THEME: JUDICIALIZATION OF POLITICS IN
NIGERIA:
TRENDS, CHALLENGES AND
A PAPER PRESENTED
BY
SIR BIOBELE ABRAHAM GEORGEWILL JCA, DSSRS,
Ksc,
Court of Appeal, Benin Division, Lord
Chancellor, Diocese of Niger Delta, Church of Nigeria Anglican Communion, Former
Chairman, Presidential Investigation Panel on Rules of Engagement by the
Nigerian Armed Forces in the Fight Against Insurgency and Militancy in Nigeria,
Immediate Past Chairman, Sierra Leone Presidential Commission of Inquiry on
allegation of Corruption Against the Government of President Dr. Ernest
BaiKoroma from 2007 - 2018.
AT THE
LAW WEEK OF
THE NIGERIAN BAR ASSOCATION, YENAGOA BRANCH
HOLDEN AT
CHIEF D.S.P. ALAMIEYESIGHA BANQUET HALL,
GOVERNMENT HOUSE YENEGOA,
BAYELSA STATE, NIGERIA
ON
FRIDAY, 30TH DAY OF APRIL2021
“Justice is for all the parties and
particularly in Election Petition proceedings also the electorates whose votes
must be allowed to be counted in the determination of who represent them and
acts on their behalf for the period or term of the office contested for by the
parties at the Election. There is therefore, only one standard of justice for
all the parties, and none is entitled to a higher or lower standard than the
other. The Court must hold the balance and ensure, as far as practicable under
its extant rules of practice and procedure, a level playing field for all the
parties” per Georgewill JCA, in Elohor&AnorV. Inec&Ors(2019)
LPELR-48806(CA) @ pp. 36 - 47.
INTRODUCTION
The Nigerian lexicon can easily identify with
the phrase ‘Politicization of the Judiciary in Nigeria’ meaning bringing undue influence or
interference of Politics into the affairs of the Judiciary. However, this new phrase
‘Judicialization
of Politics in Nigeria’ as coined
by the Organizers of this Law Week is completely a new one likely to be added
to the English lexicon by Nigeria soon!The word ‘Judicialization’ cannot be found in the English lexicon and is
therefore, not an English word and thus not of any precise meaning. However, in
my attempt to fully understand its connotation, it took the reaserch acumen of Prof Solomon T. Ebobrah, the Chairman of the 2021 Law Week Planning CommitteeChair of the
NBA YenegoaBranch, who drew my
attention to a paper titled “The Judicialization of Mega - Politics and the
Rise of Plitical Courts”by Ran Hirschl,
publisehed in the Annnual Review of Political Science 11, No. 1 (2008) at page
94 to find it the term ‘Judicialoization’ defined as “the ever -
accelerating reliance on Courts and judicial measn for addressing core moral
predicatmants, public policy questions, and political controversies”.
It appears to me that the above succinct
definition of the term ‘Judicializatio’ perfectly fits the bill within the
context of the theme of this paper, and I therefroe, adopt same in this apaper
as the correct connotation of the term ‘Judicilaisation’. It would thus refer
to the unwieldy or increasing and overwhelming role being played by the Judiciary
in the Political life of this Country. Simply put, it captures, what may aptly
be described as, the ‘excessive or overbearing role’being played by the Judiciary
in the Politics of Nigeria.
Thus, the first question
is whether there is indeed a ‘Judicialization
of Politicsin Nigeria’? In other words, is there any unwieldy or
excessive or overbearing role being played by the Judiciary in the Politics of
Nigeria? For me as a person, as well as being a member of the Nigerian
Judiciary, who believes so much in the utilitarian value of adjudication as
being key to averting and avoiding violence, intractable
disputes, self help, communal and family warsand suchlike in our Society, which
are all potential purveyors of societal destruction and or disintegration,if not
checked timely through peaceful constitutional means and avenues for
resolution, which is the Court, the answer is a resounding No! I therefore, do
not see any unwieldy or excessive or overbearing role being played by the
Judiciary in the Politics of Nigeria capable of giving birth to the new phrase ‘Judicialization of Politics in Nigeria’This is so
because, in my humble view, all that the Judiciary does is as constitutionally
and statutorily conferred and vested on it.
In other words,
for me there is no, and there can never be any,‘Judicialization
of Politics in Nigeria’since the Judiciary does not go out of its way,
as conferred on it by law, to meddle with Political cases in Nigeria and
therefore, it is important to make it abundantly clear that the time would or
may never come when it would be desirable that the Judiciary should hands off its
Constitutional role in intervening in the Politics of Nigeria to ensure, as
allowed by the laws of the land, that ‘Politicsin
Nigeria’
is played by the Rules and practiced in accordance with the laws of the land and
for the overall benefit of the vast majority of Nigerians. Politics ought not
and should not be played, as it is being so, pervading,played presently in
Nigeria, so unjustly to the detriment of the vast majority of Nigerians at the
whims and caprices of the privileged few, the ‘Politicians’ However, I have no
doubt in my mind that to many others, it would appear that, the answer to the
first question posed in this paper is a resounding Yes!
Thus, having been
invited by the Organizers of this Law Week to speak on this theme, most
probably, from the prism of those who believe that there is indeed an ongoing ‘Judicialization of Politics in Nigeria’, of excess or
overbearing interference of the Judiciary in Politics in Nigeria in the
determination of the several issues and questions which ordinarily, if there
were to be transparency in Politics in Nigeria, should be left for the Politicians
to resolve without any recourse to adjudication, I shall proceed in this
paper on the presupposition that there is ‘Judicialization
of Politics in Nigeria’ Welcome to my Paper!!
BRIEF STATEMENT OF THE ISSUE
There is today,
as it was yesterday, a consensus amongst the generality of Nigerians that Nigeria
has and continued to suffer lack of transparency in governance at all levelsof
Government and a concomitant failure of justice in the body polity as a whole
and therefore, none of the arms and or levels of Government is spared. This
obvious lack of transparency has permeated all spheres of life in this Country,
ranging from the ‘Legislature’ to the ‘Executive’ and to the ‘Judiciary’, none
of which arms of Government is spared! This has also led to lack of internal
democracy in Political parties in Nigeria and the resultant injusticesboth
intra and inter Political parties, leading to an avalanche of abuse of the
rights of members of Political Parties with the attendant upsurge in political
cases initiated by aggrieved members of Political parties seeking redress before
the last hope of the common man, and eventually the last hope to even the
yesterday men and women of power and might, the Courts.
It is ironic that
in Nigeria, in which going by the provisions of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), the ‘Legislature’ is the first arm of Government
at both the Federal and State Levels, had virtually surrendered its primus
position to the Executive, mainly due to where the power over the resources of
this Country and the States resides. There is therefore, the obvious case of
inadequate checks and balances between the Legislature and the Executive. Thus,
Executive powers are gradually becoming infinite without any real checks by the
Legislature! Regrettably, this has become more pronounced, and particularly more
so since the return to Civil Rule or what Nigerians had come to perpetually
term as our ‘nascent democracy’
since
1999.
For instance, by
the provisions of the Constitution of Nigeria 1999 (as amended), though Chapter
II is rendered non justiciable but the Legislatureis endowed with the power to
legislate on those issues provided for under Chapter II of the said
Constitution, and by so doing convertthem to become justiciable for the benefit
of the Citizenry with rights of enforcement through the Courts whenever the
Executive fails to comply with such laws geared towards the entrenchment of
those very vital socio – economic rights provided for the benefit of the
Citizenry by the Constitution but made non justiciable, perhaps for good cause,
had over the years failed to live up to this responsibility. The result, the
citizenry continues to depend on the benevolence of the Executive to be able to
enjoy those provisions, which are rights even if socio – economic and not
fundamental rights, as mere privileges under Chapter II of the Constitution, including
such indispensable right as the right to Education!
Honestly, I
consider the political rights of the citizenry of this great Country too
important to be left only at the complete mercy, whim and caprices of
Politicians. Today, as it has always been, Politics in Nigeria is all about
self interest and less of real service to the people. Thus, ‘Judicialisation of Politics’is not limited to
Nigeria nay Africa but has become a worldwide phenomenon. However, but
regrettably whilst the scope of intervention of the Judiciary in advanced
democracies, such as the United States of America, is limited and swift as
clearly demonstrated by the post 2020 November Presidential Election and the
almost fifty post - election litigations that were swiftly, effectively and
with finality determined by the Judiciary paving the way for the inauguration
of the newly elected President of the United States of America on 20th
day of January 2021 without any pending post - election litigations challenging
his due return as the duly elected President of the United States of America, but
it is not so in Nigeria, where both pre - and post - election litigations have become
of infinite possibility and unlimited scope on the political landscape of Nigeria.
Upon being intimated of my nomination to
prepare and deliver this paper on this seemingly novel theme, I had to conduct
some researches into this new phenomenon in other jurisdictions of the World,
and interestingly, one can hardly find any decided cases on pre - election
matters in any of the civilized democracies of the World, notably in the United
States of America and to some extent even in the United Kingdom and the
question is why? The answer is not too far to seek! It is because Political
Parties there, which are founded principally on clear ideology and laudable
vision, have ingrained in them seamless mechanism for internal democracy, thus
obviating the need for any judicial intervention by the Courts. After all,
unless the members of the Political Parties approach the Courts, the Courts
would not and can never intervene. The Court never interferes but it only
intervenes!
Thus, pre - election matters, I dare say, are
features of undeveloped or developing democracies in the World, notably in
India and particularly in Nigeria, where pre - election litigations is fast overtaking
post - election litigations under our watch and thereby being allowed to fester
even to the detriment of political growth and stability, when a candidate duly
declared and returned as elected by the umpire, INEC, could still be ordered to
vacate office, not through nullification of his election in an Election
Petition by the Election Tribunal or Court, but by virtue of a decision of the
Court in a pre - election litigation. Where then is the place of the significance
of the wishes of the electorates as expressed by their votes in the election in
this fast spreading phenomenon of removal of elected candidates via pre -
election litigation? Regrettably, none I can find or see!
THE TREND: POLITIC
PARTIES AND ELECTIONS INNIGERIA1
It is the general belief, whether right or
wrong, that in Nigeria, the Political class, the members of Political parties,
are making it practically impossible to conduct freeand fair elections. Yet,
these are the very class of people who requires free and fair elections for
democracy, which they claim to practice, to thrive in the Country. It was
principally the lack of free and fair elections, coupled with other factors, including
lack of transparency in Governance and large scale corruption that had in the
past heralded the death knell for the 1st, 2nd and 3rd
Republics in Nigeria. In this wise, it is a truism that Nigeria’s electoral
history has been fraught with failed elections, a recurring development that has
gradually become a distinctive feature of our Electoral system, hence the
deluge of political cases, including pre - and post -election litigations. Elections
are either violent or they are fought bitterly. They are usually marred by
rigging and other voter fraud as well as manipulation of Electoral Officers by
Political Parties. The winner takes it all and the loser is dared to go to
Court! Poor elections and skewed
election results and outcomes have over the years signposted the Country’s record
of poor leadership, political stagnation, and economic backwardness.
