By Ise-Oluwa Ige

In this piece, Vanguard’s Law and Human Rights examines the consistent clamour by legal luminary. Aare AfeBabalola, SAN, for exclusion of serving judges from election petition tribunals, surveys top lawyers and judges in the country on the sensitive issue and argues that logic is still in favour of retaining the status quo.

Background

On July 10, 2023, legal luminary, Aare Afe Babalola, SAN, declared in Ado Ekiti, Ekiti State, that the nation’s judiciary needed a total overhaul which he claimed could only be achieved with a new constitution for the country.

The occasion was a special event organized to mark his 60th anniversary at the bar.

Although Chief Afe did not catalogue areas in the judiciary that required the overhaul, he nonetheless was specific about the current practice whereby serving judges in the country are constitutionally mandated to preside over election petition tribunals, which he said should be discontinued.

According to the sage, election tribunals should simply be handled by a committee of retired judges and respectable SANs.

He argued that toeing that line, regular court cases would not be affected.

His exact words: “Our judiciary today needs a total overhaul and you cannot do it without a new constitution/ I have about three cases in respect of matters arising from the university.

“For the past four years, these cases have been on. We have some judges who won’t be able to sit for many months because they are handling election petitions.

“Election petitions should not be handled by sitting judges, they should be decided only by the committee set up consisting of senior advocates and retired judges. In that case, regular courts would not close down.”

Last Monday was not the first time the legal luminary shared his thoughts on the issue.

Indeed, Chief Afe had, in a recent article on same issue, given other reasons to push for total exclusion of serving judges from election petition tribunal.

Specifically, he said the integrity of the judiciary which ought to be protected suffers a lot with serving judges presiding over election petitions.

According to him, there had been accusations and counter-accusations from politicians regarding the integrity of some tribunals, adding that most of the accusations and allegations ranging from the plausible to the ludicrous had often been made or informed by no other factor than the side of the political divide on which the politician making the allegation had found himself on account of the judgment sought to be impugned.

Chief Afe said there were some reported cases in the past in which parties to election petitions already submitted to court for adjudication and in some cases even already adjourned for judgment, declared openly that the outcome or judgement of the petition would be favourable to them.

“Having regard to the numerous, persistent, and disturbing accusations made against election tribunal judges by desperate politicians, the coincidence or otherwise of judgments which were predicted by politicians who had made victory preparation in advance of the judgments, and the tempting pressure in a poor economy, is it proper for serving judges to handle political cases?

“In any event, whether the “prediction” of politicians regarding the outcome of yet to be delivered judgments pans out or not, the integrity of the judiciary is always the ultimate loser. This is so for if the “prediction” is found to be correct, the losing side will forever point to the fact that the judgment had already been known well in advance of the delivery of same. If on the other hand the “prediction” is found to be false, then supporters of the losing side will also forever allege that some underhand dealings were responsible for the change in the judgment from what they had been told or assured to expect.

“This heightened level of attention and criticism is bound to affect the psyche of some judges and rub off on their ability to discharge their duty. It exposes them in several instances to a situation in which their every conduct and pronouncement is expected to measure up not to the dictates of the law but to the high and often misguided and misplaced expectation of the public which in most cases is totally ignorant of the position of the law.

“Judges being human beings and not infallible may sometimes unwittingly yield to some of these pressures and let themselves be influenced by totally irrelevant factors. 

“Furthermore, serving judges are of course very much interested in career advancement,” Chief Afe argued.

Serving judges should not handle election-related cases—Justices Uwais

Chief Afe is not a lone voice on this issue.

Vanguard reports that as far back as 2006, a one-time Chief Justice of Nigeria, Justice Muhammadu Lawal Uwais had expressed worry over the use of serving judges to determine election petition cases based on his personal experience.

Uwais had then canvassed for the use of retired justices to handle political cases particularly the election petition matters to spare the judiciary of battling frivolous and unnecessary scandals.

According to him, most of the scandals that shook the judiciary in the past emanated from politicians who lost their cases in court and felt that the judicial officers who gave such judgment must suffer for doing their jobs.

Why serving judges should stop sitting as election tribunal judges—Justice Kanyip

Similarly, the presiding Judge of the Lagos division of the National Industrial Court, NIC, Justice B .B kanyip now President of the Industrial Court had also canvassed for a system barring serving judicial officers from entertaining election related cases in the country on the account that taking away such responsibility from the serving judges would not only reduce the courts’ dockets but also insulate serving Judges and safeguard their integrity especially in the eyes of discerning public

Justice Kanyip who argued that the country is blessed with plenty talented retired judges who are not yet tired said that embracing his suggestion would also not only be economically wise, but afford the country to further benefit from the wisdom and experience of the retired judges.

