Odinkalu seeks review of judicial reversal of voters’ mandates

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Human rights lawyer and activist, Chidi Odinkalu, has criticised the judiciary over the use of the “wasted votes” doctrine in electoral disputes, saying the practice undermines the mandates given to politicians by voters.

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Odinkalu spoke on Thursday at the third edition of the Tunji Braithwaite Symposium in Lagos, themed “The Judiciary and Electoral Integrity in Nigeria.”

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He argued that votes cast by citizens could not legitimately be described as wasted in a democracy, warning that doing so undermined the power of the electorate.

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Odinkalu said he was particularly concerned by judicial decisions that resulted in the cancellation of election results after citizens had exercised their franchise.

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“In a democracy, there is only one currency. It is the ballot. When courts tell you that votes cast by citizens can be wasted, they effectively have announced a coup on the people. I cannot say this enough. It is beyond arrogant. It is irresponsible,” he said.

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He cited the 2019 Zamfara State governorship election dispute, where he noted that the Supreme Court overturned the victory of the All Progressives Congress despite the party securing a large majority of the votes.

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According to him, the APC won 72 per cent of the votes in the state, while the candidate to whom the victory was subsequently awarded secured 22 per cent.

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He said, “The Supreme Court cancelled their victory and awarded it to (Bello) Matawalle, who got 22 per cent of the votes. He had been beaten in every ward in the state.

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“And based on pre-election disputes, the Supreme Court ruled that the votes of all the people in Zamfara State who had made the effort to vote were wasted.”

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Odinkalu, who further questioned the basis for judges declaring the votes of citizens wasted, noted they were never part of the election process prior to their decision.

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“The arrogance of judges who have never voted, who will never go to vote in Zamfara State, sitting down in the safety of the Supreme Court to say that the votes of citizens are wasted is irresponsible.”

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Odinkalu also cited the 2007 Rivers State governorship dispute, arguing that although the Supreme Court may have been justified in addressing the dispute surrounding the Peoples Democratic Party primary, the remedy adopted was problematic.

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He said the court could have ordered that the candidate who had been removed from the ballot be returned to contest the election instead of awarding victory to another person who had not been presented to voters.

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“What it could have done was fashion a suitable remedy, which could have been what? Return the man to the ballot and ensure that the contest is done between those who are on the ballot; return it to the people.

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“But the court decided not to do that, to install as a winner a person who had not been on the ballot and who had not been presented to the people as a matter of fact.”

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The lawyer also criticised the Court of Appeal’s handling of election petitions arising from the 2023 elections in Plateau State.

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He alleged that the appellate court relied on the doctrine of wasted votes to overturn victories secured by the Peoples Democratic Party and hand the seats to the All Progressives Congress.

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“I do not want to describe publicly how the government managed to retain these seats, because I saw that and I was involved in that up close. With the frequent advice given to aggrieved politicians and citizens to seek redress in court, the credibility of the judicial process is increasingly being questioned.

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“And when they tell you to go to court, they’re laughing at you because they have rigged the courts,” he noted.

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He, however, attributed what he described as problems in the judicial system partly to the process of appointing judges.

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He alleged that political and personal considerations were influencing some appointments.

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Odinkalu also expressed concern over the growing involvement of courts in political disputes, saying this was affecting the ability of the judiciary to attend to ordinary cases.

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According to him, the situation was contributing to the growing influence of non-state actors in resolving disputes.

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He said, “The courts are so immersed in political disputes that there is increasingly little or no judicial time available for regular court work. Citizens languish in courts,” he said. So lawyers are taking their cases away from the courts and taking them to vigilantes. In certain states, vigilante organisations are settling disputes. Non-state actors are now more powerful than the courts. The casualisation of the courts is real.”

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He also criticised the speed at which political cases were sometimes handled compared with ordinary cases that had remained pending for years.

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He said, “Politicians can begin a case today, go to the Court of Appeal in two weeks, and go to the Supreme Court in the next two months, and get a decision within three months.

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“Meanwhile, the same Supreme Court is not assigning appeals that were filed in 2015. People who filed appeals in 2013-2014 are struggling to get cases assigned; regular cases, but political cases are being disposed of when the politicians ask for it,” he said.

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Odinkalu also advocated a review of the distinction between pre-election and post-election litigation and changes to the remedies available when courts nullify elections.

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He further argued that when an election is nullified, the matter should be returned to the electorate.

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“In the question of remedies, the U.S. Panel recommended that when you nullify an election, send it back to the people. The Babalakin Commission also made the same recommendation in 1986,” he said.

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Odinkalu also called on the National Judicial Council to review its approach to judicial discipline.

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He said the judiciary had an important role to play in elections but argued that its level of involvement and the consequences of some of its decisions had gone beyond what was desirable.

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“Courts do have a role in elections. The point here is two things. The scale of their involvement and the consequences of what they’re doing, in my view, have crossed the borders, and we need to restore the balance,” Odinkalu said.

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