Judicialization Of Politics In Nigeria: Trends, Challenges And Opportunities

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By Georgewill JCA

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A Court of Appeal Justice of the Benin Division, Sir
Biobele Abraham George will
has said that there is no
judicialization of Politics in Nigeria.

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He said this during paper presentation at the Law of Week of the
Nigerian Bar Association, Yenagoa Branch, which took place on 30th
of April, 2021 at Chief D.S.P. Alamieyesigha Banquet Hall,
Government House Yenagoa, Bayelsa State, Nigeria

According to him, judicialization in the context of the paper
presentation means ‘excessive or overbearing role’ being played by
the Judiciary in the Politics of Nigeria.

Hon. Justice Georgewill pointed out that there is no
judicialization of Politics in Nigeria because the Judiciary does
not go out of its way, as conferred on it by law, to meddle with
Political cases in Nigeria.

Read the paper presentation below:

THEME: JUDICIALIZATION OF POLITICS IN NIGERIA: TRENDS,
CHALLENGES AND OPPORTUNITIES

Court of Appeal, Benin Division, Lord Chancellor,
Diocese of Niger Delta, Church

“Justice is for all the parties and particularly in
Election Petition proceedings also the electorates whose votes must
be allowed to be counted in the determination of who represent them
and acts on their behalf for the period or term of the office
contested for by the parties at the Election. There is therefore,
only one standard of justice for all the parties, and none is
entitled to a higher or lower standard than the other. The Court
must hold the balance and ensure, as far as practicable under its
extant rules of practice and procedure, a level playing field for
all the parties” per Georgewill JCA, in Elohor & Anor V. Inec & Ors
(2019) LPELR – 48806(CA) @ pp. 36 – 47.

INTRODUCTION

The Nigerian lexicon can easily identify with the phrase
Politicization of the Judiciary in Nigeria’
meaning bringing undue influence or interference of Politics into
the affairs of the Judiciary. However, this new phrase
Judicialization of Politics in Nigeria’ as coined
by the Organizers of this Law Week is completely a new one likely
to be added to the English lexicon by Nigeria soon! The word
‘Judicialization’ cannot be found in the English
lexicon and is therefore, not an English word and thus not of any
precise meaning. However, in my attempt to fully understand its
connotation, it took the reaserch acumen of Prof Solomon T.
Ebobrah, the Chairman of the 2021 Law Week Planning
Committee
Chair of the NBA Yenegoa
Branch,
who drew my attention to a paper titled
The Judicialization of Mega – Politics and the Rise of
Plitical Courts”
by Ran Hirschl,
publisehed in the Annnual Review of Political Science 11, No. 1
(2008) at page 94 to find it the term ‘Judicialoization’ defined as
“the ever – accelerating reliance on Courts and judicial
measn for addressing core moral predicatmants, public policy
questions, and political controversies”.

It appears to me that the above succinct definition of the term
‘Judicializatio’ perfectly fits the bill within the context of the
theme of this paper, and I therefroe, adopt same in this apaper as
the correct connotation of the term ‘Judicilaisation’. It would
thus refer to the unwieldy or increasing and overwhelming role
being played by the Judiciary in the Political life of this
Country. Simply put, it captures, what may aptly be described as,
the ‘excessive or overbearing role’ being played by the Judiciary
in the Politics of Nigeria.

Thus, the first question is whether there is indeed a
‘Judicialization of Politics in Nigeria’? In other
words, is there any unwieldy or excessive or overbearing role being
played by the Judiciary in the Politics of Nigeria? For me as a
person, as well as being a member of the Nigerian Judiciary, who
believes so much in the utilitarian value of adjudication as being
key to averting and avoiding violence, intractable disputes, self
help, communal and family wars and such like in our Society, which
are all potential purveyors of societal destruction and or
disintegration, if not checked timely through peaceful
constitutional means and avenues for resolution, which is the
Court, the answer is a resounding No! I therefore, do not see any
unwieldy or excessive or overbearing role being played by the
Judiciary in the Politics of Nigeria capable of giving birth to the
new phrase ‘Judicialization of Politics in
Nigeria’
This is so because, in my humble view, all that
the Judiciary does is as constitutionally and statutorily conferred
and vested on it.

In other words, for me there is no, and there can never be any,
‘Judicialization of Politics in Nigeria’ since the
Judiciary does not go out of its way, as conferred on it by law, to
meddle with Political cases in Nigeria and therefore, it is
important to make it abundantly clear that the time would or may
never come when it would be desirable that the Judiciary should
hands off its Constitutional role in intervening in the Politics of
Nigeria to ensure, as allowed by the laws of the land, that
‘Politics in Nigeria’ is played by the Rules and
practiced in accordance with the laws of the land and for the
overall benefit of the vast majority of Nigerians. Politics ought
not and should not be played, as it is being so, pervading, played
presently in Nigeria, so unjustly to the detriment of the vast
majority of Nigerians at the whims and caprices of the privileged
few, the ‘Politicians’ However, I have no doubt in my mind that to
many others, it would appear that, the answer to the first question
posed in this paper is a resounding Yes!

Thus, having been invited by the Organizers of this Law Week to
speak on this theme, most probably, from the prism of those who
believe that there is indeed an ongoing ‘Judicialization of
Politics in Nigeria’,
of excess or overbearing
interference of the Judiciary in Politics in Nigeria in the
determination of the several issues and questions which ordinarily,
if there were to be transparency in Politics in Nigeria, should be
left for the Politicians to resolve without any recourse to
adjudication, I shall proceed in this paper on the
presupposition that there is ‘Judicialization of Politics
in Nigeria’
Welcome to my Paper!!

BRIEF STATEMENT OF THE ISSUE

There is today, as it was yesterday, a consensus amongst the
generality of Nigerians that Nigeria has and continued to suffer
lack of transparency in governance at all levels of Government and
a concomitant failure of justice in the body polity as a whole and
therefore, none of the arms and or levels of Government is spared.
 This obvious lack of transparency has permeated all spheres
of life in this Country, ranging from the ‘Legislature’ to the
‘Executive’ and to the ‘Judiciary’, none of which arms of
Government is spared! This has also led to lack of internal
democracy in Political parties in Nigeria and the resultant
injustices both intra and inter Political parties, leading to an
avalanche of abuse of the rights of members of Political Parties
with the attendant upsurge in political cases initiated by
aggrieved members of Political parties seeking redress before the
last hope of the common man, and eventually the last hope to even
the yesterday men and women of power and might, the Courts.

It is ironic that in Nigeria, in which going by the provisions
of the Constitution of the Federal Republic of Nigeria 1999 (as
amended), the ‘Legislature’ is the first arm of Government at both
the Federal and State Levels, had virtually surrendered its primus
position to the Executive, mainly due to where the power over the
resources of this Country and the States resides. There is
therefore, the obvious case of inadequate checks and balances
between the Legislature and the Executive. Thus, Executive powers
are gradually becoming infinite without any real checks by the
Legislature! Regrettably, this has become more p ronounced, and
particularly more so since the return to Civil Rule or what
Nigerians had come to perpetually term as our ‘nascent
democracy’
since 1999.

For instance, by the provisions of the Constitution of Nigeria
1999 (as amended), though Chapter II is rendered non justiciable
but the Legislature is endowed with the power to legislate on those
issues provided for under Chapter II of the said Constitution, and
by so doing convert them to become justiciable for the benefit of
the Citizenry with rights of enforcement through the Courts
whenever the Executive fails to comply with such laws geared
towards the entrenchment of those very vital socio – economic
rights provided for the benefit of the Citizenry by the
Constitution but made non justiciable, perhaps for good cause, had
over the years failed to live up to this responsibility. The
result, the citizenry continues to depend on the benevolence of the
Executive to be able to enjoy those provisions, which are rights
even if socio – economic and not fundamental rights, as mere
privileges under Chapter II of the Constitution, including such
indispensable right as the right to Education!

Honestly, I consider the political rights of the citizenry of
this great Country too important to be left only at the complete
mercy, whim and caprices of Politicians. Today, as it has always
been, Politics in Nigeria is all about self interest and less of
real service to the people. Thus, ‘Judicialisation of
Politics’
is not limited to Nigeria nay Africa but has
become a worldwide phenomenon. However, but regrettably whilst the
scope of intervention of the Judiciary in advanced democracies,
such as the United States of America, is limited and swift as
clearly demonstrated by the post 2020 November Presidential
Election and the almost fifty post – election litigations that were
swiftly, effectively and with finality determined by the Judiciary
paving the way for the inauguration of the newly elected President
of the United States of America on 20th day of January
2021 without any pending post – election litigations challenging
his due return as the duly elected President of the United States
of America, but it is not so in Nigeria, where both pre – and post
– election litigations have become of infinite possibility and
unlimited scope on the political landscape of Nigeria.

Upon being intimated of my nomination to prepare and deliver
this paper on this seemingly novel theme, I had to conduct some
researches into this new phenomenon in other jurisdictions of the
World, and interestingly, one can hardly find any decided cases on
pre – election matters in any of the civilized democracies of the
World, notably in the United States of America and to some extent
even in the United Kingdom and the question is why? The answer is
not too far to seek! It is because Political Parties there, which
are founded principally on clear ideology and laudable vision, have
ingrained in them seamless mechanism for internal democracy, thus
obviating the need for any judicial intervention by the Courts.
After all, unless the members of the Political Parties approach the
Courts, the Courts would not and can never intervene. The Court
never interferes but it only intervenes!

Thus, pre – election matters, I dare say, are features of
undeveloped or developing democracies in the World, notably in
India and particularly in Nigeria, where pre – election litigations
is fast overtaking post – election litigations under our watch and
thereby being allowed to fester even to the detriment of political
growth and stability, when a candidate duly declared and returned
as elected by the umpire, INEC, could still be ordered to vacate
office, not through nullification of his election in an Election
Petition by the Election Tribunal or Court, but by virtue of a
decision of the Court in a pre – election litigation. Where then is
the place of the significance of the wishes of the electorates as
expressed by their votes in the election in this fast spreading
phenomenon of removal of elected candidates via pre – election
litigation? Regrettably, none I can find or see!

THE TREND: POLITIC PARTIES AND ELECTIONS IN
NIGERIA1

It is the general belief, whether right or wrong, that in
Nigeria, the Political class, the members of Political parties, are
making it practically impossible to conduct free and fair
elections. Yet, these are the very class of people who requires
free and fair elections for democracy, which they claim to
practice, to thrive in the Country. It was principally the lack of
free and fair elections, coupled with other factors, including lack
of transparency in Governance and large scale corruption that had
in the past heralded the death knell for the 1st,
2nd and 3rd Republics in Nigeria. In this
wise, it is a truism that Nigeria’s electoral history has been
fraught with failed elections, a recurring development that has
gradually become a distinctive feature of our Electoral system,
hence the deluge of political cases, including pre – and post –
election litigations. Elections are either violent or they are
fought bitterly. They are usually marred by rigging and other voter
fraud as well as manipulation of Electoral Officers by Political
Parties. The winner takes it all and the loser is dared to go to
Court!  Poor elections and skewed election results and
outcomes have over the years signposted the Country’s record of
poor leadership, political stagnation, and economic
backwardness.

In developed and advanced democracies of the World, the conduct
of a free and fair election is sine qua non and is usually made
possible by the fair and just activities and management of the
affairs of Political Parties. Thus, free and fair election is a
prerequisite for a thriving democracy as it gives legitimacy to a
Government and fulfilled hope to the Citizenry in the Government of
their own choice. It engenders positive socio – economic and
political developments and also enhances political mobilisation and
participation of the electorates leading to the development of
positive political culture and the resultant confidence of the
Citizenry in both the Political parties, elections and the
resultant Government put in place at their own behest.

In Nigeria, the modus operandi of Political parties had for
years been winning all and every elections at all cost and
remaining in power by all means. It is simply a ‘do or
die’
affair. It is a matter of life and death! Hence, the
desperation as every election year draws close since those in power
having tasted power even dread the thought of life outside of
power. Regrettably, it is these desperations and the resultant
skewed electoral processes in Nigeria that led to the abortion of
democratic rule thrice by the Nigerian Military, in 1966, 1983 and
1993 but for which Nigeria would have today become one of the
advanced democracies of the World, nay Africa, if we had remained
in civil rule since 1960 till date.

An Election is simply a decision making process through which a
people choose some individuals to hold offices on their behest and
behalf. Thus, democracy is a system of Government in which the
Citizenry participates in the decision making process by voting or
electing those who govern them through a free and fair electoral
process. The machinery through which this is accomplished in most
democracy is the Political Parties. Thus, it is imperative that for
democracy to thrive in Nigeria, the Political Class must rise to
the task of ensuring internal democracy to check the eroding of the
electoral processes over the years that has proved to be defective,
weak, inefficient, and unable to guarantee the conduct of credible
elections. Indeed, all elections commencing from the 1st
Republic through the 4th Republic have been
characterised by electoral malpractices and the Political parties
exhibit a high level of political indiscipline and freely
perpetrated wide – ranging electoral malpractices and large scale
corruption leading to either Military intervention and or loss of
faith and confidence by the Citizenry in the resultant
Government.

In 1959, towards the set goal of declaration of
independence and self – governance for Nigeria, the Electoral
Commission of Nigeria was set up by the then Colonial Government to
conduct the 1959 General Elections. Incidentally, Nigeria, which
has a rich history of multi – party system right from its
independence, perhaps due to its multi ethnic configuration, had at
the time of its independence about twenty – six political parties
which were duly registered to contest the 1959 General elections.
However, the three dominant Political parties were the Northern
Peoples Congress led by Sir Ahmadu Bello, the
Action Group led by Chief Obafemi Awolowo, and the
National Council of Nigeria and Cameroons led by Dr. Nnamdi
Azikwe
. The Elections were held and although the turnout
of voters for the election was low, by a coalition of the NPC and
NCNC a new Government was ushered in at independence in 1960, with
the AG forming the opposition in the West Minster styled
Parliament.

In 1960, the new Government of Tafawa
Balewa
set up the Federal Electoral Commission to conduct
the immediate post – independence election for the Federal level in
1964 and for the Regions in 1965. Regrettably, as it was then and
as it is still today, both elections failed to meet the standard of
free and fair election in which the votes of the people count and
be the determinant factor on who emerges as duly elected by the
people, the results of which elections were rejected by the
opposition, leading to widespread violence, including killing,
arson, looting and destruction of properties, particularly in the
then Western Region. From then till date, elections in Nigeria had
remained acrimonious, violent and anything but free and fair to
guarantee the prevailing of the wishes of the Citizenry!

In 1978, the final draft of the Constitution by
the Constituent Assembly was adopted as the 1979 Constitution of
the Federal Republic of Nigeria. Subsequently, a Federal Electoral
Commission was set up to conduct General elections in which a
person to be elected President of Nigeria, under the 1979
Constitution must have the highest number of votes cast in addition
to receiving at least 25 percent of the votes cast in two – thirds
of the 19 States of the Federation, the interpretation of which
gave rise to the first major intervention of the Judiciary in
Politics in Nigeria. The 1979 General elections were contested by
the then five registered Political parties, namely; National Party
of Nigeria, Unity Party of Nigeria, Nigeria Peoples Party, People’s
Redemption Party, and Great Nigeria People’s Party (GNPP). As it
turned out, the ensuing election appeared to be much better than
the elections conducted during the 1st Republic and
though seemingly peaceful, free and air but was not without its own
hiccups of interpreting the novel requirement of votes of at least
25 percent in two – thirds of the then 19 States of the Federation.
A total of 47,433,757 voters were registered out of which only
16,846,633 voted at the Presidential Election in which the NPN was
declared the winner with UPN coming a distant second.

In 1983, rather than improve on the 1979
General Election considered to be fairly peaceful, free and fair to
a large extent, the 1983 General Election fell back into the
inglorious era of the 1st Republic Elections and became
a very fraudulent one with glaring cases of large scale electoral
malpractices. It was bitter. It was manipulated. Money became the
dominant and determinant factor. Incumbency power was at its height
of display. The Federal Electoral Commission proved itself to be
highly incompetent and failed the Nation in the 1983 Elections.
Regrettably, violence erupted and characterised the political
landscape coupled with economic mismanagement and several other
glaringly militating factors, on December 31, 1983, the Nigerian
Military intervened once again in the Nation’s polity and Nigerians
heaved a sigh of relief.

