Seven years ago, in 2018, my good friend and former Dean of Law at the University of Ghana at Legon, Professor Raymond Atuguba, undertook a path-breaking study which sought “to move away from the perception that Justices of the Supreme Court dispense justice impartially under a constitutional democracy and reflect on the influences on the justices as they are taking decisions.” The focus of the study was the influence of politics on judicial decision-making in the Supreme Court of Ghana.
For this purpose, Professor Atuguba examined 78 judgments by 39 Justices of the Supreme Court (including six Chief Justices) over the first twenty-five years of Ghana’s Fourth Republic from 1993 to 2018 in political cases, cross-matching the Justices who sat on the cases against the political party or regime which appointed them. As a functional matter, Professor Atuguba’s study defined a political case to be one in which “you have a political party or politician or politically exposed person as a party to a suit or where it revolves around issues that inure to the political, social, financial or other benefit of a political party or its operatives or known affiliates.”
The conclusions were revealing but hardly shocking. The study found an overwhelming correlation between justices and the regimes that appointed them. It showed that in a majority of cases, the politics explained how the judges decided. In presenting the conclusions of the study, Professor Atuguba argued for the need to “acknowledge political decision making by our Supreme Court….”
Courts are not instruments of revolutionary change. On the contrary, most judges across the world see their roles primarily as being there to afford cover to the regime which appointed them or the system under which they work and, as Alexander Hamilton wrote, are defined by “an unwillingness to hazard the displeasure” of these political benefactors. It is unusual for judges, especially in a developing country, to defect from the path of support for a ruler or party in power.
This should explain the chronically anomalous jurisprudence that has become the routine of judicial decision-making in Nigeria under civilian electoral governments. Rather perversely, this situation should present politicians with the necessary incentive to ensure that the country’s electoral system is credible, because once out of power, those who have enjoyed the benefits of weaponised or situational court decisions suddenly find themselves at the receiving end.
Former president, Goodluck Ebele Jonathan – also known as GEJ – now finds himself in this situation. As the country prepares for presidential elections in less than 18 months, it now seems certain that GEJ seeks a return to the partisan fray. The man himself has made moves which clearly indicate that he is giving this more than active consideration. If he were to choose to run for the presidency, his political brand is likely to be #GEJ2027.
Influential columnist, Chidi Amuta, has counselled GEJ to “flee” from the importuning of those who want to draft him into the 2027 contest. Should he choose to ignore that, however, the likelihood is that the judges will have the final say on his ambitions. It does not require a great deal of imagination to see why or how such a case would be decided under the present dispensation.
The ambitions of President Jonathan in 2027 will rest on two different provisions of the 1999 constitution. Under section 137(1)(a), a person is disqualified from running for Nigeria’s presidency if “he has been elected to such office at any two previous elections.” This provision was there when President Jonathan ran unsuccessfully for a second term in 2015. At the time, there was a considerable amount of murmuring about his ineligibility to run, having assumed office for the last year following the death of Umaru Yar’Adua in May 2010.
Having been on the presidential ticket with Yar’Adua in 2007 and again at the top of the ticket in 2011, it was arguable in 2015 that GEJ had previously “been elected to such office” twice and was therefore barred from running again. However, it was beyond improbable that a judge could be found at the time to rely on that argument to preclude a sitting president from running.
In 2027, however, two things will be different. First, two years after GEJ left office, in 2017, the fourth alteration to the Constitution (no. 16) introduced section 137(3), which provides that: “A person who was sworn-in as President to complete the term for which another person was elected as President shall not be elected to such office for more than a single term.” This will put GEJ’s eligibility directly in issue. The question will be simple: having inherited the presidency from President Yar’Adua and served a full elected term from 2011 to 2015, is he still eligible to run again in 2027?
On that question, the judges will not be apolitical. In litigation, this will be presented as a legal question. In reality, it is a political one, and this is where the second issue arises. In 2015, GEJ enjoyed the favour of judicial complaisance and the presumption against judicial defection from incumbents; that presumption would count against him in 2027. And where, in 2015, no judge could be found to bump him from the race under the cover of judicial ceremony, there will be no end to the number of judges happy to oblige the incumbent in 2027 with precisely that kind of judicial cover for a political hit job.
The only issue will be the timing of such a judgment. A ruling party looking to make the most of this situation may lend its organisational and marketing assets, with deniability, to the promotion of GEJ’s ambitions initially. That is the easiest way to decimate the ranks of the opposition. By omission or commission, a putative #GEJ2027 project will suck most of the oxygen from the ranks of other opposition candidates. It will be in the interest of the ruling party to egg him on until he secures the ticket of a major party for the contest.
At that point of no return, an innocuous-looking legal challenge will materialise, questioning GEJ’s eligibility to run under the constitution. They will sue him, his party, and the Independent National Electoral Commission (INEC) and will ask the courts to restrain INEC from recognising him as a candidate in the election.
The suit will slowly make its way to a decision. Then, suddenly, around the week before the vote, judgment will come down restraining the party from presenting GEJ as a candidate and restraining the INEC from having him on the ballot. Any serious threat to the incumbent’s ambitions will have been judicially squelched. The script is so easily authored that the ruling party must be licking its chops at the idea of a Jonathan candidacy. There can be no better political gift for the incumbent president and his ruling party.
GEJ should know that those importuning him for a tilt at the presidency in 2027 are clutching at withered straws. The judicial landscape he left in 2015 is radically different from what he will confront should he choose to throw his hat into the ring 12 years later in 2027. The odds are that, whatever GEJ does, his ambitions will fall to a judicial hit job made to appear entirely legal. He can choose to risk it, safe in the assurance that his ambitions will be crushed in the laps of the judges; Or he can choose to continue in the life of a statesman who still has a lot to offer to his country in meaningful leadership.
A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
