Ever since the Peoples Democratic Party (PDP) lost at the 2015
general election, I have taken special interest in its affairs.
That is simply because our democracy will not thrive without a
credible opposition. So, two weeks before last month’s national
convention to elect the party’s National Working Committee (NWC)
members, I sought appointment with the then caretaker chairman,
Senator Ahmed Makarfi for a background chat on what was going on.
And in our interaction, the former Governor of Kaduna State was
rather candid about the party’s challenges and prospects, including
how the chairmanship election was likely to go and the factors that
would shape the entire convention.
However, what struck me in my discussion with Makarfi was the
fear by the party leadership at the time that a particular Senator
from the South-west has the capacity to single-handedly keep PDP in
crisis because of his “strong connection” to some powerful Judges
who can grant him a contrived ruling, order or injunction at any
given time. What I took away from that encounter is the level to
which corruption has eaten deep into our judiciary such that some
of our politicians are no longer content with hiring Senior
Advocates of Nigeria (SANs), they also have their own judges.
Nothing exemplifies this sordid state of affairs than the fact that
the people of Anambra Central Senatorial district have been denied
representation for over two years now.
The unfortunate drama started on 28th March 2015 when Mrs Uche
Ekwunife, then of the PDP, won the senatorial election that was
later nullified on grounds that she was not validly nominated by
her party. After exhausting all appeal options available to seek
legal redress, Ekwunife was in December 2015 disqualified by the
Appeal Tribunal, the final arbiter for all litigations for National
and State Assembly elections. And by way of a consequential order,
the court also directed INEC to conduct a re-run election within 90
days.
In compliance, INEC scheduled the re-run poll for 5th March 2016
without the participation of the disqualified candidate (Ekwunife)
and her party (the PDP). This is in line with a 2009 Supreme Court
ruling that parties that field candidates disqualified by the
Appeal Tribunals cannot participate in court-ordered re-run
elections because the 60-day period for nomination of candidates
had elapsed while the disqualified candidates can also not be
replaced because the period for withdrawal of nominations (45 days
to a general election under the Electoral Act) has similarly
elapsed. INEC has been invoking this Supreme Court judgment to edge
out parties whose candidates were disqualified from participating
in court-ordered re-run elections, including for two senatorial
districts in Kogi State last year.
However, Anambra politicians are a special breed. When
Ekwunife’s election was nullified, the two major parties, APC and
PDP, insisted that they must replace their candidates with both of
them conducting fresh primaries. The PDP nominated former Governor
Peter Obi to replace Ekwunife while the APC nominated Mrs Sharon
Ikeazor to replace another former Governor of the State, Dr Chris
Ngige, the original APC candidate who had by then been appointed a
Minister by President Muhammadu Buhari. Quite naturally, INEC
rejected these two nominations in line with the Supreme Court
decision and this ignited another round of legal fireworks that
stalled the conduct of the court-ordered re-run election.
Meanwhile, a curious twist was added to the drama following the
Supreme Court ruling in the cases involving Governor Samuel Otom of
Benue State and Aisha Alhassan’s unsuccessful gubernatorial bid in
Taraba State. According to the Supreme Court, the improper conduct
of primaries in one political party cannot be used by a member of
another political party to cause the nullification of an election.
Since that Supreme Court decision came after the nullification of
Anambra Central Senatorial election by the Appeal Tribunal,
Ekwunife thought she could use the principle to secure back her
seat so she again approached the Court of Appeal, Enugu Division;
urging the court to set aside the judgment of the Appeal Tribunal
and to restrain INEC from conducting the re-run election.
On 3rd March 2016, the Court dismissed Ekwunike’s case as
follows: “This is an appeal cloaked in the guise of a motion. We
cannot sit on appeal over our own judgement. This court is the
final Court. Once a court delivers judgment, subject to the ‘slip
rule’ principle, that Court becomes functus officio…There must be
an end to litigation. The motion is incompetent and completely
misconceived. It is hereby dismissed. Consequently the Motion
praying for an order of injunction restraining the respondents from
conducting fresh election is hereby struck out as having been
overtaken by the outcome of this motion.”
Dissatisfied, Ekwunife approached the Supreme Court for redress
in the light of that decision on Ortom and Alhassan. On 10th
February 2017, the apex court, in dismissing the plea, reminded
Ekwunife that “the decisions of the Court of Appeal in respect of
appeals arising from the National and State House of Assembly
election petitions shall be final” before ruling that “this Court
has no jurisdiction to hear any appeals related thereto, no matter
how cleverly framed”.
