Is judiciary ready for 2019 polls?

By ROBERT EGBE

In Nigeria, elections usually end at the tribunals.
With the general elections around the corner, is the judiciary
ready for the disputes which may arise therefrom? ROBERT EGBE
asks.

The elections will start on February 16 with those of the
President and the National Assembly.

Governorship and State Assembly/Federal Capital Territory (FCT)
council elections follow on March 2.

The presidential contest will pit President Muhammadu Buhari of
the All Progressives Congress (APC) against no fewer than 13 other
candidates. His main challenger, however, is former Vice President
Atiku Abubakar of the People’s Democratic Party (PDP).

According to analysts, so far, electioneering has been heated,
but largely non-violent. They submitted that a credible vote would
strengthen democracy.

But they warned that a tight contest followed by controversial
election tribunal rulings could fuel events that would test the
country’s stability, especially where such decisions conflict with
legal precedents.

Election-related matters are usually contentious and are often
considered and treated by politicians and other stakeholders as do
or die.

To some, the bitter exchanges between party loyalists and claims
of fake news and hate speech are signs that the elections will be
contentious.

A January 3 report by Time Magazine listed
the polls among the five global elections to watch this year. The
others are in India, Israel, Ukraine and the European Union (EU),
where parliamentarians would be elected.

On December 15, the United States Government expressed fear that
the elections might be marred by violence.

It noted, however, that the public disturbance that the
elections would cause might not be “large-scale nationwide
conflict” but “localised violence.”

The US Assistant Secretary of State for the Bureau of African
Affairs, Tibor Nagy, made this known in his presentation at the US
Congress hearing on Nigeria’s forthcoming elections in Washington
DC.

Nagy said: “I can tell you from my impressions during my travels
and my previous service in Nigeria that I fear there will be some
violence around these elections, as has been the case with previous
elections.

“I do not anticipate large-scale nation-wide conflict, but
rather localised violence. We are already seeing increased tensions
and polarization as the election approaches.

“We assess that politicians are turning to narratives of
identity politics in an attempt to improve their popularity, with
potentially serious consequences for national unity.

“However, Nigeria’s political system and society have weathered
such tensions before.”

INEC’s alarm

On January 18, last year, the Independent National Electoral
Commission (INEC) Chairman Prof. Mahmood Yakubu said the commission
was hamstrung by conflicting court orders.

He told the Chief Justice Walter Onnoghen that the commission
was served with six conflicting judgments and orders from courts of
coordinate jurisdiction within a short period of three months in
2016, during the PDP leadership crisis.

Yakubu said: “Similarly, the commission was confronted by
conflicting pronouncements by the lower courts on matters already
decided by the superior courts, including the Supreme Court. This
is making the work of the commission very difficult and creating
unnecessary negative publicity perception for INEC and, I must say,
the judiciary as well.”

INEC’s Director, Legal Services, Mrs. Oluwatoyin Babalola noted
several cases where lower courts failed to be bound by decisions of
superior courts or their own decisions on similar facts.

Babalola observed that in Labour Party vs. INEC (2009), the
Supreme Court decided that where an election was nullified on the
ground that the winner of an election was not qualified to contest
the election, the disqualified candidate and the political party
that sponsored him are not allowed to participate in the
fresh/re-run election.

But Hassan Abdullahi v. Abdul Ogwu Alhassan, as well as Idoko
Moses Ododo v. Oshodi Isaac Ausa, both delivered on January 2,
2016, the Court of Appeal nullified the election of the
disqualified candidates and ordered INEC to conduct fresh elections
with the same disqualified candidates and their political
parties.

Babalola said: “Where the courts depart from precedents, it
creates uncertainty as to the state of the law and consequence of
particular conduct. Where courts of coordinate jurisdiction give
conflicting decisions/orders, it can lead to disobedience of court
orders, cause confusion in the polity and to the Election
Management Body.”

‘Deluge of litigations’

According to the Yakubu, INEC has been subjected to more
litigations than any public institution.

He said within two years (2016 and 2017), the commission was
involved in 1,134 court cases, comprising 454 outstanding cases and
680 determined cases, arising from the 2015 general elections.

In the party primaries of the 89 registered political parties
contesting next month’s general elections, the commission said 396
petitions are already pending in court.

At a two-day training workshop for INEC correspondents in Abuja,
the INEC chair described the primaries as most acrimonious in the
nation’s recent history.

He said apart from the 396 petitions filed, INEC had also
received 302 requests for Certified True Copies (CTCs) of reports
of party primaries and copies of personal particulars of
candidates.

Yakubu added: “These requests are obviously a prelude to more
court actions. In addition, we have also received 52 petitions and
protests from aggrieved party aspirants.”

Election tribunals

As in previous elections, the courts, beginning with election
tribunals, will play a major role in resolving election
disputes.

Their role is as defined in the Electoral Act, 2010 (As
amended), which provides that appeals arising from governorship and
presidential elections terminate at the Supreme Court while the
National Assembly and state Houses of Assembly appeals also end at
the Court of Appeal except where they are pre-election matters.

Section 134(2) and (3) of the Act provides a 180-day time limit
for election petitions to be concluded, while similar provisions
are contained in Section 285(6) and (7) of the 1999 Constitution
(as amended).

