• Judges under fresh scrutiny over questionable judgments

By Clifford Ndujihe, Politics Editor

THE judiciary or temple of justice is often regarded as the last hope of the common man. But to some politicians in Nigeria, the judiciary is becoming the lost hope of the common man especially on election matters.

Those who hold this view claim that it is now difficult to overturn a flawed election in the country on account of alleged recklessness of judicial officers, who give conflicting political judgments, which, they further claim, is constituting a threat to Nigeria’s hard-won democracy.

Sadly, the development has led to the coinage of the phrase “go to court” that has become a popular phrase in the polity.

In other words, people can manipulate election outcome with impunity and dare their opponents to go to court because “nothing will happen.”

However, those opposed to this view counter that the judiciary is doing its best in justice dispensation and cannot be held liable for the deliberate short-comings of ever-desperate and win-at-all-costs political actors.

It was not like this at the beginning of the Fourth Republic in 1999.

Elections were considered to be relatively free and fair back then.

Most losers took their losses in good faith and returned to the drawing board to prepare for the next election.

For instance, Chief Olu Falae, then-Alliance for Democratic Party, AD, and All People’s Party, APP, joint presidential candidate, did not challenge the victory of General Olusegun Obasanjo of the People’s Democratic Party, PDP, in court even though he had some misgivings.

Virtually all the losing candidates shared Falae’s view as only two election petitions were recorded in 1999.

However, things started taking a bad shape in 2003 when election riggers got bolder in their manipulation enterprise.

This led to the filing of 560 petitions that year.

Number of petitions in subsequent general election cycles is as follows: 2007 had 1290 petitions; 2011 (732); 2015 (560); 2019 (1,697); and 2023 (1,996).

Rising cases of election petitions

Year – Number of Petitions
1999 – 2
2003 – 560
2007 -1290
2011 – 732
2015 – 560
2019 -1,697
2023 – 1,996
Total – 6,840

Rulings

In the earlier electoral cycles, it was difficult to predict the rulings of the courts as many governors and top politicians lost their seats in court.

The first governor to benefit from the court was Mr.Peter Obi of Anambra State.

His petition lasted three years between 2003 and 2006 when the Supreme Court annulled the election of Dr Chris Ngige of the PDP and declared him winner on the platform of the All Progressive Grand , Alliance (APGA).

After Obi, other governors who mounted the governorship saddle via the Supreme Court include Mr Rotimi Amaechi (Rivers); Comrade Adams Oshiomhole (Edo); Mr Rauf Aregbesola (Osun); Dr Kayode Fayemi (Ekiti); Mr Rotimi Akeredolu (Ondo); Senator Douye Diri (Bayelsa); Senator Hope Uzodimma (Imo) and Mallam Bello Matawalle (Zamfara).

Today, apart from Kogi, there are off-cycle governorship elections in Anambra, Ondo, Ekiti, Osun, Edo, Imo and Bayelsa states because of nullification of flawed polls.

Kogi joined the off-cycle election league because of the death of Governor Abubakar Audu of the APC a few days to the supplementary election he was on the verge of winning in 2015.
This delayed the election for four months.

The nine listed cases were the only times governorship elections were annulled and the last was that of Emeka Ihedioha of Imo State in January 2020.

Ever since no governorship election has been annulled no matter how controversial or flawed it was.
Also, no presidential election has ever been annulled with the closest being the 2007 presidential election where four of the seven-man Supreme Court panel affirmed PDP’s late President Umaru Musa Yar’Adua’s election while three justices ruled in favour of General Buhari of the All Nigeria People’s Party, ANPP.

How ‘go to court’ is killing our democracy – Obasanjo

Looking at the issues, former President Obasanjo, sometime last month, lamented that the inability of courts to dispense justice in election matters was destroying Nigeria’s democracy.

Delivering a 56-page keynote address titled: ‘Leadership Failure and State Capture in Nigeria,’ at the Chinua Achebe Leadership Forum, Yale University, Connecticut, USA, on November 15, Obasanjo decried the failure of governance in Nigeria and “the near collapse of our Nation State.”

According to him, the 2023 elections in Nigeria were “a travesty” by all national measures, and lamented the impunity where politicians corruptly get themselves declared as winners in an election and ask the winner, who had been declared loser, to go to court.

Arguing that “where justice cannot be assured is the easiest and best way to kill electoral democracy,” he said: “The judiciary in Nigeria is a very pale version of its once internationally esteemed self.

Politicians after rigging elections openly ask their rivals to ‘go to court’ in Nigeria because they are aware that they have completely compromised the judicial system.

“A number of judges are in the pockets of wealthy politicians and individuals and make judgments – not based on the law of the land but to the highest bidder.

“This is one of the most effective strategies of state capture that must be excised from Nigeria like a surgeon cutting out a malignant cancer.”

He continued: “Transparency International suggests that ‘corruption in the judicial system breaks the basic principle of equality before the law and deprives people of equality before the law and deprives people of their right to a fair trial’.

“In a corrupt judicial system, money and influence may decide which cases are prioritized or dismissed. Perpetrators may get away unpunished while victims are left with no answer and no justice.