In developed and advanced democracies of the
World, the conduct of a free and fair election is sine qua non and is usually
made possible by the fair and just activities and management of the affairs of
Political Parties. Thus, free and fair election is a prerequisite for a
thriving democracy as it gives legitimacy to a Government and fulfilled hope to
the Citizenry in the Government of their own choice. It engenders positive
socio-economic and political developments and also enhances political
mobilisation and participation of the electorates leading to the development of
positive political culture and the resultant confidence of the Citizenry in both
the Political parties, elections and the resultant Government put in place at
their own behest.
In Nigeria, the modus operandi of Political
parties had for years been winning all and every elections at all cost and
remaining in power by all means. It is simply a ‘do or die’ affair. It is a matter of life and death! Hence,
the desperation as every election year draws close since those in power having tasted
power even dread the thought of life outside of power. Regrettably, it is these
desperations and the resultant skewed electoral processes in Nigeria that led to
the abortion of democratic rule thrice by the Nigerian Military, in 1966, 1983
and 1993 but for which Nigeria would have today become one of the advanced
democracies of the World, nay Africa, if we had remained in civil rule since
1960 till date.
An Election is simply a decision making process
through which a people choose some individuals to hold offices on their behest
and behalf. Thus, democracy is a system of Government in which the Citizenry participates
in the decision making process by voting or electing those who govern them
through a free and fair electoral process. The machinery through which this is
accomplished in most democracy is the Political Parties. Thus, it is imperative that
for democracy to thrive in Nigeria, the Political Class must rise to the task
of ensuring internal democracy to check the eroding of the electoral processes
over the years that has proved to be defective, weak, inefficient, and unable to
guarantee the conduct of credible elections. Indeed, all elections commencing
from the 1st Republic through the 4th Republic have been characterised
by electoral malpractices and the Political parties exhibit a high level of
political in discipline and freely perpetrated wide-ranging electoral malpractices
and large scale corruption leading to either Military intervention and or loss
of faith and confidence by the Citizenry in the resultant Government.
In 1959, towards the set goal of declaration of
independence and self - governance for Nigeria, the Electoral Commission of
Nigeria was set up by the then Colonial Government to conduct the 1959 General Elections.
Incidentally, Nigeria, which has a rich history of multi - party system right
from its independence, perhaps due to its multi ethnic configuration, had at
the time of its independence about twenty-six political parties which were duly registered
to contest the 1959 General elections. However, the three dominant Political
parties were the Northern Peoples Congress led by Sir Ahmadu Bello,the Action Group led by Chief
Obafemi Awolowo, and the
National Council of Nigeria and Cameroons led by Dr. Nnamdi Azikwe. The Elections were held and although the
turnout of voters for the election was low, by a coalition of the NPC and NCNC
a new Government was ushered in at independence in 1960, with the AG forming the
opposition in the West Minster styled Parliament.
In 1960, the new Government of Tafawa Balewa set up the Federal Electoral Commission to
conduct the immediate post - independence election for the Federal level in 1964
and for the Regions in 1965. Regrettably, as it was then and as it is still
today, both elections failed to meet the standard of free and fair election in
which the votes of the people count and be the determinant factor on who
emerges as duly elected by the people, the results of which elections
werer ejected by the opposition, leading to widespread violence, including
killing,arson, looting and destruction of properties,particularly in the then Western
Region. From then till date, elections in Nigeria had remained acrimonious,
violent and anything but free and fair to guarantee the prevailing of the
wishes of the Citizenry!
In 1978, the final draft of the Constitution by the
Constituent Assembly was adopted as the 1979 Constitution of the Federal
Republic of Nigeria. Subsequently, a Federal Electoral Commission was set up to
conduct General elections in which a person to be elected President of Nigeria,
under the 1979 Constitution must have the highest number of votes cast in
addition to receiving at least 25 percent of the votes cast in two-thirds of the
19 States of the Federation, the interpretation of which gave rise to the first
major intervention of the Judiciary in Politics in Nigeria. The 1979 General
elections were contested by the then five registered Political parties, namely; National
Party of Nigeria, Unity Party of Nigeria, Nigeria Peoples Party, People’s
Redemption Party, and Great Nigeria People’s Party (GNPP). As it turned out, the
ensuing election appeared to be much better than the elections conducted during
the 1st Republic and though seemingly peaceful, free and air but was
not without its own hiccups of interpreting the novel requirement of votes of
at least 25 percent in two - thirds of the then 19 States of the Federation.A
total of 47,433,757 voters were registered out of which only 16,846,633 voted at
the Presidential Election in which the NPN was declared the winner with UPN coming
a distant second.
In 1983, rather than improve on the 1979 General Election
considered to be fairly peaceful, free and fair to a large extent, the 1983 General
Election fell back into the inglorious era of the 1st Republic
Elections and became a very fraudulent one with glaring cases of large scale electoral
malpractices. It was bitter. It was manipulated. Money became the dominant and determinant
factor. Incumbency power was at its height of display.The Federal Electoral
Commission proved itself to be highly incompetent and failed the Nation in the
1983 Elections. Regrettably, violence erupted and characterised the political
landscape coupled with economic mismanagement and several other glaringly
militating factors, on December 31, 1983, the Nigerian Military intervened once
again in the Nation’s polity and Nigerians heaved a sigh of relief.
Between 1989
and 1993, during the abortive or still born 3rd
Republic, there were another round of Elections conducted by the newly created
National Electoral Commission, which elections going by the new breed and grass
root political idea coupled with the open ballot system introduced by the then Military
Government, were seemingly and apparently free and fair though certainly not
credible.These elections were contested by the two Political parties brought
into existence by executive fiat of the then ruling AFRC, namely; the Social
Democratic Party, which was ‘a little to the left’ and the National Republican Convention, which
was ‘a little
to the right’ It appeared
Nigeria was once again on the march and on the right path to true democracy
with the smooth successful holding of the elections from Local Government
Councils across the Country to the Governors of the States and the National
Assemblies all put in place until it was the turn of the Presidential Election which
held on June 12, 1993 and all hell seems to have been let loose when a
seemingly peaceful,free and fair Election, in which it was reported that the
Presidential candidate of the SDP, Chief Moshood Kashimawo Abiola,had secured 57 percent of the total votes cast as
so far announced from 16 States, was on June 24, 1993, while the results
from the remaining States were still being collated, annulled by the then Military
Ruler, Gen Ibrahim Badamosi Babaginda, who had also suspended the National
Electoral Commission and discontinued the transition programme. The rest, as they
say, is history.
Fast forward
to 1999, Nigeria commenced another transition to
civil rule programme under the then Military Government of Gen. Abdulsalam Abubakar,
who took over power after the death of
Gen. Sanni Abacha with May 29, 1999 as the terminal date and an
Independent National Electoral Commission was set up to midwife this exercise,
and which out of a total of 25 Parties that sought registered, registered only
3 as Political parties, namely; the People’s Democratic Party, the All People’s
Party, and the Alliance for Democracy. Subsequently, General elections were held
in Nigeria and on May 29, 1999, Gen Olusegun Obasanjo, the Presidential Candidate of the PDP, having
been declared and returned as duly elected by INEC, became the President of
Nigeria. This election, by all account,though peaceful was not very credible
but Nigeria moved on!
In April
2003, Nigerians trooped out to the polling
booths to elect their leaders at the various levels of Governance heralding the
second time of civilian to civilian transition in Nigeria after the 1983
transition, though short lived. A total
of 30 Political parties contested the 2003 General elections, which was akin to
a war of money. Regrettably, the money bags had a field day to the extent, as
it was widely believed, of determining both the Candidates of Political parties
as well as influencing the outcome of the elections into many of the elective
offices. It was virtually a clean sweep
for the ruling PDP, which in that euphoria declared its intention to be in monopoly
of political power in Nigeria for the next 60 years. There were widespread
protests against the results of the 2003 General elections and for the first
time in the Nigerian political lexicon, the phenomenon referred to as ‘carry go’ became the pervading slogan!
On April 23, 2007 Umaru Yar'Adua was declared the winner by Independent National Electoral Commission with a result of 24, 638, 063 votes representing 70 percent of the total vote cast at the 2007 General elections. However, the results were promptly rejected by the 1st and 2nd runners up. Happily, and perhaps for the first time in the Nigerian political history, a person who has been elected as President of Nigeria admitted publicly that the 2007 General Elections,from which he had emerged as President of Nigeria, were indeed flawed and had set in motion processes for drastic reforms of the Nigerian Electoral System but painfully he did not live long enough to actualize this laudable vision following his untimely death in office in 2010 before the next General elections of 2011.
On April 16, 2011,
Presidential elections were held in Nigeria after its postponement from April
9, 2011 when it was originally scheduled to hold and on April 19, 2011 the
Electoral umpire declared as duly returned and elected the incumbent President
and Candidate of the Peoples’ Democratic Party, His Excellency Dr. Goodluck Ebele Jonathan.
However, in the aftermath of the declaration of the result of the 2011 Presidential
elections, widespread violence erupted in the Northern parts of the Country but subsequently,
peace was restored and Nigeria kept marching on!
As the year 2015 fast approached,
there was palpable anxiety in the air about the approaching 2015 General
elections slated for February 14, 2015. A winner of the Presidential election
was constitutionally required to poll a majority of the valid votes cast amounting
to at least 50 percent plus one vote of the total cast and also to secure 25
percent of the votes in two-thirds of the States of the Federation. The
campaigns were fierce and intensive and the ethnic and religious divides were so
pronounced that it became apparent that notwithstanding which of the two
front line Candidates was declared the winner and returned as duly elected as
the President of Nigeria, there were likely several ground to reject the
results of the 2015 Presidential election. However, the results were eventually
released declaring as winner and returned elected as President of Nigeria, the
Candidate of the All Progressives Congress, Gen
Muhammadu Buhari,and Nigeria scored at once two - firsts,
namely; the defeat of an incumbent President by an opposition Candidate and the
refusal by the incumbent President to challenge his loss at the polls before
the Presidential Election Tribunal. The rest,as they say, is history. Nigeria
marched on!
On February 23, 2019, Nigerians once
again trooped out to the polling booths scattered around the nooks and crannies
of Nigeria to elect their President. There were palpable tensions and anxieties
in the land, which had come to characterize every General elections in Nigeria
but whether the election would be peaceful or violent is usually determined on
the ‘D - Day’which is the election
day. It was widely reported that there were widespread violence in Rivers State and
Kano State respectively during the 2019 General Elections, which had infamously
brought my home town of Abonnema,
the Headquarter of Akuku - Toru Local Government Area of Rivers State, into
both National and International attention. I watched,along with my colleague, The Hon Justice William Annan
Atuguba JSC., (Rtd) formerly of the Supreme Court of
Ghana, on the internet with horror the horrific shootings going on in my home
town of Abonnema whilst
in faraway Freetown, Sierra Leone on an International assignment.
