5 September 2008
opinion
Lagos — The Polity By Yusuph Olaniyonu
Asenior colleague once told me the story of a hot exchange he had with a relative who is a politician based in his local government area. The election of their state governor had just been nullified. During a discussion with his relative, my colleague noted that the tribunals were really trying to correct the anomaly that characterised the 2007 polls. The other man who belongs to the same party as the governor whose election has been nullified rejected such suggestion. He then reminded the journalist not to rejoice too soon because the governor will go on appeal. Fine, the journalist said, and noted that the verdict may remain the same. The politician then said the issue is not what the verdict would be but when the verdict would be given.
According to the politician, the candidate who had been declared winner may wait until the governor has almost served out his four-year term before he can get the judgement on the appeal. At that point, the journalist was not ready to continue with the argument which he thought was no longer driven by logic. He asked the politician: "Are you or your party the Court of Appeal with powers to decide what the court would do?"
Though the journalist did not wait to get the answer to his question raised over four months ago, it is appearing that he is wrong and the politician-relative of his is right. An indication to this is that five months after Professor Oserhiemen Osunbor, the learned governor of Edo State filed an appeal challenging the decision of the Edo State Governorship and Legislative Election Tribunal which reversed on March 20, 2008 the announcement by the Independent National Election Commission (INEC) that he was the duly elected candidate in the April 21, 2007 election in the state, nothing has been done or heard on the appeal.
No panel has been set up to hear the appeal and therefore no date has been fixed for the hearing of the appeal to commence.
The constitution in its Sixth Schedule, Section 1 (B) (3) empowers the President of the Court of Appeal to constitute the election petition tribunals and the appellate tribunal. This means that Justice Umaru Abdullahi who is the occupant of the position is the one who has not deemed it necessary to appoint members of the appeal tribunals to hear the case filed by Osunbor challenging the declaration by the tribunal that his opponent, Comrade Adams Oshiomhole is the validly elected candidate into the position of governor of Edo State.
The eminent judge who presides over the second highest court in our judicial architecture knows more than many Nigerians the meaning of the general saying that 'justice delayed is justice denied'. Justice Abdullahi is also conversant with the provision of Section 148 of the 2006 Electoral Law which stipulates that: "Without prejudice to the provisions of Section 294 subsection (1) of the constitution of the Federal Republic of Nigeria 1999, an election petition and an appeal arising there from under this Act shall be given accelerated hearing and shall have precedence over all other cases or matters before the tribunal or court." The Section 294 (1) referred to by the Electoral Act had directed that judgement must be given not later than 90 days after conclusion of evidence and final addresses by all parties to a case.
Despite the fact that the Supreme Court had in the cases of Aper Aku V Paul Unongo and Buhari V Obasanjo ruled that a court cannot be compelled to conclude a case within a particular period, it is obvious that in this particular case as we have in Edo state governorship appeal petition, the tribunal has not even been constituted. So, no case can even be made of any attempt to hurry the court to conclude a case that it has not started. As it is today, Justice Abdullahi has not given any reason why he has not constituted the appeal tribunal on the Edo case.
The delay in constituting the panel is not only a miscarriage of justice, it is a denial of justice. It is not only in Edo State that the refusal of the Appeal Court president to constitute the appeal tribunals has continued to prolong the pains of the much criticised 2007 elections. In Abia State where the tribunal declared the candidate of the Peoples Democratic Party (PDP), Chief Onyema Ugochukwu winner of the election instead of the retuned candidate by INEC, incumbent governor Theodore Orji, the latter's appeal is still pending. Also in Ondo State where incumbent governor Olusegun Agagu lost to the petitioner, Dr. Olusegun Mimiko, there is still no appeal panel to hear the case.
