Two Saturdays ago in Abuja, a small circle of friends, literary enthusiasts, human rights activists, politicians, public intellectuals and thinkers gathered to listen to Chidi Odinkalu read from his latest offering, ‘The Selectorate: When Judges Topple the People’. It was a private reading, but the ideas Chidi graciously espoused belong in the public domain. They concern us, citizens of the ruined Republic. Odinkalu is no stranger to judicial criticism. I have often described him both as a restless ruffler of the judicial nest and a flamethrower who scorches the dark recesses of our judicial quarters, casting light into corners long hidden from public view, so that citizens may, if only for a moment, glimpse the shadows that dwell within. Rightly so. He has spent the better part of his sterling career in the academe and public activism, exposing the inconsistencies, betrayals, and quiet capitulations of the judicial branch. But his book, ‘The Selectorate’, is more than a critique. It is a mirror, held up to a country whose judicial branch is in utter disarray.

Odinkalu’s rendering in his new work is consistent with the Selectorate Theory popularised by Bueno de Mesquita, Alastair Smith, Randolph Siverson, and James Morrow in their landmark book, ‘The Logic of Political Survival’. That theory divides society into three groups: the nominal selectorate (everyone with formal rights to choose leaders), the real selectorate (those who actually vote or participate), and the essentials – the critical few without whom no leader can hold power. In functioning democracies, the “essentials” are usually the voting public. In our case, Odinkalu argues that the courts have quietly taken over that role. The judges, especially those presiding over electoral disputes, now determine who governs. Not the people. This shift has profound consequences. It means power is no longer derived from the consent of the governed. It is derived from the decisions of judges that defy logic or law. Judges have become kings who sit on imperial thrones where they measure justice by shekels. 

Odinkalu lays out his arguments methodically. 

He does not scream. He squares the bull’s eye and scores it well, without being vindictive. He lays accusations where he needs to. He illustrates. Case after case, election after election, state after state, he shows how the judicial branch transformed itself into a class of the selectorate. Judges now act both as kings and kingmakers. They wield more influence than ballots. They decide contests that citizens thought they had settled at the polling units. He advances the reason, among other reasons, for this, or to put it in a more simplistic way, he provides an account for the state of affairs. Hear him: “This combination of factors was well suited to inspire the onset of a new trend in the cultivation of clientelist relationships between politicians and judicial officers underpinned by bargains, both implicit and sometimes explicit”. Odinkalu’s position is not founded on legal abstractions. He excavates the upper crust of judicial adjudication with the dexterity of the Foucauldian archaeologist, seeking to uncover what lies beneath the surface of mere observations, thereby exposing bargains hidden by client relations. 

What he exposes presents itself as the real, clear, and present danger to our democracy. The danger is growing. But, there’s a point about hegemony and power to be made here, a point that he didn’t allude to, but it is underpinned by his arguments. The late Italian scholar, Antonio Gramsci, writing from the solitude of his prison cell, argued in his “Prison Notebook” that power can be seized, constructed, and sustained through the subtle architecture of hegemony. He showed that the ruling class rules by force and also by manufacturing consent that legitimises its authority. Once power is seized, it does not serve the common good, but answers only to those who possess and perpetuate it through dubious means, as the selectorate theory explains. The danger, again, is that the moral foundations of the state are hollowed out and the institutions of justice are reduced to performances for the powerful. It is these dubious performances for the powerful that judicial hegemons have taken our country’s democracy. 

Further, by drawing from political science, constitutional law, and our political history, Odinkalu makes a powerful case for why the judicial branch must be restrained, not exalted. His critique is interdisciplinary, and there lies its strength. He does not merely point out errors of law; he explains how those errors consolidate power in the hands of a few, and how that consolidation hollows out our Republic. He tells the truth many dare not whisper: that judges now select councillors, chairmen, governors, senators, representatives and presidents. Our citizens have been turned into mere formal subjects without the power to decide who represents them. Simply put, they have become a formality in the democratic rituals. They queue in the sun to vote, but the real verdict emerges later from obsequious courts and decisions delivered by judges who do not “act justly, love mercy, and walk humbly”, as Prophet Micah expressed in the holy book.

