assistance allegedly rendered by the retired judge to political actors and Senator Bulkachuwa’s legislative colleagues.
More pertinently, the public commentaries demanded an independent investigation of the matter in circumstances that also subsumed broader questions concerning judicial independence and the purported incidence of political interference in the judicial process. It is noteworthy that Senator Bulkachuwa subsequently asserted that his utterances were misconstrued and taken out of context.
In this connection, he rejected insinuations of undue interference with the ‘professional autonomy of the judge’ or involvement in ‘any illegal or unethical activities’. Justice Zainab Bulkachuwa, on her part, has also strenuously denied imputations of judicial corruption or allegations of impropriety.
Beyond its particular facts, however, there are good grounds for suggesting that this controversy signals a crisis of confidence in relation to judicial and electoral institutions in the country. This issue is further exacerbated by the unstable context of Nigeria’s nascent democracy considering, for instance, the legal disputes over the outcome of the 2023 presidential election.
This blogpost suggests, in this regard, that the recent electoral cycle has shaped a recriminatory environment characterised by heightened public distrust in judicial and electoral institutions. Furthermore, it argues that this phenomenon has also been aggravated by the judiciary’s unjustified failure to adopt transparent adjudicatory procedures in the litigation arising from the widely disputed results of the 2023 presidential polls.
“A credible and independent adjudicatory system, for example, may be regarded as one which is not beholden to partisan interests in the determination of electoral grievances.”
Corruption Discourses and the Dearth of Judicial Transparency
Insofar as contested elections indicate a crisis of legitimacy regarding the electoral process, systems of electoral adjudication must aim, among other things, at regaining the trust of petitioners, disputants, and other aggrieved parties within the wider citizenry and political process.
The credibility or otherwise of an electoral adjudicative system thus flows, inter alia, from the extent to which judicial decision-makers demonstrate that such a system is deserving of public trust and confidence. To this end, it is imperative that the processes of electoral dispute resolution be seen to be independent, impartial, principled, and efficacious.
A credible and independent adjudicatory system, for example, may be regarded as one which is not beholden to partisan interests in the determination of electoral grievances. Such an adjudicative system would also demonstrate impartiality by according fair and even-handed consideration to the complex politico-legal issues that typically arise from disputes in election-related cases.
By the same token, principled and efficacious dispute resolution would ensure the timeous determination of electoral causes and matters whilst guaranteeing practical and effective remedies for salient electoral irregularities or malpractices.
Electoral courts may thus seek to rebuild public confidence in the credibility of the adjudicatory system by upholding greater transparency in the process of judicial decision-making and delivering principled decisions that are substantively fair, impartial, and independent.
The controversial declaration of Mr Bola Tinubu, as winner of the recent presidential election is the subject of heated and ongoing election petitions in the Court of Appeal sitting as the Presidential Election Tribunal.
In the preliminary phase of the litigation, the two leading opposition candidates at the election — Atiku Abubakar and Peter Obi of the People’s Democratic Party (PDP) and Labour Party respectively — filed applications requesting live broadcasts of the judicial proceedings.
Counsel for Atiku Abubakar, for instance, emphasised the status of the election petition as a matter of utmost national interest, and cogently anchored their application on the need to foster transparency and public confidence in the judicial process.
Conversely, two main respondents to the election petition—Mr Tinubu and the ruling All Progressives Congress (APC) respectively—attacked the applications for live broadcasts as ‘otiose’ and ‘unnecessary’.
These respondents further contended that ‘the public at whose behest [the] application has been presented is not defined’. By the same token, the Independent National Electoral Commission (INEC), aligned itself with the position adopted by the other respondents and argued, inter alia, that such broadcasts would compromise the solemnity of the judicial proceedings.
In a poorly reasoned and retrogressive ruling issued on 22 May 2023, the Tribunal uncritically accepted the arguments advanced by the respondents by holding that there was no legal basis for the adoption of live broadcasts in the absence of practice directions expressly sanctioning the procedure.
There are cogent grounds for arguing that the Tribunal substantially misrecognised the normative significance of the applications for live broadcasts. For instance, by simply framing the issues in terms of administrative guidelines for the conduct of judicial proceedings, the Tribunal insufficiently addressed several fundamental constitutional questions raised by the applications.
Had it adopted a more nuanced and sophisticated analysis of the applications, the five-member Tribunal could have distilled from the constitutional guarantees of public access to judicial proceedings and the right to freedom of expression, for instance, a solid juridical basis for live broadcasts.
By the same token, the formalistic and untenable line of argument concerning the absence of relevant practice directions only goes so far. The principle is well established in Nigerian electoral jurisprudence, dating back to the Second Republic, that the jurisdiction to regulate the procedural conduct of judicial business is an inherent aspect of judicial power.
Even more pertinently, the implausibility and incoherence of the Tribunal’s line of reasoning on this issue has been further highlighted by recent developments. In a striking volte face, it was recently announced that the Tribunal would permit live broadcasts of its final judgment on the election petition scheduled for 6 September 2023.
Given its earlier opposition to the adoption of transparent adjudicatory procedures, the Tribunal’s belated approval of live broadcasts at the judgment stage indicates an incoherent and disjointed approach to the fundamental issue of open justice in electoral adjudication.
Properly understood, a judgment entails a terminal decision on a legal dispute submitted to a court for adjudication. In the context of electoral dispute resolution, adjudicatory transparency is therefore meaningful when it encompasses the broader court proceedings leading up to a final determination of the rights, interests, and obligations of the disputants.
By rejecting the application for live broadcasts, the Tribunal therefore missed a critical opportunity to adopt transparent adjudicatory procedures and uphold civic engagement in a highly consequential presidential election dispute. The dilatory decision to lift the veil on the proceedings at the judgment stage merely gestures to the form of transparency whilst undermining its substantive meaning.
Had it engaged meaningfully with certain progressive developments in comparative African electoral jurisprudence, the Tribunal could have appreciated the limits of the arguments relating to the alleged risks of sensationalism and the putatively undefined nature of the public interest in judicial proceedings arising from the contested presidential election.
Interestingly, these issues have been addressed by electoral courts in several similarly situated jurisdictions across the continent such as Ghana, Kenya, and Zimbabwe. In Zimbabwe, for instance, the Constitutional Court extensively considered the relative merits and demerits of live broadcasts in its judgment on an election petition based on the contested 2018 presidential election.
In Chamisa v Mnangagwa, the Court ultimately affirmed the case for live broadcasts by concluding, persuasively, that the need to uphold key democratic values - such as open justice, democratic transparency, and judicial accountability – supersedes concerns about possible demerits of the procedure such as the risk of sensationalising court proceedings. According to the normative principle established by this decision, every citizen has a cognisable interest in scrutinising the judicial proceedings and outcome of a presidential election petition. Although the Court’s decision to ultimately uphold the impugned outcome of Zimbabwe’s 2018 presidential election was controversial and open to criticism, the Chamisa case nonetheless made crucial contributions to the comparative African jurisprudence on the use of live broadcasts in electoral dispute resolution.
Therefore, contrary to the implausible contentions of the respondents, in the Nigerian 2023 presidential election petition, the better argument is that such petitions are sui generis considering their evidently polycentric and far-reaching implications beyond the immediate parties to a given legal dispute.