On February 26, 2019 at
about 11.53 pm, the Independent National Electoral Commission declared as winner
and returned as duly elected the incumbent President, His Excellency Mohammadu Buhari, and
Candidate of the All Progressives Congress with a total vote cast of 15, 191,
847 votes representing 56 percent of the total votes cast at the 2019 Presidential
elections beating his closest rival, His Excellency Alhaji Atiku Abubakar,
the candidate of the opposition party, Peoples’ Democratic Party, who polled
11, 262, 978, and who promptly rejected the results. The rest, as they say, is now history, even as
Nigerians await, with bathed breath, the fast approaching 2023 General
Elections. Nigeria marches on!
HISTORY OF FORAY OF THE NIGERIAN JUDICIARY
INTO POLITICAL CASES
The Constitution of the Federal Republic of
Nigeria 1999 (as amended) created the three arms of Government in Nigeria,
namely; The Legislature, The Executive and the Judiciary. This is in line
with the concept of separation of powers and is to ensure checks and balances
between the various arms of Government, without which powers may be left
unchecked with its disastrous consequences on Good Governance and the Rule of
law. Thus, the Nigerian society, at both the Federal and State levels is
managed by these three arms of Constitutionally recognized authorities to enable the
respective Governments to manage the Country and the States more efficiently.
Without separation of powers and appropriate effective system of distribution
of powers, there can indeed be no rule of law. See Section 4 (1) and (2) of the Constitution of
the Federal Republic of Nigeria 1999 (as amended.)See also Section
5(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as
Amended).
However, the Judiciary, the focus of this
paper, is the third arm of Government and is primarily charged with the interpretation
of the laws of the land. Thus, it plays a very significant role in the
strengthening of the rule of law and ensuring compliance with the laws of the
land. It engenders the Nigeria’s ‘nascent democracy’. It is part of the Constitutional mechanism
for check and balances between and amongst the three arms of Government and
acts as the watchdog of the society, being, as it is often said at common
parlance, the last Hope of the Common man! See Section 6(1) of the
Constitution of the Federal Republic of Nigeria 1999 (as amended).
From the
inception of Civil Rule on independence between 1960 - 1963 to the 1st
Republic between 1963 - 1966, through the 2nd Republic between 1979 -
1983, and the aborted 3rd Republic between 1992 - 1993 and the 4th Republic
since 1999, there has been judicial interventions in the Political life of
Nigeria, yet the real foray of the Judiciary, unstoppable as it has now become
through the years, into political issues commenced in full force in 1979, when
the almighty formulae of 122/3 of 19 States of Nigeria -
a judicial mathematics - was introduced into the Nigerian Electoral lexicon by
the Supreme Court of Nigeria,in a split decision in which Obaseki JSC and Eso
JSC
did not concur with the majority decision as delivered by Fatayi - Williams CJN, whilst endorsing
the forceful arguments of Chief Richard
Akinjide SAN in affirming the return and declaration of Alhaji Shehu Shagari, the Presidential
candidate of the National Party of Nigeria, as the duly elected President of
Nigeria, while dismissing the spirited efforts by way of the appeal to the Apex
Court by Chief Obafemi Awolowo, the
Presidential Candidate of the Unity Party of Nigeria, to upturn the said return
and declaration by the Federal Electoral Commission.
Interestingly,
from then on through the short lived democratic experimentation under the then Military
Rule of General Ibrahim Badamosi Babangida, in the short
lived 3rd Republic to the inauguration of the 4th Republic
on May 29, 1999 till date, the Judiciary, due to no fault or ambition of its
own, has consistently been invited and its powers invoked by Politicians of all
dispositions to determine of the outcome of vast majority of elections conducted
in Nigeria, whether at the Federal or States and even at the Local Government
levels of Governance in Nigeria. This is no thanks to the never say die spirit
of the Nigerian Politicians, in and out of office. Thus, even Councillorship Candidates
are ready to pursue their cases up to the Supreme Court, if there be any such
provisions in our laws. In a recent unreported decision of the Court of Appeal,
Benin Division in Appeal No.
CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors delivered on
March 8, 2021, I had cause to ponder inter alia thus:
“In law
therefore, a pre-election matter does not become academic or hypothetical
merely because the election had taken place. Thus, pre-election matters commenced
in line with the extant law on electoral matters would remain live issue notwithstanding
the holding of the election while the pre - election matter was already pending
in Court…My lords, I had even asked myself the question, whilst
considering this issue, if indeed the claims of the 1st Respondent
had become merely academic, why would or should the Appellant even bother
appealing against the judgment of the Court below arising from a Suit which had
become merely academic and of no longer any utilitarian value to any or all of
the parties as vehemently contended on his behalf by his learned Senior
Advocate in this appeal? The answer, to my mind is not farfetched, and I hope I
am right, it is because while lawyers pride themselves as masters of the law,
the Politicians are master game planners and they would never give up unless
and until either they realize their desire to ‘serve their people’ or the Apex
Court in an appeal before them tell the Politicians with finality that it is
all over, then they would take a bow and rest but bid their time for the next
election! In this wise, they are far wiser than the lawyers!”
After the 2007 General Elections, there was an
attempt to reduce the levels and layers of interventions by the Nigerian
Judiciary in electoral matters by pegging all post - Election litigations,
including National Assemblies and Governorship Elections to end at the Court of
Appeal, except the Presidential Election was met with resistance no thanks to
the debacle in the appeals in some Governorship Appeals, notably Sokoto and Edo
States, leading to the very needless amendment to return Governorship Elections
Appeals to the Supreme Court, the result of which has been unending
litigations.
The foray of the
Judiciary into Political cases has come with it various challenges, ranging
from allegations of corruption and and distraction of the Judicial system from
facing and resolving timeley the day today issues of ordinary Citizens of this Country
in preference for so much time and resources and energies spent on Political
cases, ranging from Pre - Election to Post - Election ligations. However, due
intervention of the Judiciary has also brought with it the unique opportunities
of ensuring that the votes of the Citizenry counts and therefore, only those
whom the electorates have truly expressed their wishes to govern them through
the ballot box to do so emerge to govern them. Thus, whenever the Electoral
system and or the Political parties fail the people, the Court, upon proper
invitation, comes to the rescue by intervening to ensure that the votes of the
electorates counts! In Elohor&Anor
V. INEC &Ors (2019) LPELR - 48806(CA) @ pp. 36 - 47,I had cause to
reiterate inter alia thus:
“In
Election Petition proceedings also the electorates whose votes must be allowed
to be counted in the determination of who represent them and acts on their
behalf for the period or term of the office contested for by the parties at the
Election…The Court must hold the balance and ensure, as far as practicable
under its extant rules of practice and procedure, a level playing field for all
the parties”
After the
1979 General elections, a landmark
Election Petition was heralded into the Nigerian Political landscape by the
challenge of the 1979 Presidential Election by the candidate of the Unity Party
of Nigeria, Chief Obafemi Awolowo, who vigorously and spiritedly contested the
declaration and due return of the candidate of the National Party of Nigeria, Alhaji Shehu Usman Shagari at the Presidential Election Tribunal to the
Supreme Court on Appeal. This landmark case could easily be regarded as the
first major foray of the Judiciary into Political cases in Nigeria, heralding
as it were a deluge of political cases, both pre - and post - election
litigations in the coming years and which has led, perhaps, to the view as
expressed in the theme of this law week, the ‘Judicialization of Politics in Nigeria’
On August
11, 1979 the electorates in Nigeria had
trooped out to the polling booths across the Country to elect for themselves a
leader, from the five Presidential Candidates, namely; Alhaji Shehu Usman Shagari
of the NPN, Chief Obafemi Awolowo of the UPN, Dr Nnamdi Azikiwe of the NPP;
Alhaji Aminu Kano of the PRP, and Alhaji Ibrahim Waziri of the GNPP,this time as President of Nigeria under the
brand new 1979 Constitution of Nigeria,which was a radical departure from the
immediate post - Independence Westminster styled Era akin to the model of
Government in the United Kingdom to the Executive Presidential System akin to
the model of Government in the United States of America. On August 16, 1979 the
candidate of the NPN, Alhaji Shehu Usman Shagari, was returned and declared as the elected President
of Nigeria having, according to electoral umpire, Federal Electoral Commission,
received a majority of the votes cast at the Presidential Election in satisfaction
of the provisions of Section 34 A (1)(c)(i)
and (ii) of the Electoral Decree No. 73 of 1977(as amended), which provided
inter alia that a Presidential candidate will be deemed to have been duly
elected to such office where he has the highest votes cast at the election, and
he has not less than one quarter of the votes cast at the election in each of,
at least, two-thirds of all the States in the Federation.
In the Election Petition presented to the Presidential
Election Tribunal sitting in Lagos, Chief Obafemi Awolowo, the Presidential Candidate of the UPN, had contended
that the election of Alhaji Shehu Usman Shagari, the Presidential Candidate of the NPN, was
invalid by reason of non-compliance with the provisions of Part II of the
Electoral Decree, 1977 in that although Alhaji Shehu Usman Shagari had received the highest total votes of
5,688,857 at the said election, he had less than one-quarter of the votes cast
at the election in each of at least two-thirds of all the 19 States in the
Federation and prayed for the nullification of the return made by the electoral
umpire and for the holding of another election in accordance with Section
34A(3) of the Electoral (Amendment) Decree No. 32 of 1979.The parties filed and
exchanged their pleadings and issues were duly joined and the matter went to
trial.
Chief
Obafemi Awolowo testified for
himself and called one witness, one Professor Ayodele Awojobi, a Professor of Engineering at the University
of Lagos and an applied mathematician who testified that there are 38,760
possible two-thirds of Kano State going by Local Government Area and that in
the absence of a computer, it will take at least one year to declare the result
in respect of two-thirds of Kano State. The Respondents did not call any
evidence. In its judgment, the Presidential Election Tribunal saw no merit in
the Petition and thereby dismissed it. Chief Obafemi Awolowo was aggrieved with that decision and had
promptly appealed against it to the Supreme Court of Nigeria on the grounds
inter alia that the Election Tribunal misdirected itself in law in construing
two-thirds of 19 States as 122/3 instead of 13 States when
in law and especially within the context of Section 34A(1)(c)(ii) of the Electoral Decree 1977
as amended, a State being a corporate body or a legal person cannot be
fractionalised, that the Election Tribunal misdirected itself when it held that
the dominant requirement in the election is the number of votes cast in each of
the States, "two-thirds State" would be synonymous with two-thirds of
the total votes cast in that State and not the physical or territorial area of
such State, and that the Election Tribunal misdirected itself when it took the
total votes cast for Alhaji Shehu Usman Shagari of the NPN in Kano State, 243,423 votes instead
of two-thirds thereof 162,282 votes to determine whether or not he scored at
least a quarter or 25 per cent of the total votes cast in two-thirds of Kano
State, 203,460 votes.
