By Tonnie Iredia

According to media reports, there are hundreds of unresolved election cases concerning next month’s general elections in the country. The Independent National Electoral Commission (INEC), appears to be the hardest hit by the development following the claim by its Chairman, Professor Attahiru Jega, that no fewer than 150 pre-election cases had been filed against it nationwide by aggrieved politicians.

Many of the cases are ex-parte orders restraining INEC from accepting and recognising some candidates nominated for elections by their political parties. As a result, Jega has reportedly written to the Chief Justice of Nigeria (CJN) to draw attention to what he called an “emerging trend in the political process where ex-parte orders are granted at the top of a hat by judges.” This allegation which is also a popular public perception is not fair to the Judiciary which easily operates as the best of our three arms of government.

This is probably neither the place to enumerate the poor performances over the years of the Executive branch in policy implementation nor should we be detained here by an analysis of the irritable self-interest of our legislatures past and present.  In spite of a few bad eggs, our Judges have done creditably well since independence.

A misleading insinuation that can be deduced from the trend where certain persons blame our Judges over election cases is that they are responsible for the large numerical strength of the cases. But were the cases brought to the courts by Judges? Of course, the cases in our courts are not fabricated by our Judges.  Instead, they are initiated by politicians, many of whom are lawyers.

Accordingly, we cannot ascribe the unending spate of litigations on election matters to Judges. In addition, whereas, it is easy for everyone to condemn the litigants, we all would probably have acted like them if similarly subjected to the high level of injustice in the conduct of public affairs in the country. Consequently we should not worry about how many the cases are. Rather, we should worry about the unchanging poor attitude of our people to a game particularly its rules, processes and procedures. Here, those who raise alarm about the large number of election cases do not always remember to ponder over the following pertinent questions, among others. Are our election cases filed within the appropriate time? Do the plaintiffs disclose grievances (cause of action)? Do they have sufficient interest in the cases (locus standi)? Are the cases frivolous or are they an abuse of court process? Do the courts dealing with the cases have jurisdiction?

Anyone who has followed political developments in the country would also know that the election cases we have now are not too many. When the Judiciary decided in 2002, that everyone was free to form his party, we did not need soothsayers to predict that they would in due course become so many to the discomfort of the nation.  First, the number of parties rose to 30 and by the last count; we now have about 63. Many of them are quite small with as few as three members (in some cases from one household) while a few are foolishly big. Most of them are managed exactly the same way that new churches that are formed daily these days are organised to serve as a source of livelihood to the founders. We also need to note as some of our Delta brothers suggest that going to court can bring relevance, negotiation and material benefits. Under the circumstance, whose cases shall we stop? In addition, with the current trend of mass production of those of us in the learned profession, how do we feed if court cases are not many?

Perhaps the issue which in the country seems to attract public disapproval the most is the granting of ex-parte motions as if it happens only in our country. The truth is that the subject is an international phenomenon in which an order is made by a court without hearing the other side to the case.

An ex-parte order is, therefore, offensive to many people because it negates the principle of natural justice which requires that the other party should be heard before a decision is made.  We need to appreciate, however, that there are certain circumstances where an ex- parte order can also serve the cause of justice.  For example, we agree that it ought to be granted to a plaintiff who is able to demonstrate a circumstance of great urgency where it is impracticable to give notice or where to give notice might occasion undue delay with grave consequences for him or indeed, cause him irreparable harm. Such a plaintiff is, however, under obligation to make full disclosure to the court concerning both the facts and the law of the case. Once a person satisfies this requirement, the Judge is not to serve as the defendant but to make the order which can be lifted or which may not be extended in the face of any defect or new information. Thus, there is not much the Judiciary can do about the subject.

Instead, it is the legislature that is better positioned to bring up the desired reforms.
That there is a high level of unwholesome political behaviour in the country is virtually incontrovertible. The reason for it is that our political system is premised on election as a zero-sum game where the winner takes all.  If a near illiterate citizen can win an election by whatever means and thereafter becomes entitled to, among other items, a vehicle maintenance allowance that is higher than the salary of a Director in the public service, why will the average Nigerian politician not use whatever means to win an election and at all cost? Indeed, using the court to do so is no doubt a viable and legal option.

There is, therefore, the need to take a hard look again at our political system and design strategies that can focus our attention on governance rather than politics. For instance, a single judge in the country can convict a man of murder and sentence him to death, but we have to have a panel instead of one Judge to hear an election petition? Having thus raised the importance of election cases beyond every other thing, we must not be heard complaining about too many election cases. In addition, a game should have a time- frame; that is why soccer has 90 minutes. Election petitions should be concluded within a given time- frame so as to put a halt to the current situation of litigation without end.

But, if the rest of us are worried about our many election cases, INEC should not. This is because from the history of elections in the country, appointees of our electoral body ought to begin from the premise that anything can happen in a Nigerian election. Thus for Jega to be disturbed by the number of election cases is to us a greater worry than the number of cases.

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