By Olakunle Abimbola
In 1979, the Supreme Court cropped a blizzard, over the twelve-two-thirds crisis.
The Federal Electoral Commission (FEDECO), ancestors of present-day Independent National Electoral Commission (INEC), had consistently used 13 states, as the twelve-two-thirds of the then 19 states, in every pre-election decision: registration of parties, certifying parties’ compliance with nationwide constitutional spread, and the like.
But then came a looming electoral college run-off between the two leading candidates, as Section 7 of the Electoral (Amendment) Decree, 1978 stipulated, after the first round of the 1979 presidential election: National Party of Nigeria’s Alhaji Shehu Shagari and Unity Party of Nigeria’s Chief Obafemi Awolowo.
NPN’s Shagari was nearest to breasting the tape. Aside from having the highest vote count, he had one-quarter of the vote in 12 states. UPN’s Awolowo had the next highest in popular vote, but with one-quarter spread in six states.
The Electoral (Amendment) Decree 1978 was clear: an electoral college showdown, between Shagari and Awolowo. That college would be peopled by National Assembly members, elected from the same 1979 general elections.
That was taken as given, and media pundits were already painting a scenario of possibilities, probabilities and re-design of partisan alliances, when Chief Richard Akinjide, SAN, NPN’s national legal adviser, outed with his joker: twelve-two-thirds of 19 states was not 13, but 12 states and a fraction of the 13th!
The polity was up in a tail spin! When the Michael Ani-chaired FEDECO bought Akinjide’s joker and declared Shagari duly elected; and the body language of the Olusegun Obasanjo outgoing military order suggested the junta was tilting towards that decision, the tail spin exploded in sheer Armageddon, blazing with molten conspiracy theories!
Enter the Supreme Court, the supreme battle ground that would cure that supreme headache — or compound it to supreme migraine!
The apex court eventually went with the Justice Boonyamin Kazeem-chaired Presidential Election Tribunal, with a 5-1-1 split decision: five for, one neither-nor, one against. Shagari was president!
Whether that supreme judicial intervention was supreme cure or supreme bust was a function of partisan parallel lines that would never meet.
Even then, not a few thought that decision gifted the 2nd Republic (1979-1983) a legitimacy kiss of death — from which it never really recovered, until its overthrow on 31 December 1983, after another round of rotten and fiercely disputed elections!
In 1979 then, the Supreme Court was a solid pillar of conservatism, extremely wary of rocking the boat, even if the polity could have been better off, if it did.
But in 2020, it appears the violent opposite: a ripple of activism, which exuberance borders on judicial recklessness — perceived recklessness that could well retard polite society; and tear off the mystique holding the civil polity.
Worse: in the explosive electoral cases, the legal justice the apex court handed down appears to violently jar with social justice, as perceived by the teeming masses on the street, free or cajoled.
Free or cajoled? Yes, because much of the protests were organized reactions to express partisan angst. But the real danger: those protests may have resonated with, using that legal-speak, “right-thinking” members of society.
That sparked a lot of wild claims, of an apex court allegedly available for the apex bidder! Again, much of that could be pure trash from sore losers. But that they were mooted at all brought the Supreme Court no sheen.
Besides, such wild talks risk gravely de-marketing the democratic order. Indeed, had the political soldiers, opportunistic pseudo-saviours of yore, not rightly self-destroyed, those decisions could have jolted the civil order, with devastating consequences.
That perhaps explained the supreme judicial-political hotchpotch of 1979, which though kept the martial power hustlers at bay, only postponed the evil day by just four years.
But that was a best-forgotten era of heady military hegemony and cowering civilian interregnums — and just as well! Still, this new-found Supreme Court activism appears insensitive to those dark and turbulent pasts.
The Imo decision, which stripped Emeka Ihedioha of his eight-month governorship, was nothing short of revolutionary. That set the Imo — and national — PDP wailing and screeching without end! Indeed, ex-Governor Ihedioha still impresses everyone he’s yet in cursing mode!
The thing though was that the PDP was always crying wolf, with no discernible moral compass beyond crowing after winning, and whimpering after losing: no matter how foul the winning was procured; or how fair the loss was earned.
Nevertheless, might Imo be one of such rare cases when a band of wolves really came prowling? Ihedioha, struck by judicial Amadioha, really thought — and still thinks — so! But his party is a victim of its own waywardness — crying wolf!
In Bayelsa, APC’s David Lyon appears to have borne his own supreme judicial thunder with stoic grace, even if he was struck on swearing-in eve, rehearsing his inauguration; and did no wrong beyond his joint ticket being fatally infected by a name-crazy running mate, who popped five different names, on five different certificates!
Some howl forgery, and insist the defaulting candidate be hauled in for a criminal charge. But if the certificates were fake, countered others, where are the duly proven originals?
With no proven fakery, therefore, not a few have declared the Supreme Court decision rather harsh — both on the running mate in the eye of the storm; and on his ill-fated principal, who had to surrender his thumping mandate, for the sin of another.
The court appeared to have brutally exercised its discretion against both, in a case that could have gone either way.
More than the tragic gubernatorial duo, however, the Bayelsa electorate were the grand victims: they said an emphatic yes; yet the court said an emphatic no! By apex judicial diktat, minority vote trumped the majority — not unlike the biblical wonder, where seven lean cows swallowed seven hefty ones!
That is no way of democracy, with its hegemony of the many.
Still, on Imo and Bayelsa, the Supreme Court has bared its fangs on its supreme finality — even if it does so, not with supreme reason, but with well, supreme illogic, canonized as supreme legalese: we are supreme and final and there is absolutely nothing anyone can do about it! (appeal to force and threat); never thought this day would come — tears! tears! — when our decisions would be challenged! (appeal to pity).
Why, might it be in this same spirit of supreme — ad baculum, ad misericordiam — fallacy, that the apex court harshly fined the party that took its controversial verdict with better grace, but gave the one with unfazed ill grace a slap on the wrist?
Might the judiciary then be taking its own pound from an administration that has challenged it to square up to its sacred judicial duty, in its cardinal fight against corruption? Conspiracy theories!
After the present debacle, the Nigerian Supreme Court should live its essence: a palladium of wisdom, restraint and utmost sensitivity; not a conclave of callow activism. Enough of this new-found exuberance, which threatens civil society balance.
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