Between 1989 and 1993, during the abortive or
still born 3rd Republic, there were another round of
Elections conducted by the newly created National Electoral
Commission, which elections going by the new breed and grass root
political idea coupled with the open ballot system introduced by
the then Military Government, were seemingly and apparently free
and fair though certainly not credible. These elections were
contested by the two Political parties brought into existence by
executive fiat of the then ruling AFRC, namely; the Social
Democratic Party, which was ‘a little to the left’
and the National Republican Convention, which was ‘a little
to the right’
It appeared Nigeria was once again on the
march and on the right path to true democracy with the smooth
successful holding of the elections from Local Government Councils
across the Country to the Governors of the States and the National
Assemblies all put in place until it was the turn of the
Presidential Election which held on June 12, 1993 and all hell
seems to have been let loose when a seemingly peaceful, free and
fair Election, in which it was reported that the Presidential
candidate of the SDP, Chief Moshood Kashimawo
Abiola,
had secured 57 percent of the total votes cast as
so far announced from 16 States, was on June 24, 1993, while the
results from the remaining States were still being collated,
annulled by the then Military Ruler, Gen Ibrahim Badamosi
Babaginda, who had also suspended the National Electoral Commission
and discontinued the transition programme. The rest, as they say,
is history.

Fast forward to 1999, Nigeria commenced another
transition to civil rule programme under the then Military
Government of Gen. Abdulsalam Abubakar, who took
over power after the death of Gen. Sanni Abacha
with May 29, 1999 as the terminal date and an Independent National
Electoral Commission was set up to midwife this exercise, and which
out of a total of 25 Parties that sought registered, registered
only 3 as Political parties, namely; the People’s Democratic Party,
the All People’s Party, and the Alliance for Democracy.
Subsequently, General elections were held in Nigeria and on May 29,
1999, Gen Olusegun Obasanjo, the Presidential
Candidate of the PDP, having been declared and returned as duly
elected by INEC, became the President of Nigeria. This election, by
all account, though peaceful was not very credible but Nigeria
moved on!

In April 2003, Nigerians trooped out to the
polling booths to elect their leaders at the various levels of
Governance heralding the second time of civilian to civilian
transition in Nigeria after the 1983 transition, though short
lived.  A total of 30 Political parties contested the 2003
General elections, which was akin to a war of money. Regrettably,
the money bags had a field day to the extent, as it was widely
believed, of determining both the Candidates of Political parties
as well as influencing the outcome of the elections into many of
the elective offices.  It was virtually a clean sweep for the
ruling PDP, which in that euphoria declared its intention to be in
monopoly of political power in Nigeria for the next 60 years. There
were widespread protests against the results of the 2003 General
elections and for the first time in the Nigerian political lexicon,
the phenomenon referred to as ‘carry go’ became
the pervading slogan!

On April 23, 2007
Umaru Yar’Adua was declared the winner by
Independent National Electoral Commission with a result of 24, 638,
063 votes representing 70 percent of the total vote cast at the
2007 General elections. However, the results were promptly rejected
by the 1st and 2nd runners up. Happily, and
perhaps for the first time in the Nigerian political history, a
person who has been elected as President of Nigeria admitted
publicly that the 2007 General Elections, from which he had emerged
as President of Nigeria, were indeed flawed and had set in motion
processes for drastic reforms of the Nigerian Electoral System but
painfully he did not live long enough to actualize this laudable
vision following his untimely death in office in 2010 before the
next General elections of 2011.

On April 16, 2011, Presidential elections were
held in Nigeria after its postponement from April 9, 2011 when it
was originally scheduled to hold and on April 19, 2011 the
Electoral umpire declared as duly returned and elected the
incumbent President and Candidate of the Peoples’ Democratic Party,
His Excellency Dr. Goodluck Ebele Jonathan.
However, in the aftermath of the declaration of the result of the
2011 Presidential elections, widespread violence erupted in the
Northern parts of the Country but subsequently, peace was restored
and Nigeria kept marching on!

As the year 2015 fast approached, there was
palpable anxiety in the air about the approaching 2015 General
elections slated for February 14, 2015. A winner of the
Presidential election was constitutionally required to poll a
majority of the valid votes cast amounting to at least 50 percent
plus one vote of the total cast and also to secure 25 percent of
the votes in two – thirds of the States of the Federation. The
campaigns were fierce and intensive and the ethnic and religious
divides were so pronounced that it became apparent that
notwithstanding which of the two frontline Candidates was declared
the winner and returned as duly elected as the President of
Nigeria, there were likely several ground to reject the results of
the 2015 Presidential election. However, the results were
eventually released declaring as winner and returned elected as
President of Nigeria, the Candidate of the All Progressives
Congress, Gen Muhammadu Buhari, and Nigeria scored
at once two – firsts, namely; the defeat of an incumbent President
by an opposition Candidate and the refusal by the incumbent
President to challenge his loss at the polls before the
Presidential Election Tribunal. The rest, as they say, is history.
Nigeria marched on!

On February 23, 2019, Nigerians once again
trooped out to the polling booths scattered around the nooks and
crannies of Nigeria to elect their President. There were palpable
tensions and anxieties in the land, which had come to characterize
every General elections in Nigeria but whether the election would
be peaceful or violent is usually determined on the ‘D –
Day’
which is the election day. It was widely reported
that there were widespread violence in Rivers State and
Kano State
respectively during the 2019 General Elections,
which had infamously brought my home town of
Abonnema, the Headquarter of Akuku – Toru Local
Government Area of Rivers State, into both National and
International attention. I watched, along with my colleague,
The Hon Justice William Annan Atuguba JSC., (Rtd)
formerly of the Supreme Court of Ghana, on the internet with horror
the horrific shootings going on in my home town of
Abonnema whilst in faraway Freetown, Sierra Leone
on an International assignment.

On February 26, 2019 at about 11.53pm, the
Independent National Electoral Commission declared as winner and
returned as duly elected the incumbent President, His
Excellency Mohammadu Buhari
, and Candidate of the All
Progressives Congress with a total vote cast of 15, 191, 847 votes
representing 56 percent of the total votes cast at the 2019
Presidential elections beating his closest rival, His
Excellency Alhaji Atiku Abubakar,
the candidate of the
opposition party, Peoples’ Democratic Party, who polled 11, 262,
978, and who promptly rejected the results. The rest, as they say,
is now history, even as Nigerians await, with bathed breath, the
fast approaching 2023 General Elections. Nigeria marches on!

HISTORY OF FORAY OF THE NIGERIAN JUDICIARY INTO
POLITICAL CASES

The Constitution of the Federal Republic of Nigeria 1999 (as
amended) created the three arms of Government in Nigeria, namely;
The Legislature, The Executive and the Judiciary. This is in line
with the concept of separation of powers and is to ensure checks
and balances between the various arms of Government, without which
powers may be left unchecked with its disastrous consequences on
Good Governance and the Rule of law. Thus, the Nigerian society, at
both the Federal and State levels is managed by these three arms of
Constitutionally recognized authorities to enable the respective
Governments to manage the Country and the States more efficiently.
Without separation of powers and appropriate effective system of
distribution of powers, there can indeed be no rule of law. See
Section 4 (1) and (2) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended.)
See also
Section 5(1)(a) and (b) of the Constitution of the Federal
Republic of Nigeria 1999 (as Amended).

However, the Judiciary, the focus of this paper, is the third
arm of Government and is primarily charged with the interpretation
of the laws of the land. Thus, it plays a very significant role in
the strengthening of the rule of law and ensuring compliance with
the laws of the land. It engenders the Nigeria’s ‘nascent
democracy’
. It is part of the Constitutional mechanism for
check and balances between and amongst the three arms of Government
and acts as the watchdog of the society, being, as it is often said
at common parlance, the last Hope of the Common man! See
Section 6(1) of the Constitution of the Federal Republic of
Nigeria 1999 (as amended).

From the inception of Civil Rule on independence between 1960 –
1963 to the 1st Republic between 1963 – 1966, through
the 2nd Republic between 1979 – 1983, and the aborted
3rd Republic between 1992 – 1993 and the 4th
Republic since 1999, there has been judicial interventions in the
Political life of Nigeria, yet the real foray of the Judiciary,
unstoppable as it has now become through the years, into political
issues commenced in full force in 1979, when the almighty formulae
of 122/3 of 19 States of Nigeria – a judicial
mathematics –  was introduced into the Nigerian Electoral
lexicon by the Supreme Court of Nigeria, in a split decision in
which Obaseki JSC and Eso JSC did
not concur with the majority decision as delivered by
Fatayi – Williams CJN, whilst endorsing the
forceful arguments of Chief Richard Akinjide SAN
in affirming the return and declaration of Alhaji Shehu
Shagari,
the Presidential candidate of the National Party
of Nigeria, as the duly elected President of Nigeria, while
dismissing the spirited efforts by way of the appeal to the Apex
Court by Chief Obafemi Awolowo, the Presidential
Candidate of the Unity Party of Nigeria, to upturn the said return
and declaration by the Federal Electoral Commission.

Interestingly, from then on through the short lived democratic
experimentation under the then Military Rule of General
Ibrahim Badamosi Babangida,
in the short lived
3rd Republic to the inauguration of the 4th
Republic on May 29, 1999 till date, the Judiciary, due to no fault
or ambition of its own, has consistently been invited and its
powers invoked by Politicians of all dispositions to determine of
the outcome of vast majority of elections conducted in Nigeria,
whether at the Federal or States and even at the Local Government
levels of Governance in Nigeria. This is no thanks to the never say
die spirit of the Nigerian Politicians, in and out of office. Thus,
even Councillorship Candidates are ready to pursue their cases up
to the Supreme Court, if there be any such provisions in our laws.
In a recent unreported decision of the Court of Appeal, Benin
Division in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V.
Kadiri Sunday Oshoakpemhe & Ors
delivered on March 8,
2021, I had cause to ponder inter alia thus:

“In law therefore, a pre – election matter does not
become academic or hypothetical merely because the election had
taken place. Thus, pre – election matters commenced in line with
the extant law on electoral matters would remain live issue
notwithstanding the holding of the election while the pre –
election matter was already pending in Court…
My
lords, I had even asked myself the question, whilst considering
this issue, if indeed the claims of the 1st Respondent
had become merely academic, why would or should the Appellant even
bother appealing against the judgment of the Court below arising
from a Suit which had become merely academic and of no longer any
utilitarian value to any or all of the parties as vehemently
contended on his behalf by his learned Senior Advocate in this
appeal? The answer, to my mind is not farfetched, and I hope I am
right, it is because while lawyers pride themselves as masters of
the law, the Politicians are master game planners and they would
never give up unless and until either they realize their desire to
‘serve their people’ or the Apex Court in an appeal before them
tell the Politicians with finality that it is all over, then they
would take a bow and rest but bid their time for the next election!
In this wise, they are far wiser than the
lawyers!

After the 2007 General Elections, there was an
attempt to reduce the levels and layers of interventions by the
Nigerian Judiciary in electoral matters by pegging all post –
Election litigations, including National Assemblies and
Governorship Elections to end at the Court of Appeal, except the
Presidential Election was met with  resistance no thanks to
the debacle in the appeals in some Governorship Appeals, notably
Sokoto and Edo States, leading to the very needless amendment to
return Governorship Elections Appeals to the Supreme Court, the
result of which has been unending litigations.

The foray of the Judiciary into Political cases has come with it
various challenges, ranging from allegations of corruption and and
distraction of the Judicial system from facing and resolving
timeley the day to day issues of ordinary Citizens of this Country
in preference for so much time and resources and energies spent on
Political cases, ranging from Pre – Election to Post – Election
ligations. However, due intervention of the Judiciary has also
brought with it the unique opportunities of ensuring that the votes
of the Citizenry counts and therefore, only those whom the
electorates have truly expressed their wishes to govern them
through the ballot box to do so emerge to govern them. Thus,
whenever the Electoral system and or the Political parties fail the
people, the Court, upon proper invitation, comes to the rescue by
intervening to ensure that the votes of the electorates counts! In
Elohor & Anor V. INEC & Ors (2019) LPELR – 48806(CA) @ pp.
36 – 47,
I had cause to reiterate inter alia
thus: 

In Election Petition
proceedings also the electorates whose votes must be allowed to be
counted in the determination of who represent them and acts on
their behalf for the period or term of the office contested for by
the parties at the Election…The Court must hold the balance and
ensure, as far as practicable under its extant rules of practice
and procedure, a level playing field for all the
parties” 

After the 1979 General elections, a landmark
Election Petition was heralded into the Nigerian Political
landscape by the challenge of the 1979 Presidential Election by the
candidate of the Unity Party of Nigeria, Chief Obafemi
Awolowo
, who vigorously and spiritedly contested the
declaration and due return of the candidate of the National Party
of Nigeria, Alhaji Shehu Usman Shagari at the
Presidential Election Tribunal to the Supreme Court on Appeal. This
landmark case could easily be regarded as the first major foray of
the Judiciary into Political cases in Nigeria, heralding as it were
a deluge of political cases, both pre – and post – election
litigations in the coming years and which has led, perhaps, to the
view as expressed in the theme of this law week, the
‘Judicialization of Politics in
Nigeria’      

On August 11, 1979 the electorates in Nigeria
had trooped out to the polling booths across the Country to elect
for themselves a leader, from the five Presidential Candidates,
namely; Alhaji Shehu Usman Shagari of the NPN, Chief
Obafemi Awolowo of the UPN, Dr Nnamdi Azikiwe of the NPP; Alhaji
Aminu Kano of the PRP, and Alhaji Ibrahim Waziri of the
GNPP,
this time as President of Nigeria under the brand
new 1979 Constitution of Nigeria, which was a radical departure
from the immediate post – Independence Westminster styled Era akin
to the model of Government in the United Kingdom to the Executive
Presidential System akin to the model of Government in the United
States of America. On August 16, 1979 the candidate of the NPN,
Alhaji Shehu Usman Shagari, was returned and
declared as the elected President of Nigeria having, according to
electoral umpire, Federal Electoral Commission, received a majority
of the votes cast at the Presidential Election in satisfaction of
the provisions of Section 34 A (1)(c)(i) and (ii) of the Electoral
Decree No. 73 of 1977(as amended), which provided inter alia that a
Presidential candidate will be deemed to have been duly elected to
such office where he has the highest votes cast at the election,
and he has not less than one quarter of the votes cast at the
election in each of, at least, two – thirds of all the States in
the Federation.

In the Election Petition presented to the Presidential Election
Tribunal sitting in Lagos, Chief Obafemi Awolowo,
the Presidential Candidate of the UPN, had contended that the
election of Alhaji Shehu Usman Shagari, the
Presidential Candidate of the NPN, was invalid by reason of non –
compliance with the provisions of Part II of the Electoral Decree,
1977 in that although Alhaji Shehu Usman Shagari
had received the highest total votes of 5,688,857 at the said
election, he had less than one – quarter of the votes cast at the
election in each of at least two – thirds of all the 19 States in
the Federation and prayed for the nullification of the return made
by the electoral umpire and for the holding of another election in
accordance with Section 34A(3) of the Electoral (Amendment) Decree
No. 32 of 1979. The parties filed and exchanged their pleadings and
issues were duly joined and the matter went to trial.

Chief Obafemi Awolowo testified for himself and
called one witness, one Professor Ayodele Awojobi,
a Professor of Engineering at the University of Lagos and an
applied mathematician who testified that there are 38,760 possible
two – thirds of Kano State going by Local Government Area and that
in the absence of a computer, it will take at least one year to
declare the result in respect of two – thirds of Kano State. The
Respondents did not call any evidence. In its judgment, the
Presidential Election Tribunal saw no merit in the Petition and
thereby dismissed it. Chief Obafemi Awolowo was
aggrieved with that decision and had promptly appealed against it
to the Supreme Court of Nigeria on the grounds inter alia that the
Election Tribunal misdirected itself in law in construing two –
thirds of 19 States as 122/3 instead of 13
States when in law and especially within the context of Section
34A(1)(c)(ii) of the Electoral Decree 1977 as amended, a State
being a corporate body or a legal person cannot be fractionalised,
that the Election Tribunal misdirected itself when it held that the
dominant requirement in the election is the number of votes cast in
each of the States, “two – thirds State” would be synonymous with
two – thirds of the total votes cast in that State and not the
physical or territorial area of such State, and that the Election
Tribunal misdirected itself when it took the total votes cast for
Alhaji Shehu Usman Shagari of the NPN in Kano
State, 243,423 votes instead of two -thirds thereof 162,282 votes
to determine whether or not he scored at least a quarter or 25 per
cent of the total votes cast in two – thirds of Kano State, 203,460
votes.

