One of the unintended consequences of the zero-sum nature of Nigerian politics and the historic electoral heist that has characterized the election campaign in Nigeria is the foray of the judiciary into the murky waters of politics. But perhaps it is worth noting here that this phenomenon is not unique to Nigeria.
As democracy and society continue to evolve, the judiciary has been increasingly involved in the political arena. There is perhaps no better illustration of this than the way the last general election in the United States of America was litigated by taking on former President Donald Trump’s idea that the election that removed him from power was stolen by the Democrats. Recent elections in Kenya, Ghana and elsewhere have also been heavily contested by the losing parties. However, the only difference from the Nigerian situation is the rather expeditious and complementary manner in which these cases have been carried out, resulting in the consolidation and strengthening of the democracies of the respective states.
However, the situation at home does not leave a similar taste in the mouth. The general impression among many Nigerians is that the judiciary has repeatedly failed to deploy its enormous powers in a way that serves to consolidate Nigeria’s democracy. A Nigerian Supreme Court ruling, three years ago, which returned a candidate who came fourth on the ballot as duly elected governor of a south-eastern state against all the rules of arithmetic and without regard to the electoral formula, has often been referred to as a key test in this regard.
By the way, Nigeria’s political clock has gone full circle, and we are once again on the cusp of another general election. The question is, what does this mean for the judiciary?
In the interval between the last general election and the impending 2023 election, the Electoral Act, important legislation at the heart of Nigeria’s electoral jurisprudence, was amended with some sweeping innovations, some of which have received no legal introspection.
Although it was thought that the reform of the Law would reduce the incidence of political cases given the level of transparency and accountability structures introduced in the pre- and post-electoral processes, the experience of the primary elections concluded in the 18 political parties registered by the Electoral body – INEC suggests otherwise. Although the electoral framework has been commendably amended, our political actors continue to be stuck in their bad behavior of compromising with the established norms and guidelines. For this reason, an already overworked judiciary has had to be called into the fray at the expense of other issues bordering on the economic livelihood of individuals and businesses whose cases would have to wait until these political cases are finally determined.
Last September, the Presiding Judge of the Federal High Court – the only court with exclusive jurisdiction over pre-electoral matters according to the 2022 reform of the Electoral Law – had to form a special panel of judges to hear cases arising from the primary. political party elections. These cases have kept many officials of that Court fully engaged and considering that almost all of these cases make it to the High Court, our appellate judges have not been spared from the onslaught. But that is not all.
As Nigerians prepare to go to the polls, the judiciary is also preparing to hear cases that are most likely to arise from the elections. As has become our misfortune, preparing for an election in Nigeria also means preparing for electoral petitions. Therefore, one of the first official acts of the newly sworn-in Chief Justice of Nigeria, the Hon. Mr. Justice Olukayode Ariwola was the constitution and the oath of more than 300 judges who would serve on different electoral petition tribunal panels to adjudicate disputes expected to arise from the February and March 2023 elections.
In its declarations in the commitment, the CJN took the opportunity to warn judicial officials about the need to assume the task with a great sense of responsibility and fidelity to its judicial oath of neutrality and fairness. “I will not tolerate any act of recklessness, abuse of power and public trust.“, he warned.
Perhaps in recognition of the fundamental role played by court clerks and the Secretariat of Electoral Petition Courts in the value chain of the administration of justice, the workshop organized yesterday by the President of the Court of Appeals (CPA), the Hon. Judge Monica Dongban-Mensem is very instructive for the court clerks who will serve in the various electoral petition courts. During the act, the Head of the penultimate Court of the Nation warned the registrars not to see the task as a “opportunity to earn money to get rich” What “the court will not hesitate to deal with anyone found to be at fault in this regard.”
The separate warnings from the CJN and PCA, respectively, to judicial and non-judicial staff of electoral petition courts are not entirely without context. In fact, they were made against the backdrop of an ugly story that, taken together, has served to undermine the perception of the Nigerian judiciary.
Election petition courts are seen as a kind of revenue stream; a quick money opportunity for all the major players involved in it: the lawyers, the judges and the court clerks. As someone who has had the privilege of being active in some of the most contentious electoral contests in our recent history, I have to know.
This kind of periodic bazaar has also left behind a long list of victims, especially among lawyers and judges who have been caught perverting the cause of justice. On one occasion, it was alleged that a judge of an election petitions tribunal had had intimate telephone exchanges about the case he was handling with a Senior Advocate of Nigeria (SAN), who represented one of the parties in whose favor the tribunal ultimately decided. . These complaints eventually ended up before the National Judicial Council (NJC) in a petition against the judge. At the end of the investigations, the NJC found that she had violated her judicial oath in her dalliance with the SAN and ended her judicial career.
Separately, the Legal Professionals Disciplinary Committee (LPDC) took up a complaint against the SAN for violation of the Rules of Professional Conduct (RPC) in the legal profession. On May 21, 2015, the LPDC found him guilty of multiple RPC violations and disbarred him. He would later recover the Silk from him after an appeal in the Supreme Court which overturned the LPDC’s findings on a rather technical ground as the Court has become accustomed to. The previous case is one among many other cases.
Therefore, it is within the above context that the separate warnings from the country’s two highest courts must be placed. After the experience of 2019, where certain decisions emanating from the judiciary on electoral cases undermined in some respects the very concept of democracy by imposing unpopular candidates on some electorates, the judiciary this time must take this new opportunity as an exercise in correctiveness. heading.
In order to do so, it must address the cases that are presented to it from a legal-moral prism that closes all doors to technicalities to issue judgments that are not only sound in law, but also in tune with popular sentiment. of the electorates. Electoral petitions are said to be sui generis: however, it would seem that the application of this principle has only taken a stultifying construction that is only enough in adopting arcane rules of technicalities that dispense justice ‘without a human face’, as Judge Chukwudifu Oputa (of blessed memory) might have said. . that. For this purpose, an expansionist application of the novelties of the Modified Electoral Law could be considered, some of which would be subject to judicial interpretation for the first time.
In an election year that has seen an unprecedented surge in civic interest and participation, especially from Nigerian youth, the judiciary must do its best and live up to its cherished banner as the last hope. of the common man.
All told, the outlook for the judiciary in 2023 is said to be difficult. To be sure, there have been times in our history when the judiciary has distinguished itself as a bastion of our democracy and cherished principles of the rule of law. Opinions will be divided, however, as to whether the recent prospect of that institution inspires similar hope at this time. Whichever side of the divide one may identify with, what is clear is that we may have again reached one of those critical junctures in our history, and the enormous role of the judiciary in shaping it, should not be overlooked. .
Lawyer and public interest commentator, Raymond Nkannebe can be reached via [email protected].