Nigeria: The making of a judicial selectorate, By Chidi Anselm Odinkalu

Anambra North senatorial constituency comprises seven Local Government Areas (LGAs). These are: Anambra East, Anambra West, Anyamelum, Ogbaru, Onitsha North, Onitsha South, and Oyi. The contest to represent it in the election to the Senate in 2007 turned out to be memorable for all the wrong reasons. Voting in the election occurred on 28 April 2007. At the end of the contest, the Independent National Electoral Commission (INEC), returned Joy Emordi, the incumbent senator and candidate of the ruling Peoples’ Democratic Party (PDP), as the winner.

In the race for the party ticket which preceded the election, Senator Emordi beat out the challenge of a little-known member of the House of Representatives, Ubanese Alphonsus Igbeke. Having lost the contest for the party ticket, however, Ubanese promptly defected to the opposition All Nigeria Peoples Party (ANPP), which granted him the ticket to fly its flag in the contest for the election to the senate in Anambra North.

Following the announcement of the election results by the INEC, five of the losing candidates headed to the election petition tribunal to challenge the announcement of Senator Emordi as winner. They included Jessie Balonwu of the Labour Party, and Ubanese of the ANPP. An essential complaint was that there was no lawful voting in Anyamelum and Onitsha South LGAs. If their complaint was upheld, the logic would have necessitated a re-run.

Over one year after the conclusion of the election, on 14 June 2008, the tribunal dismissed the petitions, and affirmed Joy Emordi as duly elected. The losing candidates appealed.

Jessie Balonwu’s appeal was the first to be decided. On 10 February 2009, a Court of Appeal panel comprising three Justices of Appeal – Victor Omage, Ladan Tsamiya and Olukayode Ariwoola – found that there was no evidence in support of the claim that there were no elections in the two LGAs. The Court of Appeal, therefore, affirmed the decision of the Election Petition tribunal. At the time, appeals concerning elections to the senate ended in the Court of Appeal.

Like the other losing candidates, Ubanese lost his case at the election petition tribunal. Like them, he also appealed. Nearly three years after the election, on 24 March 2010, another panel of the Court of Appeal, this time comprising Amiru Sanusi (who was not on the earlier panel) as well as Ladam Tsamiya and Olukayode Ariwoola – both of whom had decided Jessie Balonwu’s case nearly a year earlier – nullified the election of Joy Emordi, declared Ubanese the winner of the election and ordered INEC to issue a certificate in his favour affirming his victory.

Six years after that judgment, the National Judicial Council (NJC), sacked Ladan Tsamiya as a judge in connection with judicial corruption in another election case from neighbouring Abia State.

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Returning to the Anambra North senatorial contest from 2007, Senator Emordi applied to the Supreme Court for a review of the two ostensibly conflicting decisions of the Court of Appeal but the court struck out her case, holding that it did not have jurisdiction to hear her. With one year left to run on the tenure and armed with the judgment of the Court of Appeal, Ubanese ousted Joy Emordi from the Senate in May 2010 to become the Senator for Anambra North. Once there, he promptly defected back to the ruling PDP from the ranks of the ANPP.

That was not the first time that Ubanese would be returnee as legislator by the votes of judges alone. His first tour of duty as a legislator in the House of Representatives in 2003 was made possible also by highly priced judicial votes.

He was not the only one to be selected in this manner in 2003. In the contest for the Anambra South seat for the Senate, the Court of Appeal in Enugu manufactured victory for Ugochukwu Uba – who was not a candidate in the election – after two of the three Justices of Appeal collected humongous bribes to rule in his favour against the candidate who was actually elected. Ugochukwu Uba’s younger brother, Andy, was a very influential presidential confidante at the time.

2010 was not the last time that Ubanese’s entire electorate would comprise exclusively of members of the Nigerian judiciary. ThisDay newspaper famously described him as “the serial senator who never wins an election.”

In 2011, another high court in Abuja also issued an order requiring the INEC to return Ubanese yet again as Senator for Anambra North after the election had been concluded and a winner declared. The order was stupefying because only an election petition tribunal could issue it.

This time, the Attorney-General of the Federation had Ubanese arraigned before the Federal High Court in Abuja on charges of forging and altering the outcome of the party primaries that he lost, misrepresenting to the High Court in Abuja that he had in fact emerged as the winner.

Ubanese was ultimately unsuccessful in returning to the Senate in 2011 but had pioneered an electoral business model that would prove both lucrative for all involved and resilient beyond his wildest imagining.

Ubanese showed judges how a joint enterprise with politicians could prove effective in making both sides influential, wealthy and powerful while at the same time sidelining the voters from the constitutive enterprise of deciding who controls their destinies. This guarantees that elections no longer end in the polling units. Instead, what we call elections only pare down the candidates who are required thereafter to proceed to court units, where the ultimate selection is determined by judges who alone have the right to vote. The cost of entry into this stage is prohibitive. Only the truly moneyed dare to show up.

The constitution may have anointed the people as the electorate but, in Nigeria, the winners and losers in elections are now decided by a judicial selectorate who do not feel themselves beholden to anything that the constitutional electorate may wish, seek, or say.

According to a former national vice-chairman of the ruling All Progressives Congress (APC), Salihu Lukman, “citizens can vote but winners are decided in the courtroom by conclaves of judges.” Former president, Goodluck Jonathan, acknowledged in Asaba, capital of Delta State in June 2024 that Nigerian judges increasingly “declare who doesn’t win the election that they are winners.”

Selectorate Theory explains how elites access and retain power. It distinguishes between three categories of actors for this purpose. Interchangeables notionally have a role but hardly fit the part. Influentials sometimes may do so. But the focus is on a small category of “Essentials” who decide nearly everything. The clever power seeker focuses on doing a deal with the Essentials at the expense of the Influentials and the Interchangeables.

In Nigeria, the judges have made themselves the indispensable Essentials in winning power and retaining it. The people have become very expendable Interchangeables. The national exchequer, meant for the people, now goes to financing the fancies of these electoral Essentials in order to protect the joint enterprise with the politicians. This is all done under ruse of law which, it is claimed, is indispensable to democracy.

The “ownership” of judicial figures has thus become an essential political accessory in Nigeria. Every ambitious politician knows that they need to own some judges or at least one. This political business model is a deeply Nigerian variant on Selectorate Theory which is now taking firm root across Africa. For this export, we must thank Ubanese Igbeke and the Uba brothers of Uga in Anambra State.  

This week, publishers Narrative Landscape will be releasing, The Selectorate, my book which tells the story of how Nigerian judges toppled the people. It is a story that has been long in the making.

Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached through [email protected].