In the judgment
delivered on Wednesday, September 26, 1979, the Full Court of the Supreme Court
of Nigeria Coram: Atanda Fatai-Williams,
CJN, Ayo Gabriel Irikefe JSC, Mohammed Bello JSC, Chukwunweike IdigbeJSC, Andrews
Otutu Obaseki JSC, Kayode Eso JSC ,
and Muhammadu Lawal Uwais JSC in Chief
Obafemi Awolowo V. Alhaji Shehu Shagari & Ors (1979) LPELR - 653(SC),dismissed the Appeal
(by a split majority decision of 6 - 1) and held per Fatayi - Williams CJN, inter alia thus:
“It is at
this stage that the Returning Officer ought to determine what is two-thirds of
19 States. This is a matter of law as it deals with the interpretation of the
provisions of Section 34A(1)(c)(ii)
of the Decree….the Federal Military Government must be deemed to know that
two-thirds of 19 States will be 122/3 of States….If
the number 13 which is the nearest to two-thirds of a State had been intended
the Federal Military Government would have said so in clear terms. In any case,
as between 13 States and 122/3 States, the figure of
122/3 considering all the circumstances, appears to
us to be the intention of the Federal Military Government in the context of
sub-paragraph (ii) of Sub-section (1)(c)
of Section 34A. Furthermore, it is, we think, fallacious to talk of
fractionalisation of the physical land area of a State when the operative words
of Section 34(1)(c)(ii) relate
undoubtedly to the votes cast by the voters in the State at the election…Moreover,
until election returns can be computerized in this country, the
"mathematical canon of interpretation" put forward by Professor
Awojobi in his testimony before the Election Tribunal will remain impractical
and legally unacceptable.”
However, both of their lordships, Obaseki JSC and Eso JSC,
disagreed with the majority view of two - thirds of 19 States as amounting to 122/3 States
rather than 13 States but since the majority had spoken whatever their
lordships held, the rest is history! There was a record of appearances of array
of high flying counsel in this landmark Appeal. It is worthy of note that the
questioned Presidential Election was held on 11/8/1979, the results were
declared on 16/8/1979 and yet by 26/9/1979 all post - election litigation on it
had been concluded with up to the level of the Supreme Court before the
inauguration of the newly elected President on 1/10/1979
In 1983, due to widespread violence resulting from
the wide held belief of large scale irregularities in the conduct of the
General Elections of that year, there were a deluge of Election Petitions
challenging the outcome of the said Elections as declared by the Electoral Umpire
but regrettably, that was when technicalities in law held sway riding roughshod
far and above substantial justice, and thus a great number of these Election Petitions
challenging the General elections failed while the results of the said
elections which were clearly perceived and believed to have been irregular were
nevertheless upheld by the Courts, purely on technical grounds. However, in very
few of these cases, particularly in Ondo State as between Akin
Omoboriowo of the NPN and Chief
Michael Ajasin of the UPN in Chief Akin
Omoboriowo &Ors V. Chief Michael Adekunle Ajasin (1984) LPELR-2643(SC), these glaringly perverse results of the
General Elections were ably and admirably reversed by the Court and substantial
justice rendered not only to the successful Petitioners but also to the
electorates so that their true wishes as expressed by them through their votes
prevailed.
In 1993, the justification for the annulment of the
widely believed freest and fairest Presidential Election in the annals of
history of Presidential Elections in Nigeria was found in the series of
interventions by the Courts both pre - and post - election at the behest of
political actors and activists which became a ready excuse and or a lee way for
the then Military Ruler, Gen Ibrahim Badamosi Babangida to annul the June 12, 1993 Presidential
Election whilst collation of results were still ongoing in the remaining few
States, the results of majority of the States having already been announced by
the Electoral Umpire. Of note was the Suit filed on June 10, 1993 by the Association
for Better Nigeria, represented by one Abimbola Davies, before an Abuja High
Court that the Presidential election be suspended on grounds of corruption going
on in Party politics. The Court wasted no time in granting such an insidious as
well as invidious request and thereby retraining the National Electoral
Commission from conducting the Presidential Election.
Still in
1993, in just the 3rd month of
the Interim National Government under the leadership of Chief Ernest
Shonekan between August 26 1993 November 17,
1993, and set up by the retreating Military Ruler, the Courts intervened once
again. This time a Lagos High Court, at the behest of a Suit filed by the
generally and popularly acclaimed winner of the June 12, 1993 Presidential
Election, Chief
M.K.O. Abiola,declared the
Interim National Government as an illegal contraption. The immediate
consequences and effects of this intervention by the Courts on Nigeria and the rest
as they say is now history! But going down the memory lane, the transition to
civil rule was eventually truncated and thus leading Nigeria to nowhere while
the generally believed and popularly acclaimed winner of the June 12, 1993
Presidential Election, Chief M. K. O. Abiola ,after about a spell of four years spent
in detention died on July 7, 1998, shortly after the death of the then Nigerian
Military Ruler, Gen Sanni Abacha on June 8, 1998.
In the
aftermath of the 1999 General elections
and consequent upon the return and declaration of Gen Olusegun Obasanjo, the Presidential Candidate of the Peoples Democratic
Party as the winner of the 1999 Presidential Election in Nigeria, the Courts
intervened once again but at the behest of Chief Olu Falae, the Presidential Candidate of the Alliance for
Democracy, who challenged the results of the Presidential Election vide an Election Petition
No. CA/A/EPPR/12/1999 presented to the
Presidential Election Petition Tribunal of the Court of Appeal Coram: Dahiru Mustapha
JCA, Aloma Mariam Mukhtar JCA, George Adesola Oguntade JCA, Justin Thompson
Akpabio JCA, and Dennis Onyejife Edozie JCA.
The parties filed and exchanged pleadings and the matter proceeded to hearing.
At the trial, Chief Olu Falae called 15 witnesses, while Gen
Olusegun Obasanjo called 3
witnesses. All the other Respondents, the 2nd- 60th Respondents,
did not call any witness but rested their defense on the evidence called by the
other parties. At the conclusion of trial, the Petition was dismissed. See Chief
Olu Falae V. Gen Olusegun Obasanjo & Ors No. 2 (1999) 4 NWLR (Pt. 599) 476 (CA).
In April
2003, General elections were held in
Nigeria and in the aftermath of the outcome of the elections, the Courts had
once again intervened at the behest of aggrieved persons. Thus, several Election
Petition Tribunals were set up in accordance with Section 285(l)(a) and (2) of the
Constitution of Nigeria 1999 (as amended).However,
despite the hues and cries of massive irregularities, by both local and
international observers, most of the results from these generally believed
flawed elections were upheld by the Courts likely due to lack of evidence to
substantiate these alleged irregularities. Thereafter, the political life of
the Nation went on as usual with nothing significant learnt by the Politicians
as well as the Political parties from the largely flawed 2003 General Election
in which the phenomenon of ‘carry go’
was introduced into the Nigerian Political lexicon. Truly, so sad indeed!
The Courts have regularly on the behest of aggrieved
persons intervened in a deluge of pre - election matters over the years. Principally,
there are two sections of our laws giving rise to the avalanche of pre -
election cases in the Courts, namely; Sections 31(5) and 87(1) of the Electoral
Act 2010 (as amended).
By Section 31(5) of the Electoral Act 2010 (as
amended),it is provided as follows:
“A
person who has reasonable grounds to believe that any information given by a
candidate in the affidavit or any document submitted by that candidate is false
may file a suit at the High Court of a State or Federal High Court against such
person seeking a declaration that the information contained in the affidavit is
false”
By Section 87 (1) of the Electoral Act 2010 (as
amended), it is provided as follows:
“A
political party seeking to nominate candidates for election under this
Act shall hold primaries for
aspirants to all elective positions”
Let me first deal with the provisions of Section 87
(1) of the Electoral Act 2010 (as amended),
which appears to be the major source and cause of the deluge of pre - election
litigations in this Country, underscoring the obvious lack of internal
democracy in Political parties in Nigeria, leading to the interventions by the
Courts, at the behest of aggrieved member of Political parties, with the
resultant perception of ‘Judicialization of Politics in Nigeria’
In PDP V. Sylvia [2012] 13 NWLR (Pt. 1316) 85 @
p. 148, the Supreme Court per Chukwuma-Eneh
JSC., had opined inter alia thus:
“The clear object the provisions of Section
87 is intended to achieve besides the inculcation of internal democracy in the
affairs of political parties in this country moreso in the conduct of their
party primaries includes thus making them transparent and providing level
playing ground for their contestants in party primaries….”
On his part, Rhodes -Vivour JSC had opined inter alia thus:
“Where the political party conducts its primary and
a dissatisfied contestant at the primary complains about the conduct of the
primaries, the Courts have jurisdiction by virtue of the provisions of Section
87 (9) of the Electoral Act to examine if the conduct of the primary elections
was conducted in accordance with the party’s Constitution and Guidelines. This
is so because in the conduct of its primaries the Courts will never allow a
political party to act arbitrarily or as it likes. A political party must obey
its own constitution.”
In Shinkafi V. Yari (2016) 1 SC (Pt. II) 1 @ p. 31, the Supreme Court had expatiated inter alia
thus:
“It is now trite that where a political party conducts its primary and
a dissatisfied contestant at the primary election complains about its conduct
of the primaries, the Courts have jurisdiction by virtue of the provision
of Section 87(9) of the Electoral
Act 2010 (as amended) to examine if the conduct of the primary was
in accordance with the party’s Constitution and Guidelines. The reason is that
in the conduct of its primaries, the Courts will never allow a political party
to act arbitrarily or as it likes. A political party must obey its Constitution.”
In CPC V.
Ombugadu [2013] 18 NWLR (Part 1385) 66 @ pp. 129 - 130,the Supreme Court per Ngwuta JSC, (God bless his soul) had expatiated inter alia thus:
“A political party is greater than the
numerical strength of its membership just like a country, for instance,
Nigeria, is greater than the totality of its citizens. It follows that in the
case of a Political party, such as the 1st Appellant herein,
the interest of an individual member or a group of members or a group of
members within the party, irrespective of the place of such member or a group
in the hierarchy of the party, must yield place to the interest of the
party. It is the greed, borne of
inordinate ambition to own, control and manipulate their own Political parties
by individuals and groups therein and the expected reaction by other party
members that result to the internal wrangling and want of internal democracy
that constitute the bane of Political parties in Nigeria…it is apparent
that a few powerful elements therein hijack the parties and arrogated to
themselves right to sell elective and appointive positions to the party member
who can afford same…Politicians must
learn to play the game of politics in strict compliance with its rules of
organised society.”
