In April 2021, former President Goodluck Jonathan advocated the strengthening of the nation’s electoral laws in a way that only the ballot paper, and not the courts, is allowed to determine the winners of elections.
Jonathan said, “I had already made a public statement on that to the effect that the ballot paper and not the judiciary should determine who wins elections or select political leaders. The ballot paper should be the only basis for selecting political leaders.”
That statement by the former president came against the backdrop that a good number of elections conducted in Nigeria in recent times have ended up in court, with the court now assuming the role of the final arbiter in election matters.
In the aftermath of the 2023 general election, some persons who were declared winners in the election by the Independent National Electoral Commission (INEC) have seen their election being nullified by the court. Recently, the Court of Appeal sitting in Abuja nullified the election of Plateau State governor, Caleb Muftwang, on the ground that he was not properly nominated by his party, the PDP, and also that of Kano State governor, Abba Yusuf of the New Nigeria People’s Party (NNPP).
The two recent judgements prompted outcry across the country, with the likes of lawyer and human rights activist, Femi Falana, calling for a review of the judgements.
Falana, a Senior Advocate of Nigeria (SAN), while speaking during an interview on Channels Television’s Sunday Politics, also hit out hard on INEC for its failure to conduct proper elections in Nigeria.
“The votes of Nigerians should not be nullified by the courts because of the supposed negligence of the electoral umpire that shouldn’t have cleared candidates put forward by parties without primaries conducted,” Falana said.
“Thousands of votes should not be invalidated by the court because INEC officials failed to stamp ballot sheets,” he said.
Falana said that election matters should be concluded before the inauguration of any administration in the country.
“It is a very dangerous judicial policy to sanction voters for the mistake of electoral officers. We are being told that 165,000 votes are wasted, they are invalid because some electoral officers committed an error by not stamping them,” Falana said.
“I do hope that this time around the Supreme Court will resolve these needless controversies surrounding the non-stamping of ballot papers by INEC officials who have not been recommended for any sanction. This is why these judgements will have to be reviewed,” he said.
Some recent controversial court decisions on election-related matters have left watchers scratching their heads and wondering whether everything is well with the judiciary.
One instance that still rings a bell in the head of many Nigerians is the January 2020 nullification, by the Supreme Court, of the election of Emeka Ihedioha of the Peoples Democratic Party (PDP) as the governor of Imo State and declaration of Senator Hope Uzodinma of the All Progressive Congress (APC), who came fourth, as the winner of that election.
A number of court decisions related to the 2023 elections have also left may looking askance.
In the build-up to the 2023 general election, for instance, former Senate President Ahmed Lawan was an aspirant for the APC presidential ticket. Back in Lawan’s Yobe North Senatorial District, Bashir Machina won the APC ticket for the senatorial election. But then, having lost the presidential ticket to Bola Tinubu, now President of Nigeria, Lawan, who did not take part in the primary election in Yobe North, returned to lay claim to the APC ticket for the senatorial district, and the party went ahead to submit his name to INEC. As expected, Machina filed a case at the Federal High Court and won. His victory was also upheld by the Court of Appeal. However, to the dismay of the public, the Supreme Court, in a judgement of three against two out of the five-member panel of justices, upturned Machina’s victory and declared Lawan as the candidate of the APC in Yobe North.
In the lead judgement, Justice Centus Nweze faulted Machina’s approach in commencing the suit at the Federal High Court Damaturu Division by way of originating summons and without oral evidence to prove allegations of fraud.
Nweze said, “The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants. That the 1st respondent accused the APC of fraudulently substituting his name with that of Lawan. Where there is an allegation of fraud it should not be commenced by an originating summons. There was a need to call witnesses to prove allegations of fraud.”
In the majority decision, the apex court also set aside the decision of the Appeal Court, Gombe Division, which affirmed the decision of the trial court that declared Machina the senatorial candidate for Yobe North.
But in a nonconforming decision by Justices Emmanuel Agim and Adamu Jauro, the apex court said Lawan never participated in the APC primary held on 28 May, as he withdrew voluntarily to participate in the presidential primary held on 8 June 2022. The minority decision held that the conduct of another primary on 9 June 2022, where Lawan emerged, was in breach of Section 84 (5) of the Electoral Act as the APC never cancelled that held on 28 May before organizing another.
A similar scenario played out in Akwa Ibom North West Senatorial District, where Mr. Udom Ekpoudom contested and won the APC primary, while Senator Godswill Akpabio was absent at the primary because he was an aspirant for the APC presidential election. However, Akpabio laid claim to the Akwa Ibom North West Senatorial seat ticket and the the APC submitted his name to INEC. Ekpoudom went to court and won both at the Federal High Court and the Appeal Court, but the Supreme Court upturned his victory and ruled in favour of Akpabio, who is currently the Senate President.
The apex court, in a unanimous decision by a five-member panel of justices, upheld an appeal Akpabio filed to challenge the Court of Appeal judgement that nullified his candidacy. In the lead judgement that was read by Justice Ibrahim Saulawa, the apex court held that the appellate court lacked the jurisdiction to meddle in the issue of nomination of candidate for an election, which it said was an internal affair of a political party.
Judiciary and political mingling
Keen watchers of developments in Nigeria have been drawing attention to recent events where judicial officers appear to mingle with politicians to such an extent that raises questions.
