Post-electoral Litigation: Why impartiality of judiciary is vital — Lawyers
The Nigerian judiciary has gone through various forms of controversies in recent times as a result of some of its judgments that people felt were short of expectations, especially at the Supreme Court level.
The once revered judicial arm of government was finally demystified in October 2016 when the State Security Service invaded houses of Justices and judges in the night and further charged them to court for alleged corrupt practices. Although, most of them were discharged and acquitted, it appeared to have confirmed speculations and perception of sharp practices in the judiciary that have led to justice denial in the past.
With this development, the ‘vote of no confidence’ on the judiciary grew and people gradually began to lose interest in approaching the court when their rights are infringed upon, especially when the government in power is the defendant. In fact, Nigerians could predict the outcome from the moment a legal action was instituted against the government in power.
Having been subjected to judicial process several times, President Muhammadu Buhari, in his early days in office, had alluded to the judiciary being a problem rather than the hope of all men. He further brought the second arm of government to its knees when he told his audience that the judiciary was his main headache in the fight against graft.
Interestingly, eight years after, it was surprising that the same President Buhari has recommended the same court he publicly accused of corruption to aggrieved parties at the just concluded Presidential and National Assembly elections.
While congratulating the candidate of All Progressives Congress (APC), Senator Ahmed Bola Tinubu, who was declared winner amid alleged irregularities, Buhari said: “Votes and those that cast them cannot be taken for granted. Each must be earned. Competition is good for our democracy. There is no doubt the people’s decision has been rendered in the results we look at today.
“That is not to say the exercise was without fault. For instance, there were technical problems with electronic transmission of the results. Of course, there will be areas that need work to bring further transparency and credibility to the voting procedure.
“I know some politicians and candidates may not agree with this view. That too is fine. If any candidate believes they can prove the fraud they claim is committed against them, then bring forward the evidence.
“If they cannot, then we must conclude that the election was indeed the people’s will, no matter how hard that may be for the losers to accept. If they feel the need to challenge the result of the election, please take it to the courts, not to the streets,” he added.
This stance appeared to juxtapose the loss of confidence in the judiciary, which the same President Buhari expressed then at a town hall meeting with Nigerians living in Addis Ababa, Ethiopia.
He had told his audience then that “on the fight against corruption vis-à-vis the judiciary, Nigerians will be right to say that, that is my main headache for now.
“If you reflect on what I went through for 12 years when I wanted to be the President, I attempted three times and on the fourth attempt through God and the use of technology, it was possible for Nigerians to elect an APC candidate as President.
“In my first attempt in 2003, I ended up at the Supreme Court and for 13 months, I was in court. The second attempt in 2007, I was in court for close to 20 months and in 2011, my third attempt, I was also in court for nine months. All these cases went up to the Supreme Court until the fourth time in 2015, when God agreed that I will be President of Nigeria.”
In view of his latest counsel to the aggrieved parties in the February 25 general elections, the big question is, how prepared is the nation’s judiciary to serve as an impartial arbiter for electoral disputes?
In his response, a Port Harcourt-based constitutional lawyer, Chief Festus Oguche, noted that the regularly used cliché, “anybody that is aggrieved may go to court” has become the ploy for electoral riggers to legitimate the thefts they perpetrate.
He added that by the frequent recourse to it and the obvious lack of capacity to deliver on electoral justice, it has turned to a demeaning reference to the country’s judicial failures.
He said: “Indeed, it is a mockery of the judicial institution with all its travesties and poor imitations of objectivity and justice. People that rig elections would only counsel you on your right to seek judicial intervention if they are sure that firstly, there is some level of compromise that the election will not be upturned and secondly, there will be no criminal sanctions or culpability attached to their malfeasance.
“They even add pep to it when they tell you that they will meet you in court (as Keyamo was often wont to say), thereby pushing your indulgence of a litigation against them, and knowing its ultimate end. For years, we have seen the courts deliver on the expectations of the roguery that has become the lot of our electoral processes in a manner that calls judicial sanctity and integrity to question.
