ANN Widdecombe, former British parliamentarian, despairing on the notion of justice after seeing two judges reach for two extremes of the continuum while sentencing on two remarkably similar offences, wrote in exasperation: “One can be forgiven for concluding that justice is a lottery… in which the luck of the draw is determined by the judge allocated to the case.” It was scant consolation to her that the judges were actually exercising lawful discretion within the guidelines set by the law but while one judge went for the harshest sentence allowed, the other chose the most lenient. I invite the reader to imagine her sense of outrage if the judges had acted outside of the principles and guidelines laid down by the law and gone on a flight of fancy as we have seen in our judiciary in recent times.

I have heard many people parody Charles Dickens and say that “The law is an ass” in justifiable but misconceived outcry over recent decisions of our courts, particularly the Court of Appeal. I say misconceived because not even Mr. Bumble through whom Dickens uttered the immortal statement in Oliver Twist could have fathomed the full dimension of judicial prestidigitation that would afflict our own distant shores 177 years later. So, yes, the law can be an ass in the sense of its obstinacy and unbending application, but never in the sense of its willful non-application or deliberate manipulation such as when a judge, while not complying with the law in the first instance, rules that an election is void for non-compliance with the law!

This is the dreary state of the non-functioning of judicial process in which Justice Thurgood Marshall described justice as a metaphor for “Mere access to courthouse doors.”

Nothing illustrates this state of our judicial process better than the decisions that tumbled in from the election tribunals and the Court of Appeal with regard to Rivers State.

Yet we must provide a context in order to fully understand the pernicious character of the judgments that gushed out of those courts in respect of the elections that took place on March 28 and of April 11 and 12, 2015 in Rivers State.

On Tuesday April 21, 2015, while fielding questions in a session under the auspices of Civil Society Organisations Situation Room in Abuja, the former INEC chairman, Prof. Attahiru Jega, had this to say about the Rivers elections: “On the petition against election irregularities in Rivers State, the commission sent three national commissioners to the state to investigate it. Some people don’t (sic) want election to hold, they are the ones calling for cancellation. We investigated the allegation of fake result sheets in Rivers State, our reports showed that there was nothing like that.”

Jega’s comment is insightful, those who never wanted election to hold in the hope that the new order at the federal level would provide them untrammelled leeway to Government House in Port Harcourt have largely succeeded in foisting a false and sinister narrative on the country that there were no proper elections in Rivers State. Sadly, indeed, they have also succeeded in luring the judiciary into brazen partisanship using the same pretext, as we shall see presently.

But, again, in another forum in faraway United States, at the Center for Strategic International studies, Washington, DC, Prof. Jega said the following about Rivers elections: “We created a three-man team to investigate the allegations of electoral malpractice (in Rivers State), it was not true that elections didn’t take place in majority of the state, it was not true that result sheets were manipulated. There was no evidence of malpractice or photocopied result sheets and no substantive evidence to establish alteration.”

These are the emphatic and unequivocal words of the man who knows more than anyone in Nigeria about the elections he conducted and supervised; a man whose praises have been sung to the skies as the personification of rectitude and integrity. So why did the Rivers election tribunals and the Court of Appeal reverse the order of onus of proof by not requiring the petitioners to prove their allegations of non-voting and other irregularities and by so doing disprove Prof. Jega? What did the judges and justices know that Prof. Jega and his INEC team didn’t?

An election is a momentous event with serious social, political, economic and even cultural implications for society. The processes leading up to it are no less dire. That is why courts had before now demonstrated remarkable restraint and eschewed arbitrariness in coming to a decision to annul an election. It is also in recognition of the fact that in the end, it is primarily the duty of the people to choose their leaders, not the job of the courts. J. A. Fabiyi, JCA (as he then was, now of the Supreme Court) put it very well when he said: “A judge should be satisfied beyond doubt that the election was void beyond doubt before knocking it down… A return is a serious matter and should not be lightly set aside”. (see Nwole v Iwuagwu [2005]16 NWLR pt. 952 p. 543 at 571).

But we saw a total repudiation of this admonition in the Rivers governorship election petition and the subsequent appeal, where the return of a candidate as governor was annulled solely on the basis of the evidence of two witnesses none of whom witnessed or participated in the election. The first one (PW40) was as raw a secondary or hearsay evidence as you will get which, besides breaching every rule of admissibility, is in addition, a naked denunciation of the Court of Appeal’s own decision barring INEC from denying the genuineness and authenticity of a result it has caused to be published. (see Ngige v Obi [2006] 14 NWLR pt. 999 at p.196-197). The second one, the so-called Card Reader Report from PW49 is not only unknown to the Electoral Act, it is not even mentioned anywhere in the suddenly all-important INEC Guideline and INEC Manual. So how can it be the sole means by which to prove accreditation and voting?

And we saw that when you allege irregularities or other malpractices in an election you no longer need to prove them! Rivers State has nearly 5,000 polling units and voting centres. But the petitioner called only three witnesses, including himself, who claimed to have been disenfranchised but none of whom tendered a voter’s card and/or voter’s register. This is a mockery of our law and the entire judicial process and particularly mocks the Supreme Court decision on the subject requiring that proof of non-voting, over-voting or similar irregularities must be established polling unit by polling unit and by direct evidence of witnesses on the ground. (see Kakih v PDP [2004] 5 NWLR pt.1430 p.377).

• To be continued tomorrow

•  Bob, a lawyer, wrote in from Abuja.