In the judgment delivered on Wednesday, September 26, 1979, the
Full Court of the Supreme Court of Nigeria Coram: Atanda
Fatai-Williams, CJN, Ayo Gabriel Irikefe JSC, Mohammed Bello JSC,
Chukwunweike Idigbe JSC, Andrews Otutu Obaseki JSC, Kayode
Eso        JSC , and Muhammadu
Lawal Uwais JSC
in Chief Obafemi Awolowo V. Alhaji
Shehu Shagari & Ors
(1979) LPELR – 653
(SC),
dismissed the Appeal (by a split majority decision
of 6 – 1) and held per Fatayi – Williams CJN,
inter alia thus:

It is at this stage that the Returning
Officer ought to determine what is two – thirds of 19 States. This
is a matter of law as it deals with the interpretation of the
provisions of Section 34A(1)(c)(ii) of the Decree….the Federal
Military Government must be deemed to know that two – thirds of 19
States will be 122/3 of States….If the
number 13 which is the nearest to two – thirds of a State had been
intended the Federal Military Government would have said so in
clear terms. In any case, as between 13 States and
122/3 States, the figure of
122/3 considering all the circumstances,
appears to us to be the intention of the Federal Military
Government in the context of sub-paragraph (ii) of Sub-section
(1)(c) of Section 34A. Furthermore, it is, we think, fallacious to
talk of fractionalisation of the physical land area of a State when
the operative words of Section 34(1)(c)(ii) relate undoubtedly to
the votes cast by the voters in the State at the election…Moreover,
until election returns can be computerized in this country, the
“mathematical canon of interpretation” put forward by Professor
Awojobi in his testimony before the Election Tribunal will remain
impractical and legally unacceptable.”

However, both of their lordships, Obaseki JSC
and Eso JSC, disagreed with the majority view of
two – thirds of 19 States as amounting to
122/3 States rather than 13 States but
since the majority had spoken whatever their lordships held, the
rest is history! There was a record of appearances of array of high
flying counsel in this landmark Appeal. It is worthy of note that
the questioned Presidential Election was held on 11/8/1979, the
results were declared on 16/8/1979 and yet by 26/9/1979 all post –
election litigation on it had been concluded with up to the level
of the Supreme Court before the inauguration of the newly elected
President on 1/10/1979

In 1983, due to widespread violence resulting
from the wide held belief of large scale irregularities in the
conduct of the General Elections of that year, there were a deluge
of Election Petitions challenging the outcome of the said Elections
as declared by the Electoral Umpire but regrettably, that was when
technicalities in law held sway riding roughshod far and above
substantial justice, and thus a great number of these Election
Petitions challenging the General elections failed while the
results of the said elections which were clearly perceived and
believed to have been irregular were nevertheless upheld by the
Courts, purely on technical grounds. However, in very few of these
cases, particularly in Ondo State as between Akin
Omoboriowo
of the NPN and Chief Michael
Ajasin
of the UPN in Chief Akin Omoboriowo & Ors
V. Chief Michael Adekunle Ajasin (1984) LPELR – 2643 (SC),

these glaringly perverse results of the General Elections were ably
and admirably reversed by the Court and substantial justice
rendered not only to the successful Petitioners but also to the
electorates so that their true wishes as expressed by them through
their votes prevailed.

In 1993, the justification for the annulment of
the widely believed freest and fairest Presidential Election in the
annals of history of Presidential Elections in Nigeria was found in
the series of interventions by the Courts both pre – and post –
election at the behest of political actors and activists which
became a ready excuse and or a lee way for the then Military Ruler,
Gen Ibrahim Badamosi Babangida to annul the June
12, 1993 Presidential Election whilst collation of results were
still ongoing in the remaining few States, the results of majority
of the States having already been announced by the Electoral
Umpire. Of note was the Suit filed on June 10, 1993 by the
Association for Better Nigeria, represented by one Abimbola Davies,
before an Abuja High Court that the Presidential election be
suspended on grounds of corruption going on in Party politics. The
Court wasted no time in granting such an insidious as well as
invidious request and thereby retraining the National Electoral
Commission from conducting the Presidential Election.

Still in 1993, in just the 3rd month
of the Interim National Government under the leadership of
Chief Ernest Shonekan between August 26 1993
November 17, 1993, and set up by the retreating Military Ruler, the
Courts intervened once again. This time a Lagos High Court, at the
behest of a Suit filed by the generally and popularly acclaimed
winner of the June 12, 1993 Presidential Election, Chief
M.K.O. Abiola,
 declared the Interim National
Government as an illegal contraption. The immediate consequences
and effects of this intervention by the Courts on Nigeria and the
rest as they say is now history! But going down the memory lane,
the transition to civil rule was eventually truncated and thus
leading Nigeria to nowhere while the generally believed and
popularly acclaimed winner of the June 12, 1993 Presidential
Election, Chief M. K. O. Abiola, after about a
spell of four years spent in detention died on July 7, 1998,
shortly after the death of the then Nigerian Military Ruler,
Gen Sanni Abacha on June 8, 1998.

In the aftermath of the 1999 General elections
and consequent upon the return and declaration of Gen
Olusegun Obasanjo,
the Presidential Candidate of the
Peoples Democratic Party as the winner of the 1999 Presidential
Election in Nigeria, the Courts intervened once again but at the
behest of Chief Olu Falae, the Presidential
Candidate of the Alliance for Democracy, who challenged the results
of the Presidential Election vide an Election Petition No.
CA/A/EPPR/12/1999
presented to the Presidential Election
Petition Tribunal of the Court of Appeal Coram: Dahiru
Mustapha JCA, Aloma Mariam Mukhtar JCA, George Adesola Oguntade
JCA, Justin Thompson Akpabio JCA, and Dennis Onyejife Edozie
JCA.
The parties filed and exchanged pleadings and the
matter proceeded to hearing. At the trial, Chief Olu
Falae
called 15 witnesses, while Gen Olusegun
Obasanjo
called 3 witnesses. All the other Respondents,
the 2nd – 60th Respondents, did not call any
witness but rested their defense on the evidence called by the
other parties. At the conclusion of trial, the Petition was
dismissed. See Chief Olu Falae V. Gen Olusegun Obasanjo &
Ors No. 2 (1999) 4 NWLR (Pt. 599) 476 (CA)
.

In April 2003, General elections were held in
Nigeria and in the aftermath of the outcome of the elections, the
Courts had once again intervened at the behest of aggrieved
persons. Thus, several Election Petition Tribunals were set up in
accordance with Section 285(l) (a) and (2) of the
Constitution of Nigeria 1999 (as amended)
. However,
despite the hues and cries of massive irregularities, by both local
and international observers, most of the results from these
generally believed flawed elections were upheld by the Courts
likely due to lack of evidence to substantiate these alleged
irregularities. Thereafter, the political life of the Nation went
on as usual with nothing significant learnt by the Politicians as
well as the Political parties from the largely flawed 2003 General
Election in which the phenomenon of ‘carry go’ was
introduced into the Nigerian Political lexicon. Truly, so sad
indeed!

The Courts have regularly on the behest of aggrieved persons
intervened in a deluge of pre – election matters over the years.
Principally, there are two sections of our laws giving rise to the
avalanche of pre – election cases in the Courts, namely;
Sections 31(5) and 87(1) of the Electoral Act 2010 (as
amended)
.

By Section 31(5) of the Electoral Act 2010 (as
amended),
it is provided as follows:

“A person who has reasonable grounds to believe that any
information given by a candidate in the affidavit or any document
submitted by that candidate is false may file a suit at the High
Court of a State or Federal High Court against such person seeking
a declaration that the information contained in the affidavit is
false”

By Section 87 (1) of the Electoral Act 2010 (as
amended),
it is provided as follows:

         “A
political party seeking to nominate candidates for election under
this Act shall hold primaries for aspirants to all elective
positions”

Let me first deal with the provisions of Section 87 (1)
of the Electoral Act 2010 (as amended)
, which appears to
be the major source and cause of the deluge of pre – election
litigations in this Country, underscoring the obvious lack of
internal democracy in Political parties in Nigeria, leading to the
interventions by the Courts, at the behest of aggrieved member of
Political parties, with the resultant perception of
‘Judicialization of Politics in Nigeria’

In PDP V. Sylvia [2012] 13 NWLR (Pt. 1316) 85 @ p.
148
, the Supreme Court per Chukwuma – Eneh
JSC
., had opined inter alia thus:

   “The clear object the provisions of Section
87 is intended to achieve besides the inculcation of internal
democracy in the affairs of political parties in this country
moreso in the conduct of their party primaries includes thus making
them transparent and providing level playing ground for their
contestants in party primaries….”

On his part, Rhodes -Vivour JSC had opined
inter alia thus:

“Where the political party conducts its primary and a
dissatisfied contestant at the primary complains about the conduct
of the primaries, the Courts have jurisdiction by virtue of the
provisions of Section 87 (9) of the Electoral Act to examine if the
conduct of the primary elections was conducted in accordance with
the party’s Constitution and Guidelines. This is so because in the
conduct of its primaries the Courts will never allow a political
party to act arbitrarily or as it likes. A political party must
obey its own constitution.”

In Shinkafi V. Yari (2016) 1 SC (Pt. II) 1 @ p.
31,
the Supreme Court had expatiated inter alia thus:

“It is now trite that where a political party conducts
its primary and a dissatisfied contestant at the primary election
complains about its conduct of the primaries, the Courts have
jurisdiction by virtue of the provision of Section 87(9) of
the Electoral Act 2010 (as amended) to examine if the conduct
of the primary was in accordance with the party’s Constitution and
Guidelines. The reason is that in the conduct of its primaries, the
Courts will never allow a political party to act arbitrarily or as
it likes. A political party must obey its
Constitution
.”

In CPC V. Ombugadu [2013] 18 NWLR (Part 1385) 66 @ pp.
129 – 130,
the Supreme Court per Ngwuta
JSC,
(God bless his soul) had expatiated
inter alia thus:

“A political party is greater than the numerical
strength of its membership just like a country, for instance,
Nigeria, is greater than the totality of its citizens. It follows
that in the case of a Political party, such as the
1st Appellant herein, the interest of an individual
member or a group of members or a group of members within the
party, irrespective of the place of such member or a group in the
hierarchy of the party, must yield place to the interest of the
party. It is the greed, borne of inordinate ambition to own,
control and manipulate their own Political parties by individuals
and groups therein and the expected reaction by other party members
that result to the internal wrangling and want of internal
democracy that constitute the bane of Political parties in
Nigeria…it is apparent that a few powerful elements therein hijack
the parties and arrogated to themselves right to sell elective and
appointive positions to the party member who can afford
same…Politicians must learn to play the game of politics in strict
compliance with its rules of organised society.”

In Mato V. Hember & ORS (2018) 5 NWLR (Pt.1612) 258[1], the
Supreme Court had per Onnoghen CJN, emphatically
stated inter alia thus:

“Both the Electoral Act and the Constitution of the
2nd Defendant make it mandatory that primaries be
conducted in the Headquarters of the Constituency. The failure
to comply with these provisions makes the entire exercise null and
void…The truth must be told and that is, that the
1st and 2nd Defendants did not
respect the provisions of the Electoral Act and the constitution of
the 2nd defendant in the conduct of the
primaries.
 This Court has decided in quite a
number of cases that political parties must obey their own
constitutions as the court will not allow them to act arbitrarily
or as they like” .

In Alhaji Shuaibu Isa Lau V. LAU V. PDP
& Ors. (2017) LPELR- 43800 (SC),
the Supreme Court per
Augie JSC, had stated inter alia thus:

   “This is a hard and very bitter lesson for
Political parties to learn. They may have chosen candidates or
eminent personalities they want to present as candidates to INEC,
but they have to play by the rules….The chosen candidates must
comply with requirements of the law; they must abide by the
provisions of the Electoral Act, which creates a level playing
field for all aspirants who seek to contest elections…So, the
Political parties and their candidates must obey the
rules.”

See also Dahiru & Anor V. APC & Ors. (2016) LPELR –
42089 (SC);
Boko V. Nungwa[2] (2019) 1 NWLR
(Pt. 1654) 395; Tarzoor V. Ioraer (2016) 3 NWLR (Pt. 1500)
463.

Let me now consider the provision of Section 31(5) of
the Electoral Act 2010 (as amended),
another, and perhaps
the current fastest source and cause of pre – election litigation,
underscoring the obvious lack of proper definition of rights of
persons to intermeddle in the internal affairs of Political parties
to which they do not even belong and leading to the interventions
by the Courts, at the behest of any person who is so led to
intermeddle with the internal affairs of a Political party to which
he is a stranger, with the resultant perception of
‘Judicialization of Politics in Nigeria’

In Peoples Democratic Party V. Biobarakuma Dei-Eremienyo
& 3 Ors (2020) Vol. 305 LRCN 1
, the
Supreme Court per Eko JSC; had
held inter alia thus:

“Section 31 (5) of the Electoral Act complements Section
182 1 J of the Constitution. It empowers any person who has
reasonable grounds to believe that any information given by a
candidate submitted by that candidate is false to file a Suit at
the Federal High Court, High Court of a State or FCT against such
person seeking a declaration that the information contained in the
affidavit is false. The sanction for presenting to INEC Form CF001
containing false fact about the personal particulars or information
of the candidate, by virtue of Section 31(6) of the Electoral Act,
is an order by the High Court disqualifying such candidate from
contesting the election”

In a recent unreported decision of the Court of Appeal in
Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri
Sunday Oshoakpemhe & Ors
delivered on March 8, 2021, I had
cause to ponder inter alia thus:

   “Now…the provision of Section 31(5) of the
Electoral Act, 2010 (As Amended) talks of ‘a person’ and is the
1st Respondent not within the meaning ‘a person’ in
Nigeria? The Appellant did not say so! Thus, it would appear that
going by the succinct provisions of Section 31(5) of the Electoral
Act, 2010 (As Amended) and on the authority of Lawrence V. PDP
(2018) 5 NWLR (Pt. 1613) 464 @ p. 481, the meaning of “a person” as
used in Section 31(5) of the Electoral Act 2010 (as amended)
presupposes any person, including the 1st Respondent,
since it appears to be open – ended to all and at the same time
inclusive of all and without any restriction or exclusion. Thus,
whether or not one is a member of a Political Party or any
particular Political party, as in the instant appeal, a PDP Card
carrying member challenging the qualification of a candidate of the
APC, is of no moment as the law allows the 1st
Respondent so to do! I have no difficulty whatsoever resolving
seven against the Appellant in favor of the 1st
Respondent.” 

Now, whilst the above cases dealt with the provisions of
Section 31(5)  of the Electoral Act 2010 (as
amended),
which appears to complement the provision of
Section 182(1)(j) of the Constitution of Nigeria 1999 (as
amended),
per Eko JSC, in 
Peoples Democratic Party V. Biobarakuma Degi – Eremienyo &
3 Ors (2020) Vol. 305 LRCN 1
, by the provisions of
Section 65( 1) & ( 2), Section 66 (1)( a) – (j) & (2), Section 106
( a) – (d), Section 107 (1) (a) – (j) & (2), Section 131(a) – (d) ,
Section 137 (1)(a) – (j)  & (2), 177(a) – (d ), Section
182(1)(a) – (j) & (2) of the Constitution of Nigeria 1999 (as
amended),
exhaustive provisions were made for
qualifications and disqualifications of Candidates to all the
Elective Offices established by the Constitution of Nigeria
1999 (as amended)
and which can form the basis or grounds
for the challenge of an election to any of the said offices before
an Election Petition Tribunal. Now, since all these provisions
serve the same purpose of qualification and or disqualification of
Candidates, if they are not sufficient then it is suggested that a
further amendment of the Constitution of Nigeria 1999 (as amended)
in line with the provisions of Section 31(5) and (6) of the
Electoral Act 2010 (as amended) be effected and made an integral
part of disqualification of Candidates to obviate the duplications
leading to pre – and post – election litigations on the same ground
and or issue.

This duplicity was  impliedly but amply demonstrated by the
challenge to the result of the 2019 Presidential elections by
His Excellency Alhaji Atiku Abubakar, the
Presidential candidate of the Peoples’ Democratic Party against
His Excellency Muhammadu Buhari, the incumbent
President and Presidential Candidate of the All Peoples’ Congress.
In Abubakar V. INEC (2020) 12 NWLR (Pt. 1737) 37 @ p.
110,
the Supreme Court per I.T. Muhammad,
CJN,
had pronounced inter alia thus:

“Before I conclude on this issue, let me state that
whenever documents are tendered from the Bar in election matters,
the purport is to speed up the trial in view of time limitation in
election matters. Such tendering is not the end itself but a means
to an end. The makers of such tendered document must be called to
speak to those documents and be cross-examined on the authenticity
of the documents. The law is trite that a party who did not make a
document is not competent to give evidence on it. It is also the
tested position of the law that where the maker of the document is
not called to testify, the document would not be accorded probative
value by the court. That in deed is the fate of exhibits P80 and
P24…Finally, on this issue, it was contended by the appellants that
the variation in the names of 2nd respondent on Exhibit
R19 and R21 makes his relationship with the two documents doubtful.
Is “Mohammed” and “Muhammadu” the same name and belong to the
2nd respondent? The Court below made an elaborate
discussion on the issue and concluded that RW5 gave explanation on
the names and stated that they are the same….For me, as the
appellants failed to prove that any of the documents belong to
another person and as nobody has come out to claim any of the two
exhibits, I do agree with the explanation given by the RW5 and the
conclusions of the court below that both names “Mohammed” and
“Muhammadu” as contained in exhibits R19 and R21 belong to the
2nd respondent. On this note, I resolve issues one and
two against the appellants.”