Section 285(6) reads: “An election tribunal shall deliver its
judgment in writing within 180 days from the date of the filing of
the petition.”

Subsection (7) provides: “An appeal from a decision of the
election tribunal or court shall be heard and disposed of within 60
days from the date of the delivery of judgment.”

Following the 2015 polls, the judiciary set up 110 Election
Petitions Tribunals manned by 255 judges.

Seven hundred and forty-nine appeals emanated from the
tribunals’decisions, while the Abuja division had an additional 75
appeals in the year 2016/2017.

Seven hundred and thirty of the petitions from the 2015 polls
were heard by the Court of Appeal.

They consisted of 39 governorship elections petitions, 79
Senatorial petitions, 179 House of Representatives and 380 State
Houses of Assembly petitions.

In addition, 32 election petitions were filed in 2016 which
included Bayelsa and Edo States and other re-runs, and 21 petitions
were filed in 2017, including Anambra State governorship and other
reruns.

Judges’ work suffer for election
duties

Following their appointment to hear election petitions, judges
will shoulder these extra duties for almost three months.

One implication of this is that it might slow work in the
judges’ courts, thus swelling backlog of cases.

This is a cause for concern because in some court jurisdictions
across the country, 10 to 15 year-old cases are still on the cause
list.

Nigerian Bar Association (NBA) President Paul Usoro (SAN) noted
this last September 24 at a special Supreme Court session to mark
the beginning of the 2018/2019 legal year.

He said apart from the expected election-related appeals. “There
is still a huge backlog of appeals, mostly civil appeals that are
pending before Your Lordships. We note with deep appreciation, Your
Lordships’ efforts, notably in the last Legal Year, to clear the
deck of these backlog of matters. But then, the pile still
remains.

“We know that there are still appeals pending before Your
Lordships that were filed in 2003, 2004, 2005, 2006 – appeals that
remain outstanding for more than 10 years. When this time-span is
added to the time span that it takes for the appeals to journey
from courts of first instance to Your Lordships, then the delays in
our judicial process becomes quite pronounced, frightening and
discouraging not only to litigants but also to the Bar and other
stakeholders in the justice administration sub-sector.”

What should the judiciary do?

Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, the NBA
and other members of the Bar have suggested ways to help the
judiciary better cope with elections fallout, backlog of cases and
judicial delays.

The CJN also recently met with the Independent National
Electoral Commission (INEC) Chairman, Prof Mahmoud Yakubu, where he
assured him that the appellate system of the judiciary will serve
to correct anomalies created by lower courts in election
petitions.

According to him, conflicting court orders were bound to arise
as a result of multiple court cases filed by politicians at
different courts, which were bound to have different facts and
interpretations by judges.

‘Judges must stick to judicial precedents’

The CJN also warned judicial officers against giving decisions
on election petitions that conflict with legal precedents.

Justice Onnoghen, who spoke at a recent training for justices of
the Court of Appeal, said judges must stick to the principle
of stare decisis, i.e. the legal principle of
determining points in litigation according to precedent.

The CJN noted that there is a need for re-orientation of judges’
attitudes towards their obligation to stare decisis, “thereby
creating a legal environment built on certainty of the law’’.

He added: “On judicial precedents as it relates to election and
pre-election matters, I want to remind us that the Supreme Court
has decided in a number of cases that the principles of judicial
review, such as Mandamus,
Certiorari, Prohibition, etc, do not apply because
election and election related matters, such as pre-election causes
are suis generis (of its own kind).”

‘Professionalism, integrity
required’

According to the NBA, judges must maintain standards of
professionalism, if the judiciary is to successfully weather the
coming electoral storm.

Usoro noted that judicial pronouncements in contentious and
difficult political appeals “in no small way worked to maintain the
peace and cement the unity and indivisibility of Nigeria, our great
country’’.

“Riots, unrests and political chaos in different parts of our
Federation have been averted consequent upon Your Lordships’
decisions and pronouncements in some of these matters.”

“These are very weighty responsibilities and functions which
Your Lordships continue to carry out and fulfill selflessly and
without any self-adulation or self- exaltation’’.

According to him, the Bar and other Nigerians “expect Your
Lordships to maintain, in the coming National Election season, the
standards of decorum, professionalism, discipline and integrity
that have always been the hallmark of Your Lordships and also
ensure that those standards percolate to and are fully and strictly
replicated by Their Lordships of the lower courts’’.

Usoro advised: “Any judicial officer that is found wanting in
that regard, we respectfully posit, must be swiftly and decisively
punished and routed out from the pack of judicial officers.”

‘Prioritise digitalisation’

Prof. Yemi Akinseye-George (SAN) urged the National Judicial
Council (NJC) to prioritise the digitalisation of courts to reduce
delays.

“Court digitalisation must be a matter of priority. Locally
developed software for e-recording of courts should be deployed.
This will enhance speedy dispensation of justice as judges can have
access to e-recorded proceedings both audio and video.

“It will also help to address the problem associated with
de-novo (repeat) trials following transfer of judges, death,
promotion or retirement,” Akinseye-George said.

Culled from TheNation