Former National Human Rights Commission chairman Professor Chidi Odinkalu has accused Nigeria’s judiciary of progressively seizing from citizens their constitutional right to decide who governs them through elections.
Delivering the keynote address virtually at the third Tunji Braithwaite Symposium in Lagos on Thursday, Odinkalu argued that courts have moved beyond resolving electoral disputes and are now effectively determining political mandates. He questioned whether democracy can still be described as government by popular sovereignty when judges overturn election outcomes and decide who occupies public office.
“Is it possible for constitutional institutions such as the courts to endanger popular sovereignty?” he asked. “And the second is, is it still popular sovereignty when judges or courts expropriate and confiscate from the people their constitutional rule to decide how or on whom to confer the mandate to rule?”
Odinkalu stressed that the 1999 Constitution is clear that sovereignty belongs to the people. He cited Section 14(2)(a), which states that sovereignty resides in the people of Nigeria from whom government derives its powers and authority. He also referenced the African Charter on Democracy, Elections and Governance and Article 21(3) of the Universal Declaration of Human Rights, insisting that the people’s will expressed through genuine elections must remain the foundation of governmental authority.
Courts, he said, should interpret and supervise electoral rules rather than take over the people’s role of choosing who should govern. “The mandate to rule is an incentive conferred by the people,” Odinkalu stated. “If it is exercised well by the person or party to whom it is conferred, the people renew it. If it is not exercised well, the people have the option to withdraw it and transfer it to some other person or party.”
Removing this direct link between voters and power, he warned, undermines democratic accountability and development. In Nigeria today, he claimed, “it is now security services and judges. The people no longer matter. The people are nominal. The people who really matter are the judges.”
Odinkalu clarified that his criticism was not directed at every judge. “It is not an indictment of judges as a class, because there are still very honest judges, and there are judges who are trying to do proper things. But the reality is that the jurisprudence of election petitions and political cases in Nigeria can no longer be justified in many ways.”
He rejected the common defence that controversial judgments merely follow pleadings and procedure, asking whether voters expect their ballots to be decided by lawyers’ technical skills rather than the arithmetic of votes cast. When electoral contests become disputes over pleadings and technicalities, he argued, “it is no longer an election, and we have got to decide whether we are still interested in elections.”
Odinkalu pointed to several cases as illustrations, including the 2007 Rivers State governorship dispute involving Rotimi Amaechi, the Supreme Court’s 2019 ruling on the Zamfara State governorship, and the 2023 Plateau State legislative election disputes. He also referenced a public database he helped develop, Bullets, Bribes & Ballots, which documents more than 3,300 election petitions across six election cycles, along with judgments and details of the judges involved.
He called for fundamental reforms, including changes to judicial doctrine on pre-election and post-election cases and an end to what he described as the “doctrine of wasted votes.” “That is criminal jurisprudence. It must end,” he declared. “If we do not end it, we are basically writing a military coup through the courts.”
Odinkalu also urged the National Judicial Council to strengthen its approach to judicial discipline so that allegations of misconduct receive proper scrutiny. Invoking the legacy of the late Tunji Braithwaite, he said the lawyer believed strongly that citizens matter. “And when citizens take an issue seriously, invariably, you will get results.”
He called on Nigerians to demand reforms that restore the proper balance between the judiciary and the electorate.
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