Nigeria: When Judges Become Our Electoral College

27 February 2020
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While blaming the ruling All Progressives Congress (APC) National Chairman, Comrade Adams Oshiomhole for "the problems associated with candidates' selection process" in the party, the Director General of the Progressives Congress Forum, Mr. Salihu Lukeman added that democracy in Nigeria is now anchored not on the choice of the electorate, but on "what can be regarded as an electoral college". As he put it, "Citizens can vote but our Supreme Court will eventually determine the winner." His reaction was to the internal contradictions within APC but he could not have been more apt about what democracy has become in Nigeria today.

No case demonstrates this as vividly as that of a federal constituency in Kano. In May 2019, by the order of a Federal High Court, the Independent National Electoral Commission (INEC) issued a Certificate of Return for the House of Representatives seat in Sumaila/Takai Federal Constituency to Shamsuddeen Dambazau, son of the former Chief of Army Staff, Lt. General Abdulrahman Dambazau, who also served as Minister of Interior until last year. The certificate was withdrawn from Kawu Sumaila, a former senior special assistant to President Muhammadu Buhari on National Assembly matters and handed to Dambazau who did not participate in the election.

The problem started with the senatorial primaries where Sumaila lost to the incumbent Kabiru Gaya, a former Governor of the State on the same day the House of Representatives nomination was conducted. As 'compensation', the APC gave him (Sumaila) the House of Representatives ticket which Dambazau successfully challenged after the election. But Dambazau had spent just only four months as a Honourable member when, in another twist, the tribunal ordered INEC to issue the certificate of return to Surajo Kanawa, the defeated Peoples Democratic Party (PDP) candidate! When the case went to the appeal tribunal, Dambazau drew the attention of the court to the supreme court ruling and eventually regained the seat.

Democracy, according to Ross Feingold, is considered the most legitimate form of government because the power of choice rests with the people. "But when this power dynamic is altered and citizens lose their influence, the legitimacy of the system is threatened". That is where we are in Nigeria today because the choices made by citizens with their ballots are being increasingly rendered useless. And this threat to 'the legitimacy on the system' is coming from our courts, including the highest court in the country whose decisions are not only final but affect those of lower courts.

Yesterday, the Supreme Court put a final seal on the Bayelsa State gubernatorial election by dismissing the review application of Mr David Lyon. The ruling APC candidate had won the election in the state before the recent Supreme Court judgement that due to multiple certificates (with different names) presented by his deputy, the votes accorded him be voided and his defeated PDP opponent be declared winner. That, of course, is pleasing to the PDP leaders who have been carrying their pot bellies from one embassy to another in an ill-advised campaign against the Supreme Court. Sadly, it has also led to a more sinister decision by a number of APC hoodlums to lay siege to the home of a supreme court Justice. But whichever way we look at the ugly developments, it is very disturbing that the integrity of judgements coming from our courts is being openly questioned. More worrying is that in Nigeria today, neither those who cast the ballots nor those who count them is important in the democratic process. The decision as to who represents the people is now with Judges.

Since the conclusion of the 2019 general election, INEC has been compelled by the courts to withdraw 121 certificates of return from winners and award them to someone else, including those who were not even on the ballot during the election. 91 of these cases were pre-election matters which arose principally from the conduct of party primaries, even though on balance, the PDP has benefitted significantly from the crisis in APC. Meanwhile, it is only in 28 cases that INEC was asked to withdraw certificates from the winners on account of issues arising from the elections. Since that speaks to the management of political parties, there is need to look at the electoral act in a bid to solve the problem. But the greater problem is the confusion being created by Judges and the inconsistencies that put our democracy in peril.

For instance, one provision of our law that is being abused by politicians with the active connivance of some Judges is Section 87, subsection 10 of the Electoral Act 2010 (as amended) which states: "Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress."

Even when the Supreme Court has settled this issue, the courts in Abuja are making a mockery of the rule of law as exemplified in the tussle for the Anambra South Senatorial seat by the trio of Chris Uba, Ifeanyi Uba and Obinna Uzor. In the election of February last year, Ifeanyi Uba of the Young Progressives Party (YPP) was declared winner while the defeated Chris Uba of the PDP petitioned the tribunal where he lost. The appeal tribunal also dismissed his petition. But Chris Uba and Obinna Uzor (who claims to have won the PDP ticket) have secured separate judgements in Abuja to throw Ifeanyi Uba out of the Senate, on account of the allegation that he forged his NECO certificate. The question is, should the courts in Abuja be entertaining an election case already settled in Anambra State?

That question is important against the background of the Supreme Court decision in the case of Audu v. APC, where the court held: "A court in one state does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another state. By the Nigerian Constitution, each state of the federation is independent of the other and the jurisdiction of each state is limited to matters arising in its territory. Jurisdiction is not limited to be assumed, but must be based on the constitutional provisions that established the court."