The common trend in these cases is that the governors are the petitioners. And by the provision of Section 149 (1) and (2) of the Electoral Act, the action of the honourable judge in refusing to set up a panel to sit over the appeal puts the appellants, the governors, in an undue advantage over the successful petitioners. The governors/appellants remain in office until their appeals are finally decided. So, if for example, Justice Abdullahi continues to ignore the calls to set up appeal panels to hear the appeals by these three governors until 2010, then the governors will continue to exercise their mandate, not minding the vitiation of such mandate by the election tribunals. We can stretch our imagination further on the implication of the delay in the constitution of election appeal panels.
If the appeal panels are then set up in 2010, for instance, and in their eventual verdicts, they order that fresh elections should take place in any of the states, then any of the affected governors could then go for the re-run polls despite having spent three years in office without a valid mandate. Following the prevailing trend, the governor who would have access to state funds and enjoy a near power of incumbency can then find it more convenient to win the re-run polls. He would then have a fresh four year term. This would make it seven good years spent in the course of one constitutional term of office that ordinarily should only span four years.
Where will all these calculations lead our democracy which some still describe as 'nascent,' after almost a decade? I have too much respect for the judiciary and even reverence for the sacred seats occupied by my lordships as to insinuate that they are aiding the politicians to erode the basis of democracy and encouraging anarchy. However, it goes without saying, some politicians are already giving the impression that the delay in setting up of appeal tribunals is one of the designs of the establishment to keep in office whoever they like, not minding what the electorate desire or what a section of the judiciary decides.
If a lowly politician who had the above encounter with my senior colleague could boast that a governor whose election has been nullified would be in office almost for the duration of his tenure before the victorious petitioner can get the final decision on the appeal against the tribunal's judgement, then only God knows what kind of jokes are being cracked in the inner recesses of power on the fate of these successful petitioners at the tribunal level.
I enjoin the respected president of the Court of Appeal to perform his constitutional responsibility now by setting up the appeal tribunals so that they can hear the pending appeals arising from the tribunal verdicts. The failure to set up the appeal panels has made nonsense of the provision of Section 149 (1) and (2) of the Electoral Act that stipulates that appeal against the verdict of the election tribunal should be filed not later than 21 days after the judgement of the tribunal. Read together, the provision of Section 148 and sections149 of the Electoral Act show that the lawmakers intended that litigation over elections should be dispensed with as quickly as possible so that political office holders can concentrate on the development of their constituency through the exercise of full, unencumbered mandates. A governor who is only exercising powers by holding on to the straw of a pending appeal is not exercising full mandate. He can be easily distracted. He also has to contend with an opponent who is buoyed by his victory at the tribunal and who alongside his supporters can become desperate to assume office by working to sabotage the efforts of the incumbent who is seen as a usurper. All these developments are not good for our polity.
We need to conclude election matters as soon as possible so that we can give development efforts some chance before 2010/2011 when electioneering process will start again. Justice Abdullahi needs to act swiftly now. Nobody who has genuine intention enjoys the snail-speed at which the machine of justice is grinding on the 2007 elections. Apart from the cases of the incumbent governors who lost at the tribunals, there are others who won at the tribunals and the petitioners still proceeded on appeal. This is the case in Oyo, Osun, Ekiti and several other states. These appellants also deserve to get justice, and fast too. In some other states like Delta and Ogun States, the Appeal tribunals ordered the retrial of the cases by the trial tribunals. Yet, nothing has happened 18 months into the tenure of the incumbents whose mandates are being challenged. I had thought the proper thing would have been for the appeal tribunals to give its judgement instead of referring the matter back to the election tribunals. This going back and forth on election petitions only prolong the matter. This is because months after the matters were referred back for retrial, no progress is being made as the petitioners insist that the tribunal panels which gave the judgement faulted by the Appeal Court should not sit on the case a second time in order to foreclose any possible miscarriage of justice.
All these developments constitute a sad commentary on the state of the nation. Justice Abdullahi should act now and save the good name of the judiciary that is already hemorrhaging. The judiciary remains the hope of the high and the lowly. It cannot afford to be weak and unresponsive to the yearning of the masses.
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