Law & Human Rights

February 8, 2018

Frequent change of our electoral laws unhealthy—Afolabi, SAN

Frequent change of our electoral laws unhealthy—Afolabi, SAN


By Innocent Anaba

Mr Hakeem Afolabi, Senior Advocate of Nigeria, in this interview speaks on the suspension of Abia State Chief Judge by the state governor, mode of appointment of Judges, conflicting decisions of courts in electoral cases and sundry issues.



How do you see the suspension of Abia State Chief Judge by both  the legislature and executive in the state?

Well, as far as I am concerned, the event in Abia State is very unfortunate at this present moment of our constitutional development.

It is also unfortunate that the Chief Law Officer of that state should have known better and advised the government appropriately, and not to mislead the government. The provision of the constitution of Nigeria is very clear as to the procedure for removing a judicial officer. Removal or suspension is an aspect of discipline of a judicial officer and the reality on ground is that the process can only be initiated by the National Judicial Council, NJC.

Before now, whatever doubt anybody might have had about the procedure for removing or suspending a Chief Judge in the federation was laid to rest by the decision of the Supreme Court in the celebrated case of Justice Elelu Habib vs. Gov of Kwara State.

That was a case in which a sitting Chief Judge was removed on the advice of the State House of Assembly who passed a resolution supported by two third majority of members of that State House of Assembly and the governor purportedly removed the Chief Judge from office. The matter went to court and the court was afforded the opportunity to interpret that aspect of our constitution and came to the conclusion at the Supreme Court that no Judge or Chief Judge for that matter, can be lawfully removed from office without the input of the NJC.

If you alleged any misconduct against any judicial officer or you’re saying that a judicial officer of a caliber of a CJ is not in a position to discharge his function and responsibility associated to that office, it is the NJC that will first investigate such complaint and come to a conclusion on it. It is only when the NJC has agreed that the allegations raised against the CJ are valid that it will then recommend to the governor of a state for necessary action to be taken in removing the CJ from office.

In that wise, the State House of Assembly will now pass a resolution asking the governor to remove the CJ.

With the subsistence of that judgment, I said it is very unfortunate that the Attorney-General of Abia State could not advise the government appropriately because they cannot feign ignorance as the Chief Law Officer about the existence or subsistence of that judgment of the Supreme Court.

Also, the man who made himself available to be appointed as the acting CJ should be guilty of complicity in the process of contravening or violating the constitution of Nigeria because a Judge of his caliber, the number two Judge in the state cannot feign ignorance of the provision of the constitution as being interpreted by the Supreme Court that what they were doing in purporting to remove the CJ was an illegality.

He shouldn’t have presented himself or made himself available to be appointed as CJ.

I think I am with the NJC in the steps they have taken so far in suspending the man who was appointed as the acting CJ in the place of a substantive CJ that was on suspension.

There have been criticisms of the mode of appointment of Judges. Are you satisfied with the mode of appointment of Judges as enshrined in the constitution?

Well, that is one of the problems which we have in our constitution. We are supposed to be practising a federal system of government in which we are supposed to have a Federal Government and a State Government. In a normal scheme of things, a body established for the federation particularly the federal agency, should not be responsible for the process of appointment of Judges for states.

Why should we have a central body like the NJC being the only organ that can recommend the appointment of judicial officers in states of the federation? It is an anomaly in a federal system but that is the reality we are being confronted with under our federal constitution.

Maybe those who are calling for restructuring and the need to amend the constitution can find a way of visiting that aspect of our constitution as to the idea of giving power to a federal agency controlling the appointment of Judges in the states but until that is done, it will continue to be the reality on ground.

How do you view the call by Independent National Electoral Commission, INEC, boss, Professor Mahmood Yakubu, that the Chief Justice of Nigeria should address the spate of conflicting judgments on electoral cases?

The charge about the need for the judiciary to look into the complaints about conflicting decisions have always been there. I recall this particular case of Odedu vs. INEC although Niki Tobi (JSC) of blessed memory was a  panelist to the Court of Appeal in which he even suggested the need to be having conferences and the need for them to tabulate their decisions so that if a division gives a pronouncement on a particular matter, other divisions would have a benefit of those reasons because they might have similar thing in their jurisdiction or division so that they will be properly guided.

It is quite unfortunate when you see different opinions, or contradictory opinions being rendered by the Appeal Courts. The Chief Justice of Nigeria, CJN, will have to initiate measures to see in what ways we can overcome these challenges.

Are you in support of an amendment to the Electoral Act by the House of Representatives?

You see, we are a set of people that seem not to even understand ourselves.

It appears to me that it is only in Nigeria that for every election, we must have a new Electoral Act. I am beginning to wonder what exactly the problem is, with our system.

Prior to 1979, we had a military decree which ushered in the 1979 election of former president Shehu Shagari, before the election of 1983, they did another legislation in 1982. By and large, when we hacve elections coming, why must we keep amending our electoral laws? I am not saying we cannot amend if the situation warrants, maybe there have been some lapses that we saw in the previous election which we need to correct but, there must be a limit as to the number of times or occasions we would just be amending our laws.

The electoral laws in Nigeria by now should have become institutionalised as far as I am concerned. We should have reached a level of perfection.

But, in our system, the so called legislators, with due respect to them, are the ones who have gone out to the fields and saw what happened, and to a greater extent they will always want to come back to introduce legislation to take care of exigencies which they believe might work against them and I will give you a classic example.

When the case of Amaechi and INEC was done by the Supreme Court in 2007 and the apex court came up with a decision that Amaechi in the eyes of the law was the person whom PDP actually sponsored for the election and was declared to be the winner of the election.

Now, almost immediately after that decision, the National Assembly introduced an amendment to say anybody who did not participate in all the processes of the election cannot be returned as the winner of that election.

By beginning to introduce a legislation purposely to defeat the reasoning of the Supreme Court in Amaechi and INEC because Amaechi and INEC had gotten a regime that to some extent, checkmated the excesses of political parties; but for their own selfish interest (because they know that they might find themselves in a situation which existed before Amaechi and INEC was decided and foreclosed the possibility that somebody they have edged out will have an upper hand in court), so, they introduced an amendment along that line.

That is a classic demonstration of selfishness on the part of our political class and even the National Assembly. It is one  amendment too many, as far as I am concerned, it portrays us as being unserious.   What exactly is wrong with the 2006 Electoral Act? What is that thing that is wrong with 2010 Electoral Act that every now and then, when election is coming, we must amend our laws?

How do you see the bill signed into law by the President granting members of the National Assembly immunity from litigation for actions taken in plenary?

I don’t see any big deal about it. Normally in every clime, the legislators while discussing issues on the floor of the Parliament should not entertain any fear that whatever is the area of discussion can be subject matter of an action outside the Parliament.

I think such a law would seem to embolden them and be quite supportive of their drive or responsibility as a law-making body. Before now, if there was an issue to be discussed, the legislator had it at the back of his or her mind that look, if I say this, can it not result to action or defamation?

But when you now have legislative immunity, you can come around to say anything, or a witness can come around to say anything which is deemed to be correct before the Parliament without any fear of somebody suing him for libel outside.