While that effectively marked the end of the road for Ekwunife’s
bid to regain her senate seat, it was by no means an end to the
Anambra Central Senatorial drama. With INEC rejecting his
nomination as PDP candidate for the re-run election, Obi had
dragged the commission to the Federal High Court, Abuja presided
over by Justice Anwuli Chikere. And on 29th February 2016, barely
one week before the poll scheduled for 5th March 2016, the Judge
granted a perpetual injunction restraining INEC from conducting the
re-run election without him (Obi) and the PDP. And since INEC had
to obey the ruling, that effectively stalled the election.
Quite naturally, INEC challenged the curious judgment at the
Court of Appeal while the All Progressives Grand Alliance (APGA)
candidate in the election, Chief Victor Umeh, separately but on
similar grounds, also approached the appellate court. And on 20th
November 2017, the Court of Appeal delivered judgments in the two
cases by setting aside the judgment of the Federal High Court
(given by Justice Chikere). The Appeal Court also ordered INEC to
conduct the re-run election within 90 days without the
participation of Obi and PDP; and by inference, without APC if it
is not Ngige that is being fielded.
Based on these judgments that should ordinarily put an end to
all litigations, INEC has fixed next week Saturday, 13th January
2018 for the re-run election. But since we are dealing with
politics in Anambra State, that cannot possibly be the end of the
story. And it is not!
On 13th December 2017, a Federal High Court in Abuja presided
over by Justice John Tsoho delivered a judgment in a case filed by
Mr Obiora Okonkwo that he was the rightful PDP candidate in the
primaries conducted on 7th December 2014. And according to Justice
Tsoho, the said Okonkwo won the PDP primaries and on the basis of
that; should be declared the Senator-elect! What’s more, Justice
Tsoho also ordered the National Assembly to pay Okonkwo every kobo
(perhaps including all the under-the-table allowances) that his
“colleagues” in the Senate have received since June 2015!
The implication of the foregoing is that, at the moment, INEC is
faced with two conflicting orders: the Court of Appeal ruling that
the re-run election should proceed without the PDP and its
candidate as well as the Federal High Court ruling that a
Certificate of Return be issued by the commission to “Senator”
Okonkwo so he can be known and addressed as “Most
Distinguished”.
While we wait to see how the latest farce will play out, this
case has thrown up a number of issues. When the election Petitions
Appeal Tribunal nullified Ekwunife’s election, it was supposed to
end all litigations by virtue of Section 246 (3) of the 1999
Constitution (as emended) which confers finality on the judgment of
the Appeal Tribunal in legislative elections. But it is also
evident that the people of Anambra Central are mere pawns on the
chess board of some desperate political players.
What is even more unfortunate about the debacle is that the
interest of both the APC and the PDP is the same: Neither wants the
re-run election to hold. The PDP, because it cannot field a
candidate and the APC because, since Ngige prefers a ministerial
bird in hand to an unsure senatorial seat, he has decided not to
run; yet the party cannot present any other candidate except him.
That perhaps explains why there are still several other cases in
court by different parties on the same Anambra Central Senatorial
ticket, including by some little-known electoral no-hopers who may
just be fronting for some big masquerades with vested interest.
Unfortunately, that is the way politics is played in Anambra
State. In my book, “Against The Run of Play: How an incumbent
president was defeated in Nigeria”, President Goodluck Jonathan
recounted a meeting he had with the leadership of both the National
Assembly and the judiciary on how to find an institutional
framework in the bid to combat corruption in our country. Let me
quote the former president here: “…I also invited Chief Judges from
one state in each of the six geopolitical zones. I specifically
requested for Lagos and Anambra to represent their zones. My
choosing Anambra was because that is one state where every
political aspirant goes into election with at least two court
orders in his pocket. You cannot fight corruption without dealing
with such issues”.
All said, it is the judiciary that really should feel ashamed by
the shenanigans that are going on. Our court system is predicated
on judicial hierarchy. Section 287 of the 1999 Constitution (as
amended) clearly defines the hierarchy and lower courts are under
obligation to obey the judgments of superior courts under all
circumstances. Section 287 (1) & (2) state as follows: “(1) the
decisions of the Supreme Court shall be enforced in any part of the
Federation by all authorities and persons, and by courts with
subordinate jurisdiction to that of the Supreme Court; (2) the
decisions of the Court of Appeal shall be enforced in any part of
the Federation by all authorities and persons, and by courts with
subordinate jurisdiction to that of the Court of Appeal”.
The pertinent questions therefore are: How come that, in this
particular instance, a lower court (on 13th December 2017) could
overrule a superior court on the same subject matter three weeks
after the judgement of the superior court (delivered on 20th
November 2017)? How come that a High Court can order the issuance
of a certificate of return for an election that had been nullified
more than two years ago by the Appeal Tribunal with a consequential
order for its re-run?