Legal scholar and former Chairman of the National Human Rights Commission (NHRC), Prof Chidi Odinkalu, in a recent article submitted that judicial officers are ordinarily not politicians and it becomes worrisome “when they choose to immerse themselves in the theatre of power politics”.
Odinkalu cited the relationship between Nasir El-Rufai as Minister of the Federal Capital Territory (FCT) and the then Chief Judge of the FCT, Justice Lawal Hassan Gummi, as narrated by El Rufai in his memoir, The Accidental Public Servant. It was such that El Rufai as Minister, desiring “to ensure the judiciary was fully on board with our reform directions”, “visited Justice Gummi, met with his team of senior judges and…. prayed for their support”, and got the strong support of the FCT judiciary throughout his tenure. In return, the then Minister decided “to budget an annual grant to support our judiciary to procure court recording and automation equipment”.
“The reader may note two things. One is that in the narration of the Minister, the FCT judiciary became transformed from an institution established to hold a fair balance between different interests in society to one dedicated to servicing the Minister and his FCT administration. The second is that the judiciary thus became – in his telling – part and parcel of the government of the day to be instrumentalised as the government dared, not an independent institution to hold the government to account,” he said in the article “Judges as Mercenaries”.
Odinkalu also referred to a similar scenario recently where the current Chief Judge of the FCT, Husseini Baba-Yusuf, paid a visit to FCT Minister, hailing the minister as having “exceeded the level that people had thought you would perform” and reminding the minister that “as the judiciary, we are part of the government and we expect that we should be able to do things that will make government work”. The Chief Judge went further to inform the minister that he had issued directions to the judges under him that “all cases involving the FCT will only be assigned by the Chief Judge”.
Unsurprisingly, executive lawlessness has permeated all tiers of government in the country. Executive lawlessness ranges from disobedience to court orders to non-compliance with due process of law and resort to self-help.
In recent times, governments have been known to flagrantly flout court orders and disrespect pronouncements of courts with no consequences. The cases of Sambo Dasuki, El-Zakzaki, Nnamdi Kanu, among others readily come to mind. These were granted bail at different times by the court but the government of the day refused to obey such court orders.
Odinkalu is also worried by the lack of tact and dignity even in the language employed by judges these days inn announcing judicial decisions.
He cited the case of Osun State governor, Ademola Adeleke, earlier this year, where Justice T. A. Kume, who sat as part of the Governorship Election Petition Tribunal, “relied on the high authority of Kizz Daniel’s popular single, Buga, to hold that Adeleke ‘cannot ‘go lo lo lo lo’ and ‘buga won’ as the duly elected governor of Osun State”.
“It is no surprise that this kind of thing only happens in political and election disputes where politicians chase judges with money and induce open trades in the outcome of judicial proceedings,” he said.
Loss of faith in the judiciary
Ideally, the judiciary should be a place where people go to seek, and get, justice.
“In every sane society, anyone who is wronged no matter how highly or lowly placed should be able to approach the court and get justice,” said the spokesperson of the Labour Party, Obiora Ifoh.
“When this is done, public confidence is boosted in the rule of law, the judiciary and ultimately society will be the better for it. But when evidence is ignored for judgements which turn logic on its head, then there is a problem,” he said.
It is, therefore, not surprising that there is a growing loss of confidence in the judiciary as the last bastion of hope.
Just recently, the candidate of the Social Democratic Party (SDP) in the just concluded off-cycle governorship election in Kogi State, Murtala Ajaka, said he would not be going to court to challenge the outcome of the polls as that would amount to a waste of time and resources.
“I have been around for the past 20 years. I know what it is. What am I going to court to do when the same INEC that did this is going to come as a witness to defend what they did? So it is a waste of time,” Ajaka said on Channels Television’s The 2023 Verdict programme after the election.
Judges are not magicians, says Adesheila
Speaking to The Nigerian Observer, a renowned lawyer and human rights activist, A. S. Adesheila, said that judges are not magicians but give judgement based on facts and evidence presented before them.
He said both the petitioner and the respondents hire lawyers to argue their cases and the judge will give their judgement based on facts and evidence presented, either weighty or not weighty enough.
“So if INEC has failed in its responsibility, the court will make its judgement based on the case presented by the petitioner,” Adesheila said.
He further stated that when judges give judgement that favours the petitioners, they say the judiciary is doing well, but when judges give judgement that does not favour the petitioners, they say the judiciary is not doing well.
On the outcome of the cases filed by the candidate of the Labour Party (LP) in the 2023 presidential election, Peter Obi, and his PDP counterpart, Atiku Abubakar, against the victory of Bola Tinubu in the election, Adesheila berated both candidates for not carrying out proper consultation and putting all their evidences together before approaching the Presidential Election Petition Tribunal.
He said, for instance, that Atiku Abubakar had all the time to seek Tinubu’s certificate from the Chicago State University, but it was only after losing at the PEPT that the PDP candidate began to vigorously pursue documents to add to the evidence at the Supreme Court.
“This ought to have been done and kept as a bullet powder and frontloaded during the tribunal instead of waiting till judgement was delivered and you realise that those documents were necessary. When you are going to war, it is advisable to carry along all instruments of war,” he said.