By Toyin Falola

To run for an election in Nigeria, as you raise the money you need, now in billions of naira, remember one thing: divide the money into two—one for the elections and the other for legal matters. If you win, the loser will take you to court. If you lose, take the winner to court. If the winner had the money for the election and no money for the legal matters, his fortune would be reversed. Three sets of people now decide for us: the voters, the lawyers, and the judges. Democracy is no longer solely about the legitimacy of votes but also the legality of how those votes are obtained and counted. Legality is now above legitimacy. Please allow me to explain.

The history of elections in Nigeria has always been of interest, but that of its aftermaths creates crescendos of the former, far more important sometimes and far more disappointing most times. In several instances, a party’s candidate would be elected with some level of presumed or deductible public support, and when the lens or the “VAR” of the judiciary looks at it, the people’s results get dashed. Sometimes, the supposed winner could be one that does not have the people’s approval, and after much process of vetting, the judiciary installs who they want or think to have fulfilled the law the most. Some other times, there is not much difference.

The roles of the judiciary in pre- and post-election matters will never stop to beg the question of what should be held supreme: legality or legitimacy. Of course, both the two concepts semantically cross each other’s borders, but to what extent should the extremes of each be tolerated? What should decide legitimacy? Is it the quantum of legal compliance and due processes or the invested aggregated public interests? And should election results be held within the bustles of Electoral Acts, Constitutional Provisions, Court Rules, Practice Directions, and other legal reality checks? This dilemma has been a perennial occurrence and has severally and severely brought the people to some antagonistic vantage points, pitted  against the Milord’s Temples of Justice.

For instance, it is close to a month since the results of the petition at the Court of Appeal against the supposed victory of the APC at the 2023 Nigerian elections, and the people of Nigeria are nowhere near satisfied. It is incredible how a country with a unique history of repeated final determination of election results at the courts, as opposed to the polls, still keeps getting it wrong. The situation is evidence that the people take the judiciary as a betting house and take the chaos of doubts to its temple, as this has run throughout the history of Nigerian democracy.

Take also, for instance, the notorious case of the 2019 Imo State Gubernatorial elections, where the Supreme Court annulled the victory of the People’s Democratic Party (PDP) Candidate, Emeka Ihedioha, and installed the All Progressives Congress (APC) candidate, Hope Uzodinma as governor; a candidate who did not just lose to Ihedioha in the initial race but finished a distant fourth position and the reaction of the people to the situation. What about the Adeleke election saga in Osun State in recent history? This, however, seems to be an accepted decision by the people because of the supposed popularity of the candidate and the finesse of his dancing steps.

Another very controversial case was the court’s decision in the Bayelsa State elections, where the Supreme Court also annulled the victory of the winner of the elections because it was discovered that his running mate had presented some fake documents. He was, therefore, disqualified, and his opponent was installed as governor.

This history of judicial intervention in elections is no short one. Since the petition originating from the election between Shehu Shagari and Obafemi Awolowo in 1979, Nigerians have had to severally vest their hopes in the judiciary and watch as they act as umpires in matters that are originally designed to be settled by public vote.

There is a cross-road between legality that informs the court’s decision to the extent that irregularity would amount to fundamental decisions that would affect the fate of the people and aid an illegitimate and unpopular government. The people would then be left to struggle with a largely unwanted government or such that could not be ascertained to have won the popular confidence of the generality of the electorate. The court is the home of determining matters based on some objective parameters, explaining why laws are set to guide every matter brought before the court.

From history, it is quite clear that many decisions made on election and election-related matters are either won or dismissed based on irregularities, technicalities, and procedural errors that would deny justice on substantive matters. Of what benefit would a suit that was dismissed based on its lack of conformity with an established form or because it was instituted by a writ of summons rather than being brought by way of a petition? When a matter is determined based on this and other preliminary fulfillments or procedures, the substance, which goes to the root of the legitimacy and desires of the people, is buried or forgotten.