In his lecture, “Keeping a Republic: Overcoming the Corrupted
Judiciary”, Robert H. Bork, a Professor at the Yale Law School and
a former American Solicitor General, acting U.S. Attorney General
and erstwhile Circuit Judge of the U.S. Court of Appeals for the
District of Columbia Circuit, argues that the rule of law requires
that “the principles announced and relied upon by judges be neutral
in their application” which means that “a principle, once chosen,
be applied according to its terms to all relevant cases without
regard to the judge’s personal views of the parties or issues
before him.”
While this, according to Bork, requires discipline, since no
judge can possibly avoid seeing a case without his own worldview
coming into play, “there is a chasm between a judge who knows that
and consciously strives for objectivity and a judge who knowingly
undertakes to impose his vision of justice upon the parties before
him and upon the society.” Yet, it is that deliberate choice to
impose a vision of justice that is most often at variance with
public good that is at the root of the problem we are talking about
in Nigeria today.
At all times and in all circumstances, the role of the courts as
the interpreter of the law, resolver of disputes and defender of
the Constitution, requires that Judges abide by their oath. That
explains why a judiciary debilitated by, or prone to, all manner of
misconduct, including corruption and political interference, is a
danger to society. Sadly, we can see the evidence of this in our
polity and it is important for critical stakeholders to understand
that we cannot continue like this if our nation must develop and
thrive.
On the immediate case of Anambra Central Senatorial election, it
is incumbent on the Chief Justice of Nigeria (CJN), Justice Walter
Onnoghen, to intervene on the side of reason and common sense.
Beyond that, as the 2019 general election approaches, it is not
only worrisome that most of the conflicting judgements nationwide
relate to political cases, something has to be done to stem the
looming judicial anarchy that may imperil the conduct of elections
by INEC.
This is therefore the time for the National Judicial Council
(NJC) to step in to restore sanity to the bench. It cannot just
wait until a petition is filed before investigating and dealing
with blatant deviant behaviour that brings the judiciary to
ridicule and threatens our democracy.
• You can follow me on my Twitter handle,
@Olusegunverdict and on www.olusegunadeniyi.com
Ever since the Peoples Democratic Party (PDP) lost at the 2015
general election, I have taken special interest in its affairs.
That is simply because our democracy will not thrive without a
credible opposition. So, two weeks before last month’s national
convention to elect the party’s National Working Committee (NWC)
members, I sought appointment with the then caretaker chairman,
Senator Ahmed Makarfi for a background chat on what was going on.
And in our interaction, the former Governor of Kaduna State was
rather candid about the party’s challenges and prospects, including
how the chairmanship election was likely to go and the factors that
would shape the entire convention.
However, what struck me in my discussion with Makarfi was the
fear by the party leadership at the time that a particular Senator
from the South-west has the capacity to single-handedly keep PDP in
crisis because of his “strong connection” to some powerful Judges
who can grant him a contrived ruling, order or injunction at any
given time. What I took away from that encounter is the level to
which corruption has eaten deep into our judiciary such that some
of our politicians are no longer content with hiring Senior
Advocates of Nigeria (SANs), they also have their own judges.
Nothing exemplifies this sordid state of affairs than the fact that
the people of Anambra Central Senatorial district have been denied
representation for over two years now.
The unfortunate drama started on 28th March 2015 when Mrs Uche
Ekwunife, then of the PDP, won the senatorial election that was
later nullified on grounds that she was not validly nominated by
her party. After exhausting all appeal options available to seek
legal redress, Ekwunife was in December 2015 disqualified by the
Appeal Tribunal, the final arbiter for all litigations for National
and State Assembly elections. And by way of a consequential order,
the court also directed INEC to conduct a re-run election within 90
days.
In compliance, INEC scheduled the re-run poll for 5th March 2016
without the participation of the disqualified candidate (Ekwunife)
and her party (the PDP). This is in line with a 2009 Supreme Court
ruling that parties that field candidates disqualified by the
Appeal Tribunals cannot participate in court-ordered re-run
elections because the 60-day period for nomination of candidates
had elapsed while the disqualified candidates can also not be
replaced because the period for withdrawal of nominations (45 days
to a general election under the Electoral Act) has similarly
elapsed. INEC has been invoking this Supreme Court judgment to edge
out parties whose candidates were disqualified from participating
in court-ordered re-run elections, including for two senatorial
districts in Kogi State last year.