In Mato V. Hember
& ORS (2018) 5 NWLR (Pt.1612) 258,
the Supreme Court had per Onnoghen CJN,emphatically stated inter alia thus:
“Both the Electoral Act and the Constitution of the 2nd Defendant
make it mandatory that primaries be conducted in the Headquarters of the
Constituency. The failure to
comply with these provisions makes the entire exercise null and void…The truth
must be told and that is, that the 1st and 2nd Defendants
did not respect the provisions of the Electoral Act and the constitution of the
2nd defendant in the conduct of the primaries. This Court has
decided in quite a number of cases that political parties must obey their own
constitutions as the court will not allow them to act arbitrarily or as they
like” .
In Alhaji Shuaibu Isa Lau V. LAU V. PDP
& Ors. (2017) LPELR- 43800 (SC), the
Supreme Court per Augie JSC, had
stated inter alia thus:
“This is a hard and very bitter lesson for Political
parties to learn. They may have chosen candidates or eminent personalities they
want to present as candidates to INEC, but they have to play by the rules….The
chosen candidates must comply with requirements of the law; they must abide by
the provisions of the Electoral Act, which creates a level playing field for
all aspirants who seek to contest elections…So, the Political parties and their
candidates must obey the rules.”\
See also Dahiru &
Anor V. APC & Ors. (2016) LPELR - 42089 (SC); Boko
V. NungwaTarzoor V. Ioraer (2016) 3 NWLR (Pt. 1500) 463.
Let me now consider the provision of Section 31(5)
of the Electoral Act 2010 (as amended),another,
and perhaps the current fastest source and cause of pre - election litigation, underscoring
the obvious lack of proper definition of rights of persons to intermeddle in
the internal affairs of Political parties to which they do not even belong and leading
to the interventions by the Courts, at the behest of any person who is so led
to intermeddle with the internal affairs of a Political party to which he is a
stranger, with the resultant perception of ‘Judicialization of Politics in Nigeria’
In Peoples
Democratic Party V. Biobarakuma Dei-Eremienyo & 3 Ors(2020) Vol. 305 LRCN 1, the Supreme Court per Eko JSC; had held inter alia thus:
“Section 31 (5)
of the Electoral Act complements Section 182 1 J of the Constitution. It
empowers any person who has reasonable grounds to believe that any information
given by a candidate submitted by that candidate is false to file a Suit at the
Federal High Court, High Court of a State or FCT against such person seeking a
declaration that the information contained in the affidavit is false. The
sanction for presenting to INEC Form CF001 containing false fact about the
personal particulars or information of the candidate, by virtue of Section
31(6) of the Electoral Act, is an order by the High Court disqualifying such
candidate from contesting the election”
In
a recent unreported decision of the Court of Appeal in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V.
Kadiri Sunday Oshoakpemhe &Ors delivered on March 8, 2021, I had
cause to ponder inter alia thus:
“Now...the
provision of Section 31(5) of the Electoral Act, 2010 (As Amended)talks of ‘a
person’ and is the 1st Respondent not within the meaning ‘a person’
in Nigeria? The Appellant did not say so!Thus, it would appear that going by
the succinct provisions of Section 31(5) of the Electoral Act, 2010 (As
Amended) and on the authority of Lawrence V. PDP (2018) 5 NWLR (Pt. 1613) 464 @
p. 481, the meaning of “a person” as used in Section 31(5) of the Electoral Act
2010 (as amended) presupposes any person, including the 1st
Respondent, since it appears to be open-ended to all and at the same time
inclusive of all and without any restriction or exclusion. Thus, whether or not
one is a member of a Political Party or any particular Political party, as in
the instant appeal, a PDP Card carrying member challenging the qualification of
a candidate of the APC, is of no moment as the law allows the 1st
Respondent so to do! I have no difficulty whatsoever resolving seven against
the Appellant in favor of the 1st Respondent.”
Now, whilst the
above cases dealt with the provisions of Section 31(5) of the Electoral Act 2010 (as amended), which appears to
complement the provision of Section
182(1)(j) of the Constitution of Nigeria 1999 (as amended),per Eko JSC, in Peoples Democratic Party V.
Biobarakuma Degi-Eremienyo & 3 Ors (2020) Vol. 305 LRCN 1, by the provisions of Section 65(
1) & ( 2), Section 66 (1)( a) -(j) & (2), Section 106 ( a) - (d),
Section 107 (1) (a) - (j) & (2), Section 131(a) - (d) , Section 137 (1)(a)
- (j) &(2), 177(a) - (d ), Section 182(1)(a) - (j) & (2)of the
Constitution of Nigeria 1999 (as amended),
exhaustive provisions were made for qualifications and disqualifications of Candidates
to all the Elective Offices established by the Constitution of Nigeria 1999 (as
amended) and which can form the basis or
grounds for the challenge of an election to any of the said offices before an
Election Petition Tribunal. Now, since all these provisions serve the same
purpose of qualification and or disqualification of Candidates, if they are not
sufficient then it is suggested that a further amendment of the Constitution of
Nigeria 1999 (as amended)in line with the provisions of Section 31(5) and (6) of
the Electoral Act 2010 (as amended) be effected and made an integral part of
disqualification of Candidates to obviate the duplications leading to pre -and
post - election litigations on the same ground and or issue.
This duplicity was impliedly but amply demonstrated by the
challenge to the result of the 2019 Presidential elections by His
Excellency Alhaji Atiku Abubakar,
the Presidential candidate of the Peoples’ Democratic Party against His
Excellency Muhammadu Buhari, the
incumbent President and Presidential Candidate of the All Peoples’ Congress. In Abubakar V. INEC (2020) 12 NWLR (Pt.
1737) 37 @ p. 110, the Supreme Court per I.T. Muhammad, CJN, had
pronounced inter alia thus:
“Before I conclude on this issue,
let me state that whenever documents are tendered from the Bar in election
matters, the purport is to speed up the trial in view of time limitation in
election matters. Such tendering is not the end itself but a means to an end.
The makers of such tendered document must be called to speak to those documents
and be cross-examined on the authenticity of the documents. The law is trite
that a party who did not make a document is not competent to give evidence on
it. It is also the tested position of the law that where the maker of the
document is not called to testify, the document would not be accorded probative
value by the court. That in deed is the fate of exhibits P80 and P24…Finally,
on this issue, it was contended by the appellants that the variation in the
names of 2nd respondent on Exhibit R19 and R21 makes his
relationship with the two documents doubtful. Is “Mohammed” and “Muhammadu” the
same name and belong to the 2nd respondent? The Court below made an
elaborate discussion on the issue and concluded that RW5 gave explanation on
the names and stated that they are the same….For me, as the appellants failed
to prove that any of the documents belong to another person and as nobody has
come out to claim any of the two exhibits, I do agree with the explanation
given by the RW5 and the conclusions of the court below that both names
“Mohammed” and “Muhammadu” as contained in exhibits R19 and R21 belong to the 2nd
respondent. On this note, I resolve issues one and two against the appellants.”
It is clear that the above two decisions of
the Supreme Court in Peoples Democratic Party V. Biobarakuma
Dei-Eremienyo & 3 Ors (2020) Vol. 305 LRCN 1, and
Abubakar V. INEC [2020]
12 NWLR (Pt. 1737) 37 @ p. 110, though
based in Pre - election and Post - election matters were canvassed on same
issues and or grounds leading to the deluge of cases justifying the constant
intervention by the Judiciary in Political cases at the behest of aggrieved
persons by virtue of Sections 31(5) and 87(1) of the Electoral Act 2010 (as
amended), which it is posited can legally and conveniently be done away with as
would be canvassed in details later in this paper in order to drastically reduce
and or bring to a halt the deluge of Pre - election matters and the resultant
constant intervention by the Courts and the seeming ‘Judicialization of Politics in
Nigeria’
THE
CHALLENGES
LACK OF
INTERNAL DEMOCRACY IN POLITICAL PARTIES IN NIEGRIA2: This is perhaps the mother of all reasons why
there is the seeming feeling of ‘Judicialization of Politics in Nigeria’ as thought and coined by the Organizers of
this Law Week. There seems to be a great deal of lack of or non - observance of
internal democracy by the hierarchy of Political parties in Nigeria. The
founders and leaders of Political parties do award and in some cases sell the
party’s tickets to either the highest bidder or to whomsoever it pleases them to
give it to. Thus, the generality of the members of Political Parties neither
have any say or their way in the running of the affairs of Political parties in
Nigeria. Internal democracy was, and is still to a large extent going by the
avalanche of complaints and the deluge of pre - election litigations, a mirage
and mere wishful thinking in Nigerian Political parties. The Godfathers,
Kingmakers and the Moneybags rule the internal affairs of Political parties and
run the Political parties at their own whims and caprices. With their blessings
a person can become a Candidate just at the same time he is becoming a member
of a Political party and without their blessings a member no matter for how
long or qualified would stand no chance to be given the ticket to run as the
candidate of a Political party in Nigeria. Thus, internal democracy was not
considered a virtue in the affairs of Nigeria’s Political parties.
The Constitution of Political parties are
mostly observed in the breach and the aggrieved dared to go to Court. Though on
paper, primaries, whether direct or indirect, is touted to be an integral part of
the administration of the internal affairs of Political parties in Nigeria, but
in practice it is avoided by the hierarchy, leaders, moneybags and kingmakers
like a plague. They pay mere lip service to it and rather thrive on imposition
of candidates. So bad is the adverse effect of absence of internal democracy
that even a performing office holder can be out rightly denied the opportunity
of participating in the process leading to the selection of a candidate for a
Political party for a second term in office, notwithstanding the wishes of the generality
of members of the Political party and or even the desires of the electorates at
large. In this regard, the case of the Lagos State APC Governorship Primaries in
2019 as well as the Edo State APC Governorship primaries in 2020 readily comes
to mind. See for example Article 20 of the All Progressives’ Congress
enshrining primaries, whether direct or indirect, as the mode of selection of
its candidates for general elections.
Similar provisions exist in all the other registered Political parties
in Nigeria.