The Constitution and the Fundamental Rights (Enforcement Procedure) Rules have established that fundamental rights issues should not be discountenanced based on mere irregularities and that as sui generis issues, the standard of expectation should be brought lower compared to other matters before any court. Fundamental rights issues in Nigeria can be brought before the State High Court, Federal High Court, or National Industrial Court. It could also be brought by any means, making it quite easy for a person whose right has been trampled upon to seek justice.

But is a fraudulent election and mandates conferred on people unjustly not worth the similar care given to human rights issues? Where legality and procedures are reconsidered on cases from Chapter IV of the constitution, how many more issues are traced back to legitimacy, the people’s future, and the nation’s progressive projections? Isn’t an election fraud injustice to the generality of people and a collective breach of the collective rights of the people?  

The consequence of elections to the sociopolitical consciousness of a people must not be taken lightly. Not just because elections are the system through which the next leader of a democratic nation is decided but because that system is in and of itself the embodiment or the defining expression of the democratic soul of the society. The iconic 16th president of the United States of America, Abraham Lincoln, famously defined Democracy as the “rule of the people, by the people and for the people”; a concise yet comprehensive capturing of the essence of the ideology. 

No society can claim to be democratic in principle without having its people come together to decide who its leaders are. Because those elected are not just “leaders,” but in a more honest sense, are representatives of the people. And since they are representatives of the people, it would be an undeniable logical inconsistency, as well as a great political absurdity, if the people’s will were to be ignored in the selection of their next leader, no matter how legal, constitutional or judicially viable, that process of selection is. It is this understanding that should primarily guide the decision-making of the judiciary that elections are an expression of the will of the people, and so in their decisions, their foremost objective must be the protection and enforcement of that will.

When you see that the entire nation is not only interested but has a stake in the matter, one would expect that the judiciary takes a decision that is the most accurate reflection of the will of the people. Instead, we saw the judiciary dismissing what seemed to be worthy petitions because one preliminary matter was not filed or one issue arising from the whole pool of matters was supposed to be decided by another court. This system and mentality is an outright mockery of the people’s desires. They ignore important, weighty arguments on the grounds of minor, less significant matters of procedure, sacrificing Justice on the altar of technicalities.

My question to the Justices who sacrificed justice for technicality is this: was the law made for man, or man made for the law? The obvious answer to this question is a foundational concept of law, which ought to guide their reasoning. Law is very important to ensuring order and progress in society. But when that law is exalted at the expense of the best interests of the men it was created to serve, then that law is pointless and nothing more than a stumbling block to the progress of society. Law is good because it ensures legality. But man is ultimate because it is man that gives legitimacy. Legitimacy to other men, legitimacy to a government, and legitimacy to even the law itself. So, to all those who view the judiciary’s actions through the mediocre lens of legality, here is a better question: it may be legal, but is it legitimate? Do not get me wrong; I do not mean that the law should be thrown into the winds and disregarded at every instance; of course, “he who comes to equity must come with clean hands,” and “he who wants equity must do equity.” However, there should be a relaxed line so as not to run into the dangers of positivism.

The court must be able to see that what is more important at every point before making its decisions is the importance of legitimacy and popularity. The political and social consequences decisions of the court can cause. This is because every institution is established in the back of the people, and since people are the law themselves, the law should never be clogged to their wheel. The law should be for the men and not men for the law. 

When questions like this are taken more seriously, we will begin to see changes in this country. Our democratic institutions need to be recalibrated and strengthened. Judicial recourse is useful, but when it becomes repeated, it insults and nullifies the point of the precious will of the people. Going forward, we must ensure that we fight to protect that will. All involved from the government to INEC, to the courts, must do better. To close, the preamble of the Nigerian constitution opens with “We the people of the Federal Republic of Nigeria…Do hereby make, enact, and give to ourselves the following constitution”. If it is we, the people, who give ourselves the law, then it must be we, the people, who give ourselves our government. We must defend that right, always.