It is clear that the above two decisions of the Supreme Court in
Peoples Democratic Party V. Biobarakuma Dei-Eremienyo & 3
Ors (2020) Vol. 305 LRCN 1
, and
Abubakar V. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110,
 
though based in Pre – election and Post – election
matters were canvassed on same issues and or grounds leading to the
deluge of cases justifying the constant intervention by the
Judiciary in Political cases at the behest of aggrieved persons by
virtue of Sections 31(5) and 87(1) of the Electoral Act 2010 (as
amended), which it is posited can legally and conveniently be done
away with as would be canvassed in details later in this paper in
order to drastically reduce and or bring to a halt the deluge of
Pre – election matters and the resultant constant intervention by
the Courts and the seeming ‘Judicialization of Politics in
Nigeria’       

THE CHALLENGES

LACK OF INTERNAL DEMOCRACY IN POLITICAL PARTIES IN
NIEGRIA2:
This is perhaps the mother of all
reasons why there is the seeming feeling of
‘Judicialization of Politics in Nigeria’ as
thought and coined by the Organizers of this Law Week. There seems
to be a great deal of lack of or non – observance of internal
democracy by the hierarchy of Political parties in Nigeria. The
founders and leaders of Political parties do award and in some
cases sell the party’s tickets to either the hig
   hest bidder or to whomsoever it pleases them to
give it to. Thus, the generality of the members of Political
Parties neither have any say or their way in the running of the
affairs of Political parties in Nigeria. Internal democracy was,
and is still to a large extent going by the avalanche of complaints
and the deluge of pre – election litigations, a mirage and mere
wishful thinking in Nigerian Political parties. The Godfathers,
Kingmakers and the Moneybags rule the internal affairs of Political
parties and run the Political parties at their own whims and
caprices. With their blessings a person can become a Candidate just
at the same time he is becoming a member of a Political party and
without their blessings a member no matter for how long or
qualified would stand no chance to be given the ticket to run as
the candidate  of a Political party in Nigeria. Thus, internal
democracy was not considered a virtue in the affairs of Nigeria’s
Political parties.

The Constitution of Political parties are mostly observed in the
breach and the aggrieved dared to go to Court. Though on paper,
primaries, whether direct or indirect, is touted to be an integral
part of the administration of the internal affairs of Political
parties in Nigeria, but in practice it is avoided by the hierarchy,
leaders, moneybags and kingmakers like a plague. They pay mere lip
service to it and rather thrive on imposition of candidates. So bad
is the adverse effect of absence of internal democracy that even a
performing office holder can be out rightly denied the opportunity
of participating in the process leading to the selection of a
candidate for a Political party for a second term in office,
notwithstanding the wishes of the generality of members of the
Political party and or even the desires of the electorates at
large. In this regard, the case of the Lagos State APC Governorship
Primaries in 2019 as well as the Edo State APC Governorship
primaries in 2020 readily comes to mind. See for example Article 20
of the All Progressives’ Congress enshrining primaries, whether
direct or indirect, as the mode of selection of its candidates for
general elections.  Similar provisions exist in all the other
registered Political parties in Nigeria.

Internal democracy is the panacea to the myriads of
disappointments by members of Political parties in Nigeria with the
resultant avalanche of complaints by aggrieved members of Political
parties and the deluge of pre – election litigation throughout the
length and breadth of this Country. Thus, to curtail the constant
derailment of the Constitution of Political parties in Nigeria, and
the resultant cacophony of voices and the incessant recourse or
resort to the Courts by the many aggrieved members of Political
parties, there must be good leadership of Political parties founded
on internal democracy and duly anchored on strict adherence to the
Constitution of Political parties. There is urgent need to nip in
the bud the pervasive erosion of internal democracy in the
management of the affairs of Political parties. Since, Political
parties are the base from which leaders of the Nigerian society
emerge, in the absence of independent candidacy, only good
leadership and governance of Political parties can give rise to
good leadership of the larger society. This is so because one
cannot give out what one does not have. It is simply ‘nemo
dat quod non habit’
! The more lip service is paid to the
overriding need, which is now imperative in the Political landscape
of Nigeria, for internal democracy, the more likely there will be
rise in the resort and or recourse to the Courts in Pre – election
litigation by aggrieved members of Political parties. As long of
internal democracy is eroded in the affairs of Nigeria’s Political
parties, so long there would be no ‘de – judicialization of
Politics in Nigeria.
’ The key therefore, to keeping the
Judiciary out of Politics in Nigeria is internal democracy in
Nigeria’s Political parties! This would have the soothing effect of
satisfaction to vast majority of members of Political parties where
there is strict adherence to the provisions of their Parties’
Constitution and where the whims and caprices of the privileged few
in the parties, the Godfathers, the Moneybags, the Kingmakers and
the hierarchy, would be effectively curtailed. Then there would be
less and less Pre – election litigations in the politics and
affairs of Political parties in Nigeria.

The important role and or fundamental position of Political
parties in modern political process and democratic governance
cannot be over emphasized, hence the need to instill the practice
of internal democracy in Nigeria’s Political parties3.
What then are the challenges to internal democracy in Political
parties? These would range from; lack of party ideology, the
overbearing role of party’s elected officials in the Executive and
Legislative Arms of Government, lack of observance of process or
mechanism for selection of party’s candidate for general elections,
lack of independent source of funding and the disruptive role of
moneybags, lack of or breaches of agreed zoning formula, highjack
of party’s primaries, lack of consensus building mechanism, lack of
discipline, and arrogance of the hierarchy of Party’s
executives.

THE OPPORTUNITIES

GIVING EFFECT TO THE TRUE WISHES OF THE ELECTORATES
EXPRESSED THROUGH THEIR VOTES AND MAKING THEIR VOTES
COUNT:
Intervention by the Courts had in many deserving
cases ensured that the wishes of the electorates is respected and
made to prevail and their votes count. Fraudulent elections, where
they are proved according to law, are set aside and either fresh or
bye or rerun elections ordered and conducted by the Electoral
Umpire. Instances of these abound, ranging from the 1983
invalidation by the Court of the purported return and declaration
of Chief Akin Omoboriowo as the Governor of Ondo
State and the restoration of the wishes of the electorates of Ondo
State by the due return and declaration of Chief Michael
Ajasin
as the duly elected Governor of Ondo State by the
Court, the 2007 earthshaking decision of the Apex Court dismantling
the stark injustice meted to Chibuike Rotimi
Amaechi
by the People Democratic Party by his due return
to the Rivers State Government House, the Brick House, as Governor
of River State in place of the then Governor Celestine
Omehia
, the 2008 invalidation by the Court of the
purported return and declaration of Prof O.
Osunbor
as the Governor of Edo State and the restoration
of the wishes of the electorates of Edo State by the due return and
declaration of the Comrade Governor, Admas
Oshiomole
as the duly elected Governor of Edo State by the
Court. In recent times, there have been the decisions of the Courts
in the Governorship tussles in Imo State and Bayelsa State
respectively as decisively determined by the Apex Court. Thus,
without the timely and due intervention by the Judiciary, at the
behest of these aggrieved persons, these injustices and several
others that doted our political landscape would have been left un –
redressed and rather ingloriously perpetuated in the psyche of the
Nation. By its well – deserved interventions in deserving cases,
the Judiciary continues to make significant contribution to the
deepening of the Nation’s democratic experiences and thereby
fostering the tenets of credible elections in Nigeria.

WIDENING AND OPENING UP THE DEMOCRATIC SPACE:
By prompt judicial interventions, the hitherto over restricted
space for formation and registration of Political parties have been
widened with the result that there is presently a great deal of
political space for persons desirous of involving themselves in
politics to do so on their own terms without being limited to very
few options by way of existing Political parties. Once, an
association meets the requirements of the law it is in the spirit
of the right to freedom of association assured of being registered
as a Political party to propagate its visions and canvass for votes
from the electorates. This liberal approach to registration of
Political parties was only made possible by the proactive nature of
the Nigerian Judiciary. Today, Nigerians are offered the almost
limitless opportunities in their choice of Political parties to
achieve their dreams of serving their people. Perhaps, there is
still one step forward needed to be taken in the Politics of
Nigeria by due further amendment of the Constitution of Nigeria
1999 (as amended) to provide for independent candidacy, which would
finally break the monopoly of the moneybags, godfathers and their
ilk, when qualified and societal acceptable persons can jettison
the money bags and existing ideology lacking Political parties to
contest elections on their own right as independent candidate,
which is one of the hallmarks of full blown advanced democracies of
the World, such as the United States of America.

THE WAY FORWARD – KEYS TO REDUCED JUDICIALIZATION OF
POLITICS IN NIEGRIA

OVERALL GOOD GOVERNANCE, TRANSPARENT AND CREDIBLE
ELECTIONS:
 Whilst, conducting transparent and
credible elections has remained an albatross in Nigeria, the bigger
problem which had become anathema to transparent and credible
elections in Nigeria is lack of good governance. There can be no
transparency and or credibility in any sphere of a Nation’s life,
including its elections, in the absence of good and responsive
leadership in Governance. However, good Governance is not the
exclusive preserve of the Executive at any level of governance in
this Country. The requirement for good governance entails the total
efforts and collaboration of all the three arms of Government, with
each arm ensuring transparency and commitment to its
constitutionally assigned roles in the governance and development
of the Nation. Without a transparent Legislature there can be no
overall good governance, and without a transparent and credible
Judiciary there can be no overall good governance. It follows
therefore, nothing can be farther from the truth than when only the
Executive is expected and looked upon not only by the Citizenry but
also by its co – burden bearers, the Legislature and the Judiciary,
to provide the overall good governance for the people of
Nigeria.

Overall good governance is therefore, the function of all the
three arms of Government working assiduously together to make
things work smoothly to the good and benefit of the Citizenry. One
step of assurance to good, transparent and credible election is the
swift adoption of the experimental Card Reader to become an
integral part of the super structure of Nigeria’s Electoral System
in the same way as the Voters’ Registry has been and still is.
Nigeria must embrace the technology of the Card Reader. It has the
greater potential, if put to good and effective use, of checking
rigging at Elections in Nigeria. To this end, there is need for
complete overhaul of the Electoral System by way of urgent and
comprehensive reforms and perhaps wholesale amendment of the
Electoral Act 2010 (as amended). Rather, but regrettably too,
emphasis has always and still is on the results of the election, no
matter how contrived and the loser is admonished and in some rare
cases dared to go to Court if he so wishes! Thus, whether the votes
of the electorate were duly counted and each vote given its prime
place in the collation of the total outcome of the election is of
little concern to most of the ill trained ad-hoc staff, mostly
engaged by the Electoral umpire, and whose main interest is the
payment of their allowances. Serious efforts should be made at
inculcating patriotic zeal in all who would be recruited and or
called upon to serve as ad-hoc staff in every election in Nigeria.
The polling unit is at the base of the pyramid and once things are
not done right there it permeates all the other levels in the
hierarchy of the election. A collation center can only but collate
whatever was brought forward to it from the polling units,
 yet whilst the collation centers are heavily fortified with
security and better welfare or allowances, the polling units are
mostly left to their own imagination. This must stop!

Nigeria is in dire need of Electoral best practices as obtained
in advanced democracies. Electoral offences must be duly
investigated no matter who was or is involved and assiduously
prosecuted where an infraction is established. An Electoral
Offences Commission is now long overdue. The independence and
credibility of the Electoral body must transcend its mere
nomenclature but must be guaranteed. It is time for the Chairman
and Members of the Electoral Body to be appointed independently of
the Executive to ensure their real independence and to owe their
allegiance to no one but only to the Nigerian State and its people.
It must be well funded and its sources of funding must be
guaranteed by a first line charge on the consolidated revenue fund.
It need not and must not owe any allegiance to the Executive but to
the Nigerian State and its people only! Thus, to move Nigeria
forward and institutionalise democratic culture through credible
elections, the Electoral System must be rejigged and election
malpractices, in whatever shape or form, effectively checked by
correcting all the lapses apparent in the electoral system,
institutions and machinery. Thus, for democracy to thrive in
Nigeria, and the resultant road to good governance and consequent
development, transparent and credible election is a sine quo none!
There is no doubt that, and as experienced in advanced democracies
of the World, notably the United States, a stable and virile
democracy will invariably enthrone an unimpeded socio – economic
development in Nigerian.

ENTHRONING AND ENFORCING INTERNAL DEMOCRACY IN POLITICAL
PARTIES4:
Political parties must be made to
enthrone, entrench and practice internal democracy by abiding by
the provisions of their Constitutions. There must be regular
convening of their National Executive Meetings, Elective and Non
Elective Conventions as prescribed in their Constitutions. They
must be observance of financial guidelines for Political parties.
There must be functional and trustworthy internal dispute
resolution mechanisms. There must be transparency in the use and
administration of the finances of the Political party. There must
be clearly defined mechanism and guidelines for Party primaries for
selection of its candidates for elections. There must be
independent sources of funding and payment of dues by all members
to secure neutrality of the Party Executive in all matters
affecting the members, particularly in the conduct of its
primaries. To reduce recourse and or resort to the Courts, there
should be established mechanism for Alternative Dispute Resolution,
which usually ensures a win – win outcome, to be widely explored in
the resolution of internal disputes and disagreements within the
Political party for party cohesion and mutual trust. Every
registered member should be a stakeholder and his views should
count at his level of participation in the affairs of the Political
party.

POLITICAL PARTIES COMMISSION: It is suggested
that to make breaches of Constitutions of Political parties dire
and unattractive, a Political Parties Commission be established by
law either independently or under the auspices of the Independent
National Electoral Commission. This body should be charged with the
exclusive responsibility to receive and investigate all allegations
of and or reported breaches of the Constitution of Political
Parties, which I had earlier suggested must be made non justiciable
in our law being mainly a political question, and to make
recommendations to the Independent National Electoral Commission
for the proscription of such Political party if the investigation
confirms such breach. I think it is high time in this Country to
not only talk tough but also to walk the talk!

Alternatively, since it is a truism that failure or lack of
internal democracy should be sanctioned by the Electoral Body, the
Electoral Act 2010 (as amended) should be amended
to empower the Independent National Electoral Commission to receive
and investigate complains of breaches of the Constitution of a
Political party with powers to enforce compliance and mete out
sanctions, including in extreme cases of proved infractions,
proscription of the Political party. Since internal democracy is
key to good administration of Political parties and for the
protection of generality of members of a Political party from the
whim and caprices of the privileged few, its breach, being
cancerous to the growth and development of Party politics, must be
met with surgical redress, including proscription where necessary
to send a strong signal to Political parties that internal
democracy is not an option but a sine qua none for the existence of
any registered Political party in Nigeria.

REDUCTION OF JUDICIAL INTERFERENCE IN PARTY
POLITICS:
A Political party, as duly registered under law
and abiding by its Constitution and careful to observe and practice
internal democracy, is supreme in the management and control of its
affairs and its relationship with its members. Thus, the Political
party is best suited and should empowered by law to take binding
and final decisions affecting the management of its affairs and
also as affecting its members and therefore, the intervention by
the Courts in the internal management of the affairs of Political
party and the relationship between the Political party and its
members must be drastically reduced and should at appropriate level
of enthronement and enforcement of internal democracy in all
Political parties in Nigeria by the Electoral Body, be eliminated
and brought  to an end. The Court is not a supervisor or
superintendent in the management of the internal affairs of a
Political party, including its relationship with its members.
 Thus, the Court should neither choose Candidates for a
Political party nor Officers for a Political party. These are
clearly ‘Political Questions’ which should be made non justiciable
by law and be left to the Political parties to handle and resolve
with finality without nay intervention of or interference by the
Courts. To this end, it is suggested that the Constitution of
Political parties should by law be made non justiciable and let the
Political parties decides with finality all such Political
questions for which they are best suited and eliminate all forms
interventions and sometimes clear interferences by the Courts with
the internal affairs of Political Parties.

OUTLAW OR REDUCE TO THE BAREST MINIMUM GROUNDS FOR PRE –
ELECTION MATTERS IN NIGERIA:
I find, and with utmost
humility, the provisions of Sections 31(5) and 87 (1) of
the Electoral Act 2010 (as amended)
as unnecessarily
meddlesome, intrusive and needless interference with the internal
affairs of Political parties on questions which are clearly
political in nature and should therefore, be preserved for the
Political parties to decide with finality politically without the
meddlesomeness of the Courts. Thus, in my view, a law authorizing
and thereby emboldening ‘a person’ who believes
that a declaration made by a Candidate in INCE Form CF001 and
submitted to INEC is false and wants to challenge the declarations
made by a Candidate to do so is a receipt for disaster and should
be amended and expunged without any further delays to insulate the
Courts from delving into matters in Pre – election cases, which are
already part of the qualifications and non – qualifications of
Candidates and are subject to challenge in an Election Petition by
a Candidate in an Election, than to open a duplicitous floodgate,
as has been open, for a deluge of pre – election litigations by
every Tom, Dick and Harry!