However, Anambra politicians are a special breed. When
Ekwunife’s election was nullified, the two major parties, APC and
PDP, insisted that they must replace their candidates with both of
them conducting fresh primaries. The PDP nominated former Governor
Peter Obi to replace Ekwunife while the APC nominated Mrs Sharon
Ikeazor to replace another former Governor of the State, Dr Chris
Ngige, the original APC candidate who had by then been appointed a
Minister by President Muhammadu Buhari. Quite naturally, INEC
rejected these two nominations in line with the Supreme Court
decision and this ignited another round of legal fireworks that
stalled the conduct of the court-ordered re-run election.
Meanwhile, a curious twist was added to the drama following the
Supreme Court ruling in the cases involving Governor Samuel Otom of
Benue State and Aisha Alhassan’s unsuccessful gubernatorial bid in
Taraba State. According to the Supreme Court, the improper conduct
of primaries in one political party cannot be used by a member of
another political party to cause the nullification of an election.
Since that Supreme Court decision came after the nullification of
Anambra Central Senatorial election by the Appeal Tribunal,
Ekwunife thought she could use the principle to secure back her
seat so she again approached the Court of Appeal, Enugu Division;
urging the court to set aside the judgment of the Appeal Tribunal
and to restrain INEC from conducting the re-run election.
On 3rd March 2016, the Court dismissed Ekwunike’s case as
follows: “This is an appeal cloaked in the guise of a motion. We
cannot sit on appeal over our own judgement. This court is the
final Court. Once a court delivers judgment, subject to the ‘slip
rule’ principle, that Court becomes functus officio…There must be
an end to litigation. The motion is incompetent and completely
misconceived. It is hereby dismissed. Consequently the Motion
praying for an order of injunction restraining the respondents from
conducting fresh election is hereby struck out as having been
overtaken by the outcome of this motion.”
Dissatisfied, Ekwunife approached the Supreme Court for redress
in the light of that decision on Ortom and Alhassan. On 10th
February 2017, the apex court, in dismissing the plea, reminded
Ekwunife that “the decisions of the Court of Appeal in respect of
appeals arising from the National and State House of Assembly
election petitions shall be final” before ruling that “this Court
has no jurisdiction to hear any appeals related thereto, no matter
how cleverly framed”.
While that effectively marked the end of the road for Ekwunife’s
bid to regain her senate seat, it was by no means an end to the
Anambra Central Senatorial drama. With INEC rejecting his
nomination as PDP candidate for the re-run election, Obi had
dragged the commission to the Federal High Court, Abuja presided
over by Justice Anwuli Chikere. And on 29th February 2016, barely
one week before the poll scheduled for 5th March 2016, the Judge
granted a perpetual injunction restraining INEC from conducting the
re-run election without him (Obi) and the PDP. And since INEC had
to obey the ruling, that effectively stalled the election.
Quite naturally, INEC challenged the curious judgment at the
Court of Appeal while the All Progressives Grand Alliance (APGA)
candidate in the election, Chief Victor Umeh, separately but on
similar grounds, also approached the appellate court. And on 20th
November 2017, the Court of Appeal delivered judgments in the two
cases by setting aside the judgment of the Federal High Court
(given by Justice Chikere). The Appeal Court also ordered INEC to
conduct the re-run election within 90 days without the
participation of Obi and PDP; and by inference, without APC if it
is not Ngige that is being fielded.
Based on these judgments that should ordinarily put an end to
all litigations, INEC has fixed next week Saturday, 13th January
2018 for the re-run election. But since we are dealing with
politics in Anambra State, that cannot possibly be the end of the
story. And it is not!
On 13th December 2017, a Federal High Court in Abuja presided
over by Justice John Tsoho delivered a judgment in a case filed by
Mr Obiora Okonkwo that he was the rightful PDP candidate in the
primaries conducted on 7th December 2014. And according to Justice
Tsoho, the said Okonkwo won the PDP primaries and on the basis of
that; should be declared the Senator-elect! What’s more, Justice
Tsoho also ordered the National Assembly to pay Okonkwo every kobo
(perhaps including all the under-the-table allowances) that his
“colleagues” in the Senate have received since June 2015!
The implication of the foregoing is that, at the moment, INEC is
faced with two conflicting orders: the Court of Appeal ruling that
the re-run election should proceed without the PDP and its
candidate as well as the Federal High Court ruling that a
Certificate of Return be issued by the commission to “Senator”
Okonkwo so he can be known and addressed as “Most
Distinguished”.
