Time to reform the Nigerian judiciary
The Adeleke gubernatorial election case wherein he won at the elections, lost at the tribunal, won at the Court of Appeal, and then again at the Supreme Court, is the latest legal ping pong in Nigeria’s electoral jurisprudence. While it may provide some answers, it also poses some questions with implications for the present 2023 election litigation.
If it took 10 months for a single governorship case to be resolved from tribunal to appellate courts, what is the feasibility that the challenge of presidential elections conducted in 36 states can be thoroughly adjudicated in less than 11 months more so when at least another 31 or so gubernatorial elections are also in play? Essentially the Supreme Court has to resolve potentially 32 (31 states and presidential) multiplied by the respective number of parties challenging the results. In the Presidential election, there are five parties. This number will vary from state to state but with an average of two parties per state, the Supreme Court will have to rule on possibly 67 substantive appeals within two-to-three months. This is in sharp contrast with the U.S. Supreme Court whose entire judgements for the 2021-2022 term was 66, and 2022-2023 term was just nine judgments.
Nigeria’s Supreme Court’s 67 appeals in 60 days also does not include interlocutory appeals (potentially from the same 67 cases) and sundry election matters from NASS and other elections plus it’s normal caseload of civil and criminal appeals (According to reports 10 out of 18 political parties had already filed 431 election petitions from only 27 states even before the mid-April supplementary elections – potentially one-third of the 1250 petitions filed in the 2007 elections.)
It simply has no institutional and technical capacity to do a decent job of it given all the variables compared with the U.S. Supreme Court, which did less than 15 per cent this year of the number of cases its Nigerian counterpart will do in three months. This is why those who amended the constitution to allow gubernatorial appeals go to the Supreme Court, rather than end at the court of appeal did them and the nation a great disservice.
The court of appeal has at minimum a quintuple the number of Supreme Court justices yet we expect the Supreme Court of a dozen justices is supposed to do the same work as them in the same time frame? A full constitutional court of seven for the presidential panel only leaves five justices to form a second panel for gubernatorial appeals. This means potentially, the Supreme panel could have only two panels if there are simultaneous sittings of the presidential appeal on the same day as any of the gubernatorial appeals.
However, the court of appeal had at least 20 panels – over 10 times more panels than the Supreme Court to hear the very same cases. Yet, the U.S. Supreme Court, which has a lesser caseload, fewer justices and only one panel has better technical capacity, staffing, and resourcing for greater output. Until we reform our election jurisprudence and overhaul our technical and human capacity, we can’t get great output with no inputs. The Nigerian Supreme court should have a full complement of 21 justices minimum at election year. This is a no brainer.
We should learn from the unfortunate experience of the 2007 elections. CJN Belgore had retired and was to be replaced by a Justice of the Court of Appeal from North-central Nigeria. Justice Ayo Salami, who was next in line, declined elevation because his eyes were on the juicier position of President of the Court of Appeal. Accordingly, the next most senior Justice of the Court of Appeal of North-central extraction, Justice James Ogebe, was nominated instead along with Justice Coomasie filling the sharia law slot. Unfortunately, he was assigned to head the presidential election tribunal, while their Supreme Court nomination was still pending for almost a year.
During the hearing of the case, the Supreme Court was short-handed and suggestions were made that Justice Coomasie should be sworn in immediately and Ogebe sworn in later after he finished the proceedings. However, it was argued that it would be monumentally unfair to penalise Ogebe JCA (as he then was) for being on national assignment by swearing in Coomasie, who was far junior to him thus making him his senior at the Supreme Court. At the time Ogebe JCA was the longest serving judge in the country having been on the superior bench longer than those at the Supreme Court – since 1976 – (31 years), except for Onu JSC, who was sworn in on the same day as him into the Benue state judiciary. Accordingly both Ogebe and Coomasie JJCA’s appointments were further delayed until his completion of the presidential tribunal hearings when their Supreme Court appointments were announced.
Regrettably, there was an erroneous public misperception that the elevation was a bribe by the incumbent President Yar’adua whose case was before the court. However, the vacancy was from 2006 even before the 2007 election was held and the recommendation was by the National Judicial Council not the presidency. Of course Justice Ogebe had to recuse himself from deliberations at the Supreme Court when the election tribunal verdict was appealed thereto. Thus the court still suffered short staffing at least in this particular case. It should be clarified that the convention at the Supreme Court for presidential election appeals is that the senior most justices comprise the panel i.e. numbers 1-7. Accordingly, Ogebe JSC as a newly appointed Justice, would not have been eligible to sit on the appeal regardless of the mandatory recusal of a judge from hearing his own judgment. The practice here is for justices to debate the legal arguments in conference and of course he could not be part of this but simply allow the judgment to speak for itself. Therefore as a matter of policy and practice, each election year, the Supreme Court should have no less than 21 justices.