Internal democracy is the panacea to the
myriads of disappointments by members of Political parties in Nigeria with the
resultant avalanche of complaints by aggrieved members of Political parties and
the deluge of pre - election litigation throughout the length and breadth of this
Country. Thus, to curtail the constant derailment of the Constitution of
Political parties in Nigeria, and the resultant cacophony of voices and the
incessant recourse or resort to the Courts by the many aggrieved members of
Political parties, there must be good leadership of Political parties founded
on internal democracy and duly anchored on strict adherence to the Constitution
of Political parties. There is urgent need to nip in the bud the pervasive erosion
of internal democracy in the management of the affairs of Political parties. Since,
Political parties are the base from which leaders of the Nigerian society
emerge, in the absence of independent candidacy, only good leadership and
governance of Political parties can give rise to good leadership of the larger
society. This is so because one cannot give out what one does not have. It is
simply ‘nemodat
quod non habit’! The more lip
service is paid to the overriding need, which is now imperative in the
Political landscape of Nigeria, for internal democracy, the more likely there will
be rise in the resort and or recourse to the Courts in Pre - election litigation
by aggrieved members of Political parties. As long of internal democracy is
eroded in the affairs of Nigeria’s Political parties, so long there would be no
‘de
- judicialization of Politics in Nigeria.’
The key therefore, to keeping the Judiciary out of Politics in Nigeria is
internal democracy in Nigeria’s Political parties! This would have the soothing
effect of satisfaction to vast majority of members of Political parties where
there is strict adherence to the provisions of their Parties’ Constitution and where
the whims and caprices of the privileged few in the parties, the Godfathers,
the Moneybags, the Kingmakers and the hierarchy, would be effectively curtailed.
Then there would be less and less Pre - election litigations in the politics and
affairs of Political parties in Nigeria.
The important role and or fundamental position
of Political parties in modern political process and democratic governance
cannot be over emphasized, hence the need to instill the practice of internal
democracy in Nigeria’s Political parties3. What then are the
challenges to internal democracy in Political parties? These would range from; lack
of party ideology, the overbearing role of party’s elected officials in the Executive
and Legislative Arms of Government, lack of observance of process or mechanism for
selection of party’s candidate for general elections, lack of independent
source of funding and the disruptive role of moneybags, lack of or breaches of
agreed zoning formula, highjack of party’s primaries, lack of consensus
building mechanism, lack of discipline, and arrogance of the hierarchy of
Party’s executives.
THE
OPPORTUNITIES
GIVING
EFFECT TO THE TRUE WISHES OF THE ELECTORATES EXPRESSED THROUGH THEIR VOTES AND
MAKING THEIR VOTES COUNT: Intervention
by the Courts had in many deserving cases ensured that the wishes of the
electorates is respected and made to prevail and their votes count. Fraudulent
elections, where they are proved according to law, are set aside and either
fresh or bye or rerun elections ordered and conducted by the Electoral Umpire.
Instances of these abound, ranging from the 1983 invalidation by the Court of
the purported return and declaration of Chief Akin Omoboriowo as the Governor of Ondo State and the
restoration of the wishes of the electorates of Ondo State by the due return
and declaration of Chief Michael Ajasin as the duly elected Governor of Ondo State by
the Court, the 2007 earthshaking decision of the Apex Court dismantling the
stark injustice meted to Chibuike Rotimi Amaechi by the People Democratic Party by his due
return to the Rivers State Government House, the Brick House, as Governor of
River State in place of the then Governor Celestine Omehia, the 2008 invalidation by the Court of the
purported return and declaration of Prof O. Osunbor as the Governor of Edo State and the
restoration of the wishes of the electorates of Edo State by the due return and
declaration of the Comrade Governor, AdmasOshiomole as the duly elected Governor of Edo State by
the Court. In recent times, there have been the decisions of the Courts in the
Governorship tussles in Imo State and Bayelsa State respectively as decisively
determined by the Apex Court. Thus, without the timely and due intervention by the
Judiciary, at the behest of these aggrieved persons, these injustices and
several others that doted our political landscape would have been left un -
redressed and rather ingloriously perpetuated in the psyche of the Nation. By its
well - deserved interventions in deserving cases, the Judiciary continues to
make significant contribution to the deepening of the Nation’s democratic
experiences and thereby fostering the tenets of credible elections in Nigeria.
WIDENING AND
OPENING UP THE DEMOCRATIC SPACE: By
prompt judicial interventions, the hitherto over restricted space for formation
and registration of Political parties have been widened with the result that
there is presently a great deal of political space for persons desirous of
involving themselves in politics to do so on their own terms without being
limited to very few options by way of existing Political parties. Once, an
association meets the requirements of the law it is in the spirit of the right
to freedom of association assured of being registered as a Political party to
propagate its visions and canvass for votes from the electorates. This liberal
approach to registration of Political parties was only made possible by the
proactive nature of the Nigerian Judiciary. Today, Nigerians are offered the almost
limitless opportunities in their choice of Political parties to achieve their
dreams of serving their people. Perhaps, there is still one step forward needed
to be taken in the Politics of Nigeria by due further amendment of the
Constitution of Nigeria 1999 (as amended) to provide for independent candidacy,
which would finally break the monopoly of the moneybags, godfathers and their
ilk, when qualified and societal acceptable persons can jettison the money bags
and existing ideology lacking Political parties to contest elections on their
own right as independent candidate, which is one of the hallmarks of full blown
advanced democracies of the World, such as the United States of America.
THE WAY
FORWARD - KEYS TO REDUCED JUDICIALIZATION OF POLITICS IN NIEGRIA
OVERALL GOOD
GOVERNANCE, TRANSPARENT AND CREDIBLE ELECTIONS:Whilst, conducting transparent and credible
elections has remained an albatross in Nigeria, the bigger problem which had
become anathema to transparent and credible elections in Nigeria is lack of
good governance. There can be no transparency and or credibility in any sphere
of a Nation’s life, including its elections, in the absence of good and
responsive leadership in Governance. However, good Governance is not the
exclusive preserve of the Executive at any level of governance in this Country.
The requirement for good governance entails the total efforts and collaboration
of all the three arms of Government, with each arm ensuring transparency and
commitment to its constitutionally assigned roles in the governance and
development of the Nation. Without a transparent Legislature there can be no
overall good governance, and without a transparent and credible Judiciary there
can be no overall good governance. It follows therefore, nothing can be farther
from the truth than when only the Executive is expected and looked upon not
only by the Citizenry but also by its co - burden bearers, the Legislature and
the Judiciary, to provide the overall good governance for the people of
Nigeria.
Overall good governance is therefore, the
function of all the three arms of Government working assiduously together to
make things work smoothly to the good and benefit of the Citizenry. One step of
assurance to good, transparent and credible election is the swift adoption of
the experimental Card Reader to become an integral part of the super structure
of Nigeria’s Electoral System in the same way as the Voters’ Registry has been
and still is. Nigeria must embrace the technology of the Card Reader. It has
the greater potential, if put to good and effective use, of checking rigging at
Elections in Nigeria. To this end, there is need for complete overhaul of the
Electoral System by way of urgent and comprehensive reforms and perhaps
wholesale amendment of the Electoral Act 2010 (as amended). Rather, but
regrettably too, emphasis has always and still is on the results of the
election, no matter how contrived and the loser is admonished and in some rare
cases dared to go to Court if he so wishes! Thus, whether the votes of the electorate
were duly counted and each vote given its prime place in the collation of the
total outcome of the election is of little concern to most of the ill trained ad-hoc
staff, mostly engaged by the Electoral umpire, and whose main interest is the
payment of their allowances. Serious efforts should be made at inculcating patriotic
zeal in all who would be recruited and or called upon to serve as ad-hoc staff
in every election in Nigeria. The polling unit is at the base of the pyramid
and once things are not done right there it permeates all the other levels in
the hierarchy of the election. A collation center can only but collate whatever
was brought forward to it from the polling units, yet whilst the collation centers are heavily
fortified with security and better welfare or allowances, the polling units are
mostly left to their own imagination. This must stop!
Nigeria is in dire need of Electoral best practices as obtained in advanced democracies. Electoral offences must be duly investigated no matter who was or is involved and assiduously prosecuted where an infraction is established. An Electoral Offences Commission is now long overdue. The independence and credibility of the Electoral body must transcend its mere nomenclature but must be guaranteed. It is time for the Chairman and Members of the Electoral Body to be appointed independently of the Executive to ensure their real independence and to owe their allegiance to no one but only to the Nigerian State and its people. It must be well funded and its sources of funding must be guaranteed by a first line charge on the consolidated revenue fund. It need not and must not owe any allegiance to the Executive but to the Nigerian State and its people only! Thus, to move Nigeria forward and institutionalise democratic culture through credible elections, the Electoral System must be rejigged and election malpractices, in whatever shape or form, effectively checked by correcting all the lapses apparent in the electoral system, institutions and machinery. Thus, for democracy to thrive in Nigeria, and the resultant road to good governance and consequent development, transparent and credible election is a sine quo none! There is no doubt that, and as experienced in advanced democracies of the World, notably the United States, a stable and virile democracy will invariably enthrone an unimpeded socio-economic development in Nigerian.
ENTHRONING
AND ENFORCING INTERNAL DEMOCRACY IN POLITICAL PARTIES4: Political parties must be made to enthrone,
entrench and practice internal democracy by abiding by the provisions of their
Constitutions. There must be regular convening of their National Executive Meetings,
Elective and Non Elective Conventions as prescribed in their Constitutions. They
must be observance of financial guidelines for Political parties. There must be
functional and trustworthy internal dispute resolution mechanisms. There must be
transparency in the use and administration of the finances of the Political party.
There must be clearly defined mechanism and guidelines for Party primaries for
selection of its candidates for elections. There must be independent sources of
funding and payment of dues by all members to secure neutrality of the Party
Executive in all matters affecting the members, particularly in the conduct of
its primaries.To reduce recourse and or resort to the Courts, there should be
established mechanism for Alternative Dispute Resolution, which usually ensures
a win - win outcome, to be widely explored in the resolution of internal
disputes and disagreements within the Political party for party cohesion and
mutual trust. Every registered member should be a stakeholder and his views
should count at his level of participation in the affairs of the Political
party.
POLITICAL
PARTIES COMMISSION: It is suggested
that to make breaches of Constitutions of Political parties dire and
unattractive, a Political Parties Commission be established by law either
independently or under the auspices of the Independent National Electoral
Commission. This body should be charged with the exclusive responsibility to
receive and investigate all allegations of and or reported breaches of the Constitution
of Political Parties, which I had earlier suggested must be made non
justiciable in our law being mainly a political question, and to make
recommendations to the Independent National Electoral Commission for the proscription
of such Political party if the investigation confirms such breach. I think it
is high time in this Country to not only talk tough but also to walk the talk!
Alternatively, since it is a truism that failure
or lack of internal democracy should be sanctioned by the Electoral Body, the Electoral
Act 2010 (as amended)should be amended
to empower the Independent National Electoral Commission to receive and
investigate complains of breaches of the Constitution of a Political party with
powers to enforce compliance and mete out sanctions, including in extreme cases
of proved infractions, proscription of the Political party. Since internal
democracy is key to good administration of Political parties and for the
protection of generality of members of a Political party from the whim and
caprices of the privileged few, its breach, being cancerous to the growth and
development of Party politics, must be met with surgical redress, including
proscription where necessary to send a strong signal to Political parties that
internal democracy is not an option but a sine qua none for the existence of
any registered Political party in Nigeria.