While we wait to see how the latest farce will play out, this
case has thrown up a number of issues. When the election Petitions
Appeal Tribunal nullified Ekwunife’s election, it was supposed to
end all litigations by virtue of Section 246 (3) of the 1999
Constitution (as emended) which confers finality on the judgment of
the Appeal Tribunal in legislative elections. But it is also
evident that the people of Anambra Central are mere pawns on the
chess board of some desperate political players.
What is even more unfortunate about the debacle is that the
interest of both the APC and the PDP is the same: Neither wants the
re-run election to hold. The PDP, because it cannot field a
candidate and the APC because, since Ngige prefers a ministerial
bird in hand to an unsure senatorial seat, he has decided not to
run; yet the party cannot present any other candidate except him.
That perhaps explains why there are still several other cases in
court by different parties on the same Anambra Central Senatorial
ticket, including by some little-known electoral no-hopers who may
just be fronting for some big masquerades with vested interest.
Unfortunately, that is the way politics is played in Anambra
State. In my book, “Against The Run of Play: How an incumbent
president was defeated in Nigeria”, President Goodluck Jonathan
recounted a meeting he had with the leadership of both the National
Assembly and the judiciary on how to find an institutional
framework in the bid to combat corruption in our country. Let me
quote the former president here: “…I also invited Chief Judges from
one state in each of the six geopolitical zones. I specifically
requested for Lagos and Anambra to represent their zones. My
choosing Anambra was because that is one state where every
political aspirant goes into election with at least two court
orders in his pocket. You cannot fight corruption without dealing
with such issues”.
All said, it is the judiciary that really should feel ashamed by
the shenanigans that are going on. Our court system is predicated
on judicial hierarchy. Section 287 of the 1999 Constitution (as
amended) clearly defines the hierarchy and lower courts are under
obligation to obey the judgments of superior courts under all
circumstances. Section 287 (1) & (2) state as follows: “(1) the
decisions of the Supreme Court shall be enforced in any part of the
Federation by all authorities and persons, and by courts with
subordinate jurisdiction to that of the Supreme Court; (2) the
decisions of the Court of Appeal shall be enforced in any part of
the Federation by all authorities and persons, and by courts with
subordinate jurisdiction to that of the Court of Appeal”.
The pertinent questions therefore are: How come that, in this
particular instance, a lower court (on 13th December 2017) could
overrule a superior court on the same subject matter three weeks
after the judgement of the superior court (delivered on 20th
November 2017)? How come that a High Court can order the issuance
of a certificate of return for an election that had been nullified
more than two years ago by the Appeal Tribunal with a consequential
order for its re-run?
In his lecture, “Keeping a Republic: Overcoming the Corrupted
Judiciary”, Robert H. Bork, a Professor at the Yale Law School and
a former American Solicitor General, acting U.S. Attorney General
and erstwhile Circuit Judge of the U.S. Court of Appeals for the
District of Columbia Circuit, argues that the rule of law requires
that “the principles announced and relied upon by judges be neutral
in their application” which means that “a principle, once chosen,
be applied according to its terms to all relevant cases without
regard to the judge’s personal views of the parties or issues
before him.”
While this, according to Bork, requires discipline, since no
judge can possibly avoid seeing a case without his own worldview
coming into play, “there is a chasm between a judge who knows that
and consciously strives for objectivity and a judge who knowingly
undertakes to impose his vision of justice upon the parties before
him and upon the society.” Yet, it is that deliberate choice to
impose a vision of justice that is most often at variance with
public good that is at the root of the problem we are talking about
in Nigeria today.
At all times and in all circumstances, the role of the courts as
the interpreter of the law, resolver of disputes and defender of
the Constitution, requires that Judges abide by their oath. That
explains why a judiciary debilitated by, or prone to, all manner of
misconduct, including corruption and political interference, is a
danger to society. Sadly, we can see the evidence of this in our
polity and it is important for critical stakeholders to understand
that we cannot continue like this if our nation must develop and
thrive.
On the immediate case of Anambra Central Senatorial election, it
is incumbent on the Chief Justice of Nigeria (CJN), Justice Walter
Onnoghen, to intervene on the side of reason and common sense.
Beyond that, as the 2019 general election approaches, it is not
only worrisome that most of the conflicting judgements nationwide
relate to political cases, something has to be done to stem the
looming judicial anarchy that may imperil the conduct of elections
by INEC.
This is therefore the time for the National Judicial Council
(NJC) to step in to restore sanity to the bench. It cannot just
wait until a petition is filed before investigating and dealing
with blatant deviant behaviour that brings the judiciary to
ridicule and threatens our democracy.
• You can follow me on my Twitter handle,
@Olusegunverdict and on www.olusegunadeniyi.com
Read more https://nairalaw.com/when-judges-imperil-democracy-by-olusegun-adeniyi/