It is my view that such a provision must either be expunged or
amended to limit it to any candidate in an election and should be
as part of an Election Petition to obviate the recourse to
countless Pre – election matters which usually now outlive the
Election itself and in some cases even the Election Petitions. The
provisions on qualification, and by implication non qualifications,
as spelt out in the Constitution of Nigeria 1999 (as
amended)
and as earlier set out in this paper, are enough
and can even be amended if need be to accommodate this ground to
put paid to this open vista for ‘a person’ to
commence a Pre – election matter over disqualification of a
Candidate, when that person is not even a member of the Political
party affected nor a Candidate of any of the other registered
Political parties.

To my mind, and I so strongly believe it to be so, this is a
misplaced locus standi! In a recent unreported decision of the
Court of Appeal Benin Division in Appeal No. CA/B/12A/2021:
Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors

delivered on March 8, 2021, I had cause to reiterate inter alia
thus:

    “The provision of Section 31(5) of
the Electoral Act, 2010 (As Amended), talks of ‘a person’ and is
the 1st Respondent not within the meaning ‘a person’ in
Nigeria? The Appellant did not say so!….Thus, it would appear that
going by the succinct provisions of Section 31(5) of the Electoral
Act, 2010 (As Amended).…the meaning of “a person” as used in
Section 31(5) of the Electoral Act 2010 (as amended) presupposes
any person, including the 1st Respondent, since it
appears to be open – ended to all and at the same time inclusive of
all and without any restriction or exclusion. Thus, whether or not
one is a member of a Political Party or any particular Political
party, as in the instant appeal, a PDP Card carrying member
challenging the qualification of a candidate of the APC, is of no
moment as the law allows the 1st Respondent so to
do!”

Now, if the provisions of Chapter II of the Constitution
of Nigeria 1999 (as amended)
dealing with clear socio –
economic rights of the Citizenry is made non –
justiciable5 and the Society is coping well with it, I
do not see any reason, and justifiably so, why the law should not
make all matters touching on and arising from the management of the
Constitution of a Political party as Non Justiciable. I believe
such a step, though radical in nature but very beneficial and
laudable is one sure means for the drastic reduction of Judicial
interventions and or interferences in the internal affairs of
Political parties in Nigeria, and would also be accommodated by the
society to ensure the reduction to the barest minimum of Pre –
election matters in Nigeria.

Political parties in Nigeria, though they pride themselves as
political families whenever it suits their fancy, are not a family
in any sense of the word ‘family’ but are mere coming together of
persons with common interest but with neither common aspirations
nor permanent interest such that aggrieved members should be able
to exit a Political party without bringing the roof down on the
party. In order words, where strict observance of the Constitution
of Political parties is made a sine quo non for its continued
existence by law and where internal democracy is achieved, any
decisions taken by such a Political party as affecting its members,
being a political question, should be final and a member who feels
so aggrieved should exercise the option of exiting such a Political
party and join or form another one if he feels so strongly about
it. After all, ‘Judicialization of Politics in
Nigeria’
had since opened and widened the Political
landscape for easy formation of associations for registration as
Political parties in Nigeria by the Independent National Electoral
Commission.

However, it would appear that one of the reasons for the
reluctance by aggrieved members to exit heir Political party, which
had dealt unkindly with them contrary to the provisions of the
Constitution of the Political parties and rather inundating the
Courts with Pre – election cases, is the absence of independent
candidacy in the Nigerian Constitution and thereby limiting the
political landscape and space. It is therefore, suggested that
serious thoughts should be given to the possibility of re – or
introducing independent candidacy into our National polity and
Electoral system. Truly, there are some individuals in Nigerian
societies, who are formidable in character and totally accepted by
their people, and who can hold their own and do even better in a
free, fair and credible election against any Political parties in
their own localities.

It is therefore, suggested and with the deepest humility, that
the Nigerian Judiciary should be spared the duty of resolving any
legal question bordering on a political question, involving the
issue of internal affairs of Political parties and politics in
general. Politics should be left for those best suited for it – the
Politicians! It is a truism that in advanced democracies the
Judiciary does stay clear of ‘Political Questions’6
which are better decided by the concerned other Coordinate arms of
Government. In my view, once proper modalities and needed
amendments are made to our Electoral laws and all other laws
enabling it in that behalf and internal democracy and supremacy of
Political parties is duly established in Nigeria and accepted by
the members of Political parties, the Judiciary being made to stay
clear of all issues bordering or involving ‘political questions’
would not amount to any abdication of judicial responsibilities by
the Courts staying away from determining a any legal questions
bordering on a political question.

The Judiciary, I am aware and it has been said so consistently
over the years, is never hungry for jurisdiction and therefore,
where there is no jurisdiction it would not go out of its way to
assume jurisdiction. For example, it has been the settled position
of the law that the provisions of Chapter II of the Constitution of
Nigeria 1999 (as amended), notwithstanding their importance dealing
with the socio – economic rights of the Citizenry, are non 
justiciable unless and until the Legislature legislates on any
aspect of it to make it justiciable and it has ever since remained
so and no Court had ever dabbled into it no matter how overzealous
or altruistic such interventions would have been for the interest
and benefit of the people of this Country being brazenly deprived
of their socio – economic rights by Government after Governments at
all levels in this Country. See generally, Onuoha V. Okafor
(1983) NSCC 494; Alegbe V. Oloyo (1983) NSCC 315;

Balarabe Musa V. PRP (1981)2 NCLR 453;
Dalhatu V. Turaki (1981)2 NCLR 763; Inakoju V. Adeleke (2003)7 SC
1; AGF V. Abubakar (2002) 14 NWLR (Pt. 788) 466; AC V. INEC (2007)1
SC (Pt I) 1; Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 222,

and Amaechi V. INEC (2007)12 NWLR (Pt. 1048)
367.

Thus, it would appear that both Sections 87 (1) and
31(5) of the Electoral Act 2010 (as amended), 
which
seems to be the two principal sources of Pre – Election Matters in
Nigeria, would serve no further useful purposes if the far reaching
amendments being suggested in this Paper are accepted and adopted
and all issues arising under Sections 31(5) & (6) and 87
(1) of the Electoral Act
2010 (as
amended),
 are vested either in the Political Party
or the Political Parties Commission and or INEC to deal with
finality as political questions and therefore, non – justiciable.
In such an Electoral System or regime, such cases as
Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367, and
all other cases in that line of authorities would have been
rendered needless and unnecessary if there is the suggested legal
mechanism to investigate and sanction Political Parties for failure
to observe internal democracy and abiding by their Constitution
with the possible sanction of proscription. In such circumstances,
Chibuike Rotimi Amaechi and others in his shoes
would not have in the first place been denied of the ticket but for
lack of internal democracy and complete absence of sanction for
such conducts by Political Parties.

The above suggestion if accepted, adopted and implemented would
further insulate the Judiciary from intervening in such matters
which truly borders on the supremacy of the Political parties where
there is functional internal democracy and a legal mechanism to
sanction default by Political parties. Thus, Sections 31(5)
and 87(1) of the Electoral Act 2010 (as amended)
are, in
my view, completely unnecessary since issues bordering on
qualifications and disqualifications of Candidates at an Election
in Nigeria have already been comprehensively dealt with in the
Constitution of Nigeria 1999 (as amended) and
therefore, allowing ‘a person’ to challenge a Candidate before the
election proper is held is completely distractive but has
regrettably become one of the major sources of
‘Judicialization of Politics in Nigeria’.

There is therefore, the serious or dire need in Nigeria for the
expansion of the frontiers of the ‘Political Question’ doctrine and
thereby making the provisions of the Constitutions of Political
parties as Non Justiciable. There is also the further urgent and
almost imperative need to outlaw Pre – election matters in the body
polity and electoral system in Nigeria by causing appropriate
amendments to the Electoral Act 2010 (as amended)
to that effect. There is also the need, in my humble view, to limit
and restrict the right to challenge the outcome of any elections
conducted under the Electoral Act 2010 (as
amended)
to only the Political party and or Candidate that
was declared in the second position or first runner up to the
Political party and or Candidate declared the winner and returned
as elected by the Electoral Umpire at any given elections in
Nigeria.

LIMITATION OF LEVELS OF APPEALS:  There is
the urgent need in Nigeria, and justifiably so, for Constitutional
limitation of the level of appeals in both Pre – and Post –
Elections litigations. It is suggested that all appeals arising
from all Pre – election matters, in addition to the laudable
Constitutional time lines for their expeditious hearing and
determination, if there still be any need in law for such matters
largely based on political questions within the supremacy of
Political parties to determine with finality, to still be allowed
to inundate the Courts, should end at the Court of Appeal,
notwithstanding the issue or issues canvassed therein by the
parties. There should be no further appeal from the decisions of
the Court of Appeal in Pre – election matters to the Supreme Court.
In respect of Post – election litigations, it is suggested that, in
addition to the laudable Constitutional time lines for their
expeditious hearing and determination, all appeals arising from
decisions of the Election Petition Tribunals in respect of
elections into the National Assembly, Office of Governor and the
State Houses of Assemblies should end at the Court of Appeal,
notwithstanding the issue or issues canvassed therein by the
parties. There should be no further appeal from the decisions of
the Court of Appeal in such Post – election matters to the Supreme
Court. However, in respect of Presidential Election, since the
Court of Appeal serves as the Court of First instance, the appeal
as it is presently the law should continue to lie to the Supreme
Court for final determination.

AMAGALM OF JUSTICES AND JUDGES TO HEAR AND DETERMINE ALL
ELECTION PETITIONS ONCE AND WITH FINALITY
: There is the
need to reduce the time, energies and resources as well as tensions
in the land over Post – election matters by Constitutionally
providing for an amalgam of Justices and Judges to sit together as
the Election Petition Tribunal and their decisions reached thereon
on any Election Petition within the Constitutional time lines of
180 days as final, and therefore, not subject to any appeals. To
this end, in constituting the various Election Petition Tribunals,
Justices and Judges shall be drawn from all the hierarchy of Courts
in Nigeria into each Election Petition Tribunal or Court and making
their decision once given final. This will obviate the huge
resources and time and space usually allocated in Nigeria for
myriads of Election Petition Tribunals and Courts on appeals to
Post – Election litigations to the detriment of other equally, if
not more important, National and Citizenry based issues in the
Courts, which takes the back seat and play the second fiddle to
Post – election Matters. Thus, for all Councilors and Chairmen
Elections, all Election Petitions, qualified to be heard by an
Election Petition Tribunal, should be heard and determined by an
Election Petition Tribunal made up of three persons, including a
High Court Judge as Chairman, one Chief Magistrate and one Legal
Practitioner as members and their decision, which must be reached
within 90 days, shall be final. For all States Houses of Assembly
and National Assembly Elections, all Election Petitions, qualified
to be heard by an Election Petition Tribunal, should be heard and
determined by an Election Petition Tribunal made up of three
persons, including one including a Justice of the Court of Appeal
as Chairman and two High Court Judges as members and their
decision, which must be reached within 180 days, shall be final.
For all Governorship and Presidential Elections, all Election
Petitions, qualified to be heard by an Election Petition Tribunal,
should be heard and determined by an Election Petition Tribunal
made up of five persons, including a Justice of the Supreme Court
as Chairman, two Justices of the Court of Appeal and two Judges of
the High Court as members and their decision, which must be reached
within 180 days, shall be final.

In my view there is absolutely no need for the dissipation of so
much energies, huge resources and the limited available judicial
time to be spent all on Post – election litigations running all the
way through the Judicial hierarchy from the Election Petition
Tribunals to the Court of Appeal and in some cases to the Supreme
Court to the huge detriment of all other cases involving equally
and most importantly the lives. livelihood, wellbeing, rights,
obligations and liabilities of the vast majority of the people of
Nigeria, when all Post – election matters can and should be dealt
with decisively and with finality by an amalgam of Justices and
Judges from all the level of hierarchy of Courts once and for all.
In truth, it is the same Justices and Judges that would still hear
all these Post – election matter and their unending appeals in the
staggered manner it is presently being done in Nigeria.

The above suggestions, which seems radical and even
revolutionary in a sense, are open to debate and fine tuning but it
is my belief that it is one of the panacea to the feared
‘Judicialization of Politics in Nigeria’ wherein
the intervention of the Judiciary is being eradicated in Pre –
election matters and drastically minimized in Post – election
matters to just one level of intervention. In reality, and in
practical terms, this would also reduce if not eradicate the
pervasive and much touted allegations and inference of judicial
corruption in the handling of both Pre – election and Post –
election matters in Nigeria. It does appear, from my close study of
the determination of Presidential Election Petitions during my
international assignment in Sierra Leone, that an amalgam of
Justices from the Supreme Court of Sierra Leone, Justices from the
Court of Appeal of Sierra Leone and Judges from the High Court of
Sierra Leone are empaneled at once as the Presidential Election
Petition Tribunal to hear and determine all Presidential Election
Petitions once and for all and with finality, with no room for any
appeals.

OBITER: NEED FOR INTEGRITY BASED POST – ELECTION
LITIGATIONS IN NIGERIA
: For integrity
based and seamless Post – election litigation in Nigeria, which is
an integral part of the election processes and a requirement for
free, fair and credible elections in Nigeria, there is need, in the
appointment of Judges to the Election Petition Tribunals, to be
based solely on integrity and merit. Only Judges with proven record
of integrity and commitment to their duties should be considered
and so appointed. They must demonstrate their personal commitment
to rendering undiluted justice and that persons to finally emerge
as winners or duly elected must reflect the true wishes of the
electorates as expressed by them through their votes, which must
count! There must be intensive and regular training for all Judges
of all the cadre of the Courts from whose pool Judges are appointed
to the Election Petition Tribunals coupled with specific training
for those eventually so appointed. There must be enhanced
allowances to the Judges so appointed to assure their integrity,
which is measured by their commitment to principles of justice and
fairness and ensure their contentment, which is receiving with
contentment what one should get as approved allowances and not
necessarily what one ought to get. There should be timely approval
and prompt releases of funds earmarked for Post – election
litigations and improved facilities for the operation of the
Election Petition Tribunals across Nigeria. It must always be kept
in mind that the 2023 General elections are almost around the
corner and it is a very crucial election in Nigeria coming
immediately before the completion of tenure of most of the
incumbents in 2023.

CONCLUSION

The theme of this Law Week: “Judicialiszation of
Politics in Nigeria”
is novel and so also is the treatment
of it in this Paper, both novel and radical! It has been
demonstrated that though the Courts are empowered by the
Constitution of Nigeria 1999 (as amended), in various of its
provisions, particularly Section 6(6)(b), to hear and determine
disputes between the Citizenry and also as between the Government,
its institutions and the Citizenry, yet there are clearly defined
circumstances in which the Courts would decline to intervene
whenever they are not endowed with the requisite jurisdiction by
law so to do. The classical example of this, though many others
abound, is the provision of Chapter II of the Constitution of
Nigeria 1999 (as amended0, dealing with the very important socio –
economic rights of the Citizenry but yet made non justiciable by
law, and the Courts do stay away from intervening!

In Electoral matters, whether in Pre – election and or Post –
election litigations, the Courts have unwittingly with no fault of
their own been inundated with a deluge of Political cases.
Interestingly, nowhere is the deluge or avalanche or indeed the
tsunami of Political cases felt more nowadays than in Pre –
election matters, with the potential to rise through the base of
the superior Courts to the Apex Court on the pyramid and with
infinite possibilities, including the removal of persons already
sworn or about to be sworn into office. It has been suggested that
if adherence to internal democracy by due compliance by Political
parties with the provisions of their Constitutions is secured and
strictly enforced with sanctions for any proved breaches by either
the Independent National Electoral Commission or by the new
proposed body, the Political Parties Commission, and since the
principal grounds for the deluge of Pre – Election matters
inundating the Courts are issues bordering on lack of internal
democracy and making it seem there is “Judicialization of
Politics in Nigeria”
all such grounds for Pre – election
matters can be accommodated through pertinent amendments to the
extant laws and be incorporated into Post – election matters, and
therefore, Pre – election matters should be done away with in its
entirety or reduced to the barest minimum in Nigeria.

Finally, it has also been suggested that Post – election matters
be heard and determined by Election Petitions Tribunal constituted
by an amalgam of Justices and Judges from the hierarchy of the
Courts in Nigeria and be heard and determined once and for all with
finality within the Constitutionally stipulated time lines of 180
days, with no appeals.

Now, I must point it out at once that the scope of this novel
theme is huge but I have in these few 44 pages endeavored to, as
much as practicable, put down my thoughts and it is my hope that,
though it is almost impossible for a single paper of this nature to
cover the field, this paper would lead to fruitful deliberations
and thought provoking discussions and if that happens, then my
task, which at first appeared daunting and herculean, would have
been faithfully discharged.

