By Awa Kalu
Election appeals similarly have a debilitating effect on the case flow management of the Court of Appeal because several members of the Bench of that Court are moved from one Division to another for the effective hearing and determination of the appeals.
More devastating to the judicial process is the fact that election matters are decidedly political in nature both in form and in substance and are thus highly explosive. By ordinary statistics it is clear that apart from the 36 States’ governorship positions, there are a minimum number of 24 members of a State House of Assembly and each is capable of generating a petition. The House of Representatives comprises 360 members while the Senate has 109 members. Each of these positions is often the object or centrepiece of multiple petitions. At the end of each election period, the victors from the judicial process go away in jubilation but the losers belly ache and generate heat in the process. They also generate petitions of a different type-to the National Judicial Council if they are civil and if not, the pages of Newspapers will suffice. At the end of the day, petitions achieve nothing other than lowering the judiciary in the estimation of right thinking persons even though the legitimating influence of well reasoned judgment on the outcome of electoral contests has been overwhelming.
It is in that context that we need to approach the other issue of prolonged litigation. As we speak, there is a presidential election petition that is awaiting a retrial even though elections are a few days away. One of the petitions arising from the Delta State governorship election in 2007 was recently settled and resulted in a rerun election. The incumbent Governor won that election rerun and a new challenge for the judiciary arose thereby. What is the tenure of the Governor after the rerun?
The Federal High Court sitting in Asaba, has held that the Governor will continue from where he stopped before the rerun election. This decision presents acute problems for the jurisprudence of election cases, to put it mildly. An election for a political office is a mandate seeking venture embarked upon every four years for the purpose of revalidating the mandate of the office seekers. An exception is the bye election envisaged in the case of a legislator, for instance, where the incumbent dies or resigns or otherwise ceases to hold office. If, as is presently the case, the Constitution and the Electoral Act direct a Governor whose previous election was nullified but wins a rerun election arising therefrom, to serve out his previous term arising from the prior election, what is the message of the legislature?
Having regard to the fact that the reward would be different if victory was awarded by the electorate to the opponent, can it be conjectured that the law would have created two consequences for the same event? Let us take it to the brass tacks. A and B contest election for the governorship of C state. A wins and B files a petition. In the final result, despite the number of years A had governed, the Court holds that A was not the lawful winner of the election but B, then A bows out as an ex-governor and B is then sworn in to start a fresh tenure of four years. This is the Obi v. Ngige scenario. On the other hand, if Mr. A’s election is nullified and a rerun is ordered by the Court, then A and B will return to the polls within 90 days. This is Delta scenario.
If A wins again he will complete his previous tenure of four years even if he is left with a few days. However, if B defeats A at the rerun, then B starts a tenure reckoned from the date of subscribing the Oath of allegiance and the Oath of office. Have A and B been treated as equals in the eyes of the law? Can it not be argued that if A wins a rerun after having his previous election nullified, the electorate is confirming that he performed well even though he did not win lawfully in the first election? What if in the face of B’s victory in scenario 2, A files a petition and wins? The calculus is endless and this is a catch 22 situation, head or tail, problem! This is only a way of providing a key and a note for the theme of this law week.
All that remains is for us to tie the law to leadership in the context of what has been said so far. Although there is no agreement on the definition of law, we shall rest on the definition provided by the authoritative Black’s Law Dictionary, 8th edition. It is to the effect that law is ‘the regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure backed by force, in such a society’.