REDUCTION
OF JUDICIAL INTERFERENCE IN PARTY POLITICS:A
Political party, as duly registered under law and abiding by its Constitution
and careful to observe and practice internal democracy, is supreme in the
management and control of its affairs and its relationship with its members.
Thus, the Political party is best suited and should empowered by law to take
binding and final decisions affecting the management of its affairs and also as
affecting its members and therefore, the intervention by the Courts in the
internal management of the affairs of Political party and the relationship
between the Political party and its members must be drastically reduced and
should at appropriate level of enthronement and enforcement of internal democracy
in all Political parties in Nigeria by the Electoral Body, be eliminated and brought
to an end. The Court is not a supervisor
or superintendent in the management of the internal affairs of a Political
party, including its relationship with its members.Thus, the Court should
neither choose Candidates for a Political party nor Officers for a Political
party. These are clearly ‘Political Questions’which should be made non justiciable
by law and be left to the Political parties to handle and resolve with finality
without nay intervention of or interference by the Courts. To this end, it is
suggested that the Constitution of Political parties should by law be made non
justiciable and let the Political parties decides with finality all such Political
questions for which they are best suited and eliminate all forms interventions
and sometimes clear interferences by the Courts with the internal affairs of
Political Parties.
OUTLAW
OR REDUCE TO THE BAREST MINIMUM GROUNDS FOR PRE- ELECTION MATTERS IN NIGERIA:I find, and with utmost humility, the
provisions of Sections 31(5) and 87 (1) of the Electoral Act
2010 (as amended) as unnecessarily
meddlesome, intrusive and needless interference with the internal affairs of
Political parties on questions which are clearly political in nature and should
therefore, be preserved for the Political parties to decide with finality
politically without the meddlesomeness of the Courts. Thus, in my view, a law
authorizing and thereby emboldening ‘a person’
who believes that a declaration made by a Candidate in INCE Form CF001 and
submitted to INEC is false and wants to challenge the declarations made by a Candidate
to do so is a receipt for disaster and should be amended and expunged without
any further delays to insulate the Courts from delving into matters in Pre -
election cases, which are already part of the qualifications and non -
qualifications of Candidates and are subject to challenge in an Election
Petition by a Candidate in an Election, than to open a duplicitous floodgate,
as has been open, for a deluge of pre - election litigations by every Tom, Dick
and Harry!
It is my view that such a provision must
either be expunged or amended to limit it to any candidate in an election and
should be as part of an Election Petition to obviate the recourse to countless Pre
-election matters which usually now outlive the Election itself and in some
cases even the Election Petitions. The provisions on qualification, and by
implication non qualifications, as spelt out in the Constitution of Nigeria 1999 (as
amended) and as earlier set out in this paper,
are enough and can even be amended if need be to accommodate this ground to put
paid to this open vista for ‘a person’
to commence a Pre - election matter over disqualification of a Candidate, when
that person is not even a member of the Political party affected nor a Candidate
of any of the other registered Political parties.
To my mind, and I so strongly believe it to be
so, this is a misplaced locus standi! In a recent unreported decision of the
Court of Appeal Benin Division in Appeal No.
CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors delivered on
March 8, 2021, I had cause to reiterate inter alia thus:
“The provision of Section 31(5) of the
Electoral Act, 2010 (As Amended), talks of ‘a person’ and is the 1st
Respondent not within the meaning ‘a person’ in Nigeria? The Appellant did not
say so!....Thus, it would appear that going by the succinct provisions of Section
31(5) of the Electoral Act, 2010 (As Amended).…the meaning of “a person” as
used in Section 31(5) of the Electoral Act 2010 (as amended) presupposes any
person, including the 1st Respondent, since it appears to be open-ended
to all and at the same time inclusive of all and without any restriction or exclusion.
Thus, whether or not one is a member of a Political Party or any particular
Political party, as in the instant appeal, a PDP Card carrying member
challenging the qualification of a candidate of the APC, is of no moment as the
law allows the 1st Respondent so to do!”
Now, if the provisions of Chapter II
of the Constitution of Nigeria 1999 (as amended) dealing with clear socio - economic rights of
the Citizenry is made non - justiciable5 and the Society is coping
well with it, I do not see any reason, and justifiably so, why the law should
not make all matters touching on and arising from the management of the
Constitution of a Political party as Non Justiciable. I believe such a step,
though radical in nature but very beneficial and laudable is one sure means for
the drastic reduction of Judicial interventions and or interferences in the
internal affairs of Political parties in Nigeria, and would also be
accommodated by the society to ensure the reduction to the barest minimum of Pre
- election matters in Nigeria.
Political parties in Nigeria, though they
pride themselves as political families whenever it suits their fancy, are not a
family in any sense of the word ‘family’ but are mere coming together of
persons with common interest but with neither common aspirations nor permanent interest
such that aggrieved members should be able to exit a Political party without
bringing the roof down on the party. In order words, where strict observance of
the Constitution of Political parties is made a sine quo non for its continued
existence by law and where internal democracy is achieved, any decisions taken
by such a Political party as affecting its members, being a political
question,should be final and a member who feels so aggrieved should exercise
the option of exiting such a Political party and join or form another one if he
feels so strongly about it. After all, ‘Judicialization of Politics in
Nigeria’ had since opened and widened the Political
landscape for easy formation of associations for registration as Political
parties in Nigeria by the Independent National Electoral Commission.
However, it would appear that one of the reasons
for the reluctance by aggrieved members to exit heir Political party, which had
dealt unkindly with them contrary to the provisions of the Constitution of the
Political parties and rather inundating the Courts with Pre - election cases,
is the absence of independent candidacy in the Nigerian Constitution and thereby
limiting the political landscape and space. It is therefore, suggested that
serious thoughts should be given to the possibility of re - or introducing
independent candidacy into our National polity and Electoral system. Truly, there
are some individuals in Nigerian societies, who are formidable in character and
totally accepted by their people, and who can hold their own and do even better
in a free, fair and credible election against any Political parties in their
own localities.
It is
therefore, suggested and with the deepest humility, that the Nigerian Judiciary should
be spared the duty of resolving any legal question bordering on a political
question, involving the issue of internal affairs of Political parties and
politics in general. Politics should be left for those best suited for it - the
Politicians! It is a truism that in advanced democracies the Judiciary does
stay clear of ‘Political Questions’6 which
are better decided by the concerned other Coordinate arms of Government. In my
view, once proper modalities and needed amendments are made to our Electoral
laws and all other laws enabling it in that behalf and internal democracy and supremacy
of Political parties is duly established in Nigeria and accepted by the members
of Political parties, the Judiciary being made to stay clear of all issues
bordering or involving ‘political questions’ would not amount to any abdication
of judicial responsibilities by the Courts staying away from determining a any legal
questions bordering on a political question.
The
Judiciary, I am aware and it has been said so consistently over the years, is
never hungry for jurisdiction and therefore, where there is no jurisdiction it
would not go out of its way to assume jurisdiction. For example, it has been the
settled position of the law that the provisions of Chapter II of the
Constitution of Nigeria 1999 (as amended), notwithstanding their importance
dealing with the socio - economic rights of the Citizenry, are non justiciable unless and until the Legislature
legislates on any aspect of it to make it justiciable and it has ever since
remained so and no Court had ever dabbled into it no matter how overzealous or
altruistic such interventions would have been for the interest and benefit of
the people of this Country being brazenly deprived of their socio - economic
rights by Government after Governments at all levels in this Country. See
generally, Onuoha
V. Okafor (1983) NSCC494; Alegbe V. Oloyo (1983) NSCC315; Balarabe Musa V. PRP (1981)2
NCLR 453; Dalhatu V. Turaki (1981)2
NCLR 763; Inakoju V. Adeleke (2003)7
SC 1; AGF V. Abubakar (2002)14 NWLR (Pt. 788) 466; AC V. INEC (2007)1 SC(Pt I)
1; Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 222, and Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367.
Thus, it would appear that both Sections 87
(1) and 31(5) of the Electoral Act 2010 (as amended), which
seems to be the two principal sources of Pre - Election Matters in Nigeria,would
serve no further useful purposes if the far reaching amendments being suggested
in this Paper are accepted and adopted and all issues arising under Sections 31(5)
& (6) and 87 (1) of the Electoral Act2010 (as amended), are vested either in the Political Party or
the Political Parties Commission and or INEC to deal with finality as political
questions and therefore, non - justiciable. In such an Electoral System or
regime, such cases as Amaechi
V. INEC (2007)12 NWLR (Pt. 1048) 367, and
all other cases in that line of authorities would have been rendered needless
and unnecessary if there is the suggested legal mechanism to investigate and
sanction Political Parties for failure to observe internal democracy and
abiding by their Constitution with the possible sanction of proscription. In
such circumstances, Chibuike Rotimi Amaechi and others in his shoes would not have in the
first place been denied of the ticket but for lack of internal democracy and
complete absence of sanction for such conducts by Political Parties.
The above suggestion if accepted, adopted and
implemented would further insulate the Judiciary from intervening in such
matters which truly borders on the supremacy of the Political parties where
there is functional internal democracy and a legal mechanism to sanction
default by Political parties. Thus, Sections 31(5) and 87(1) of the Electoral Act 2010
(as amended) are,in my view,completely
unnecessary since issues bordering on qualifications and disqualifications of
Candidates at an Election in Nigeria have already been comprehensively dealt
with in the Constitution of Nigeria 1999 (as amended)and therefore, allowing ‘a person’ to
challenge a Candidate before the election proper is held is completely
distractive but has regrettably become one of the major sources of ‘Judicialization
of Politics in Nigeria’.
There is therefore, the serious or dire need
in Nigeria for the expansion of the frontiers of the ‘Political Question’
doctrine and thereby making the provisions of the Constitutions of Political
parties as Non Justiciable. There is also the further urgent and almost
imperative need to outlaw Pre - election matters in the body polity and
electoral system in Nigeria by causing appropriate amendments to the Electoral
Act 2010 (as amended) to that effect.
There is also the need, in my humble view, to limit and restrict the right to
challenge the outcome of any elections conducted under the Electoral
Act 2010 (as amended) to only the
Political party and or Candidate that was declared in the second position or
first runner up to the Political party and or Candidate declared the winner and
returned as elected by the Electoral Umpire at any given elections in Nigeria.
