Independent Judiciary: A Cornerstone of Free and Fair Elections

 

Firstsitenews-In this introductory chapter, the author establishes his central argument: that the judiciary—what he refers to as “the selectorate”—has, in many cases, supplanted the people as the true deciders of electoral outcomes. This development, he argues, represents a profound distortion of both justice and democracy.

The author, Chidi Anselm Odinkalu, is a Professor of Practice in International Human Rights Law at the Fletcher School of Law and Diplomacy, Tufts University, Massachusetts, USA, and also serves as Pro-Chancellor and Chairman of the Governing Council at Chukwuemeka Odumegwu-Ojukwu University, Anambra State, Nigeria. He holds a Ph.D. in law from the London School of Economics and Political Science.

Judging Democracy

Under colonial rule, the legal system in many territories was deliberately structured without judicial independence. Colonial courts—particularly those labeled “traditional”—were deeply embedded within the executive apparatus, serving the interests of colonial administration rather than justice.

One striking example is the case of Mr. Terrell, appointed in 1930 as a judge in colonial Malaya. Despite an agreement implying retirement at age 62, his appointment was terminated prematurely by the Colonial Office in 1942, without the safeguards normally granted to judges in England. His legal challenge was dismissed, with the court ruling that colonial judges served “at the pleasure of the Crown.” Legal scholar Stanley de Smith later observed that judges in colonies were indeed removable at will, confirming the incompatibility of colonial rule with the principles of judicial independence.

Legal historian Solomon Ukhuegbe affirms that colonial courts largely functioned to legitimize imperial control. It follows that genuine independence—of nations and their institutions—was a prerequisite for the emergence of rule-of-law principles.

Ironically, just a decade later, de Smith argued that post-independence constitutions were designed to shield sensitive areas of governance—such as the judiciary and the police—from political influence. Emeka Anyaoku, a former Commonwealth Secretary-General, echoed this view, citing democratic governance and the rule of law as core Commonwealth values. Similarly, Egbert Udo Udoma, Uganda’s first African Chief Justice, lauded the British tradition of judicial independence.

The Colonial Myth of Rule of Law

Despite such endorsements, colonial rule offered no true foundation for democratic or independent institutions. Assertions like that of Roberts Wray—who claimed English law was the greatest gift of British colonialism—are hard to reconcile with the reality of autocratic governance. As late as seven years before Nigeria's independence, proposals for the Supreme Court included provisions that judges would serve only "at the pleasure of the Crown."

This reveals a crucial truth: without prior experience or institutional culture that values independence, newly independent states were ill-equipped to sustain democratic practices. Unsurprisingly, most post-independence constitutions were quickly undermined, lacking the institutional maturity to support them. As journalist Patrick Gathara succinctly put it, “judicial independence has been a myth” in much of post-colonial Africa.

Even the 1991 Harare Declaration—in which Commonwealth leaders pledged to uphold democratic values, legal equality, and individual rights—implicitly acknowledged the gap between ideal and practice. While the Declaration emphasized the shared inheritance of the rule of law, it also recognized the need for capacity-building to entrench these principles, thus admitting that colonial governance had left little in the way of sustainable legal or democratic infrastructure.

Post-Colonial Evolution of Judicial Institutions

Odinkalu identifies three key phases in the evolution of judicial systems in former British colonies:

1. Immediate Post-Independence – Characterized by idealistic but short-lived constitutional frameworks lacking local grounding.

2. Era of Constitutional Breakdown – Marked by military coups, one-party states, and judicial systems co-opted by authoritarian regimes. In countries like Nigeria, going to court was, at one point, criminalized.

3. Post-1989 Democratic Revival – Following the end of the Cold War and events like Namibia’s independence, many African countries returned to multi-party politics. Courts regained relevance, and hopes for judicial independence resurfaced. Legal scholars such as Edwin Abuya began to emphasize the role of an independent judiciary as vital to credible elections.

However, since the early 2000s, this progress has faced serious setbacks. A global wave of populist authoritarianism has led to the erosion of legal institutions, with many judiciaries falling under political capture. This latest phase is the primary focus of the book.

Using Nigeria as a case study, the book explores how electoral politics has shaped judicial behavior, influenced legal decisions, and affected public confidence in the courts.

Coming Next…

In the next installment, the author will delve into the foundational concepts of the rule of law and the judiciary’s relationship to democratic governance, beginning with the Victorian-era legal philosophy of Albert Venn Dicey.