“In most cases, the ideals of justice in post elections adjudication are kept in total abeyance and supplanted with wishy washy considerations that are embedded in monetary rewards and political expediency that have no bearing whatsoever with the principles and realities of a proper electoral adjudication.”
Oguche held that the President’s advice clearly conformed with the known standards of electoral procedure globally as provided in the Constitution, the Electoral Act, the ECOWAS Protocol on Democracy, Good Governance and Elections, the African Union Principles on Democracy and Elections, and other international instruments on democratic practice and elections of which Nigeria is signatory.
However, he expressed worries that as genuine as the call to go to court sounded, “the citizens earnestly hoped that Mr. President did not make it tongue in cheek as he had been a beneficiary of this judicial impotence which he either created or tolerated for the eight years of his rule.”
Adding: “But Nigerians would have taken the call with every seriousness it deserved if Mr. President had not been found to have his hands dipped in the murky factors that culminated to the prevailing judicial emasculation – the hounding, arrest and detention of judges as well as the removal of former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, in a rather bizarre circumstance.
“Then, it appears also insincere of the President to have made such call in the face of the inherent distortions and shortcomings in the judicial system that calls for vigorous reforms, and which he did virtually nothing about in his eight years’ rule. In that wise, he would not be said to have made the call as a national leader but rather, as a party loyalist and to that extent, Nigerians may be disinclined from ascribing any modicum of honesty and good faith to his call.”
Adding: “However, the call becomes necessary at this point considering the massive misgivings and complaints of misconduct and heists during the elections as to forestall the apparently looming clouds of agitations and violence.
“Good enough, the political parties have agreed to follow this course for which we expect the legal fireworks and decisions to be centered on evidential proof of the failures of the ballot (which are overwhelming) far from technicalities and other judicial inanities.”
For this reason, Oguche said that Nigerians have considered the called to go to court as a veritable opportunity for the jurists to redeem the battered image of the judiciary and restore its much needed public confidence that has gravely been lowered to drastic ends.
For the Executive Director, Civil Society Legislative Advocacy Centre (CISLAC), Head, Transparency International, Nigeria and Chairman, Board of Trustees, Amnesty International, Nigeria, Auwal Musa Rafsanjani, described as “very sad”, the fact that most Nigerians do not have confidence in the judiciary and as such, often decide to stay out of court.
According to him, the loss of confidence hinged on several cases that justice have not been delivered and also because of allegations of corruption among the judges.
“So, this is not good for our country that the only place where justice was supposed to be preserved, where justice was supposed to be done, people are having doubt about the integrity of the people that would deliver that justice.
“A lot of people believe that once a government is in power, the caliber of judges you have will not want to do anything that would be contrary to the expectation of the government in power. This is not really good for our development, our country and for justice generally.
“It is this same reason that many Nigerians, when such matters as this come up, they either leave it for God or think of other options which is also not good because we must restore confidence of our citizens in our judiciary because we are practicing constitutional democracy and we cannot do things outside our court. It will mean resorting to anarchy rather than following the court and that is not good for the country.”
CISLAC boss felt that it has become a challenge for the judiciary to redeem itself and ensure quality justice delivery rather than political justice. According to him, many judges and justices engage in political and commercial judgments.
“Commercial and political judgment are what many Nigerians perceive our judiciary to be doing and efforts must be made to drastically reform our judiciary. We cannot have the kind of judiciary we are having at different levels of courts, from magistrate to Supreme Court.
“The opinion of many Nigerians about our judiciary is that of commercial and political judgments. So, Buhari has tested the Supreme Court several times and according to him, justice was not delivered.
“Now, he is referring someone else to go and seek justice in the same place that he has already given ‘vote of no confidence’.
Rafsanjani insisted that if Mr. President wants people to believe in the court, he must first, recant his earlier stance on the judiciary so that Nigerians can believe that he meant business.
“Secondly, if he has the opportunity of doing anything between now and the time the case would be heard, he has to do it in order for Nigerians to believe that justice would be done because there are so many instances where the court failed to deliver justice in the past.
