‘Modification of rules of evidence will speed up adjudicatory process’

The elections are a few weeks away. The tempo is heightening and the frenzy and tension  palpable. Surely, some of the election results would be challenged in court in the coming weeks. In this interview with JOSEH ONYEKWERE, a Lagos-based senior lawyer, Robert Emukpoeruo, speaks on time frame of electoral tribunals, section 5 of money laundering act and the peace pact signed by presidential candidates among others.  

THERE is a judgment of a Federal High Court where the court held that it is unprofessional for lawyers to disclose their clients fund in a money laundering case. What is your take on it? 

I am aware of that very interesting judgment. The judgment is important in the annals of legal jurisprudence and the practice of law in Nigeria. I believe it recognized the unique and most privileged position lawyers find themselves in relation to information received from their clients. In the originating summons filed on behalf of the NBA by its Registered Trustees, the NBA inter alia prayed that the provisions of Section 5 of the Money Laundry Act 2011 (MLA), so far as they purport to apply to legal practitioners was null and void. 

The NBA also prayed for an order removing legal practitioners from the definition of Designated Non-Financial Institutions (DNFIs) as contained in Section 25 of the MLA, an order of perpetual injunction restraining the CBN from seeking to implement its circular reference FPR/CIR/GEN/VOL.1/028 dated 2nd August 2012 in relation to legal practitioners, and an order of perpetual injunction restraining the Federal Government, acting through Special Control Unit against Money Laundry (SCUML), the National Financial Intelligence Unit (NFIU), EFCC or otherwise howsoever from seeking to enforce the provisions of Section 5 of the MLA in relation to legal practitioners. 

The judgment was handed down on the basis of the issues that were ably agitated and canvassed before his lordship the inimitable Justice Gabriel Kolawole of the Federal High Court, Abuja. The three issues upon which the court determined the case in favour of the NBA, were whether Section 5 of the MLA was unconstitutional, whether SCUML is the body authorised to regulate the conduct of legal practitioners and whether it is a juristic body, and whether in view of the Legal Practitioners Act (LPA), Evidence Act and the 1999 Constitution (as amended), the legal profession is not already well regulated? All the issues were resolved in favour of the NBA. On the classification of legal practitioners as “traders,” Justice Kolawole rejected the classification and held that lawyers are not “traders” and do not have “customers.” They ought not to have been grouped in the category of persons who can be reasonably treated as traders. Frankly this is a welcomed judgment, which now brings the country in line with what obtains in other jurisdictions. 

Some lawyers have argued that the 180 days stipulated by the constitution is not enough to decide all electoral matters. What do you think? 

  Well, speaking from my experience in the conduct of several election petitions in various parts of the country I would take the view that the 180 days is adequate for the hearing and determination of most election petitions. Even with this time limit there are still numerous instances of adjournments, procrastination either from the petitioner or the respondents. A diligently prosecuted petition will be heard and determined within 180 days. The recorded instances where petitions lapsed was during the early days of the introduction of the time limit.  And lapses occurred more as a result of the striking out of petitions without a hearing on the merit leading to appeals to get the petitions heard on the merit. Some of these appeals took 120 days before an order for a hearing of the petition on the merit was handed down.  But of course, by the time the parties returned to the Tribunal for trial, there is usually little or no time to finish the trial. But all that is largely a thing of the past with the provision of paragraph 12(5) of the First Schedule to the Electoral Act 2010 as amended, which in mandatory terms directs all objections to the competence of an election petition to be heard and determined along with the substantive petition. In simpler language hear and determine petition on the merit. Don’t strike them out without attending to the merit or substance of the complaint in the petition. I should point out that this period of 180 days is indiscriminately prescribed for all election petitions. House of Assembly, House of Representatives, Governorship and of course, Presidential.   

  With regards to the House of Assembly election, there are some states where the House of Assembly Constituency may just be one local government but not more than two local governments will comprise a constituency for the House of Assembly. So, you will realize that for an election petition involving maybe the House of Assembly, House of Representatives and even Senatorial, 180 days is more than enough to dispose petitions that entails all these categories. The number or the volume of election petitions also has a very important bearing on the 180 days time limit. INEC informed us that in 2007 over 3000 election petitions were filed after the general elections of that year. Following the general election of 2011 less than 1000 cases were filed. The less the number of cases filed, the less pressure on the judges and this translates into less pressure on the 180 days. 

  But with regard to gubernatorial elections, the 180 days is always stretched to breaking point! Both the lawyers and Judges of the tribunal are under tremendous pressure because in some states like Kano you have over 40 local government council and in others at least 16 with a minimum of some 2,000 polling units. There is real possibility that before you can prove your case, you may need to call up to 2,000 witnesses having regard to some of the decisions of the court that if you are complaining about any polling unit, you must call at least one voter from each polling unit which for gubernatorial election may translate into a minimum of 2,000 witnesses! Of course this has never happened. Strategically you have to limit the areas of challenge and the issues to be pursued to bring your case within the time limit.  I have not been personally involved in any presidential election petition matter but I think if any issue of time will arise, it probably may arise with regard to the presidential election. The Court of Appeal is the court of original jurisdiction for the trial of presidential election petitions and more often than not, from the history of that court, numerous petitions are not filed. But even if only one election petition is filed the Court of Appeal will most certainly be seriously tasked in hearing and determining the petition within 180 days. I believe that the modification of the rules of Evidence as contained in the Evidence Act will greatly speed up the adjudicatory process. Tendering and reception of evidence is quite technical and tedious in election petition. A complete elimination of these technical and tedious rules of Evidence will better aid the just and expeditious disposal of election petitions. 