LIMITATION
OF LEVELS OF APPEALS:There is the
urgent need in Nigeria, and justifiably so, for Constitutional limitation of
the level of appeals in both Pre - and Post - Elections litigations. It is
suggested that all appeals arising from all Pre - election matters, in addition
to the laudable Constitutional time lines for their expeditious hearing and
determination, if there still be any need in law for such matters largely based
on political questions within the supremacy of Political parties to determine
with finality, to still be allowed to inundate the Courts, should end at the
Court of Appeal, notwithstanding the issue or issues canvassed therein by the
parties. There should be no further appeal from the decisions of the Court of
Appeal in Pre - election matters to the Supreme Court. In respect of Post -
election litigations, it is suggested that, in addition to the laudable
Constitutional time lines for their expeditious hearing and determination, all appeals
arising from decisions of the Election Petition Tribunals in respect of
elections into the National Assembly, Office of Governor and the State Houses
of Assemblies should end at the Court of Appeal, notwithstanding the issue or
issues canvassed therein by the parties. There should be no further appeal from
the decisions of the Court of Appeal in such Post - election matters to the
Supreme Court. However, in respect of Presidential Election, since the Court of
Appeal serves as the Court of First instance, the appeal as it is presently the
law should continue to lie to the Supreme Court for final determination.
AMALGAM OF
JUSTICES AND JUDGES TO HEAR AND DETERMINE ALL ELECTION PETITIONS ONCE AND WITH
FINALITY: There is the need to reduce the
time, energies and resources as well as tensions in the land over Post - election
matters by Constitutionally providing for an amalgam of Justices and Judges to
sit together as the Election Petition Tribunal and their decisions reached
thereon on any Election Petition within the Constitutional time lines of 180
days as final, and therefore, not subject to any appeals. To this end, in
constituting the various Election Petition Tribunals, Justices and Judges shall
be drawn from all the hierarchy of Courts in Nigeria into each Election Petition
Tribunal or Court and making their decision once given final. This will obviate
the huge resources and time and space usually allocated in Nigeria for myriads
of Election Petition Tribunals and Courts on appeals to Post - Election
litigations to the detriment of other equally, if not more important,National
and Citizenry based issues in the Courts, which takes the back seat and play the
second fiddle to Post - election Matters. Thus, for all Councilors and Chairmen
Elections, all Election Petitions, qualified to be heard by an Election
Petition Tribunal, should be heard and determined by an Election Petition Tribunal
made up of three persons, including a High Court Judge as Chairman, one Chief
Magistrate and one Legal Practitioner as members and their decision, which must
be reached within 90 days, shall be final. For all States Houses of Assembly
and National Assembly Elections, all Election Petitions, qualified to be heard
by an Election Petition Tribunal, should be heard and determined by an Election
Petition Tribunal made up of three persons, including one including a Justice
of the Court of Appeal as Chairman and two High Court Judges as members and
their decision, which must be reached within 180 days, shall be final. For all
Governorship and Presidential Elections, all Election Petitions, qualified to
be heard by an Election Petition Tribunal, should be heard and determined by an
Election Petition Tribunal made up of five persons, including a Justice of the
Supreme Court as Chairman, two Justices of the Court of Appeal and two Judges
of the High Court as members and their decision, which must be reached within
180 days, shall be final.
In my view there is absolutely no need for the
dissipation of so much energies, huge resources and the limited available
judicial time to be spent all on Post - election litigations running all the
way through the Judicial hierarchy from the Election Petition Tribunals to the
Court of Appeal and in some cases to the Supreme Court to the huge detriment of
all other cases involving equally and most importantly the lives. livelihood,
well being, rights, obligations and liabilities of the vast majority of the
people of Nigeria, when all Post - election matters can and should be dealt
with decisively and with finality by an amalgam of Justices and Judges from all
the level of hierarchy of Courts once and for all. In truth, it is the same
Justices and Judges that would still hear all these Post – election matter and
their unending appeals in the staggered manner it is presently being done in
Nigeria.
The above suggestions, which seems radical and
even revolutionary in a sense, are open to debate and fine tuning but it is my belief
that it is one of the panacea to the feared ‘Judicialization of Politics in
Nigeria’ wherein the intervention of the
Judiciary is being eradicated in Pre- election matters and drastically
minimized in Post - election matters to just one level of intervention. In
reality, and in practical terms, this would also reduce if not eradicate the
pervasive and much touted allegations and inference of judicial corruption in the
handling of both Pre -election and Post - election matters in Nigeria. It does
appear, from my close study of the determination of Presidential Election
Petitions during my international assignment in Sierra Leone, that an amalgam
of Justices from the Supreme Court of Sierra Leone, Justices from the Court of
Appeal of Sierra Leone and Judges from the High Court of Sierra Leone are
empaneled at once as the Presidential Election Petition Tribunal to hear and
determine all Presidential Election Petitions once and for all and with
finality, with no room for any appeals.
OBITER: NEED FOR INTEGRITY BASED
POST-ELECTION LITIGATIONS IN NIGERIA: For
integrity based and seamless Post-election litigation in Nigeria, which is an
integral part of the election processes and a requirement for free, fair and
credible elections in Nigeria, there is need, in the appointment of Judges to
the Election Petition Tribunals, to be based solely on integrity and merit.
Only Judges with proven record of integrity and commitment to their duties
should be considered and so appointed. They must demonstrate their personal
commitment to rendering undiluted justice and that persons to finally emerge as
winners or duly elected must reflect the true wishes of the electorates as
expressed by them through their votes, which must count! There must be intensive
and regular training for all Judges of all the cadre of the Courts from whose
pool Judges are appointed to the Election Petition Tribunals coupled with specific
training for those eventually so appointed. There must be enhanced allowances
to the Judges so appointed to assure their integrity, which is measured by
their commitment to principles of justice and fairness and ensure their contentment,
which is receiving with contentment what one should get as approved allowances
and not necessarily what one ought to get. There should be timely approval and prompt
releases of funds earmarked for Post- election litigations and improved
facilities for the operation of the Election Petition Tribunals across Nigeria.
It must always be kept in mind that the 2023 General elections are almost around
the corner and it is a very crucial election in Nigeria coming immediately
before the completion of tenure of most of the incumbents in 2023.
CONCLUSION
The theme of this Law Week: “Judicialiszation of Politics in Nigeria” is novel and so also is the
treatment of it in this Paper, both novel and radical! It has been demonstrated
that though the Courts are empowered by the Constitution of Nigeria 1999 (as
amended), in various of its provisions, particularly Section 6(6)(b), to hear
and determine disputes between the Citizenry and also as between the
Government, its institutions and the Citizenry, yet there are clearly defined
circumstances in which the Courts would decline to intervene whenever they are not
endowed with the requisite jurisdiction by law so to do. The classical example
of this, though many others abound, is the provision of Chapter II of the
Constitution of Nigeria 1999 (as amended0, dealing with the very important
socio - economic rights of the Citizenry but yet made non justiciable by law,
and the Courts do stay away from intervening!
In Electoral matters, whether in Pre
- election and or Post - election litigations, the Courts have unwittingly with
no fault of their own been inundated with a deluge of Political cases.
Interestingly, nowhere is the deluge or avalanche or indeed the tsunami of
Political cases felt more nowadays than in Pre - election matters, with the
potential to rise through the base of the superior Courts to the Apex Court on
the pyramid and with infinite possibilities, including the removal of persons
already sworn or about to be sworn into office. It has been suggested that if
adherence to internal democracy by due compliance by Political parties with the
provisions of their Constitutions is secured and strictly enforced with
sanctions for any proved breaches by either the Independent National Electoral
Commission or by the new proposed body, the Political Parties Commission, and since
the principal grounds for the deluge of Pre - Election matters inundating the
Courts are issues bordering on lack of internal democracy and making it seem
there is “Judicialization of Politics
in Nigeria”all such grounds
for Pre - election matters can be accommodated through pertinent amendments to
the extant laws and be incorporated into Post - election matters, and
therefore, Pre - election matters should be done away with in its entirety or
reduced to the barest minimumin Nigeria.
Finally, it has also been suggested
that Post - election matters be heard and determined by Election Petitions
Tribunal constituted by an amalgam of Justices and Judges from the hierarchy of
the Courts in Nigeria and be heard and determined once and for all with
finality within the Constitutionally stipulated time lines of 180 days, with no
appeals.
Now, I must point it out at once that
the scope of this novel theme is huge but I have in these few 44 pages
endeavored to, as much as practicable, put down my thoughts and it is my hope
that, though it is almost impossible for a single paper of this nature to cover
the field, this paper would lead to fruitful deliberations and thought
provoking discussions and if that happens, then my task, which at first
appeared daunting and herculean, would have been faithfully discharged.
APPRECIATION
I have in these few
44 pages attempted to put my thoughts on the theme, though novel, as assigned to
me as much I understand it. However, I do not claim to have covered the field,
bearing in mind the novelty of the theme. I only hope that I have been able to
present this paper in a manner that is understandable and underscores the
crucial importance of the issues discussed herein. It has been a privilege for
me to prepare and present this Paper. I express my deepest appreciation to Barr.
Felix T. Okorotie, the Chairman, the Executives and Members of the Yenagoa
Branch of the Nigerian Bar Association,as well as Prof Solomon T. Ebobrah, the
Chairman and Members of the 2021 Law Week Planning Committee,for this singular honor
and privilege. I acknowledge and appreciate all the Writers and Scholars, whose
works I had used in the preparation of this paper for the guidance offered by
their very enriching works. However, I bear full responsibility for every
errors or omissions in the contents of this paper. In all, it has been a most
refreshing and rewarding exercise for me preparing and presenting this paper
before this distinguished participants. The joy of this fellowship has been
mine indeed!To God, Be all the Glory, Amen.
Sir
Biobele Abraham Georgewill JCA, DSSRS, Ksc
Court
of Appeal, Benin Division
Lord
Chancellor, Diocese of Niger Delta, Church of Nigeria Anglican Communion
Former
Chairman, Presidential Investigation Panel of Rules of Engagement by the
Nigerian Armed Forces in the Fight Against Insurgency and Militancy
Immediate
Past Chairman, Sierra Leone Presidential Commission of Inquiry on allegation of
Corruption Against the Government of President Dr. Ernest BaiKoroma from 2007 -
2018.
1.See “Culture of Failed Elections:
Revisiting Democratic Elections in Nigeria, 1959–2003” by Michael M.
Ogbeidi University of Cape Coast, Ghana.
The Courts
And Internal Democracy In Political Parties” by Dr. Muiz Banire October 8, 2018.
3. See “Challenges
of Internal Democracy in Nigeria’s Political Parties: The Bane of
Intra-PartyConflicts in The Peoples Democratic Party of Nigeria” by Chris C. Ojukwu & Tope Olaifa 2011
Global Journals Inc.(US).
4. ibid
5. “Non-Justiciability of Chapter II of the 1999
Constitution: A Hindrance To Nigeria’s Development” By Festus Ogun.
6. For further readings on the issue of Political
Question and Non - Justiciability, See “Justiciability
Theory Versus Political Question Doctrine:Challenges of the Nigerian Judiciary
in the determination ofElectoral Cases” ByWahab O. Egbewole PhD & Olugbenga A. Olatunji.