Will the Nigerian judiciary deliver electoral justice?

“I implore you to discharge your onerous duty diligently and with the fear of the Almighty God. The judiciary is in trying times, and you must uphold the integrity of the judiciary.” — Acting Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Mohammed on Saturday, January 26, 2019

On Saturday, January 26, 2019, in accordance with Section 285 of the Nigerian Constitution 1999, as amended, the Acting Chief Justice of Nigeria, Justice Ibrahim Mohammed, performed his first official duty by swearing in 250 judges appointed to serve as Election Petition Tribunal Judges across the country. It was at that epochal event that he made the above statement.

The Independent National Electoral Commission has recently concluded the 2019 general elections with the declaration of results in the suspended Rivers State governorship and State House of Assembly elections. Recall that the two strand general elections had held on February 23 and March 9, 2019, with the supplementary elections of some inconclusive elections held on March 23, 2019. There are different opinions about the performance of the INEC during the polls. Thankfully, there is a check and balance in place with the Constitution and Electoral Act making provisions for judicial review of the conduct of election, if any of the candidate and political parties feels aggrieved and desires to seek redress.

I dare say that the Nigerian judiciary has been very forthcoming in the past to right the wrongs of the electoral management body and those perpetrated by political parties. Judicial activism after the 2007 election saw to the nullification of a total of 13 governorship elections either at the tribunal or at the appellate courts. The off-season or off-cycle elections we have today are products of judicial pronouncements. Recall that but for the judiciary, the following persons may never have been governors of their states when they did – Peter Obi in Anambra State, Chibuike Ameachi in Rivers State, Adams Oshiomhole in Edo State, Rauf Aregbesola in Osun State, Kayode Fayemi in Ekiti State and Olusegun Mimiko in Ondo State. It would be recalled that only 29 out of the 36 states of the federation had their governorship elections at the same time since 2011. Just last week, INEC announced November 2, 2019 as the date for the first two off-season governorship elections in Bayelsa and Kogi states

When some state governors were trying to elongate their tenures through the backdoor by misinterpreting Section 180 (2) of the 1999 Nigerian Constitution, as amended, to mean that their tenures should start to count from the day they were sworn in after winning re-run elections, it was the Supreme Court that, in a landmark judgment on January 27, 2012, correctly interpreted that section of the law that any governor whose election was annulled and asked to be re-conducted, should he win the re-run, his tenure will start to count from when he was initially sworn in and not the time he won the re-run. This position was later reflected in the 2010 Constitutional amendment.

While I give kudos to the judiciary for past judicial activism, I am saddened by the dented image of the arm of government which has been embroiled in a lot of unsavoury things with members of the bar and the bench being accused of grand corruption. As I write this, the immediate past Chief Justice of Nigeria, Walter Onnoghen was ignominiously suspended on January 25, 2019 on allegations of false asset declaration and corruption. The president of Nigerian Bar Association is also answering corruption charges in the court. While these gentlemen are presumed innocent until proven guilty, it is very unfortunate that such allegations were made against them in the first instance.

There have been several allegations of corruption against many election petition tribunal judges. These petitions are sent to the President of Court of Appeal who constitutionally assembled them. Some petitions against them are sometimes also filed before the National Judicial Council. While many of these petitions may be frivolous, some are very weighty. Indeed, some of the tribunal judges have been found culpable of sharp practices by the NJC and have been recommended for compulsory retirement or sack.

As the 2019 Election Petition Tribunals commence sitting nationwide, I use this opportunity to passionately appeal to their lordships to be in firm control of their tribunals and not allow counsels to turn their courts to theatre halls where all manner of theatrics will be on display. As they very well know, according Section 285 (6) of the Nigerian Constitution they have only 180 days to hear matters brought before them and give their judgments. Six months is not a lot of time considering the onus on the petitioners to prove substantial non-compliance with electoral laws from Polling Units, to Wards, to Local Governments to States within that timeframe.

Tribunal judges and all those involved in these 2019 election dispute resolutions should realise that they are the bastion of Nigeria’s democracy and should not fail the nation. They should not dwell on technicalities, but on the merits of the cases brought before them. Sure, counsels will want to waste the time of the court by seeking all manner of frivolous injunctions and orders. They should not indulge the counsels in this time wasting venture. I equally enjoin them and their supporting staff to shun corruption.

Talking about election petitions, it is quite amusing how the All Progressives Congress and the Peoples Democratic Party and their presidential candidates are going about their cases at the election tribunal. First, Atiku Abubakar and the PDP challenged the qualification of President Muhammadu Buhari on the basis of not possessing the minimum academic qualification. PDP and Atiku went ahead to claim victory via a purported result obtained from INEC’s server by an organisation called factsdontlie.com. PDP and its presidential candidate is claiming to have won the 2019 presidential election by over 1.6 million votes.

These two grounds of petitions among others seem to me as straw-grabbing. INEC has rightfully claimed not to have officially transmitted results of elections in 2019 electronically. APC is also alleging hacking of INEC’s website and has asked security agents to arrest the presidential candidate of APC. Truly, I doubt if any tribunal or court will admit such nebulous exhibit that is not a certified true copy from the election management body. However, I wait to see how the tribunal will rule on that exhibit. On the other count of academic qualification of the President, did PDP and its presidential candidate read Section 131 and 318 of the Nigerian Constitution?.

Let me be more specific. The interpretation of School Certificate as given in Section 318 of the Constitution is this: “School Certificate or its equivalent” means (a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (b) education up to Secondary School Certificate level; or (c) Primary Six School Leaving Certificate or its equivalent and –

(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and (iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission, and(d) any other qualification acceptable by the Independent National Electoral Commission;

On the other hand, news reports over the weekend had it that the APC claimed that Atiku Abubakar was not qualified to contest in the president election because Jada, his home town in Adamawa State was under Northern Cameroon as at the time of his birth in 1946. Really? Anyway, what does the constitution say about qualification for election? Section 131 again spells it out. A person shall be qualified for election to the office of the President if – (a) he is a citizen of Nigeria by birth.

However, the same constitution in Section 25 says in subsection (1) as follows: “The following persons are citizens of Nigeria by birth-namely- (a) every person born in Nigeria before the date of independence; either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria.” On page one of   his autobiography published in 2013 entitled “My Life”, AtikuAbubakar claimed that his grandfather is from Worgu in Sokoto State and his mum was born of a father from Dutse, capital of Jigawa State. The claims made there have not been controverted. Can the APC prove that Atiku is a foreigner with the above-stated fact? I doubt.