Apparently for the sake of emphasis, Justice Kekere-Ekun made the position very clear in the judgement: "The provision of section 87(9) of the electoral act 2010 (as amended) which provided that an aspirant may approach the federal high court or the high court of a state or the FCT for redress is to enable him approach the court nearest to him. It is not an 'open sesame' for the aspirant to institute his action before any of the named court outside the geographical area where his complaint arose."

Despite this judgement, the two Ubas and Uzor are shopping from one Abuja area council to another to obtain judgements in courts of coordinate jurisdictions that are nullifying one another!

That election matters have done incalculable damage to our judiciary can also be glimpsed from the inconsistencies that arise from our courts. Following his defeat by Dr Datti Baba-Ahmed at the 2011 general election, former Kaduna State Governor and then Senator representing Kaduna North Senatorial District, Ahmed Mohammed Makarfi, approached the Tribunal. Alleging ballot stuffing, use of fake, unsigned and unstamped ballot papers among other malpractices, Makarfi asked the tribunal for a recount of the ballot papers and his wish was granted. In the end, Makarfi was declared winner with majority of lawful votes of 364,801 against Baba-Ahmed's 356,579 votes. Despite the fact that the Tribunal played the role of INEC in that case, when the defeated gubernatorial candidate of the defunct Congress for Progressive Change (CPC), Mr Haruna Saeed Kajuru asked for a recount of the votes in the keenly contested election, the same tribunal dismissed his petition.

But perhaps the most controversial election case is that of how the 'Ajekun Iya' exponent, Dino Melaye was bundled out of the Senate based on a clerical error that had nothing to do with the result. Instead of 23rd February when the election was conducted, the returning officer wrote 25th February, the day the result was declared. When Melaye's lawyer asked the appeal tribunal to tally the figures as proof that the result was genuine, the Judges said it was not their responsibility to be doing INEC job. The election was nullified on that basis. This position would further reveal the inconsistency in the judiciary given what transpired in Zamfara, Imo and Bayelsa gubernatorial election cases finally decided by the Supreme Court.

In Zamfara, after disqualifying the APC candidates as not duly nominated and voiding the votes secured by the party for all elections in the state, the Supreme Court asked INEC to do the needful by tallying the numbers and declaring results on the basis of constitutional requirements of majority votes and spread. That was how the defeated PDP gubernatorial candidate became governor. The same decision was taken after the gubernatorial election in Bayelsa was voided due to the infractions of the running mate to the APC candidate. The Supreme Court directed INEC to compute the figures and declare results, following the same constitutional provisions. But with regard to Imo State, without even presenting any figure, the Supreme Court declared as winner the man who came fourth in the election. This is despite the fact that in paragraph 39 of his original petition, Hope Uzodinma actually stated that INEC ought to have conducted supplementary elections in the 388 polling units before declaring a winner. Besides, even if persuaded that Uzodinma secured all the votes he claimed from his 388 polling units, should INEC not have been directed to accept the results, and then conclude the exercise (including determining the issue of spread) as the Supreme Court decided in Zamfara and Bayelsa gubernatorial cases?

It is indeed telling that despite giving Uzodinma the certificate of return that made him Imo State Governor as directed by Supreme Court, INEC website still retains the election result that returned Emeka Ihedioha as winner. It is understandable. To tamper with the result would mean that the total votes cast in the election were more than the accredited number by 131,340. Which is why the judgement would forever remain controversial.

This then brings me to the question of the involvement of the supreme court in gubernatorial matters. Until 2011, gubernatorial elections ended at the Court of Appeal. But by assuming the jurisdiction it did not have in the controversial Sokoto State gubernatorial election matter (which led to a serious scandal between Justice Katsina Alu and Justice Ayo Salami and brought the judiciary in Nigeria to disrepute), the Supreme Court entered the fray. That is how we eventually arrived at current situation in which there are three litigations for gubernatorial election: Tribunal, Appeal Tribunal and the Supreme Court. For all other positions, including the presidency, there are only two litigations.

In his response to written questions by Hon John Thune during a congressional inquiry into Federal Circuit review and veteran laws in the United States, Justice William P Greene, posed a question: "Does an additional layer of appellate review add benefits that outweigh the associated costs?" Greene then went on to quote the observation by Supreme Court Justice Robert Jackson which many now use to justify why the supreme court should review the Imo case: "Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final."

At the end, it is very clear that while the political parties must wean themselves of bad behaviour in the conduct of their primaries to nominate candidates for elections, both the Constitution and the Electoral Act would have to be amended. We cannot continue with a situation in which Judges will veto the choices of the electorate on the basis of technicalities. If this democracy is to survive, it is imperative that the judiciary as an institution and judges as individuals not only to be impartial to those who appear before them but also that the wider public have the confidence that cases affecting their well-being will be decided fairly and in accordance with the law.

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