Recent elections conducted by the Independent National Electoral Commission (INEC) were declared inconclusive. Such developments have not only left most Nigerians apprehensive of the competence of the electoral umpire to conduct a free and fair elections in 2019, but the worrisome effect of having inconclusive elections always.
A senior advocate of Nigeria, Dafe Akpedeye reacted to some of the issues raised and concluded that everyone has a role to play to ensure free and fair election that would engender the growth of our democracy.
He also spoke on proposed amendment of the 2010 Electoral Act and other areas the Senate should consider while amending the Constitution among other issues.
On his views about the recurring inconclusive elections being conducted by INEC, Akpedeye said: “To most Nigerians interested in the democratic advancement of the country, the current trend in the Independent National Electoral Commission (INEC), is becoming disturbing. Since October 21, 2016 when the new Chairman for INEC was announced, the Commission has conducted three State elections – in Kogi, Bayelsa and Rivers states. Each of them was declared inconclusive.
“Nigerians now refer to the Commission as the Inconclusive National Electoral Commission. INEC has blamed this trend on disruptions by the political class who most times use every means necessary including bribery, violence or intimidation to ensure victory in an election.
“What they fail to understand is that each time an election is declared inconclusive it means funds have to be expended for a rerun or fresh election. This imposes great financial burdens on electoral candidates and their political parties, thus heightening the stakes for corruption when such individuals get into public office. It also heightens further tension and sends the contenders “back to the trenches” and more lives and property are lost during the reruns. It is true that the INEC alone cannot guarantee free, fair and conclusive elections. We all have a role to play to ensure the continued growth of our democracy. However, INEC has a lot to do to retain the confidence of Nigerian voters in its activities, especially as it prepares for the more daunting challenge of conducting the 2019 general elections.”
Nigerian Senate is poised to kick-start the process for the amendment of the 2010 Electoral Act to pave way for early primaries and strengthen electoral process. The senior lawyer commended the move. According to him, that is a welcomed development.
He said: “This is a welcome development which is long overdue. Nigerians have been clamoring for the amendment of the Electoral Act. Even Nigerians in the diaspora have lent their voice to the cry. Their inclusion in the process would be a positive development for many reasons, first of all it would represent true democracy and full inclusion of all Nigerian citizens stricto sensu.
However, the amendments should not only be focused on party primaries. There should be a holistic amendment of the Act. Before the 2015 general elections, INEC submitted proposals to the National Assembly for amendment of some sections of the Act, which it said, is making its works “ambiguous and confusing,” especially in dealing with the antics of political parties and other stakeholders. I believe the time has come to take another look at this.”
On whether there are other amendments the Senate should look into, he said: “The National Assembly recently kick started the process of amending the constitution for the fourth time by inaugurating constitutional amendment committees to oversee the process which I believe is a step in the right direction. Going by the various security, economic and socio-political issues confronting the country there is no gain saying that this is coming at the right time.
The National Assembly should be looking at amendment which will grant some measure of autonomy and strengthen key institutions that support democracy such as the Courts, INEC, the Police, ICPC, EFCC and other key Institutions. I would like to add that in carrying out the much needed Constitutional amendment, the National Assembly should take into consideration the yearnings and aspirations of Nigerians and also bear in mind the need to cut down cost of governance in Nigeria.
Asked about the difference between the judgment which dismissed Hon. James Faleke’s petition for lack of merit and that of the Supreme Court which declared Rotimi Amaechi as Governor in place of Celestine Omehia, Akpedeye said: “The issue before the Court in Rotimi Chibuike Amaechi vs. Independent Electoral Commission & Ors (2) Celestine Omehia (3) Peoples Democratic Party (2008), was one of withdrawal of candidate by the party and not death. But the interface between the two cases is that both revolve around the appropriate way a party can replace a candidate for the purpose of election. In delivering judgment, the Court stated that when a political party later asks to substitute a candidate, it does so against the background of the result of the primary election.