APPRECIATION

I have in these few 44 pages attempted to put my thoughts on the
theme, though novel, as assigned to me as much I understand it.
However, I do not claim to have covered the field, bearing in mind
the novelty of the theme. I only hope that I have been able to
present this paper in a manner that is understandable and
underscores the crucial importance of the issues discussed herein.
It has been a privilege for me to prepare and present this Paper. I
express my deepest appreciation to Barr. Felix T. Okorotie, the
Chairman, the Executives and Members of the Yenagoa Branch of the
Nigerian Bar Association, as well as Prof Solomon T. Ebobrah, the
Chairman and Members of the 2021 Law Week Planning Committee, for
this singular honor and privilege. I acknowledge and appreciate all
the Writers and Scholars, whose works I had used in the preparation
of this paper for the guidance offered by their very enriching
works. However, I bear full responsibility for every errors or
omissions in the contents of this paper. In all, it has been a most
refreshing and rewarding exercise for me preparing and presenting
this paper before this distinguished participants. The joy of this
fellowship has been mine indeed! To God, Be all the Glory,
Amen.

Sir Biobele Abraham Georgewill JCA, DSSRS,
Ksc

Court of Appeal, Benin Division

Lord Chancellor, Diocese of Niger Delta, Church of
Nigeria Anglican Communion

Former Chairman, Presidential Investigation Panel of
Rules of Engagement by the Nigerian Armed Forces in the Fight
Against Insurgency and Militancy

Immediate Past Chairman, Sierra Leone Presidential
Commission of Inquiry on allegation of Corruption Against the
Government of President Dr. Ernest Bai Koroma from 2007 –
2018. 
 

BIBLIOGRAPHY

  1. See “Culture of Failed Elections: Revisiting Democratic
    Elections in Nigeria, 1959 – 2003” by Michael M. Ogbeidi University
    of Cape Coast, Ghana.
  2. See “The Courts And Internal Democracy
    In Political Parties” by Dr. Muiz Banire October 8,
    2018.
  3. See “Challenges of Internal Democracy in Nigeria’s
    Political Parties: The Bane of Intra – Party Conflicts in The
    Peoples Democratic Party of Nigeria” by Chris C. Ojukwu & Tope
    Olaifa 2011 Global Journals Inc. (US).
  4. ibid
  5. “Non – Justiciability of Chapter II of the 1999
    Constitution: A Hindrance To Nigeria’s Development” By Festus
    Ogun.
  6. For further readings on the issue of Political Question
    and Non – Justiciability, See “Justiciability Theory Versus
    Political Question Doctrine: Challenges of the Nigerian Judiciary
    in the determination of Electoral Cases” By W
    ahab
    O. Egbewole PhD & Olugbenga A. Olatunji.

By Georgewill JCA

image image

A Court of Appeal Justice of the Benin Division, Sir
Biobele Abraham George will
has said that there is no
judicialization of Politics in Nigeria.

image

He said this during paper presentation at the Law of Week of the
Nigerian Bar Association, Yenagoa Branch, which took place on 30th
of April, 2021 at Chief D.S.P. Alamieyesigha Banquet Hall,
Government House Yenagoa, Bayelsa State, Nigeria

According to him, judicialization in the context of the paper
presentation means ‘excessive or overbearing role’ being played by
the Judiciary in the Politics of Nigeria.

Hon. Justice Georgewill pointed out that there is no
judicialization of Politics in Nigeria because the Judiciary does
not go out of its way, as conferred on it by law, to meddle with
Political cases in Nigeria.

Read the paper presentation below:

THEME: JUDICIALIZATION OF POLITICS IN NIGERIA: TRENDS,
CHALLENGES AND OPPORTUNITIES

Court of Appeal, Benin Division, Lord Chancellor,
Diocese of Niger Delta, Church

“Justice is for all the parties and particularly in
Election Petition proceedings also the electorates whose votes must
be allowed to be counted in the determination of who represent them
and acts on their behalf for the period or term of the office
contested for by the parties at the Election. There is therefore,
only one standard of justice for all the parties, and none is
entitled to a higher or lower standard than the other. The Court
must hold the balance and ensure, as far as practicable under its
extant rules of practice and procedure, a level playing field for
all the parties” per Georgewill JCA, in Elohor & Anor V. Inec & Ors
(2019) LPELR – 48806(CA) @ pp. 36 – 47.

INTRODUCTION

The Nigerian lexicon can easily identify with the phrase
Politicization of the Judiciary in Nigeria’
meaning bringing undue influence or interference of Politics into
the affairs of the Judiciary. However, this new phrase
Judicialization of Politics in Nigeria’ as coined
by the Organizers of this Law Week is completely a new one likely
to be added to the English lexicon by Nigeria soon! The word
‘Judicialization’ cannot be found in the English
lexicon and is therefore, not an English word and thus not of any
precise meaning. However, in my attempt to fully understand its
connotation, it took the reaserch acumen of Prof Solomon T.
Ebobrah, the Chairman of the 2021 Law Week Planning
Committee
Chair of the NBA Yenegoa
Branch,
who drew my attention to a paper titled
The Judicialization of Mega – Politics and the Rise of
Plitical Courts”
by Ran Hirschl,
publisehed in the Annnual Review of Political Science 11, No. 1
(2008) at page 94 to find it the term ‘Judicialoization’ defined as
“the ever – accelerating reliance on Courts and judicial
measn for addressing core moral predicatmants, public policy
questions, and political controversies”.

It appears to me that the above succinct definition of the term
‘Judicializatio’ perfectly fits the bill within the context of the
theme of this paper, and I therefroe, adopt same in this apaper as
the correct connotation of the term ‘Judicilaisation’. It would
thus refer to the unwieldy or increasing and overwhelming role
being played by the Judiciary in the Political life of this
Country. Simply put, it captures, what may aptly be described as,
the ‘excessive or overbearing role’ being played by the Judiciary
in the Politics of Nigeria.

Thus, the first question is whether there is indeed a
‘Judicialization of Politics in Nigeria’? In other
words, is there any unwieldy or excessive or overbearing role being
played by the Judiciary in the Politics of Nigeria? For me as a
person, as well as being a member of the Nigerian Judiciary, who
believes so much in the utilitarian value of adjudication as being
key to averting and avoiding violence, intractable disputes, self
help, communal and family wars and such like in our Society, which
are all potential purveyors of societal destruction and or
disintegration, if not checked timely through peaceful
constitutional means and avenues for resolution, which is the
Court, the answer is a resounding No! I therefore, do not see any
unwieldy or excessive or overbearing role being played by the
Judiciary in the Politics of Nigeria capable of giving birth to the
new phrase ‘Judicialization of Politics in
Nigeria’
This is so because, in my humble view, all that
the Judiciary does is as constitutionally and statutorily conferred
and vested on it.

In other words, for me there is no, and there can never be any,
‘Judicialization of Politics in Nigeria’ since the
Judiciary does not go out of its way, as conferred on it by law, to
meddle with Political cases in Nigeria and therefore, it is
important to make it abundantly clear that the time would or may
never come when it would be desirable that the Judiciary should
hands off its Constitutional role in intervening in the Politics of
Nigeria to ensure, as allowed by the laws of the land, that
‘Politics in Nigeria’ is played by the Rules and
practiced in accordance with the laws of the land and for the
overall benefit of the vast majority of Nigerians. Politics ought
not and should not be played, as it is being so, pervading, played
presently in Nigeria, so unjustly to the detriment of the vast
majority of Nigerians at the whims and caprices of the privileged
few, the ‘Politicians’ However, I have no doubt in my mind that to
many others, it would appear that, the answer to the first question
posed in this paper is a resounding Yes!

Thus, having been invited by the Organizers of this Law Week to
speak on this theme, most probably, from the prism of those who
believe that there is indeed an ongoing ‘Judicialization of
Politics in Nigeria’,
of excess or overbearing
interference of the Judiciary in Politics in Nigeria in the
determination of the several issues and questions which ordinarily,
if there were to be transparency in Politics in Nigeria, should be
left for the Politicians to resolve without any recourse to
adjudication, I shall proceed in this paper on the
presupposition that there is ‘Judicialization of Politics
in Nigeria’
Welcome to my Paper!!

BRIEF STATEMENT OF THE ISSUE

There is today, as it was yesterday, a consensus amongst the
generality of Nigerians that Nigeria has and continued to suffer
lack of transparency in governance at all levels of Government and
a concomitant failure of justice in the body polity as a whole and
therefore, none of the arms and or levels of Government is spared.
 This obvious lack of transparency has permeated all spheres
of life in this Country, ranging from the ‘Legislature’ to the
‘Executive’ and to the ‘Judiciary’, none of which arms of
Government is spared! This has also led to lack of internal
democracy in Political parties in Nigeria and the resultant
injustices both intra and inter Political parties, leading to an
avalanche of abuse of the rights of members of Political Parties
with the attendant upsurge in political cases initiated by
aggrieved members of Political parties seeking redress before the
last hope of the common man, and eventually the last hope to even
the yesterday men and women of power and might, the Courts.

It is ironic that in Nigeria, in which going by the provisions
of the Constitution of the Federal Republic of Nigeria 1999 (as
amended), the ‘Legislature’ is the first arm of Government at both
the Federal and State Levels, had virtually surrendered its primus
position to the Executive, mainly due to where the power over the
resources of this Country and the States resides. There is
therefore, the obvious case of inadequate checks and balances
between the Legislature and the Executive. Thus, Executive powers
are gradually becoming infinite without any real checks by the
Legislature! Regrettably, this has become more p ronounced, and
particularly more so since the return to Civil Rule or what
Nigerians had come to perpetually term as our ‘nascent
democracy’
since 1999.

For instance, by the provisions of the Constitution of Nigeria
1999 (as amended), though Chapter II is rendered non justiciable
but the Legislature is endowed with the power to legislate on those
issues provided for under Chapter II of the said Constitution, and
by so doing convert them to become justiciable for the benefit of
the Citizenry with rights of enforcement through the Courts
whenever the Executive fails to comply with such laws geared
towards the entrenchment of those very vital socio – economic
rights provided for the benefit of the Citizenry by the
Constitution but made non justiciable, perhaps for good cause, had
over the years failed to live up to this responsibility. The
result, the citizenry continues to depend on the benevolence of the
Executive to be able to enjoy those provisions, which are rights
even if socio – economic and not fundamental rights, as mere
privileges under Chapter II of the Constitution, including such
indispensable right as the right to Education!

Honestly, I consider the political rights of the citizenry of
this great Country too important to be left only at the complete
mercy, whim and caprices of Politicians. Today, as it has always
been, Politics in Nigeria is all about self interest and less of
real service to the people. Thus, ‘Judicialisation of
Politics’
is not limited to Nigeria nay Africa but has
become a worldwide phenomenon. However, but regrettably whilst the
scope of intervention of the Judiciary in advanced democracies,
such as the United States of America, is limited and swift as
clearly demonstrated by the post 2020 November Presidential
Election and the almost fifty post – election litigations that were
swiftly, effectively and with finality determined by the Judiciary
paving the way for the inauguration of the newly elected President
of the United States of America on 20th day of January
2021 without any pending post – election litigations challenging
his due return as the duly elected President of the United States
of America, but it is not so in Nigeria, where both pre – and post
– election litigations have become of infinite possibility and
unlimited scope on the political landscape of Nigeria.

Upon being intimated of my nomination to prepare and deliver
this paper on this seemingly novel theme, I had to conduct some
researches into this new phenomenon in other jurisdictions of the
World, and interestingly, one can hardly find any decided cases on
pre – election matters in any of the civilized democracies of the
World, notably in the United States of America and to some extent
even in the United Kingdom and the question is why? The answer is
not too far to seek! It is because Political Parties there, which
are founded principally on clear ideology and laudable vision, have
ingrained in them seamless mechanism for internal democracy, thus
obviating the need for any judicial intervention by the Courts.
After all, unless the members of the Political Parties approach the
Courts, the Courts would not and can never intervene. The Court
never interferes but it only intervenes!

Thus, pre – election matters, I dare say, are features of
undeveloped or developing democracies in the World, notably in
India and particularly in Nigeria, where pre – election litigations
is fast overtaking post – election litigations under our watch and
thereby being allowed to fester even to the detriment of political
growth and stability, when a candidate duly declared and returned
as elected by the umpire, INEC, could still be ordered to vacate
office, not through nullification of his election in an Election
Petition by the Election Tribunal or Court, but by virtue of a
decision of the Court in a pre – election litigation. Where then is
the place of the significance of the wishes of the electorates as
expressed by their votes in the election in this fast spreading
phenomenon of removal of elected candidates via pre – election
litigation? Regrettably, none I can find or see!

THE TREND: POLITIC PARTIES AND ELECTIONS IN
NIGERIA1

It is the general belief, whether right or wrong, that in
Nigeria, the Political class, the members of Political parties, are
making it practically impossible to conduct free and fair
elections. Yet, these are the very class of people who requires
free and fair elections for democracy, which they claim to
practice, to thrive in the Country. It was principally the lack of
free and fair elections, coupled with other factors, including lack
of transparency in Governance and large scale corruption that had
in the past heralded the death knell for the 1st,
2nd and 3rd Republics in Nigeria. In this
wise, it is a truism that Nigeria’s electoral history has been
fraught with failed elections, a recurring development that has
gradually become a distinctive feature of our Electoral system,
hence the deluge of political cases, including pre – and post –
election litigations. Elections are either violent or they are
fought bitterly. They are usually marred by rigging and other voter
fraud as well as manipulation of Electoral Officers by Political
Parties. The winner takes it all and the loser is dared to go to
Court!  Poor elections and skewed election results and
outcomes have over the years signposted the Country’s record of
poor leadership, political stagnation, and economic
backwardness.

In developed and advanced democracies of the World, the conduct
of a free and fair election is sine qua non and is usually made
possible by the fair and just activities and management of the
affairs of Political Parties. Thus, free and fair election is a
prerequisite for a thriving democracy as it gives legitimacy to a
Government and fulfilled hope to the Citizenry in the Government of
their own choice. It engenders positive socio – economic and
political developments and also enhances political mobilisation and
participation of the electorates leading to the development of
positive political culture and the resultant confidence of the
Citizenry in both the Political parties, elections and the
resultant Government put in place at their own behest.

In Nigeria, the modus operandi of Political parties had for
years been winning all and every elections at all cost and
remaining in power by all means. It is simply a ‘do or
die’
affair. It is a matter of life and death! Hence, the
desperation as every election year draws close since those in power
having tasted power even dread the thought of life outside of
power. Regrettably, it is these desperations and the resultant
skewed electoral processes in Nigeria that led to the abortion of
democratic rule thrice by the Nigerian Military, in 1966, 1983 and
1993 but for which Nigeria would have today become one of the
advanced democracies of the World, nay Africa, if we had remained
in civil rule since 1960 till date.

An Election is simply a decision making process through which a
people choose some individuals to hold offices on their behest and
behalf. Thus, democracy is a system of Government in which the
Citizenry participates in the decision making process by voting or
electing those who govern them through a free and fair electoral
process. The machinery through which this is accomplished in most
democracy is the Political Parties. Thus, it is imperative that for
democracy to thrive in Nigeria, the Political Class must rise to
the task of ensuring internal democracy to check the eroding of the
electoral processes over the years that has proved to be defective,
weak, inefficient, and unable to guarantee the conduct of credible
elections. Indeed, all elections commencing from the 1st
Republic through the 4th Republic have been
characterised by electoral malpractices and the Political parties
exhibit a high level of political indiscipline and freely
perpetrated wide – ranging electoral malpractices and large scale
corruption leading to either Military intervention and or loss of
faith and confidence by the Citizenry in the resultant
Government.

In 1959, towards the set goal of declaration of
independence and self – governance for Nigeria, the Electoral
Commission of Nigeria was set up by the then Colonial Government to
conduct the 1959 General Elections. Incidentally, Nigeria, which
has a rich history of multi – party system right from its
independence, perhaps due to its multi ethnic configuration, had at
the time of its independence about twenty – six political parties
which were duly registered to contest the 1959 General elections.
However, the three dominant Political parties were the Northern
Peoples Congress led by Sir Ahmadu Bello, the
Action Group led by Chief Obafemi Awolowo, and the
National Council of Nigeria and Cameroons led by Dr. Nnamdi
Azikwe
. The Elections were held and although the turnout
of voters for the election was low, by a coalition of the NPC and
NCNC a new Government was ushered in at independence in 1960, with
the AG forming the opposition in the West Minster styled
Parliament.