By Tunji Olaopa po

When Chinua Achebe penned the prophetic political tract, The Trouble with Nigeria, in 1983, Nigeria’s second republic was brutally at an end when a coup cut short the civil rule that commenced in 1979. In that short book, Achebe laid his keen insight into what has ailed the nascent Nigerian state—just barely twenty-three years old: the problem of leadership. What even Achebe could not have known then is that sixty-three years on, and forty years after the book was written, Nigeria would still be battling with answering the leadership question. And we watch as other countries tackle their governance and national challenges and keep making enormous progress, from China to Rwanda, and from Germany to Botswana. When Lee Iacocca, in his bestselling 2007 book then ask, Where Have All the Leaders Gone? we know that is not just a rhetorical question. It is a universal question that resonates much more poignantly within the struggle to make Nigeria work better than it has been doing since independence. So far, Nigeria is still struggling to answer the leadership question—what a leader should make with the available human and material resources harnessed to make the lives of Nigerians worth living. 

The struggle to understand what ails Nigeria is brilliantly captured, in equal breath, in Acemoglu and Robinson’s classic, Why Nations Fail (2012). And the answer is that they fail because they neglect the crucial dynamics of building institutions that transcend the selfishness of extraction and primitive accumulation. But then, institutions are not that easily built. And hence we return to the relationship between strong institutions and the strong man. The Rwandan example, like many other states, raises the possibility of an enlightened strong man committedly putting in place institutional dynamics and parameters that would outlast him, and without any iota of doubts about his patriotism. Lee Kuan Yew, the Singaporean strong man, also demonstrates how a strong man could facilitate the transformation of a state’s governance and developmental apparatuses for the benefits of the citizens. It is therefore beyond the pale of any doubt that a weak leader will be able to erect strong institutions, even within a democratic context. 

And it remains axiomatic, when we eventually get a strong leader with the mind and the political will to jumpstart the institutional transformation, that the foremost structural move to make is reforming the public service institutions as the bedrock and most fundamental institutional bulwark for backstopping governance and developmental agenda of any government anywhere in the world. This is what history and the trajectories of political development anywhere teach us. To reform the state system is to give the government of the day a rather fair fighting chance of successfully initiating policy designs and implementation backed by the capability readiness of the public institutions efficiently functional in delivering public goods and services. 

In this piece, I desire to situate President Bola Ahmed Tinubu’s leadership profile within the context of the Mo Ibrahim Index of African Governance (IIAG) and the Ibrahim Prize for Achievement in African Leadership. In past commentaries, I have not only called attention to what I called spheres of performance scattered across the continent, but also the unfairness of deploying global indices of governance performance and leadership dynamics that fail to take into consideration Africa’s unique political sociology that constrains African leaders from achieving their highest potential in delivering the promises of democracy and development for their citizens. This is essentially what recommends the Mo Ibrahim governance and leadership initiatives as a homegrown project that factors into governance assessment what ails the continent and how the African leadership could be encouraged and instigated to get a move on leading. 

The fundamental focus of the Mo Ibrahim Foundation (MIF) locates governance and leadership at the center of the transformation of the continent. The MIF defines leadership as the “ability to make choices, assess and take risks, define and order priorities”, and the prize highlights exceptional role model by recognizing and celebrating African executive leaders “who, under challenging circumstances, have developed their countries and strengthened democracy and human rights for the shared benefit of their people, paving the way for sustainable and equitable prosperity.” And yet, the leadership deficit on the African continent keeps rearing its ugly head—increasing prevalence of coups, the terrible sit-tight syndrome, insecurity and under-performing democratic experiments. And this manifests in the unfortunate gaps the Mo Ibrahim Leadership Prize has witnessed over the year. Two awards were given in 2007 (Nelson Mandela of South Africa and Joaquim Chissano of Mozambique), and another one in 2008 to Botswana’s Festus Mogae. There was a two-year gap before Pedro de Verona Pires of Cape Verde for the prize in 2011. There was another two-year lull before the prize was awarded to Hifikepunye Pohamba of Namibia in 2014. Ellen Johnson Sirleaf won it in 2017 and Mahamadou Issoufou of Niger won the 2020 edition. 

