Nigerians must with one voice put this critical question to the seven-member Supreme Court panel of judges that sacked Governor Ihedioha of Imo State and planted Senator Hope Uzodinma as his replacement: Distinguished as you all are, would you have dared to pronounce this same perversity if other than the All Progressives Congress (APC) is currently in control of the Federal Government of Nigeria?
The controversial Supreme Court verdict was read by Justice Kudirat Motonmori Olatokunbo Kekere-Ekun. Mrs. Kekere-Ekun was born in 1958. She earned her first Law degree from the University of Lagos, and the second from the London School of Economics and Political Science, not from backyard or quota colleges that routinely grant admissions to laggards confirmed incapable of passing basic School Certificate subjects like English and Mathematics. Called to the Bar in 1981, she was appointed to the Supreme Court 32 years later.
Notable lawyers hailed her appointment to the apex court, two of whose informed opinions are here: “I have read a few of her judgments; she is very sound in law. In other words, she suppresses technicality and allows substance to prevail. She has that equitable spirit of trying to do justice,” said Professor Itse Sagay, SAN.
Said Mr. Tani Molajo, SAN: “This jurist has risen quickly through our judicial system by sheer dint of diligence, scholarship and uprightness. I dare say that I speak the mind of the entire profession when I say that the transfer of all those virtues to our highest court in the person of Justice Kekere-Ekun is cause for celebration.”
Equity. Diligence. Scholarship. Uprightness. These are some of the intensifiers used in support of Justice Kekere-Ekun’s suitability to sit in judgment over the affairs of her fellow human beings. But, if asked by her son or daughter, would she be able to pinpoint any of these wholesome qualities in the judgement she read, which bizarrely manufactured 103,257 votes in excess of the number of voters registered by the Independent National Electoral Commission (INEC) for last year’s Imo State governorship election? Critical point: None of the parties to the Election Petition disputed either of INEC’s total number of registered voters and total number of accredited voters for the governorship contest, from the Election Tribunal right up to the Supreme Court.
The other honourable members of the Supreme Court panel that decided Imo governorship in Senator Uzodinma’s bewildering favour are: Chief Justice Ibrahim Tanko Mohammed (66 years), Justice Nwali Sylvester Ngwuta (68), Justice Olukayode Ariwoola (65), Justice Amiru Sanusi (70), Justice (Mrs.) Amina Adamu Augie (65), and Justice (Mrs.) Uwani Musa Abba Aji (62). That puts the average age of the distinguished justices at 64.8 years. What impact is the judgment of these highly respected jurists likely to have on Nigerians that are today only six years old, or four years old, or eight years old?
Take the Honourable Justice Ngwuta who has been a Supreme Court Justice since 2011. He was, like a handful of other Justices of the apex court, arrested in October 2016, by operatives of the Department of State Security, on allegations of bribery and corruption. Arraigned in court on 13 counts of money laundering by the office of the Attorney General of the Federation, he was, like his peers, discharged and acquitted because lawyers successfully argued the incompetence of all the charges by standing on the key point that cases against superior court Judges – from the High Courts to the Supreme Court – should first be treated by the National Judiciary Council (NJC).
How would Justice Ngwuta respond if a sister or brother of his asked why the Supreme Court validated election result disavowed by three legally constituted bodies – the INEC, the Election Tribunal and the Court of Appeal, but flagrantly submitted to it by a Police officer legally incompetent to do so? We are here talking of results which, according to the processes filed by lawyers to Governor Ihedioha who is seeking a review of the Supreme Court judgment, were computed by Senator Uzodinma. “The fraudulent nature of the additional votes was demonstrated by the fact that the total votes cast as shown in the first appellant/respondent’s computation was more than the total number of voters accredited for the election…,” argues Ihedioha.
How would Justice Amina Augie react to the following distorted statistics from the Uzodinma results?
1. Unit No. 69: The registered number of voters in this unit is 492. But APC “scored” 819 votes. That is an astonishing 334 votes over and above the number of those registered by INEC to vote in the unit!
2. Unit No. 285: The registered number of voters in this unit is 449. But APC “scored” 780 votes, which figure is 335 votes more than the number of voters registered by INEC to vote in that unit.
How would Justice Uwani Musa Abba Aji explain the following incongruities?
1. In the 388 Units whose results were computed by Senator Uzodinma, he won an incredible 95 percent of the votes. But, in contradistinction, he won a miserly 12 percent of the votes cast in the 2883 polling units on which INEC result was based.
2. In the 388 units of Uzodinma’s votes computation, no results were entered for the 68 other political parties that fielded candidates for the governorship election. Damningly, there were no fields in Uzodinma’s dubious result sheets even for the inputting of scores of the other political parties.
My flabber is comprehensively gasted.
Senator Sola Akinyede is a constitutional lawyer. After forensically dissecting the text of the Supreme Court judgment, he published an article entitled Supreme Court and Imo: A Matter of Courage on the back page of ThisDay of January 27, 2020. In it, he called for a review of the Supreme Court decision. His argument: “The decision of the Supreme Court in Imo goes beyond Ihedioha. It goes beyond Imo. It goes beyond PDP or APC. It goes to the heart and foundation of the acceptability, credibility not just of the Supreme Court, but of our justice system and our democracy. Amid its conflicts and contradictions, if this decision is allowed to stand, it will set a precedent, and under the doctrine of STARE DECISIS, the decision must be replicated in the different Election Petitions Tribunals and Divisions of the Court of Appeal across the country with each one picking any that fits its fancy. With a loss of confidence in the justice system and disparate decisions by the various courts and Tribunals, the consequences could be grave, leading to a breakdown of law and order in different parts of the country in 2023/2024.