In 1960, the new Government of Tafawa
Balewa
set up the Federal Electoral Commission to conduct
the immediate post – independence election for the Federal level in
1964 and for the Regions in 1965. Regrettably, as it was then and
as it is still today, both elections failed to meet the standard of
free and fair election in which the votes of the people count and
be the determinant factor on who emerges as duly elected by the
people, the results of which elections were rejected by the
opposition, leading to widespread violence, including killing,
arson, looting and destruction of properties, particularly in the
then Western Region. From then till date, elections in Nigeria had
remained acrimonious, violent and anything but free and fair to
guarantee the prevailing of the wishes of the Citizenry!

In 1978, the final draft of the Constitution by
the Constituent Assembly was adopted as the 1979 Constitution of
the Federal Republic of Nigeria. Subsequently, a Federal Electoral
Commission was set up to conduct General elections in which a
person to be elected President of Nigeria, under the 1979
Constitution must have the highest number of votes cast in addition
to receiving at least 25 percent of the votes cast in two – thirds
of the 19 States of the Federation, the interpretation of which
gave rise to the first major intervention of the Judiciary in
Politics in Nigeria. The 1979 General elections were contested by
the then five registered Political parties, namely; National Party
of Nigeria, Unity Party of Nigeria, Nigeria Peoples Party, People’s
Redemption Party, and Great Nigeria People’s Party (GNPP). As it
turned out, the ensuing election appeared to be much better than
the elections conducted during the 1st Republic and
though seemingly peaceful, free and air but was not without its own
hiccups of interpreting the novel requirement of votes of at least
25 percent in two – thirds of the then 19 States of the Federation.
A total of 47,433,757 voters were registered out of which only
16,846,633 voted at the Presidential Election in which the NPN was
declared the winner with UPN coming a distant second.

In 1983, rather than improve on the 1979
General Election considered to be fairly peaceful, free and fair to
a large extent, the 1983 General Election fell back into the
inglorious era of the 1st Republic Elections and became
a very fraudulent one with glaring cases of large scale electoral
malpractices. It was bitter. It was manipulated. Money became the
dominant and determinant factor. Incumbency power was at its height
of display. The Federal Electoral Commission proved itself to be
highly incompetent and failed the Nation in the 1983 Elections.
Regrettably, violence erupted and characterised the political
landscape coupled with economic mismanagement and several other
glaringly militating factors, on December 31, 1983, the Nigerian
Military intervened once again in the Nation’s polity and Nigerians
heaved a sigh of relief.

Between 1989 and 1993, during the abortive or
still born 3rd Republic, there were another round of
Elections conducted by the newly created National Electoral
Commission, which elections going by the new breed and grass root
political idea coupled with the open ballot system introduced by
the then Military Government, were seemingly and apparently free
and fair though certainly not credible. These elections were
contested by the two Political parties brought into existence by
executive fiat of the then ruling AFRC, namely; the Social
Democratic Party, which was ‘a little to the left’
and the National Republican Convention, which was ‘a little
to the right’
It appeared Nigeria was once again on the
march and on the right path to true democracy with the smooth
successful holding of the elections from Local Government Councils
across the Country to the Governors of the States and the National
Assemblies all put in place until it was the turn of the
Presidential Election which held on June 12, 1993 and all hell
seems to have been let loose when a seemingly peaceful, free and
fair Election, in which it was reported that the Presidential
candidate of the SDP, Chief Moshood Kashimawo
Abiola,
had secured 57 percent of the total votes cast as
so far announced from 16 States, was on June 24, 1993, while the
results from the remaining States were still being collated,
annulled by the then Military Ruler, Gen Ibrahim Badamosi
Babaginda, who had also suspended the National Electoral Commission
and discontinued the transition programme. The rest, as they say,
is history.

Fast forward to 1999, Nigeria commenced another
transition to civil rule programme under the then Military
Government of Gen. Abdulsalam Abubakar, who took
over power after the death of Gen. Sanni Abacha
with May 29, 1999 as the terminal date and an Independent National
Electoral Commission was set up to midwife this exercise, and which
out of a total of 25 Parties that sought registered, registered
only 3 as Political parties, namely; the People’s Democratic Party,
the All People’s Party, and the Alliance for Democracy.
Subsequently, General elections were held in Nigeria and on May 29,
1999, Gen Olusegun Obasanjo, the Presidential
Candidate of the PDP, having been declared and returned as duly
elected by INEC, became the President of Nigeria. This election, by
all account, though peaceful was not very credible but Nigeria
moved on!

In April 2003, Nigerians trooped out to the
polling booths to elect their leaders at the various levels of
Governance heralding the second time of civilian to civilian
transition in Nigeria after the 1983 transition, though short
lived.  A total of 30 Political parties contested the 2003
General elections, which was akin to a war of money. Regrettably,
the money bags had a field day to the extent, as it was widely
believed, of determining both the Candidates of Political parties
as well as influencing the outcome of the elections into many of
the elective offices.  It was virtually a clean sweep for the
ruling PDP, which in that euphoria declared its intention to be in
monopoly of political power in Nigeria for the next 60 years. There
were widespread protests against the results of the 2003 General
elections and for the first time in the Nigerian political lexicon,
the phenomenon referred to as ‘carry go’ became
the pervading slogan!

On April 23, 2007
Umaru Yar’Adua was declared the winner by
Independent National Electoral Commission with a result of 24, 638,
063 votes representing 70 percent of the total vote cast at the
2007 General elections. However, the results were promptly rejected
by the 1st and 2nd runners up. Happily, and
perhaps for the first time in the Nigerian political history, a
person who has been elected as President of Nigeria admitted
publicly that the 2007 General Elections, from which he had emerged
as President of Nigeria, were indeed flawed and had set in motion
processes for drastic reforms of the Nigerian Electoral System but
painfully he did not live long enough to actualize this laudable
vision following his untimely death in office in 2010 before the
next General elections of 2011.

On April 16, 2011, Presidential elections were
held in Nigeria after its postponement from April 9, 2011 when it
was originally scheduled to hold and on April 19, 2011 the
Electoral umpire declared as duly returned and elected the
incumbent President and Candidate of the Peoples’ Democratic Party,
His Excellency Dr. Goodluck Ebele Jonathan.
However, in the aftermath of the declaration of the result of the
2011 Presidential elections, widespread violence erupted in the
Northern parts of the Country but subsequently, peace was restored
and Nigeria kept marching on!

As the year 2015 fast approached, there was
palpable anxiety in the air about the approaching 2015 General
elections slated for February 14, 2015. A winner of the
Presidential election was constitutionally required to poll a
majority of the valid votes cast amounting to at least 50 percent
plus one vote of the total cast and also to secure 25 percent of
the votes in two – thirds of the States of the Federation. The
campaigns were fierce and intensive and the ethnic and religious
divides were so pronounced that it became apparent that
notwithstanding which of the two frontline Candidates was declared
the winner and returned as duly elected as the President of
Nigeria, there were likely several ground to reject the results of
the 2015 Presidential election. However, the results were
eventually released declaring as winner and returned elected as
President of Nigeria, the Candidate of the All Progressives
Congress, Gen Muhammadu Buhari, and Nigeria scored
at once two – firsts, namely; the defeat of an incumbent President
by an opposition Candidate and the refusal by the incumbent
President to challenge his loss at the polls before the
Presidential Election Tribunal. The rest, as they say, is history.
Nigeria marched on!

On February 23, 2019, Nigerians once again
trooped out to the polling booths scattered around the nooks and
crannies of Nigeria to elect their President. There were palpable
tensions and anxieties in the land, which had come to characterize
every General elections in Nigeria but whether the election would
be peaceful or violent is usually determined on the ‘D –
Day’
which is the election day. It was widely reported
that there were widespread violence in Rivers State and
Kano State
respectively during the 2019 General Elections,
which had infamously brought my home town of
Abonnema, the Headquarter of Akuku – Toru Local
Government Area of Rivers State, into both National and
International attention. I watched, along with my colleague,
The Hon Justice William Annan Atuguba JSC., (Rtd)
formerly of the Supreme Court of Ghana, on the internet with horror
the horrific shootings going on in my home town of
Abonnema whilst in faraway Freetown, Sierra Leone
on an International assignment.

On February 26, 2019 at about 11.53pm, the
Independent National Electoral Commission declared as winner and
returned as duly elected the incumbent President, His
Excellency Mohammadu Buhari
, and Candidate of the All
Progressives Congress with a total vote cast of 15, 191, 847 votes
representing 56 percent of the total votes cast at the 2019
Presidential elections beating his closest rival, His
Excellency Alhaji Atiku Abubakar,
the candidate of the
opposition party, Peoples’ Democratic Party, who polled 11, 262,
978, and who promptly rejected the results. The rest, as they say,
is now history, even as Nigerians await, with bathed breath, the
fast approaching 2023 General Elections. Nigeria marches on!

HISTORY OF FORAY OF THE NIGERIAN JUDICIARY INTO
POLITICAL CASES

The Constitution of the Federal Republic of Nigeria 1999 (as
amended) created the three arms of Government in Nigeria, namely;
The Legislature, The Executive and the Judiciary. This is in line
with the concept of separation of powers and is to ensure checks
and balances between the various arms of Government, without which
powers may be left unchecked with its disastrous consequences on
Good Governance and the Rule of law. Thus, the Nigerian society, at
both the Federal and State levels is managed by these three arms of
Constitutionally recognized authorities to enable the respective
Governments to manage the Country and the States more efficiently.
Without separation of powers and appropriate effective system of
distribution of powers, there can indeed be no rule of law. See
Section 4 (1) and (2) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended.)
See also
Section 5(1)(a) and (b) of the Constitution of the Federal
Republic of Nigeria 1999 (as Amended).

However, the Judiciary, the focus of this paper, is the third
arm of Government and is primarily charged with the interpretation
of the laws of the land. Thus, it plays a very significant role in
the strengthening of the rule of law and ensuring compliance with
the laws of the land. It engenders the Nigeria’s ‘nascent
democracy’
. It is part of the Constitutional mechanism for
check and balances between and amongst the three arms of Government
and acts as the watchdog of the society, being, as it is often said
at common parlance, the last Hope of the Common man! See
Section 6(1) of the Constitution of the Federal Republic of
Nigeria 1999 (as amended).

From the inception of Civil Rule on independence between 1960 –
1963 to the 1st Republic between 1963 – 1966, through
the 2nd Republic between 1979 – 1983, and the aborted
3rd Republic between 1992 – 1993 and the 4th
Republic since 1999, there has been judicial interventions in the
Political life of Nigeria, yet the real foray of the Judiciary,
unstoppable as it has now become through the years, into political
issues commenced in full force in 1979, when the almighty formulae
of 122/3 of 19 States of Nigeria – a judicial
mathematics –  was introduced into the Nigerian Electoral
lexicon by the Supreme Court of Nigeria, in a split decision in
which Obaseki JSC and Eso JSC did
not concur with the majority decision as delivered by
Fatayi – Williams CJN, whilst endorsing the
forceful arguments of Chief Richard Akinjide SAN
in affirming the return and declaration of Alhaji Shehu
Shagari,
the Presidential candidate of the National Party
of Nigeria, as the duly elected President of Nigeria, while
dismissing the spirited efforts by way of the appeal to the Apex
Court by Chief Obafemi Awolowo, the Presidential
Candidate of the Unity Party of Nigeria, to upturn the said return
and declaration by the Federal Electoral Commission.

Interestingly, from then on through the short lived democratic
experimentation under the then Military Rule of General
Ibrahim Badamosi Babangida,
in the short lived
3rd Republic to the inauguration of the 4th
Republic on May 29, 1999 till date, the Judiciary, due to no fault
or ambition of its own, has consistently been invited and its
powers invoked by Politicians of all dispositions to determine of
the outcome of vast majority of elections conducted in Nigeria,
whether at the Federal or States and even at the Local Government
levels of Governance in Nigeria. This is no thanks to the never say
die spirit of the Nigerian Politicians, in and out of office. Thus,
even Councillorship Candidates are ready to pursue their cases up
to the Supreme Court, if there be any such provisions in our laws.
In a recent unreported decision of the Court of Appeal, Benin
Division in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V.
Kadiri Sunday Oshoakpemhe & Ors
delivered on March 8,
2021, I had cause to ponder inter alia thus:

“In law therefore, a pre – election matter does not
become academic or hypothetical merely because the election had
taken place. Thus, pre – election matters commenced in line with
the extant law on electoral matters would remain live issue
notwithstanding the holding of the election while the pre –
election matter was already pending in Court…
My
lords, I had even asked myself the question, whilst considering
this issue, if indeed the claims of the 1st Respondent
had become merely academic, why would or should the Appellant even
bother appealing against the judgment of the Court below arising
from a Suit which had become merely academic and of no longer any
utilitarian value to any or all of the parties as vehemently
contended on his behalf by his learned Senior Advocate in this
appeal? The answer, to my mind is not farfetched, and I hope I am
right, it is because while lawyers pride themselves as masters of
the law, the Politicians are master game planners and they would
never give up unless and until either they realize their desire to
‘serve their people’ or the Apex Court in an appeal before them
tell the Politicians with finality that it is all over, then they
would take a bow and rest but bid their time for the next election!
In this wise, they are far wiser than the
lawyers!

After the 2007 General Elections, there was an
attempt to reduce the levels and layers of interventions by the
Nigerian Judiciary in electoral matters by pegging all post –
Election litigations, including National Assemblies and
Governorship Elections to end at the Court of Appeal, except the
Presidential Election was met with  resistance no thanks to
the debacle in the appeals in some Governorship Appeals, notably
Sokoto and Edo States, leading to the very needless amendment to
return Governorship Elections Appeals to the Supreme Court, the
result of which has been unending litigations.

The foray of the Judiciary into Political cases has come with it
various challenges, ranging from allegations of corruption and and
distraction of the Judicial system from facing and resolving
timeley the day to day issues of ordinary Citizens of this Country
in preference for so much time and resources and energies spent on
Political cases, ranging from Pre – Election to Post – Election
ligations. However, due intervention of the Judiciary has also
brought with it the unique opportunities of ensuring that the votes
of the Citizenry counts and therefore, only those whom the
electorates have truly expressed their wishes to govern them
through the ballot box to do so emerge to govern them. Thus,
whenever the Electoral system and or the Political parties fail the
people, the Court, upon proper invitation, comes to the rescue by
intervening to ensure that the votes of the electorates counts! In
Elohor & Anor V. INEC & Ors (2019) LPELR – 48806(CA) @ pp.
36 – 47,
I had cause to reiterate inter alia
thus: 

In Election Petition
proceedings also the electorates whose votes must be allowed to be
counted in the determination of who represent them and acts on
their behalf for the period or term of the office contested for by
the parties at the Election…The Court must hold the balance and
ensure, as far as practicable under its extant rules of practice
and procedure, a level playing field for all the
parties” 

After the 1979 General elections, a landmark
Election Petition was heralded into the Nigerian Political
landscape by the challenge of the 1979 Presidential Election by the
candidate of the Unity Party of Nigeria, Chief Obafemi
Awolowo
, who vigorously and spiritedly contested the
declaration and due return of the candidate of the National Party
of Nigeria, Alhaji Shehu Usman Shagari at the
Presidential Election Tribunal to the Supreme Court on Appeal. This
landmark case could easily be regarded as the first major foray of
the Judiciary into Political cases in Nigeria, heralding as it were
a deluge of political cases, both pre – and post – election
litigations in the coming years and which has led, perhaps, to the
view as expressed in the theme of this law week, the
‘Judicialization of Politics in
Nigeria’      

On August 11, 1979 the electorates in Nigeria
had trooped out to the polling booths across the Country to elect
for themselves a leader, from the five Presidential Candidates,
namely; Alhaji Shehu Usman Shagari of the NPN, Chief
Obafemi Awolowo of the UPN, Dr Nnamdi Azikiwe of the NPP; Alhaji
Aminu Kano of the PRP, and Alhaji Ibrahim Waziri of the
GNPP,
this time as President of Nigeria under the brand
new 1979 Constitution of Nigeria, which was a radical departure
from the immediate post – Independence Westminster styled Era akin
to the model of Government in the United Kingdom to the Executive
Presidential System akin to the model of Government in the United
States of America. On August 16, 1979 the candidate of the NPN,
Alhaji Shehu Usman Shagari, was returned and
declared as the elected President of Nigeria having, according to
electoral umpire, Federal Electoral Commission, received a majority
of the votes cast at the Presidential Election in satisfaction of
the provisions of Section 34 A (1)(c)(i) and (ii) of the Electoral
Decree No. 73 of 1977(as amended), which provided inter alia that a
Presidential candidate will be deemed to have been duly elected to
such office where he has the highest votes cast at the election,
and he has not less than one quarter of the votes cast at the
election in each of, at least, two – thirds of all the States in
the Federation.

