By Gabriel Atumeyi
In any democracy, whether American or Nigerian, the Judiciary is pivotal in setting the democratic course. Its fundamental role in democratic elections lies in interpreting electoral rules, as well as arbitrating disputes that may arise from the electoral contest. By so doing, the Judiciary ensures order, stability, smooth transition and transfer of power.
For a smooth transfer of power to be possible, the Judiciary must be or be perceived as a neutral and independent arbiter over any ensuing legal political contentions.
The American Judiciary system has, over time, earned itself badges of honour in upholding truth and justice in the United States. However, the November 3 Presidential contest between ex-President Donald Trump and President Joe Biden tested its will and etched many lessons in the hearts of growing democracies across the world who watched events unfold with bated breath.
President Donald Trump tested the judicial and political strengths of the United States of America, pushing as hard as he could go to spin the wheels of both systems to his favour. Not one to shy away from controversy, he spent much of the 2020 presidential campaign insisting that he could only lose the Presidential election if was rigged against him, and when defeat came, he spent almost every day before he left office claiming his predictions of fraud had come to pass. It did not matter to him that there was no credible evidence to support the claim; he believed it and proceeded to ensure everyone else did, including the courts.
Despite assurances from his own departments of Justice and Homeland Security that no fraud occurred, Trump raged against the election result and mounted a relentless campaign to reverse then President-elect Joe Biden’s 306-232 Electoral College win.
Scores of lawsuits were filed by him, his lawyers and his allies on repeated allegations of election fraud. News and social media reported his claims, protests were held across different locations against a purported plan to steal Trump’s mandate and attempts were even made by his supporters to convince state legislatures to take action to upturn the outcome of the election.
In total, the president and his allies filed 62 lawsuits in State and Federal courts seeking to overturn election results in states the president lost.
Cases were dismissed for lack of standing and merits by both Democratic-appointed and Republican-appointed judges – including Federal judges appointed by Trump.
State Supreme Courts in Arizona, Nevada rejected or declined to hear Trump’s appeals to overturn results in those states, while the Pennsylvania and Michigan Supreme Courts denied multiple lawsuits.
A Trump-appointed Federal Judge in Texas also dismissed a lawsuit from a Republican Texas lawmaker, Rep. Louie Gohmert, arguing that Vice President Mike Pence has the conditional power to decide which states’ Electoral College votes to count. Another Federal Judge also dismissed a lawsuit filed by voters in Wisconsin, Pennsylvania, Georgia, Michigan and Arizona that argued state legislatures should have met after the election to certify votes.
The lone victory for the Trump team was a small one. A Pennsylvania judge sided with the Trump campaign, ruling that voters could not go back and “cure” their ballots if they failed to provide proper identification three days after the election. The ruling affected few votes and did not change the outcome in Pennsylvania, which Biden won by 81,660 votes.
The vast majority of the lawsuits were in six pivotal battleground states that Biden won: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.
Trump won five of the states four years ago in his victory over Hillary Clinton, but Biden flipped each to the Democratic column.
The U.S. Supreme Court twice refused to take up Trump-endorsed lawsuits that sought to overturn the election results.
Before the January 20th inauguration date for President Joe Biden to take over the reins of office, all legal cases had been dispensed with, whether State or Federal, and the Electoral Votes were certified in Congress by Trump’s vice, Mike Pence. This put paid to all legal or political disputes pertaining to the election; the new president could go on and focus on issues of state.
Lessons for Nigeria’s Judiciary
Although Nigeria practices a Presidential system of government like the United States of America, its constitutional provisions on Presidential election litigation differs.
In Nigeria, disgruntled candidates can lodge a legal challenge with a presidential election tribunal appointed by the Supreme Court, which issues a ruling within 180 days of the appeal.
After elections in 2003, 2007, and 2011, Buhari, as an opposition candidate, filed such appeals and lost. In 2015, however, Buhari was declared the winner over incumbent Goodluck Jonathan in the presidential election. To considerable surprise, Jonathan conceded and did not appeal to the courts. Buhari thereupon became the first opposition candidate in Nigeria’s modern history to assume the presidency through the ballot box.
Since the restoration of civilian government in 1999, no presidential election has been overturned. However, gubernatorial and Senate elections on a number of occasions have been annulled and new elections held.
In the case of America, legal disputes after a contentious poll are expected to be decided before the inauguration of the new administration, while in Nigeria, parties are free to return to the tribunals and appeal their way up to the Supreme Court even after the inauguration of the new President.
In 2000, during the presidential election dispute between democrat Al Gore and George .W. Bush, the Supreme Court forbad the manual recount of the Florida votes on the grounds that they could not be finished by the Tuesday deadline set by federal law for state legislatures to choose electors.
In Nigeria, no legal dispute arising from a presidential election has ever been decided against the incumbent, though ex-President Goodluck Jonathan made history as the first incumbent to lose election in office in the country. Former Vice President Atiku Abubakar and the incumbent President Muhammadu Buhari top the list of contenders who lost presidential elections more than once and headed to court for unsuccessful redress.
Governors who benefited from Court rulings include Rauf Aregbesola (Osun), Peter Obi (Anambra), Rotimi Amaechi (Rivers), Adams Oshiomhole (Edo), Segun Mimiko (Ondo), Bello Matawalle (Zamfara) and Hope Uzodinma (Imo), who was, until the Supreme Court ruling, a runner up in the 2019 Governorship elections and the candidate of the All Progressives Congress (APC).
What brings up the comparison between the American Judiciary and the Nigerian Judiciary vis a vis electoral dispute is the fact that Trump’s political strength as an incumbent was not strong enough to swing the system in his favour.
In Nigeria, the institutions which upheld the Biden/Harris victory have mostly been weakened by the personalities of whoever is in power. Trump’s tantrums were quietened by the same Judges he appointed into office because upholding the integrity of the Judiciary and the trust of Americans superseded any other affiliation.
In Africa in general and Nigeria in particular, the judiciary is usually under the firm grip of the Executive. Precedents show that presidential electoral disputes are decided in favour of the incumbent and the ruling party. Once the election has been declared concluded and a winner declared, it marks the end of any challenge, whether there are proofs of election irregularities/ or not.
This accounts for the lack of public trust for the Judiciary that abounds among Nigerians.
As President Joe Biden takes his place as the 45th President of the United States of Nigeria, many Nigerians wish that the Nigerian Judiciary would borrow a leaf from the America whose democratic module the country copied, to reinvent itself and restore public confidence in its integrity.