“By changing the time-honoured legal principles and accepting the results from a police officer who was not at the 388 polling units, the Supreme Court may not appreciate the serious implications of their decision. But as a politician, I know that without knowing it, they have just given a licence to politicians to manufacture results from their bedrooms and call an army officer, Civil Defence officer or anyone to present the results in court.”
Nigeria is retrogressing, rather than progressing. In the years immediately following the Wind of Independence that blew across Africa, Nigeria played a leading role in supplying many newly independent eastern and southern African countries with judges. Dr. Udo Udoma was the Chief Justice of Uganda in the 1960s, for instance. Justice Michael Onyiuke was a judge in Tanzania. Justice Emmanuel Ayoola was a Judge of the Appeals Chamber of the Special Court for Sierra Leone. Nigeria’s renown as a centre of jurisprudential excellence was global. Justices Teslim Elias, Charles Dadi Onyeama, Bola Ajibola, and Clement Akpamgbo were judges of the World Court in the Hague.
But witness what is happening today. The Kenyan Supreme Court on September 1, 2017 nullified the re-election of President Uhuru Kenyatta, after finding that the presidential ballot held a month earlier were “tainted by irregularities.”
Only on February 3, 2020, a Malawi constitutional court nullified last May’s election of President Peter Mutharika on the grounds of “massive irregularities. Kenya gained Independence in 1963; Malawi gained Independence a year later. But, in Nigeria that became Independent in 1960, the Supreme Court has foisted a Governor on Imo State on the strength of fabricated results that are tainted by massive inconsistencies, illogicalities and irregularities.
It is welcome news that Governor Ihedioha promptly filed processes for the Supreme Court decision that unjustly ousted him from office to be reviewed. People, however learned they may be, are wrong who claim that all Supreme Court judgments are set in granite. They are changeable. Here is the Hon Justice Chukwudifu Oputa, the Socrates of the Nigerian Bench, on the subject:
“We are final not because we are infallible; rather, we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will be shortsighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When, therefore, it appears to learned counsel that any decisions of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.” Justice Oputa was delivering the lead judgment in Adegoke Motors Ltd vs Adesanya in 1989.
Other congruent views are apposite here. Professor Ben Nwabueze is generally acclaimed as Africa’s foremost constitutional lawyer, with dozens of books and hundreds of scholarly papers to his name. In a 2005 paper entitled When A Court Decision, As The Foundation Of The Rule Of Law, May Be Set Aside, Professor Nwabueze argued that “The general rule governing the latter (setting aside or reversing the outcome of a case) is that of stare decisis; past decisions should be followed in the decision of present or future cases in the interest of certainty, predictability and stability in the system. But the rule allows for considerable flexibility in its application, a discussion of which is not appropriate here, except to say that even the Supreme Court, as the court of last resort, has laid it down that it will, albeit only sparingly, ‘depart from and overrule its previous decisions where, inter alia, (i) it is shown that the previous decision is erroneous in law; or (ii) the previous decision was given per incuriam; or (iii) it is shown that the previous decision is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice’: Att-Gen of the Federation v. Guardian Newspapers Ltd  9 NWLR (Pt 618) 187 at page 266, as per Iguh JSC delivering the lead judgment.”
Again! “…the Supreme Court has laid it down that such a power (to alter decision already taken) does inhere in every court. In Okafor v. Att-Gen of Anambra State (1991) 7 SCNJ )Pt 11) 345 at pages 360-361, it said, per Karibi-Whyte JSC: ‘There is no doubt that a court has the authority to declare its judgment or the judgment of another court of co-ordinate jurisdiction null and void if there is a fundamental defect in the proceeding which goes to the issue of jurisdiction and competence.”
It has been reported that all the 17 distinguished Supreme Court Justices will sit to examine Governor Ihedioha’s plea for a reversal of the outrageous judgment that forced him from office. Only one prayer is inevitable at this critical junction. It is this: That the cerebral, honourable and distinguished Supreme Court Justices should bear in mind the forthrightness and impeccable moral and legal rectitude of Justice Oputa, their late, incorruptible member, to wit: “It is … true that (the Supreme Court) can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes.”
Justice Oputa was saying that, by its decisions, the Supreme Court could make or mar a nation, could preserve or pulverize a people, could develop or demolish an entity. Would the apex court succumb to the allure of lending a hand to the dismantling of Nigeria, or would the cadences of its pronouncements constitute cornerstones for the enthronement of a society bound by truth, equity and justice? There is no doubt whatsoever that what Governor Ihedioha got from the Supreme Court judgment of January 14, 2020 was a short shrift. How could it ever be dreamt of, let alone be brazenly declared in the state of wakefulness, that during 2020, someone assumed the governorship of a Nigerian State on the untenability of 103,257 fictitious votes incongruously sanctioned by the Supreme Court of the Federal Republic of Nigeria?
Yet, still, to cite Senator Sola Akinyede one more time: “Justices of the Supreme Court are human beings and, therefore, fallible. This is more so having regard to the workload thrust upon them not just by gubernatorial election petitions, but by pre-election matters in gubernatorial and other elections.”
The point of the above citation is to forcefully dissuade the proclivity to insinuate corruption as the launchpad of the bizarre anti-Ihedioha verdict. I personally consider it a mistake, albeit a lamentably grievous one. What NOT to do? The Supreme Court must NOT shoot into the belly of permanent, inerasable records a declaration that it is legally fitting and morally proper to index Nigerian electoral offices on fictitious votes illegally submitted by characters in uniform. What to DO? The only sensible option for any sane person trapped in a pit is to stop digging.
•Iloegbunam, the author of General of the People’s Army, wrote via [email protected]