Nigeria’s Judiciary, Legislature On Electoral Trial
*By Paul Ejime
The delivery of credible elections is the collective responsibility of multiple stakeholders, including the three arms of government – legislative, executive and judicial – the security agencies to secure the votes, electoral umpires, politicians and political parties, non-state actors such as civil society, the media and the electorates themselves.
Central to the success of this democratic enterprise is a guaranteed political level playing field where the stakeholders and actors operate unfettered under transparent, unambiguous legal frameworks such as the national Constitution and the Electoral Laws, an independent judiciary, with demonstrable impartiality in the enforcement of electoral laws.
The drafters of national Constitutions and the Electoral Acts envision and often make provisions for recourse to the judiciary, usually as a last resort for settling electoral disputes and the “last hope of the common man.” This is to safeguard the electoral system and prevent to recourse to violence in resolving electoral disputes.
After the political debacle that ended Nigeria’s First Republic, it was a Supreme Court verdict that finally settled the 1979 presidential contest which ushered the Second Republic before the military struck again in 1983. Since then, there have been other major judicial decisions on electoral matters in the country.
Regrettably, judicial interventions have become so pervasive resulting in what some now call the “judicialisation of democracy” in many countries. It is unlikely that the makers of the electoral legal frameworks ever contemplated the level of abuse and reckless misuse unleashed upon the electoral process in recent times, to the point of endangering the chances of credible elections and consolidation of democracy in Nigeria.
The worrisome situation is such that the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Mohammed, the Chairman of the National Judicial Commission (NJC), had to summon six Chief Judges recently over “conflicting court orders” emanating from their states.
The Chief Judges were required to appear before the NJC to explain the conflicting orders by the courts of coordinate jurisdiction in Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo states. Most of the cases involved pre-election primaries of political parties, with the latest related to the Anambra governorship poll slated for November 21.
The Nigerian Bar Association (NBA) has also condemned the “unfortunate and recurring trend” of contradictory court decisions on political matters.
In a statement, NBA President Olumide Akpata, said the “actions of the six chief judges bring the judiciary and the entire system of administration of justice to ridicule.” He noted that, while the judiciary had made “invaluable contributions” to the development of the country, some “failings would remain permanently interred in the dark annals of history.
“These developments in our courts are antithetical to the actualization of the just society and independent judiciary that we all aspire to, and they run contrary to everything we teach and hold dear as a profession,” Barrister Akpata said. He affirmed that the NBA, “as the prime defender of the integrity and independence of the judiciary will not be a spectator whilst our hard-earned democracy is threatened by the venal acts of a few.”
But apart from the judges, Akpata said: “we must first look inwards and call out our (lawyer) members, most of whom are senior members of the Bar, who continue to yield themselves to be used as willing tools by politicians to wantonly abuse the judicial process.”
With more than 84 million registered voters for the 2019 elections and the possibility of an increase to 100 million at the end of the ongoing Continuous Voter Registration (CVR) by the Independent National Electoral Commission (INEC), Nigeria with an estimated national population of 210 million, would be ranking among the largest democracies in the World.
The regular and off-season polls conducted in the country since its return to civilian rule in 1999 after prolonged military rule have posted mixed results with all six presidential elections decided by the Supreme Court.
The Prof Mahmood Yakubu-led INEC has made no secret of its commitment and determination to deliver on its mandate of giving Nigerians free, fair, transparent and credible elections using appropriate technology. However, the Commission remains concerned over the negative consequences of the incessant judicial interventions, especially conflicting court orders.
At separate meetings in 2018 between INEC delegations and former CJN Walter Onnoghen and the Chief Judge of the Federal High Court, Justice Abdul Kafarati, Prof Yakubu had flagged these same issues.
“My Lords, in the course of discharging our responsibilities, no public institution in Nigeria is subjected to more litigations than INEC. Over the last two years (2016 and 2017), the Commission has been involved in 454 court cases, in addition to 680 cases determined by the Election Petition Tribunals, arising from the outcomes of the 2015 General Elections, making a total of 1,134 cases so far,” the INEC Chief had lamented.
He explained that “…in a recent leadership crisis in one political party, the Commission was served with six conflicting judgments and orders from courts of coordinate jurisdiction within three months (May-July 2016).”