While commenting at the reading, I noted that Odinkalu’s work strikes at the core of our country’s political dysfunction. It speaks to the question of legitimacy. A government chosen by judicial fiat is not a government in the Lincolnian sense: “government of the people, by the people and for the people”. It is a government of the court. He is not the first to observe this, but he may be the first to frame it so sharply. So brilliantly. By situating his analysis in the Selectorate Theory, he shows that our problem is not only corruption or incompetence. It is also structural. It is also systemic. It is also about how political survival is engineered in our country through the manipulation of legal instruments by political actors who now count judges among their favourites. In a way, the judges have also transformed themselves from being favourites into kings. 

This is not an attack on the judicial branch. It is a call to conscience. Judges are meant to be neutral arbiters. In Odinkalu’s offering, too many have become embedded in the arena of electoral conflicts.  They do not interpret the rules; they change them and enter fudged scores on results’ sheets. They act as though democracy begins and ends in their courtrooms. While inside the arena of conflict, their roles aren’t about reviewing the actions of stealers of elections; it is simply about taking sides with election bandits and extending the geography of banditry and the boundaries of judicial conquest.

Odinkalu highlights the notion of “judicial essentials”: those judges whose decisions determine whether a political actor rises or falls. In a country where elections are frequently flawed and where the process is often tainted by violence and rigging, it is easy for judges to claim the role of final referee. But what happens when that referee takes sides? Odinkalu answers this with clarity. Democracy collapses not with the squeal of “Fellow Nigerians”, martial music, and the bang of a coup, but with the gavel of a judge. Quietly. Slowly. Fatally. He does not argue that all judges are corrupt. Rather, he shows how a politicised judicial process invites corruption. When judges are seen as gatekeepers to power, the temptation to influence them becomes overwhelming. The judiciary, once the last hope of the common man, becomes a marketplace of elite bargains.

There are those who will say Odinkalu exaggerates. And there are quite a number of them. But the evidence says otherwise. He documents cases in which politicians whose names were not on the ballot ended up being our representatives. With help from the courts, of course. He documents cases in which political careers were extinguished, not by voters, but by panels of judges whose decisions stretched the limits of interpretation. Some of these rulings contradicted precedents. Others ignored the evidence. All of them had political consequences.

What makes ‘The Selectorate’ compelling is that it does not end in despair. Odinkalu offers suggestions. He calls for transparency in the appointment and disciplinary processes for judges. He urges the Bar to be more assertive in defending judicial integrity. He wants the public to demand better. Most of all, he believes the judiciary must return to its proper role: interpreting the will of the people, not supplanting it. And our citizens must be at the heart of electoral disputes, as parties. It’s a tough ask in a country where institutions are routinely hijacked. But it is necessary.

As I listened to him read that Saturday, I was struck by his calm tone. There was no bitterness. Only resolve. He has written this book not to condemn, but to warn our fellow compatriots. He wants us to reckon with what our country has become and to confront how that becoming has trumped electoral justice. What was once a noble exercise of the power of choice at the ballot box has, in his offering, turned into absurdity. Here, power is no longer secured through the choices of citizens at the ballot box, but through the meticulous choreography of legal arguments staged not for the people, but for those robed in black who now hold the final say. The will of the electorate has been displaced by shenanigans, which play out in courtrooms that have become the true closets of judicial corruption. Ours is a democracy where the people vote, but the judges choose.

It is easy to look away. Easier still to rationalise. But the consequences are already here. Disillusionment. Voter apathy. Cynicism. When citizens no longer believe their votes count, democracy dies. But, hope lies in the resolve of citizens arming themselves with courage to confront the creeping undoing of their Republic. Odinkalu is urging them to fight back. Not with violence, but with vigilance. Not with slogans, but with civic courage. The judicial branch is vital. Its independence must be protected. But that independence is meaningless if it is used to serve power instead of the citizens. 

The Selectorate is not just a book about judges. It is a book about us: our passivity, our complicity, and our silence. It urges us to look at the judicial branch and ask, “Whose interests does it now serve?”

In that question lies our fate, our country’s fate and the fate of democracy.

Abdul Mahmud is a human rights attorney in Abuja