In all, only seven African leaders have won the prize in its seventeen years of existence. For three consecutive years now, the prize has not been awarded. This dismal performance is further underscored by the key finding of the 2022 IIAG which warns about the possibility of losing the gains of the last decade, from 2012 to 2021 because of the increasing flattening of overall governance since 2019 and the unraveling dynamics of insecurity that are rolling back democratic possibilities on the continent. Those who have won the award have been chosen because of their transformational style of leadership. And unfortunately, no Nigerian political leader has won the prize. Of course, the operation of the prize award has been the subject of severe analysis on its modalities and decisions. The award to President Issoufou in 2020 raised a lot of outcries on how to correlate the former leader’s ambivalent governance credentials with the MIF’s commitment to governance and democracy. Indeed, others have argued that given that so many African leaders who deserved the prize have not received it, then there must be some other criteria at play in awarding the prize. 

These ruminations around the MIF and the IIAG allow us to ask the critical question of how its ramifications can allow us interrogate how Nigeria, through the Tinubu administration can regain its governance possibilities in global and regional reckoning. Winning the leadership prize does not necessarily delineate the possible success of the administration, but the IIAG provides sufficient modality around which the success of the new administration could be fairly assessed. The IIAG is subsumed into four crucial categories for mapping good governance: safety and rule of law, participation and human rights, sustainable economic opportunity, and human development. This is adequately with the vision and mission of the African Peer Review Mechanism.  

If we take seriously the MIF definition of a leader as a political executive with the ability to make critical choices, assess and take risks, as well as define and order priorities, then we immediately see the coalition of several factors that can make the Tinubu administration a success. Coming from the recent sterling performance at the United Nation General Assembly (UNGA), where President Tinubu outlined Nigeria’s foreign policy dynamics and spoke unprecedently to world leaders about the urgency of perceiving Africa, and Nigeria, not as beggars but global partners, it becomes increasingly clear that the administration is perceptively adapting and learning on the job. Such a far-reaching statement at such a critical global event must point back to a deeply structured governance articulation at home. And for me, it must pointedly signal the government’s intention and commitment to transforming the public service institutions that underscore any administration’s readiness to succeed through strengthening the capability readiness of these institutions that backstop government’s governance and policy architecture. 

There is no doubt that the new administration is now fully in the clear about why the Tinubu administration is assiduously working round the clock to create a viable change space that will create a chain of leadership vision and connection across the critical policy spheres in Nigeria. That space could benefit from the key policy areas outlined by the MIF, with the addition of public service institutional reform. This is my passion, and that passion is founded on what has become an axiomatic administrative truth for me: once the public service system fails, everything else about governance fails. And that truth derives essentially from the known fact that the public service institutions, especially the MDAs, are the engine room for servicing the policy implementation and evaluation successes of any government. And even more so, it is the public service system that carries the weight of the critical policy and governance areas from security to rule of law, from human development to human rights, and from sustainable economic opportunity to democratic participation. 

The type of leadership that the MFI leadership achievement prize gestures at is forged within the context of a deliberately designed and capacitated change space—made up of ministers, technocrats, officials, functionaries, nonstate actors and agencies—that the Tinubu administration is already facilitating. It is from within this space that the Nigerian governance narrative which the government has now embarked upon can be recrafted away from the usual and tired trajectories of benchmarking failures to instilling hope and success through a developmental agenda anchored solidly on the antecedent success of reforming those public service institutions that serve as the structural background for making the agenda work for Nigerians.

President Bola Ahmed Tinubu stands a very good chance of winning the Ibrahim Prize for Achievement in African Leadership. But the fundamental criterion in this case is answering the leadership question, and transforming the Nigerian narrative from bad management to good governance. And four years have started counting to make good on that transformation.       

Olaopa is a retired Federal Permanent Secretary, and Professor of Public Administration .

tolaopa2003@gmail.com