Four years on, instead of an improvement, the situation has deteriorated, prompting a recent warning by INEC that Nigeria’s electoral process could be jeopardized ahead of the 2023 general polls.
“What is going on is what in legal parlance, we call ‘forum shopping’ – people who are looking for a place where they can get a favourable decision,” said Mr. Festus Okoye, INEC National Commissioner and Chairman of Information and Voter Education Committee, on a recent private television programme.
Mr. Okoye, a lawyer himself, therefore urged the NBA and the judiciary to intervene “because, if this spate of multiple and conflicting court orders is carried forward to the 2023 general elections, it is going to have far-reaching consequences on our electoral process.”
While resort to legal option is legitimate by aggrieved persons to seek redress, instead of taking the law into their own hands, the gains from efforts towards improving the electoral process and consolidation of democracy could be lost with the potential danger of political upheaval, unless the unending destabilizing judicial interference is curbed.
As part of the disciplinary measures to curb the serial abuse of the legal process, Nigerian lawyers and judges could borrow a leaf from a US District Judge Linda Parker of Michigan, who recently upbraided prominent lawyers who represented former President Donald Trump in his 2020 presidential election defeat cases.
The judge did not only sanction the nine lawyers for falsely alleging voter fraud, but she also ordered them to pay their opponents’ legal costs and undergo 12 hours of legal education. The lawyers were also referred to the Michigan Attorney Grievance Commission and local disciplinary Committees for further actions, which could include nullifying their licences.
Other major culprits in the abuse of the legal processes are the politicians, who provide the resources for ‘forum shopping.’ As an integrated approach to arresting this phenomenon, the legislative and executive arms of government must work with the judiciary to rein in all culprits to ensure that the electoral umpire discharges its responsibilities without legal encumbrances.
Before proceeding on a recent recess, the Nigerian Parliament (National Assembly) came under heavy criticisms for passing the Electoral Act Amendment Bill 2021 with some controversial provisions. The fact that the Bill still has to be considered by the Joint Committee of the two Chamber legislature, before a presidential assent gives the lawmakers an opportunity to redeem themselves by cleaning up the Bill.
A major sticking point is the electronic transmission of election results. Already, INEC has repeatedly pledged its assurance and readiness to transmit poll results electronically, having piloted the scheme successfully in three recent governorship elections.
While acknowledging INEC’s selection for the Government Agency Award 2020 by the Leadership Media Group in Abuja last week, Prof Yakubu reiterated that with the deployment of technology during elections, the Commission “now serves Nigerians better.”
In 2018, the Commission with partners organized an International Conference on best practices peer-learning, and exchange of knowledge and experiences on the use technology in elections. The National Assembly should not be a stumbling block to INEC’s technological progress.
Also, the lawmakers’ attempt to subjugate INEC to approval by the legislature or the government’s National Communications Commission before activating electronic transmission of results even when all other aspects of the electoral process are technology-driven is not only unconstitutional, but will make nonsense of INEC’s independence.
Other aspects of the Electoral Bill requiring review include the hike across board of the deposits or application fees for candidates running for political offices. For instance, raising the presidential candidate’s deposit from one billion to 15 billion Naira is not only discriminatory and against the present government’s anti-corruption stance, but could also make political contests in Nigeria the exclusive preserve of the rich, to the exclusion of a vast majority of the population.
The overwhelming opinion is for a Nigerian Electoral Act and electoral framework that provide for diversity and inclusivity. There should also be a stringent deterrent against electoral offences, an unbundling of INEC to reduce its workload and clear provisions for consequences against frivolous judicial interference by errant lawyers, judges and their politician accomplices.
These and other measures are necessary to strengthen Nigeria’s electoral system. They will also guard against surrendering the electoral process and the outcome of elections to the judiciary or individuals with deep pockets, thereby rendering voting and the ballot box meaningless.
If the intention is for Nigeria’s long-delayed amended Electoral Act to become operational by 2023, it must be passed at least six months before that date going the relevant Protocol of the regional bloc, ECOWAS. So, time is of the essence!
*Paul Ejime, an Author and former Diplomatic/War Correspondent, is a Consultant on Communications, Media, Elections and International Affairs.