Way out

”Simple reforms can prevent this. An independent body and public oversight can guarantee that appointments in the judiciary are based on merit rather than favouritism.

“Judicial personnel should be adequately trained and receive fair salaries and pensions, to make them less vulnerable to bribery.

“Judges’ personal liability for decisions should be limited and, to protect them from pressure by powerful interests, only credible and transparent investigations should be conducted against them.”

Nigerians can’t afford to distrust the judiciary — ActionAid

The Actionaid, in its 2023 report on Post-Election Judicial Accountability and Reforms in Nigeria, cited some contradictory judgments of the courts and asked: “If we cannot get it right at the polls, if we cannot trust INEC, should we still be apprehensive of the judiciary? What is the hope for Nigerians?
It listed the contradictory rulings on election petitions in Plateau, the Supreme Court verdicts on the candidacy of former Senate President Ahmad Lawan; Vice President Kashim Shettima’s double nomination; and President Tinubu’s forfeiture of money in the United States as controversial issues that question the fairness of the judiciary.

Contradictory judgments

On the Plateau election petitions, Actionaid said: “While some panels in Plateau sacked some elected state and National Assembly members on the grounds that the PDP to which they belonged did not hold a valid primary election, some other panels disregarded that point and held that issues concerning primaries of a political party were pre-election matters and could not be raised to challenge the declared winner at an election petition tribunal.

“When appealed, the Court of Appeal disregarded the settled principle of law that a pre-election matter cannot be raised at the post-election stage and affirmed the decisions of the tribunal which nullified the return of several PDP members on the grounds that there were no validly conducted PDP primaries leading up to the general elections, and while setting aside the decision of the panel that applied the known position. The decision of the Court of Appeal affected the current governor (Caleb Mutfwang).

“Luckily for the governor, he had a right of appeal to the Supreme Court, which he exercised and got the Supreme Court to restate the position of the law, set aside the decision of the Court of Appeal and restored his mandate.

“Unfortunately, for members of the House of Representatives from the state and members of the state House of Assembly, who were elected under the umbrella of PDP, they lost their mandate since the Court of Appeal is their final level of appeal.”

Lawan S-Court judgment

On the Bashir Sheriff Machina vs Ahmed Lawan (then Senate President), it said: “Lawan did not participate in the primaries for the National Assembly election for Yobe North senatorial district and Machina was returned unopposed.

“Shockingly, when Lawan lost out in the presidential primaries, his name was submitted by his party to the INEC as the candidate for the Yobe North senatorial election.

“This led to the case instituted by Machina at the Federal High Court in line with the Electoral Act. He won both at the Federal High Court and at the Court of Appeal.

“When the matter got to the Supreme Court by an appeal by Lawan, the Supreme Court took a different turn by holding that the process used by Machina to commence the case at the Federal High Court was wrong.

“Rather than commencing his case by use of Originating Summons, he ought to have used a Writ of Summons in light of the criminal allegations contained in the affidavit.

“This saw Machina losing out and Lawan adopted as the party’s candidate since his name had already been submitted to INEC.

“In giving this judgment, the Supreme Court disregarded its earlier judgments where it clearly held that only a party who took part in the primaries can contest the result of the primaries.

“The decision of the court sounds strange as the court abandoned the substance of the case despite the ample evidence that Lawan never contested the primaries for Yobe North, which should have disqualified him, but relied on undue technicalities on the mode of commencing the action at the Federal High Court.”

2023 election

According to Actionaid, the decision of the Supreme Court on the presidential election petitions against APC and President Tinubu by Atiku Abubakar and Peter Obi presented “several issues which left citizens more confused than convinced that the tribunal was unbiased in its decision.”

Double nomination

On the allegation of double nomination against Vice President Shettima, the group said: “It was argued that Shettima’s nomination as the running mate to Tinubu was in breach of the provisions of Sections 29 (1), 33, 35 and 84(1)(2) of the Electoral Act, 2022 (as amended), claiming that Shettima had double nominations.

Having been nominated as vice presidential candidate, he had not resigned or withdrawn his nomination as candidate for the Borno Central senatorial poll.

“Despite the decision of the court refusing the argument, the feelers claimed that Section 35 of the Electoral Act was violated by the double nomination of Shettima”, ActionAid said.

“The Section provides that ‘where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.’

“The court was, however, more concerned with who raised the issue, holding that such issues have to come from APC and not any third party.

Civil forfeiture

”There was a lot of noise about the American case against Bola Tinubu where there was an order against him forfeiting certain amounts of money which were proceeds of crime.

“Citizens saw this issue as very germane due to an earlier decision of the Supreme court delivered on January 17, 2014 by the CJN Ariwoola (as then was) in a case between Mohammed Abacha, the second child of Sani Abacha, a former head of state, and the Federal Republic of Nigeria.

“One of the seven men on the panel of justices was Walter Onnoghen, a former CJN, who also held that forfeiture means ‘the loss of a right, privilege or property because of a crime.’

“How come the presidential tribunal disregarded this known position in the case of Tinubu to find that this particular forfeiture was not one anticipated by the constitution?”