Our elections and judicial debacle
At last the curtain is drawn on the controversial Supreme Court rulings on two related electoral cases in the polity, namely, Imo and Bayelsa State gubernatorial election matters. The Supreme Court is the apex court in the country and its judgment is final in both civil and criminal matters. It is the third arm of government saddled with review of the societal grundnorm and being symbolic of the blindfolded lady of justice, it is always expected to be impartial, that is, if we adopt the perspective of the relative autonomy of the state and its institutions. Thus the Supreme Court has spoken and now all matters are res judicata. That is valid for the law and by no means precludes the debate in the public sphere over matters arising. First, we look at the points at issue.
The mandate of Governor Emeka Ihedioha of Imo State was upturned from the temple of justice. The Supreme Court in a curious mathematics gave victory to Hope Uzodinma who polled majority votes from 388 polling units in the governorship elections of March 9th 2019. The apex court held that the 388 polling units were incorrectly excluded from scores ascribed to Uzodinma and Ihedioha was not duly elected by a majority of lawful votes cast in the election. The earlier vote tally, which gave Ihedioha victory ran thus: Emeka Ihedioha had 273, 404 votes. Uche Nwosu of Action Alliance (AA) had 190, 364 votes.
Ifeanyi Ararume, of All Progressives Grand Alliance (APGA) had 114, 676 votes and Hope Uzodinma of the All Progressives Congress (APC) had 96, 458 votes. By the logic of the Supreme Court judgment, the last became the first. The Supreme Court held that the 388 polling unit results that were cancelled amounted to 213, 695 votes. When all the results were summed up, including the new number declared by the Supreme Court, all the votes went up to about 888, 617, notwithstanding the neglect of other candidates. It created a situation in which the number of votes outnumbered the accredited voters for the election. A befuddled Ihedioha approached the same apex court to set aside its judgment but his case was dismissed, the apex court held it could not reverse itself.
Similarly, the Bayelsa November 2019 governorship election was also contested before the apex court, which nullified the victory of Mr. David Lyon of APC. Mr. Lyon who had earlier been declared winner in that election was sacked as a result of forged credentials of his running mate. The apex court judgment gave mandate to Douye Diri of PDP. Not happy with the turn of event, APC sought refuge in the same Supreme Court for a review of its judgment, the court with a great deal of emotion and vehemence struck out the case, insisting that its decision was final. The court further held that “The applications are vexatious, they are frivolous and gross abuse of court process”. And that, “It is final in the sense of finality, it is final forever and only a legislation can alter it.”
The two judgments from the apex court were indeed controversial in ways that underline the character of the law as an ass but with far-reaching implications for the polity. In this respect we ask a number of questions: is challenging the Supreme Court a culture that should be enthroned in our polity? Can the Supreme Court review its earlier decisions? What is the implication for the rule of law? Why do politicians want the Supreme Court to take supremacy out of the Supreme Court? Why are even senior ministers (lawyers) in the temple of justice not afraid of undermining the supremacy that the constitution confers on the Supreme Court?
We believe the apex court can review its own decision for the purpose of good governance and consecration of the temple of justice. And this should be rarely done. We recall the lead judgment in Adegoke Motors Ltd. v. Adesanya delivered by Justice Chukwudifu Oputa who considered the powers of the Supreme Court to review its earlier decisions. The respected Justice said inter alia: “We are final not because we are infallible; rather we are infallible because we are final.
Justices of this Court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled.
This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error”. The minority judgment in the Ihedioha’s case re-affirmed this well-known point of law, when Justice Cletus Nweze averred that, “This court has powers to overrule itself and can revisit any decision not in accordance with justice… The decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come.”
We note that though errors may be inadvertent but politically tainted errors are deleterious to the polity. It is in this regard that Shakespeare in his Merchant of Venice once warned that, “It will be recorded for a precedent, and many an error by the same example will rush into the state. It cannot be”. The responsibility ensuing from this understanding is that the judiciary must jealously guard itself from losing its legitimacy in the eye of the people. The judiciary as an institution must insulate itself from the self-interest of political actors to preserve the integrity of the social order.
We also abhor a situation where the judiciary as an organ of government usurps the popular sovereignty that resides in the people, the very origin of consent given to minders of the state affairs.
Above all, a delegitimized judiciary has implication for the rule of law upon which the social order rests. As the Florentine political theorist, Niccolo Machiavelli, had noted, rule of law, justice and independence of the judiciary are indispensable for the stability of the state. This will not only aid the liberty of the citizens but of the state.