Romanus Okoye
After every election in Nigeria, the popular axiom from both the politicians and the electoral umpire is that “go to court if you’re not satisfied with the outcome.”
While most litigants who approach the court eventually get respite, many have lost their cases to mere technicalities and intrigues.
Only recently, in a unanimous judgment of a five-man panel led by the acting Chief Justice of Nigeria, Justice Tanko Muhammad, the apex court upheld the decision of the Sokoto Division of the Court of Appeal to the effect that the All Progressives Congress, (APC) did not conduct any valid primary election in Zamfara State, and as such had no candidate for any of the elections in the state.
Consequently, the Peoples Democratic Party’s (PDP) candidates, that came second at the February 23 and March 11, 2019 elections, emerged the winners in the governorship, state House of Assembly and the National Assembly electoral seats.
While commenting on the application of legal technicalities that gave the PDP victory despite the landslide victories of the APC, Professor Itse Sagay wondered why it had to be so.
He argued that even if the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote?
“Is the electorate to be punished for the transgressions of party officials? Should the judiciary replace the electorate’s decision and install losers in office? Could the judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity? “ Sagay asked.
He also asked if the APC officials could not have been punished, for their lapses without denying the electorate their democratic rights.
He went further to add that the Supreme Court was specially endowed with the power and authority to do justice and to ignore law when it was technical and would create injustice, and to avoid at all cost a mechanical approach to the interpretation of the law.
But on his part, another legal icon, Professor Ben Nwabueze, noted that decided election cases show convincingly that there was, on the part of the courts in Nigeria, a certain predisposition, if not an overzealousness, to make the technicalities of the law, rather than the lawful votes cast at the election, the determinant of who should govern.
He said: “It should be stated at the outset that the problem here does not arise from the rules of the substantive law, unduly technical as they may sometimes appear to be, but rather from the technicalities of the rules of pleadings and procedure, the technicalities of the law of evidence, – what Krishna Iyer has described as ‘the tyranny of procedure’, the horror of the doctrine of precedent with its stifling and deadening insistence on uniformity, and the booby traps of pleadings.”
Citing the technicalities enthroned in Buhari and Anor v. Obasanjo and Others, Professor Nwabueze noted that much of the 315-page judgment in the Supreme Court and 361-page judgment in the Court of Appeal was taken up by analysis of the abstruse rules of the law of evidence and procedure – direct and hearsay evidence, onus and standard of proof, presumptions, joinder of parties and procedure generally.
He further stated that “the judgments read indeed like a treatise on the law of evidence and procedure”. This, he said, may not be objectionable per se. “But what is definitely objectionable is the undue reliance on such legal technicalities to defeat the claim of the petitioner cum appellant for nullification of the presidential election.”
He said that it created a situation much like that aptly described by a Supreme Court judge, Justice Kayode Eso, in Nwobodo v. Onoh as “ the appointment of a president…. By mere technicality and not by majority of votes.”
Before the 2019 elections, a Senior Advocate of Nigeria, Chief Wole Olanipekun, while delivering a lecture titled, “The 2019 General Elections and Sustaining Nigeria’s Democratic Process,” said that before the advent of the 1979 Constitution, the Nigeria Judiciary did not get itself much involved in election matters.
He said: “One can dare submit that some of the political cases adjudicated on by the Supreme Court pre- 1979 Constitution like Awolowo v. Minister of Internal Affairs, Balewa v. Doherty, Akintola v. Adegbenro, Olawoyin v. Attorney-General, Northern Nigeria etc., were not on whether or not a particular candidate won an election or that his election be nullified.”
The learned silk stated that court’s involvement started from the highly contested case of Awolowo v. Shagari. “The Supreme Court was beckoned on to nullify a presidential election, and the ultimate decision of the Supreme Court attracted a lot of criticisms, and even denigrating comments against some of the justices.”
He noted that since then, and more importantly, since the advent of the fourth Republic which is anchored on the Constitution of the Federal Republic of Nigeria, 1999 as amended, the floodgates have been opened for the judiciary to interfere, meddle, dabble into and adjudicate on very sensitive election issues.
This, he said, has led to a host of decisions, whereby, Nigerian politicians and political class, who applaud the judiciary whenever a particular judgment goes their way, have persistently denigrate the Nigerian judiciary and its personnel for some of the judgments they could not swallow.
He recounted many of such cases thus: “It was through the judicial fiat of the Supreme Court that Governor Rotimi Amaechi of Rivers State assumed office as governor. The Supreme Court had held that it was a political party that contests election and not the candidate. In effect, the votes cast for the Peoples Democratic Party in the Rivers State governorship election in 2007 were appropriated to Amaechi, who did not participate in the election, but who, through his pre-election suit, claimed that he ought to have been the candidate of the PDP.
“In INEC v. Oshiomhole, the apex court nullified the election of Professor Oserheimen Osunbor and acceded to the petition of Adams Oshiomhole that he should be declared as governor of Edo State, having won the majority of lawful votes cast at the election.
“In Agagu v. Mimiko, the Court of Appeal also nullified the election of Agagu and acceded to the relief of Mimiko that he be declared as governor- elect of Ondo State having won the majority of lawful votes cast at the election.
“In Fayemi v. Oni, Fayemi also succeeded in judicially dislodging Segun Oni as governor of Ekiti State on similar grounds. In Aregbesola v. Oyinlola, the same scenario earlier highlighted for Oshiomhole, Mimiko and Fayemi was judicially re-enacted and Aregbesola became governor of Osun State.
“The Obi v. INEC’s case lasted for over three years before Peter Obi could judicially dislodge Dr. Chris Ngige as governor of Anambra State, after a fiercely contested electoral petition.”
Continuing, he said: “In Faleke v. INEC, Governor Yahaya Bello, who was not candidate at the Kogi State governorship election in 2015, and who was also proven not to be a registered voter in Kogi State became governor of the State.
“Bello came a distant second to Abubakar Audu at the primary election of the All Progressives Congress. In a normal clime where the tenets of democracy are adhered to and where the votes actually count, there was no justification to resort to litigation over the Kogi governorship matter after the death of Abubakar Audi as the election was already concluded and a clear winner emerged. But INEC chose to declare an already concluded election inconclusive. What happened thereafter is now history,” Olanipekun said.
Also, on the sacredness of the judiciary he said: “the judiciary is a sacred arm of government which should be insulated both from politics and political harassment by politicians. …the judiciary must be accorded its due respect, while its sacredness must be protected.”
To Olanipekun, one does not need to be a prophet or soothsayer to submit that it would not augur well for the country’s democracy if the judiciary is caged or put under constant and persistent siege and invasion by politicians, through their sponsored thugs and hoodlums.