What of election appeals at the appellate courts?

  The 60 day time limit for hearing and determination of election appeals at the Court of Appeal and the Supreme Court is problematic. The problem is that the time starts running from the date of judgment. This is a problem because the certified true copy of the judgment may not be available on the day the judgment is delivered but generally speaking they are available within seven days of the delivery of the judgment. 

Now, the record of appeal itself takes within 10 days to be compiled from the receipt of the notice of appeal, which can be filed within 21 days of the delivery of the judgment. All these period are part of the 60 days! What is curious is that even before a notice of appeal is filed, the time to hear and determine the appeal is already counting down. Surely the time to hear and determine an appeal should start counting from the date the notice of appeal is filed. Pragmatically the time to hear and determine an appeal should start running from the date the record of appeal is transmitted to and entered at the Appeal Court. This will give the judges of the Court some critically time to thoroughly scour the record of appeal and have a greater mastery of the issues in the case. There is a need to review the time to enable the judges more time to give fuller considerations to the merits of these appeals. 

Presidential candidates recently signed a peace deal to forestall violence in the forthcoming general elections. Do you think this agreement will work?  

  Well, that is a very important step, which was initiated by the former United Nations Secretary General to douse tension. I think the first time I heard of the need for an undertaking to reject violence was from the U.S. ambassador to Nigeria who advocated that there is a need for everybody aspiring to political office to sign this undertaking rejecting violence before, during and after the election. I take the view that this is a first step because the signing of this non-binding sanction-less undertaking should not be limited to only the presidential candidates. It should be signed by all the candidates to all the elective positions. Governors, Senators, House of Representatives and the House of Assembly because violence rears up its ugly head at every level of the election. It is not only during the presidential election that we have violence, there can be violence during the gubernatorial or even House of Assembly election. There must be an approach that brings in all the key actors in the entire electoral process. In this I have at the back of my mind INEC. INEC plays the most crucial role in this matter of electoral violence. If elections are not free and fair or are perceived to be free and fair the consequence of this is violence. So, as a first step, within INEC itself, their officers must strive in the interest of this country and its people to shun all forms of inducement or intimidation throughout the electoral process. They must be resolute in defying their own greed and the advances of the politicians. 

  So if the officers of INEC permanent and or adhoc are not resolute in giving to Nigerians a free, credible and transparent election that peace accord will be brought to naught. That is why I said INEC plays a very crucial role in the prevention of electoral violence and they need to be sending out a message which they are not doing right now.  They need to demonstrate and show people how this election will be conducted so that people will understand the process. It will build confidence. It is important that people have confidence in the process. The PVC debacle is already testing peoples’ confidence in INEC. 

Another aspect INEC has been failing is in the monitoring of campaigns of the political parties. It is part of the constitutional function of INEC to monitor political parties’ campaigns and to issue rules and regulations for the activities of political parties. I am not aware of any rule or regulation that INEC has issued in this regard. I am not aware that INEC issued any code on how parties should campaign. 

Does failure to produce certificate lead to disqualification of a presidential candidate? 

  One thing I know for sure is that under the provisions of the Electoral Act 2010 (as amended) there is no requirement for a candidate to produce or attach his certificates to the affidavit he is required to swear to show that he has met all the Constitutional requirement for election to the office he seeks to occupy. All he is required to do under the provisions of section 31 is to swear to an affidavit that he has met the required constitutional requirement for election to the office of President. The Constitutional requirements are contained in sections 131 and 137 of the 1999 Constitution as amended. The constitution itself does not even require him to have an educational certificate. If he is educated up to secondary school certificate level then is qualified to contest. But the point is that if he has made a statement in an affidavit that he submitted to INEC that he possesses a school leaving certificate then that is a statement on oath. I am firmly of the view that the fact that he did not produce a certificate will not constitute a ground to disqualify him, certainly that will not be consistent with any provision of the Constitution. Don’t forget as I said earlier that qualification and disqualification is governed exclusively by the Constitution. Now, if you take that to a logical conclusion, what that means is that unless he has infringed any of the provisions of the constitution dealing with qualification or disqualification he cannot be disqualified merely because he has not produced his certificate. If you go through the constitution, there is no provision which disqualifies a person from contesting election because he did not produce his academic certificate. The affidavit he swore to is evidence, may be tenuous evidence, but evidence nonetheless of his qualification. On the issue of qualification, he is a Nigerian citizen by birth, he is over the minimum age of 40 years, he is educated up to at least secondary school certificate level, and he is sponsored by the APC. None of the disqualifying events enumerated in section 137 of the Constitution is applicable to him. It is the Electoral Act that provides for disqualification where a person makes a false statement in an affidavit to INEC and I think this is about the only issue that can be raised against Gen. Buhari.  But assuming that his statement in the affidavit was even false, the issue of making a false statement in an affidavit is contained only in the Electoral Act, it is not contained in the Constitution. I take the view that that provision in the Electoral Act is an unconstitutional provision because that is an attempt by the National Assembly to create a new ground of disqualification. There is no such ground in the constitution, the only ground is presenting a forged certificate to INEC. Buhari has not presented any certificate to INEC so he certainly cannot be disqualified under that ground.