Sadly history is repeating itself as a senior Justice of the Court of Appeal, who should have been appointed to the Supreme Court from North-central since last year, is currently sitting on the presidential election tribunal again now. The same delays and short-staffing and even needless controversy that occurred then could also happen now given the lack of public understanding of the inner workings of the judiciary. At least three justices of the Supreme Court retired last year and have not been replaced so their Lordships are virtually running on empty tank in case just a single one of them is ill or has any other emergency during this critical period like the CJN who reportedly was in UK twice in as many weeks for medical attention.
The Apex Court should never be on the verge of human capital exhaustion as currently occurring. Buhari will forever go down as the worst for the judiciary in history. Under him, a constitutional crisis was narrowly averted with his failure to appoint a CJN before traveling abroad for treatment, then a constitutional coup was inflicted with the illegal deposition of Chief Justice Onnoghen.
Thereafter, there was the historic judicial mutiny following the epochal call for investigation of the Supreme Court by Ejembi Eko JSC during his valedictory session.
Not since the near collapse of the Supreme Court by Gen. Abacha’s refusal to appoint new justices to constitute a panel to hear Moshood Abiola’s bail case, has the court been this close to asphyxia. Urgent action needs to be taken to replenish, reinvigorate and boost the morale of the court.
The final point needs no gainsaying. The technical capacity for our legal system and judiciary to improve expeditious dispensation of Justice needs to be built up as I have written since the 1999 elections.
This week hearing resumes in my Chibok defamation trial after I won my appeal at the U.S. Court of Appeal without appearance or argument after filing my case from the comfort of my computer. Last year I voted in Nigerian Bar Association Elections from Washington on the same computer I used to file my appeal in U.S. federal court.
In a Nigeria where INEC has been able to establish the infrastructure to upload results from 176,000 polling units in real time, the judiciary which also adjudicates the same data should also have commensurate or more IT infrastructure for managing daily legal issues of the citizenry. Esteemed colleague in Nigeria told me that even the ECOWAS court in Abuja has online services. This is a court in Nigeria, with Nigerian staff, funded and hosted by Nigeria. How can Nigeria’s own courts be any less?
In conclusion, the IREV portal is the seismic game changer in our quest for election integrity or accountability in the compromise thereof. If I can from my computer in Washington see the massive malfeasance and fraud on display before the world thereon, shouldn’t our courts have technical capacity for equal access to the same as the average Nigerian “online youth”?
As a very senior U.S. federal judge who hears cases from the comfort of his farm ranch most of the year told me, when he lectures overseas, he’s impressed with the regalia of the office of foreign judges – cars and security etc. However, they always lack the paraphernalia of office that he has. We can and must revolutionise our archaic, anachronistic, and overstretched legal system, if indeed it should serve as the last hope of the common man.
I was impressed recently to learn that the court of appeal has built in capacity to livestream tribunal proceedings. This is just the first step in a long walk to speedy justice. If the Supreme Court’s Osun verdict was live-streamed or immediately released electronically, by now it would have had impact on the presidential election tribunal and potentially the over 700 election petitions
Last year, when the U.S. Supreme Court announced its decision in Dobbs v. Jackson Women’s Health Organisation, No. 19-1392 (June 24, 2022), which overturned 50 years of Roe v Wade’s abortion on demand, 13 American states had trigger laws awaiting pronouncement for immediate implementation. This is how dynamic and proactive effective legal systems can be.
However, pending the long-term reform roadmap above, the Osun decision may still hold a recipe in the short term for speedy resolution. Due to the unique introduction and utilisation of BVAS in the current elections, the simplest and shortest solution to the hundreds of pending election petitions is for the tribunals to direct all parties to address them on the implication of the Oyetola v Adeleke Supreme Court decision pertaining to their respective cases. Based on the said addresses, the tribunals may unanimously decide that fresh elections should be held consistent with the Supreme Court’s recent decision and save the nation protracted litigation and time.
Ogebe, Esq, is a U.S.-based international human rights lawyer, and Nigeria Judiciary expert with the U.S. Nigeria Law Group, Washington