“For instance, in the case of former governor of Delta State, James Ibori; Nigerian judiciary almost freed him only for him to go abroad and the case that was presented in Nigeria and he was almost found not guilty, was presented in another country and he was found guilty. There are several instances like that about the Nigerian judiciary.
“So, there is need for the judiciary to take a very progressive revolutionary measure to redeem its integrity and image. Otherwise, both Nigerians and the international community will no longer have faith in the court if it continues with the political and commercial judgment delivery.
In his contribution, the President, Human Rights Writers’ Association of Nigeria (HURIWA), Emmanuel Onwubiko, described the judiciary as presently constituted as that, which is lacking in integrity and impartiality.
He stressed that when asked if Nigerian judiciary has the independence and neutrality needed for the justices to discharge justice without fear or favour with regards to the political litigation that may follow the February 25th Presidential and NASS elections, he will simply say ‘No.’
According to him, Nigerian judiciary has not been independent and not known for its neutrality, “especially since the emergence of the government of President Muhammadu Buhari, whose administration went after Justices of the Supreme Court in a sting operation he directed the Department of State Services to embark upon.”
Adding: “It would seem that the attack on the Justices of Supreme Court and the subsequent removal in a very controversial manner through an ex-parte injunction granted by the Code of Conduct
Tribunal, of former CJN, Justice Onnoghen on April 5, 2019 just before the re-election battles by the incumbent President, seriously whittled down the independence of the judiciary and infused fear of the executive in the minds of the justices of the nation’s court system.
“This became manifest when a Justice of the Supreme Court, Tanko Muhammad, was made to succeed the controversially removed CJN Onnoghen. Afterwards, the judiciary became very questionable to an extent that several Justices of the Supreme Court protested against the style of leadership of the court by Justice Muhammad, who they accused of corruption and lack of accountability.
“The spillover effect of that internal schism produced the current CJN, Justice Olukayode Ariwoola, whose headship immediately ran into hot waters of controversy with allegations that he was in deeper communion with politicians, especially the G5 Governors.
“He was lampooned by many critics and social commentators for publicly supporting Oyo State Governor, Seyi Makinde’s membership of the G5 Governors, now known as the Integrity Group. Most critics of the alleged compromise were of the opinion that the CJN’s attitude showed he is partisan, adding that the act could worsen the crisis of legitimacy and credibility tearing the justice system apart.
But in spite of all these views, a constitutional lawyer and Fellow, Chartered Institute of Arbitrators, UK, Dr. Kayode Ajulo, still believe that the judiciary is the last hope of all men. While admitting that the judiciary in Nigeria is often confronted with several challenges in serving as an impartial arbiter for crystal-clear political disputes, he argued in favour of their ability to have done justice to numerous cases in the past.
“To answer the question, my answer is in the affirmative, and the pointer to this is how the judiciary has been able to do justice to the enormous numbers of pre-election cases before it.
“It is an oft-repeated phrase that judiciary is the last hope of the common man but I add in the context of this discussion that the judiciary is the hope of all men and women from “top to bottom.” He added that though the phrase has turned into a cliché, it remains a profound statement.
According to him, the statement hinged on the role of the court in protecting the rights of every person who believes to have been cheated and his right violated or taken away by a powerful or lowly being or institution.
“The Judiciary offers that salvation by righting the wrongs done to anyone who can plead their case before it. Political disputes are not an exception to the above as the courts have consistently dispensed justice when called upon in political matters.
“The Electoral Act 2022, which regulates electoral matters in Nigeria was signed into law last year and it brought its fair share of legal conundrums. Section 84 particularly caused quite a headache for lawyers and political commentators alike, yours sincerely successfully defended the National Assembly, the harbinger of the law at the Supreme Court when the President and the Attorney General of the Federation disagreed with some provisions of the Electoral law.
“Pre-election matters arising from primaries of political parties inundated the courts with different litigants asking for different interpretations and different reliefs.
