The judiciary and electoral matters in Africa – Part 2

In 1993 what you may consider a bizarre event occurred in the continent of Africa and location was Nigeria. General Ibrahim Badamosi Babaginda was President and Commander in Chief under whose watch the heinous act against Nigerians was committed.

The foundation for the annulment of the June 12 presidential election of 1993 was laid less than 36 hours earlier. However the building block was assembled over several months by one Association known as Association for Better Nigeria (ABN) led by the late Francis Arthur Nzeribe and one Abimbola Davis. You will judge whether the Association deserved that name they gave to themselves.

On Thursday, June 10, 1993 one Justice Bassey Ikpeme chose an ungodly hour of 9.35pm  to launch her voyage into infamy. Though it was an interlocutory application filed by the ABN, she made a final pronouncement on an interlocutory application. She decreed that the election be stopped and this was contrary to the provisions of Section 19(1) of Decree 13 of 1993 that ousts the jurisdiction of the courts over election matter.

INEC promptly issued a statement disregarding the notorious court order, stating that the election would go on as scheduled. Despite all the shenanigans by the conspirators involving the Aso Rock cabal (The military leaders), the Ministry of Justice led by then Attorney General Chief Clement Akpamgbo SAN, the Judiciary led by Late Justice Ikpeme and ABN ably led by Late Arthur Nzeribe and against all expectations, the Election was held. There was no rain, there was no report of violence or rigging as we have at every elections in Nigeria.

It was generally peaceful, free and fair as Nigerians were ready to endure anything just to exit the military from power in Nigeria.

Interim results on Sunday June 14 showed that one Chief Moshood Abiola was leading with an overwhelming majority in 19 States while his rival, one Chief Tofa had a clear majority in 11 States. Suddenly, the unexpected happened. Another Court from Abuja has agreed with ABN that NEC the electoral umpire should be restrained from announcing any results from the States in the Federation. Nigerians felt that this was a joke taken too far.

After some of them recollected themselves, the courts became the centre of attraction. Following popular demands for the release of the results, two orders came in a row for the reversal of the order of Abuja Court. Lagos High court Judge Hon Justice Moshood Olugbani ordered NEC to release the results within 24 hours. Dr Beko Ransome-Kuti, the Chairman of Campaign for Democracy issued an ultimatum to NEC to release the results within 24 hours or the CD would do so.
Events took a more bizarre turn as one Justice Dahiru Saleh, Chief Judge of the Federal High Court Abuja declared the election null and void allegedly because the NEC had ignored the late night injunction of Justice Bassey Ikpeme to conduct the election.

What gave the government of the day away as the ones behind this strange events was the Attorney General of the Federation, Chief Clement Akpamgbo was the one that served the judgement of Hon Justice Saleh on Professor Humphrey Nwosu, the then NEC Chairman and he warned Nwosu that if he disobeyed, he will be on his own.

NEC’s Director of Legal Services, Bukhari Bello, bold and strong willed- man immediately appealed against the judgement. When he was about getting a judgement, the elephant in the room behind all these shenanigans came out from where he was hiding all this while directing the drama. President Babaginda  brought his chest out and flagrantly annulled the results and announced the suspension of NEC as an umpire. At that point both NEC and courts that initiated the drama were incapacitated to act.

The judiciary, unfortunately, was not spared by analysts concerning this bizarre event of 1993 and the stain has continued till date.

Judiciary as the last hope in electoral disputes?
Recruitment of leadership is a very grave responsibility in any democracy and as such it must be handled with every circumspection to ensure that the will of the majority is upheld and respected. Where there is failure of orderliness and fairness at the Polling Units and Collation Centres, the extant laws in every democracy whether here in Africa or elsewhere usually invest the courts with onerous responsibility of ensuring that the anomalies noticed at the Polling Units and grievances at the Collation Centres are addressed and redressed.

The courts must carry out this onerous responsibility with a view to respecting the will of the majority.  Never should they allow the will of the majority to be subverted with enthronement of technicality over substantial justice.

In Lawan’s case in Nigeria which I had earlier on referenced, there were uncontroverted evidence that his party APC did not cancel  the earlier Primary Election  held on the 28th of May, 2022 before holding another one on June 9th of the same year in clear breach of S84(5) of the Electoral Act. The minority justices in that case also found out that the APC did not give INEC 21 days’ mandatory notice before going ahead to conduct another primary election on June 9th, meaning that INEC did not monitor the June 9th Primary Election as required by law.

The minority justices were convinced that as long as APC has not contradicted those findings of fact and stated that they are perverse or unreasonable, that that defeats their entire appeal. But the majority opinion differed and dwelt on technicality.

Justice Centus Nwaeze who read the apex Court’s majority judgement held that Machina, Lawan’s main challenger was wrong to have commenced the suit at the trial court through Originating Summons in view of his allegations that the APC acted fraudulently in submitting Lawan’s name to INEC as their candidate. He said and I quote “The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants. The 1st Respondent accused the APC of fraudulently substituting his name with that of Lawan. Where there is an allegation of fraud, it should not be commenced by an Originating Summons. There was a need to call witnesses to prove allegations of fraud”.

To be continued tomorrow

Dr. Ubani is the current chairman of Election Reform Commission of African Bar Association (AFBA).