By Abu Turay
Across West Africa, a silent but powerful transformation is taking root: the judicialization of politics. The courts, once arbiters of constitutional order, are increasingly the final arbiters of electoral contests. Nowhere is this trend more visible than in Nigeria, where nearly every major election ends not at the ballot box, but at the bench.
This expanding role of the judiciary in electoral outcomes raises complex questions: Are the courts rescuing democracy from flawed elections? Or are they replacing the people’s will with judicial verdicts, thereby shifting the center of gravity in democratic governance?
Courts as Electoral Arbiters
In Nigeria, the 2023 general elections showcased the scale of post-election litigation. Dozens of gubernatorial, legislative, and even presidential results were contested, with tribunals and appellate courts deciding outcomes. In some states, candidates initially declared losers were later declared winners by judicial rulings.
This is not unique to Nigeria. Ghana, Senegal, and Sierra Leone have all witnessed major electoral disputes resolved by courts. The judiciary has become both a battleground and a battlement—a place where democracy is either affirmed or redefined.
At face value, this suggests a maturing democracy where the rule of law reigns supreme. But the implications are not always reassuring.
Why Judicialization Is Rising
Several forces are driving this trend.
First, the deterioration of electoral credibility. When institutions like the Independent National Electoral Commission (INEC) are accused of logistical failures, transparency lapses, or bias, the courts become the last hope for justice.
Second, electoral malpractice, including voter suppression, ballot snatching, vote buying, and misinformation, creates fertile ground for legal contestation.
Third, the increasing legal codification of elections means that technicalities—like improper nomination, overvoting, or irregular result collation—can overturn popular mandates.
Finally, the high stakes of public office in West Africa create desperation. Access to state power can mean access to wealth, immunity, and patronage. In such a zero-sum environment, litigation becomes not just a legal process but a political strategy.
The Benefit and Risks of Judicialization
There’s no denying that courts have played a vital role in correcting flawed elections. In theory, their intervention strengthens democracy, punishes rigging, and reinforces accountability. For disenfranchised voters and honest candidates, the courts can offer justice.
However, the risks are real—and growing.
- Erosion of Voter Confidence: When elections are routinely overturned or validated by judges, citizens may begin to see voting as irrelevant. If judges, not voters, decide winners, what incentive remains for civic participation?
- Perception of Bias: Even when courts follow the law, public trust can erode if verdicts appear to favor the ruling party or lack consistency. Allegations—often unproven—of judicial compromise further deepen distrust.
- Political Pressure on Judges: With so much at stake, courts may face overt or subtle pressure from powerful actors. This politicization of the judiciary undermines its independence and the democratic process.
- Weakened Electoral Bodies: Overreliance on courts can take pressure off electoral commissions to improve. If every error or illegality is expected to be “fixed” in court, institutional reform stalls.
Striking the Right Balance
The solution isn’t to remove the judiciary from politics, but to restore balance in democratic governance. That starts with a few key reforms:
- Strengthen INEC: Electoral commissions must be empowered and insulated from political interference. Technology, transparency, and real-time result transmission should be prioritized.
- Judicial Reform: Appointments should be merit-based and transparent. Courts must deliver verdicts speedily, especially before swearing-in ceremonies, to avoid situations where incumbents retain power during prolonged litigation.
- Public Legal Education: Citizens must understand the legal basis for judgments. Civic education can prevent misinformation and temper partisan outrage.
- Political Party Reforms: Many disputes begin with flawed primaries. Strengthening internal party democracy would reduce court cases tied to candidacy irregularities.
- Pre-election Dispute Resolution: Early intervention by courts—before elections—on candidate eligibility, party symbols, and procedural concerns can limit post-election chaos.
Democracy in the Dock
The growing judicial role in elections reflects both the fragility and resilience of West African democracies. It shows that, although the ballot may be compromised, the Constitution still carries weight. Yet, democracy must not become a perpetual courtroom drama.
The judiciary is not an electoral umpire. It is a guardian of law, not a generator of legitimacy. When citizens believe their votes don’t count, the social contract frays. When politicians believe they can win in court what they lost at the polls, the democratic ethic decays.
Ultimately, a nation where every election becomes a lawsuit is one where democracy risks death by litigation.
To end this piece, I ask: Do we want a democracy that is judicially rescued or an institutionally reliable democracy? The difference will shape not only our politics but our future.
Abu Turay is an Embedded Technical Expert on Electoral Affairs at the Electoral Assistance Division of ECOWAS Peace, Security and Governance (EPSG) Program. He can be reached via bainam2010@yahoo.com.