“The Electoral Act made the Federal High Court, the court with the jurisdiction to entertain electoral matters and hundreds of cases overwhelmed the court. Because section 285 of the Constitution stipulated a timeline within which to dispose of pre-election matters, the FHC had a lot on their plate and almost all the judges of the FHC in Nigeria had their dockets full.
“Amidst all the ensuing chaos, the judiciary should be praised for rising to the occasion and delivering judgments within the constitutionally stipulated time. Those dissatisfied with judgments of the FHC rightfully exercised their right of Appeal and appealed to the Court of Appeal. The Court of Appeal of different divisions equally rose to the occasion and delivered judgments within the time stipulated by the constitution, sometimes affirming the decisions of the FHC or setting them aside.
“This alone has shown that the courts are committed to playing the role of impartial arbiter. Because the Court of Appeal plays the role of an elder brother, it reviews some of the actions taken by its younger brother, the FHC, and when those actions are consistent with the principles of law, it affirms them; when otherwise, it disavows and nullifies them.”
Ajulo added that aggrieved party still has another bite at the cherry by going to the apex court. He held that Supreme Court has consistently delivered judgments within the time limit prescribed by the Constitution and had not meted injustice to party by delivering its judgment outside time.
“In most of the cases I have handled before the apex court and the ones I have read and followed, the Supreme Court has consistently enjoined political parties to adhere to the provisions of the Electoral Act and the guidelines of their own parties.
“In instances where political parties have brazenly flouted the provisions of the Electoral Act and their own guidelines, the Supreme Courts have ordered them to do the right thing and obey the law.”
Adding: “I must salute the industry, resilience, tenacity and resolution of the law lords and if wishes were horses, these noble jurists will be individually bestowed with distinguishable national honours as moments for their indelible service to the nation at critical times.”
Ajulo however decried that the judiciary is plagued by several challenges both real and imaginary and these have raised concerns about its ability to serve as an impartial arbiter for apparent partial disputes.
“For instance, one of the numerous political parties in Nigeria in 2020, disingenuously called the judiciary “the lost hope of the common man”, after it delivered a controversial judgment when it pronounced a man who came fourth in an election as the winner.
“Similarly, the case of APC v Machina caused a public uproar when it declared Senator Lawan winner of the Yobe North Senatorial district. Since justice is believed to be done through the reasonable persona standard, I will urge the need for mass legal education for all in Nigeria.”
According to Ajulo, the wittingly and unwittingly accusation of corruption against some judges and justices has led to a seeming lack of trust in the judiciary by some sections of the public, with some Nigerians believing that justice can be bought or influenced by those with money or power.
He also identified political interference as another challenge confronting the judiciary, stressing that Nigeria has a long history of instances where political actors attempt to influence judicial decisions through intimidation, coercion or other means.
“This has portrayed a situation where judges and other judicial officers are reluctant to make decisions that go against the interests of political actors, particularly those in power. The result is that the judiciary is sometimes seen as being biased or partial towards certain political actors, depending on their affiliations.
“However, our judiciary has always stood up for democracy and justice. Even when our Judiciary has delivered controversial judgments, a dispassionate analysis most times, shows that it merely followed the dictates of the law, albeit rigidly.
Ajulo even recalled the matter between Andy Uba and INEC (Anambra State) where the Supreme Court beyond declaring Peter Obi the legitimate winner of the election, went further to extend his tenure.
“It becomes clear that the judiciary has and will always be impartial arbiters and shun favouritism of any sort.
“Despite several challenges staring at the judiciary in this focus, it has made hay by its development in the adoption of technology.
“A basic requirement for the survival and prosperity of a liberal democratic state is the presence of strong and independent oversight institutions, one of which is the judiciary (Mbanefo 1975; Walraven & Thirot 2002).”
Ajulo concluded by stating that the call by President Buhari on aggrieved politicians to approach the court was noble and should be applauded since there is no other option to seeking redress legitimately.
“The ball however remains in the court of the judiciary to prove beyond reasonable doubt how prepared it is as actions they say, speaks louder than voice.”