If there is a problem with a candidate who comes first, then the party will opt for the 2nd and later 3rd etc in that order. There is simply no room for a candidate who never contested a primary election in such setting to emerge a party candidate. Applying this principle in the Kogi election, it is clear that Faleke does not feature at all as he did not take part in the party primary. He was chosen as a running-mate to Audu only after the party primary. So, if anyone has to be considered outside a fresh party primary, it must be, according to the Supreme Court decision and the choice will be Alhaji Yahaya Bello who was the closest rival to Audu at the primary.
Consequently, the proper way of applying the Supreme Court verdict in the Amaechi case is not to assume that because the running-mate and the deceased are running on one party platform, the death of the gubernatorial candidate automatically means the running-mate steps in as the part candidate as both were produced by the party during their primary. This is for the simple reason that the running-mate was not the party candidate for the governorship election. Going by the Supreme Court decision, the party must be given the opportunity of choosing its own governorship flag bearer, rather than indirectly imposing one on it before the election.
As the Supreme Court pointed out, the ‘one unchanging feature’ is the sponsoring party. It is political parties, not candidates that actually contests elections. The 1999 Constitution has no provision for independent candidacy. It’s a different matter if they had won the election and a Deputy-Governor Mr. James Faleke is stepping into the shoes of a Governor Abubabar Audu for reason of death of the latter. Where an election is yet to be conducted or concluded, the party must be given the opportunity to put itself in a position to win by choosing its own candidate.”
Asked if the Supreme Court can reverse itself, the senior advocate started by quoting late Justice Oputa thus: “We are final not because we are infallible, rather we are infallible because we are final”. This memorable quote by the late Justice Chukwudifu Oputa, he said speaks volume about the powers of the Supreme Court. His words: “There is no power in the Supreme Court to set aside or review its own judgment given in the same case. The only exception relates to correction under the slip rule, which cannot be regarded as a review properly so called. Thus, the Supreme Court may revisit its judgment under Order 8 Rule 16, Supreme Rules to correct clerical errors or omissions or gabs to give meaning to the judgment or decision of the court and not to vary it.
This is without prejudice to the inherent power of the Supreme Court to set aside its judgment in appropriate cases when; the judgment is obtained by fraud or deceit either on the court or by one or more of the parties. Such a judgment can be impeached or set aside by means of an action which may be brought without leave, or where the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside, and when it is obvious that the court was misled into giving judgment under a mistaken belief that the parties had consented to it.
For example, the case of Johnson v Lawanson (1971) 7 NSCC 82 is regarded as the trail-blazing case in which the Supreme Court exercised the power to overrule itself. Coker J.S.C. delivering the Court‟s judgment held that “when the Court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, if followed, inflict hardship and injustice upon the generations in the future or of causing temporary disturbances of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.” Again in Olorunfemi v Asho the Supreme Court set aside its judgment delivered in January 8, 1999 on the ground that, it failed to consider the respondents cross–appeal before allowing the appellant’s appeal. The court then ordered that the appeal be re-heard de novo by another panel of Justices of the Supreme Court.
The Supreme Court has been inundated with appeals to review its decision given in the same case and there has been a consistent refusal on the part of the Court to act as an appeal court over itself. A case in point is that of Dr Andy Uba who had earlier gone to the Supreme Court to ask for the revalidation of his alleged victory at the April 14, 2007 governorship election and return him to office after the Supreme Court threw out his case, approached a seven man panel of the court to get the court to set aside its judgment which terminated his two weeks tenure as the Governor of Anambra State in 2007.
The Court in its ruling delivered by the then Chief Justice of Nigeria, Justice Idris Kutigi observed that Dr. Uba’s attempt at luring the Court into setting aside its judgment which was delivered on June 14, 2007 was a gross abuse of the court process and maintained that there must be an end to litigation. This was again reaffirmed in the case of Prof. Steve Torkuma Ugba vs. Gebriel Torwua Suswam where the issue for determination was whether, given the facts of the case, the applicants satisfied the conditions to warrant the Supreme Court to set aside its earlier ruling. The advantage of this stance, is that it fosters stability, enhances development of consistent and coherent body of laws, preserves continuity and manifests respect for the past, assures equality of treatment for litigants similarly situated, spares the judges the task of re-examining rules of law or principles with each succeeding case and finally it affords the law a desirable measure of predictability.”