Using retired judges ‘ll worsen the integrity of  judiciary—SANs

Although there is sound logic in the unified position maintained by Justice Uwais, Justice Kanyip and Chief Afe on the sensitive issue, some top members of the inner bar including a former President of the Nigerian Bar Association, NBA, Mr. O.C.J Okocha, SAN, appear not to agree with them.

With retired judges, integrity is still at stake—Okocha, SAN

According to Okocha, SAN, “Even if retired judges are used, the integrity of the judiciary is still at stake. And then, before now, we all know that our judges retire from the high court at the age of 65 while they retire at the age of 70 from the Court of Appeal and the Supreme Court. 

“Knowing Nigeria for what it is with our medical facilities, and knowing the judges themselves with the conditions they find themselves when they retired, most of them are old and feeble. I do not think they are suited to do the rigorous work of the election tribunal.

“Besides, election petition cases are time-bound. They have limited time to do their work so that the country can move forward. I don’t subscribe to the fact that retired justices should be brought back from retirement to sit on election petitions.

“I am aware that the alternative they proposed when they were doing constitutional review was the creation of constitutional courts to hear only political matters such as election petition matter to determine who was properly and validly elected. It did not scale through.

“I think proliferation of courts is not even a good thing. I believe that the regular judges who have their own reputation at stake should be allowed to do the job. They know that if they allow politicians to corrupt them, then, their image is already tarnished.

“And let me say this: politicians like to raise all those issues: oh, it was a political judgment. It was a kangaroo court. But a fair conscience fears no accusation. Judges who constitute election petition tribunals and have done their work with truth and justice in mind, will not listen to all those frivolous allegations. They will do their job. And if they know there is one authority over them, the NJC, if they go and soil their hand and an allegation is booked against them, then, their whole career will be put in jeopardy. For all those reasons, the sitting judges should continue.

“I know that this will affect their regular cases but that is the sacrifice lawyers and their clients will have to make. And it depends on how the judges schedule their work. They should schedule their work in such a way that even if they go for election petition which is time bound, they will be in a position to come back to finish or continue with the pending cases they have before their regular courts,” he submitted.

Retired judges not suitable for election petition tribunal –Prof George, SAN

Also disagreeing, a renowned academic, Prof. Akinseye George, SAN, warned the relevant authorities not to amend the constitution to exclude serving judges from handling election petition cases.

According to him,  “Honestly, I do not think we should use retired judges to handle election petition matters for three reasons. One, retired judges are no longer legally contracted. They have concluded their tenure. That tenure is what gives them some form of extra allegiance to the state. The fear of being dismissed for misbehaviour is no longer there. And it is very important in a matter of election petition,

“Two, most of the retired judges are old. None of them is less than 65 years. Most of them are 65 and above because at the high court, they retire compulsorily at 65. At the Appeal and Supreme Court, they retire compulsorily at 70. So, already, they are no longer dynamic. The election matters are very tasking, loaded and time-bound. It is energy sapping.

“Thirdly, the fact that someone has retired makes them more susceptible to undue influence by politicians especially when most of them retired into the kind of life that they would not want for themselves. That is why we are advocating for improvement in the welfare of judges, to strengthen the working conditions of serving judges.  When you appoint somebody into election petition tribunal, you need to monitor such person very closely, his lifestyle and the rest. Let us know how they live.

“To help those who are doing the job, I think we should digitalise the tribunal so that the work can become faster using technology. You can watch at the proceedings digitally because it is recorded.”

Serving or not, a corrupt mind is a corrupt mind—Ahamba, SAN

Another member of the inner bar, Chief Mike Ahamba, SAN, also said retaining serving judges to handle election petition matters is much better than going for retired judges.

He said: “Using retired judges to handle election petitions cannot work in Nigeria in this era. If it worked before,  you can’t use them in this era.

“The retired judges, when they are gone, they are gone. They cant come back. The government should try to impose sanctions on those who don’t behave like judges in election petition cases.

“The fact is that whether a judge is serving or not serving, a corrupt mind is a corrupt mind. The problem in Nigeria is the impunity with which wrongdoings are treated. Because nobody calls anybody to question. In public service, if somebody goes contrary to the ethics and the norms, they should be sanctioned. That is the way to live in a society. That is my view.”

Using retired judges will worsen the situation—Olorundare, SAN

An Abuja-based silk, Israel Olorundare, SAN, said that policymakers should not fall into the error of giving election petition matters to retired judges for adjudication.

According to him, “It will be worse if we use retired judges. The retired judges have no stake again in the judiciary. So, the politicians will just cash and carry them. But the serving judges and justices, still have disciplinary action that awaits them. Nobody will want to be dismissed or retired compulsorily for taking something.

“Even allegations of corruption or appearance before NJC is a dent on their image which they will want to run away from. It is better to remain with serving judges You can discipline them unlike those who are no longer under any disciplinary action.”