In the Election Petition presented to the Presidential Election
Tribunal sitting in Lagos, Chief Obafemi Awolowo,
the Presidential Candidate of the UPN, had contended that the
election of Alhaji Shehu Usman Shagari, the
Presidential Candidate of the NPN, was invalid by reason of non –
compliance with the provisions of Part II of the Electoral Decree,
1977 in that although Alhaji Shehu Usman Shagari
had received the highest total votes of 5,688,857 at the said
election, he had less than one – quarter of the votes cast at the
election in each of at least two – thirds of all the 19 States in
the Federation and prayed for the nullification of the return made
by the electoral umpire and for the holding of another election in
accordance with Section 34A(3) of the Electoral (Amendment) Decree
No. 32 of 1979. The parties filed and exchanged their pleadings and
issues were duly joined and the matter went to trial.

Chief Obafemi Awolowo testified for himself and
called one witness, one Professor Ayodele Awojobi,
a Professor of Engineering at the University of Lagos and an
applied mathematician who testified that there are 38,760 possible
two – thirds of Kano State going by Local Government Area and that
in the absence of a computer, it will take at least one year to
declare the result in respect of two – thirds of Kano State. The
Respondents did not call any evidence. In its judgment, the
Presidential Election Tribunal saw no merit in the Petition and
thereby dismissed it. Chief Obafemi Awolowo was
aggrieved with that decision and had promptly appealed against it
to the Supreme Court of Nigeria on the grounds inter alia that the
Election Tribunal misdirected itself in law in construing two –
thirds of 19 States as 122/3 instead of 13
States when in law and especially within the context of Section
34A(1)(c)(ii) of the Electoral Decree 1977 as amended, a State
being a corporate body or a legal person cannot be fractionalised,
that the Election Tribunal misdirected itself when it held that the
dominant requirement in the election is the number of votes cast in
each of the States, “two – thirds State” would be synonymous with
two – thirds of the total votes cast in that State and not the
physical or territorial area of such State, and that the Election
Tribunal misdirected itself when it took the total votes cast for
Alhaji Shehu Usman Shagari of the NPN in Kano
State, 243,423 votes instead of two -thirds thereof 162,282 votes
to determine whether or not he scored at least a quarter or 25 per
cent of the total votes cast in two – thirds of Kano State, 203,460
votes.

In the judgment delivered on Wednesday, September 26, 1979, the
Full Court of the Supreme Court of Nigeria Coram: Atanda
Fatai-Williams, CJN, Ayo Gabriel Irikefe JSC, Mohammed Bello JSC,
Chukwunweike Idigbe JSC, Andrews Otutu Obaseki JSC, Kayode
Eso        JSC , and Muhammadu
Lawal Uwais JSC
in Chief Obafemi Awolowo V. Alhaji
Shehu Shagari & Ors
(1979) LPELR – 653
(SC),
dismissed the Appeal (by a split majority decision
of 6 – 1) and held per Fatayi – Williams CJN,
inter alia thus:

It is at this stage that the Returning
Officer ought to determine what is two – thirds of 19 States. This
is a matter of law as it deals with the interpretation of the
provisions of Section 34A(1)(c)(ii) of the Decree….the Federal
Military Government must be deemed to know that two – thirds of 19
States will be 122/3 of States….If the
number 13 which is the nearest to two – thirds of a State had been
intended the Federal Military Government would have said so in
clear terms. In any case, as between 13 States and
122/3 States, the figure of
122/3 considering all the circumstances,
appears to us to be the intention of the Federal Military
Government in the context of sub-paragraph (ii) of Sub-section
(1)(c) of Section 34A. Furthermore, it is, we think, fallacious to
talk of fractionalisation of the physical land area of a State when
the operative words of Section 34(1)(c)(ii) relate undoubtedly to
the votes cast by the voters in the State at the election…Moreover,
until election returns can be computerized in this country, the
“mathematical canon of interpretation” put forward by Professor
Awojobi in his testimony before the Election Tribunal will remain
impractical and legally unacceptable.”

However, both of their lordships, Obaseki JSC
and Eso JSC, disagreed with the majority view of
two – thirds of 19 States as amounting to
122/3 States rather than 13 States but
since the majority had spoken whatever their lordships held, the
rest is history! There was a record of appearances of array of high
flying counsel in this landmark Appeal. It is worthy of note that
the questioned Presidential Election was held on 11/8/1979, the
results were declared on 16/8/1979 and yet by 26/9/1979 all post –
election litigation on it had been concluded with up to the level
of the Supreme Court before the inauguration of the newly elected
President on 1/10/1979

In 1983, due to widespread violence resulting
from the wide held belief of large scale irregularities in the
conduct of the General Elections of that year, there were a deluge
of Election Petitions challenging the outcome of the said Elections
as declared by the Electoral Umpire but regrettably, that was when
technicalities in law held sway riding roughshod far and above
substantial justice, and thus a great number of these Election
Petitions challenging the General elections failed while the
results of the said elections which were clearly perceived and
believed to have been irregular were nevertheless upheld by the
Courts, purely on technical grounds. However, in very few of these
cases, particularly in Ondo State as between Akin
Omoboriowo
of the NPN and Chief Michael
Ajasin
of the UPN in Chief Akin Omoboriowo & Ors
V. Chief Michael Adekunle Ajasin (1984) LPELR – 2643 (SC),

these glaringly perverse results of the General Elections were ably
and admirably reversed by the Court and substantial justice
rendered not only to the successful Petitioners but also to the
electorates so that their true wishes as expressed by them through
their votes prevailed.

In 1993, the justification for the annulment of
the widely believed freest and fairest Presidential Election in the
annals of history of Presidential Elections in Nigeria was found in
the series of interventions by the Courts both pre – and post –
election at the behest of political actors and activists which
became a ready excuse and or a lee way for the then Military Ruler,
Gen Ibrahim Badamosi Babangida to annul the June
12, 1993 Presidential Election whilst collation of results were
still ongoing in the remaining few States, the results of majority
of the States having already been announced by the Electoral
Umpire. Of note was the Suit filed on June 10, 1993 by the
Association for Better Nigeria, represented by one Abimbola Davies,
before an Abuja High Court that the Presidential election be
suspended on grounds of corruption going on in Party politics. The
Court wasted no time in granting such an insidious as well as
invidious request and thereby retraining the National Electoral
Commission from conducting the Presidential Election.

Still in 1993, in just the 3rd month
of the Interim National Government under the leadership of
Chief Ernest Shonekan between August 26 1993
November 17, 1993, and set up by the retreating Military Ruler, the
Courts intervened once again. This time a Lagos High Court, at the
behest of a Suit filed by the generally and popularly acclaimed
winner of the June 12, 1993 Presidential Election, Chief
M.K.O. Abiola,
 declared the Interim National
Government as an illegal contraption. The immediate consequences
and effects of this intervention by the Courts on Nigeria and the
rest as they say is now history! But going down the memory lane,
the transition to civil rule was eventually truncated and thus
leading Nigeria to nowhere while the generally believed and
popularly acclaimed winner of the June 12, 1993 Presidential
Election, Chief M. K. O. Abiola, after about a
spell of four years spent in detention died on July 7, 1998,
shortly after the death of the then Nigerian Military Ruler,
Gen Sanni Abacha on June 8, 1998.

In the aftermath of the 1999 General elections
and consequent upon the return and declaration of Gen
Olusegun Obasanjo,
the Presidential Candidate of the
Peoples Democratic Party as the winner of the 1999 Presidential
Election in Nigeria, the Courts intervened once again but at the
behest of Chief Olu Falae, the Presidential
Candidate of the Alliance for Democracy, who challenged the results
of the Presidential Election vide an Election Petition No.
CA/A/EPPR/12/1999
presented to the Presidential Election
Petition Tribunal of the Court of Appeal Coram: Dahiru
Mustapha JCA, Aloma Mariam Mukhtar JCA, George Adesola Oguntade
JCA, Justin Thompson Akpabio JCA, and Dennis Onyejife Edozie
JCA.
The parties filed and exchanged pleadings and the
matter proceeded to hearing. At the trial, Chief Olu
Falae
called 15 witnesses, while Gen Olusegun
Obasanjo
called 3 witnesses. All the other Respondents,
the 2nd – 60th Respondents, did not call any
witness but rested their defense on the evidence called by the
other parties. At the conclusion of trial, the Petition was
dismissed. See Chief Olu Falae V. Gen Olusegun Obasanjo &
Ors No. 2 (1999) 4 NWLR (Pt. 599) 476 (CA)
.

In April 2003, General elections were held in
Nigeria and in the aftermath of the outcome of the elections, the
Courts had once again intervened at the behest of aggrieved
persons. Thus, several Election Petition Tribunals were set up in
accordance with Section 285(l) (a) and (2) of the
Constitution of Nigeria 1999 (as amended)
. However,
despite the hues and cries of massive irregularities, by both local
and international observers, most of the results from these
generally believed flawed elections were upheld by the Courts
likely due to lack of evidence to substantiate these alleged
irregularities. Thereafter, the political life of the Nation went
on as usual with nothing significant learnt by the Politicians as
well as the Political parties from the largely flawed 2003 General
Election in which the phenomenon of ‘carry go’ was
introduced into the Nigerian Political lexicon. Truly, so sad
indeed!

The Courts have regularly on the behest of aggrieved persons
intervened in a deluge of pre – election matters over the years.
Principally, there are two sections of our laws giving rise to the
avalanche of pre – election cases in the Courts, namely;
Sections 31(5) and 87(1) of the Electoral Act 2010 (as
amended)
.

By Section 31(5) of the Electoral Act 2010 (as
amended),
it is provided as follows:

“A person who has reasonable grounds to believe that any
information given by a candidate in the affidavit or any document
submitted by that candidate is false may file a suit at the High
Court of a State or Federal High Court against such person seeking
a declaration that the information contained in the affidavit is
false”

By Section 87 (1) of the Electoral Act 2010 (as
amended),
it is provided as follows:

         “A
political party seeking to nominate candidates for election under
this Act shall hold primaries for aspirants to all elective
positions”

Let me first deal with the provisions of Section 87 (1)
of the Electoral Act 2010 (as amended)
, which appears to
be the major source and cause of the deluge of pre – election
litigations in this Country, underscoring the obvious lack of
internal democracy in Political parties in Nigeria, leading to the
interventions by the Courts, at the behest of aggrieved member of
Political parties, with the resultant perception of
‘Judicialization of Politics in Nigeria’

In PDP V. Sylvia [2012] 13 NWLR (Pt. 1316) 85 @ p.
148
, the Supreme Court per Chukwuma – Eneh
JSC
., had opined inter alia thus:

   “The clear object the provisions of Section
87 is intended to achieve besides the inculcation of internal
democracy in the affairs of political parties in this country
moreso in the conduct of their party primaries includes thus making
them transparent and providing level playing ground for their
contestants in party primaries….”

On his part, Rhodes -Vivour JSC had opined
inter alia thus:

“Where the political party conducts its primary and a
dissatisfied contestant at the primary complains about the conduct
of the primaries, the Courts have jurisdiction by virtue of the
provisions of Section 87 (9) of the Electoral Act to examine if the
conduct of the primary elections was conducted in accordance with
the party’s Constitution and Guidelines. This is so because in the
conduct of its primaries the Courts will never allow a political
party to act arbitrarily or as it likes. A political party must
obey its own constitution.”

In Shinkafi V. Yari (2016) 1 SC (Pt. II) 1 @ p.
31,
the Supreme Court had expatiated inter alia thus:

“It is now trite that where a political party conducts
its primary and a dissatisfied contestant at the primary election
complains about its conduct of the primaries, the Courts have
jurisdiction by virtue of the provision of Section 87(9) of
the Electoral Act 2010 (as amended) to examine if the conduct
of the primary was in accordance with the party’s Constitution and
Guidelines. The reason is that in the conduct of its primaries, the
Courts will never allow a political party to act arbitrarily or as
it likes. A political party must obey its
Constitution
.”

In CPC V. Ombugadu [2013] 18 NWLR (Part 1385) 66 @ pp.
129 – 130,
the Supreme Court per Ngwuta
JSC,
(God bless his soul) had expatiated
inter alia thus:

“A political party is greater than the numerical
strength of its membership just like a country, for instance,
Nigeria, is greater than the totality of its citizens. It follows
that in the case of a Political party, such as the
1st Appellant herein, the interest of an individual
member or a group of members or a group of members within the
party, irrespective of the place of such member or a group in the
hierarchy of the party, must yield place to the interest of the
party. It is the greed, borne of inordinate ambition to own,
control and manipulate their own Political parties by individuals
and groups therein and the expected reaction by other party members
that result to the internal wrangling and want of internal
democracy that constitute the bane of Political parties in
Nigeria…it is apparent that a few powerful elements therein hijack
the parties and arrogated to themselves right to sell elective and
appointive positions to the party member who can afford
same…Politicians must learn to play the game of politics in strict
compliance with its rules of organised society.”

In Mato V. Hember & ORS (2018) 5 NWLR (Pt.1612) 258[1], the
Supreme Court had per Onnoghen CJN, emphatically
stated inter alia thus:

“Both the Electoral Act and the Constitution of the
2nd Defendant make it mandatory that primaries be
conducted in the Headquarters of the Constituency. The failure
to comply with these provisions makes the entire exercise null and
void…The truth must be told and that is, that the
1st and 2nd Defendants did not
respect the provisions of the Electoral Act and the constitution of
the 2nd defendant in the conduct of the
primaries.
 This Court has decided in quite a
number of cases that political parties must obey their own
constitutions as the court will not allow them to act arbitrarily
or as they like” .

In Alhaji Shuaibu Isa Lau V. LAU V. PDP
& Ors. (2017) LPELR- 43800 (SC),
the Supreme Court per
Augie JSC, had stated inter alia thus:

   “This is a hard and very bitter lesson for
Political parties to learn. They may have chosen candidates or
eminent personalities they want to present as candidates to INEC,
but they have to play by the rules….The chosen candidates must
comply with requirements of the law; they must abide by the
provisions of the Electoral Act, which creates a level playing
field for all aspirants who seek to contest elections…So, the
Political parties and their candidates must obey the
rules.”

See also Dahiru & Anor V. APC & Ors. (2016) LPELR –
42089 (SC);
Boko V. Nungwa[2] (2019) 1 NWLR
(Pt. 1654) 395; Tarzoor V. Ioraer (2016) 3 NWLR (Pt. 1500)
463.

Let me now consider the provision of Section 31(5) of
the Electoral Act 2010 (as amended),
another, and perhaps
the current fastest source and cause of pre – election litigation,
underscoring the obvious lack of proper definition of rights of
persons to intermeddle in the internal affairs of Political parties
to which they do not even belong and leading to the interventions
by the Courts, at the behest of any person who is so led to
intermeddle with the internal affairs of a Political party to which
he is a stranger, with the resultant perception of
‘Judicialization of Politics in Nigeria’

In Peoples Democratic Party V. Biobarakuma Dei-Eremienyo
& 3 Ors (2020) Vol. 305 LRCN 1
, the
Supreme Court per Eko JSC; had
held inter alia thus:

“Section 31 (5) of the Electoral Act complements Section
182 1 J of the Constitution. It empowers any person who has
reasonable grounds to believe that any information given by a
candidate submitted by that candidate is false to file a Suit at
the Federal High Court, High Court of a State or FCT against such
person seeking a declaration that the information contained in the
affidavit is false. The sanction for presenting to INEC Form CF001
containing false fact about the personal particulars or information
of the candidate, by virtue of Section 31(6) of the Electoral Act,
is an order by the High Court disqualifying such candidate from
contesting the election”

In a recent unreported decision of the Court of Appeal in
Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri
Sunday Oshoakpemhe & Ors
delivered on March 8, 2021, I had
cause to ponder inter alia thus:

   “Now…the provision of Section 31(5) of the
Electoral Act, 2010 (As Amended) talks of ‘a person’ and is the
1st Respondent not within the meaning ‘a person’ in
Nigeria? The Appellant did not say so! Thus, it would appear that
going by the succinct provisions of Section 31(5) of the Electoral
Act, 2010 (As Amended) and on the authority of Lawrence V. PDP
(2018) 5 NWLR (Pt. 1613) 464 @ p. 481, the meaning of “a person” as
used in Section 31(5) of the Electoral Act 2010 (as amended)
presupposes any person, including the 1st Respondent,
since it appears to be open – ended to all and at the same time
inclusive of all and without any restriction or exclusion. Thus,
whether or not one is a member of a Political Party or any
particular Political party, as in the instant appeal, a PDP Card
carrying member challenging the qualification of a candidate of the
APC, is of no moment as the law allows the 1st
Respondent so to do! I have no difficulty whatsoever resolving
seven against the Appellant in favor of the 1st
Respondent.” 

Now, whilst the above cases dealt with the provisions of
Section 31(5)  of the Electoral Act 2010 (as
amended),
which appears to complement the provision of
Section 182(1)(j) of the Constitution of Nigeria 1999 (as
amended),
per Eko JSC, in 
Peoples Democratic Party V. Biobarakuma Degi – Eremienyo &
3 Ors (2020) Vol. 305 LRCN 1
, by the provisions of
Section 65( 1) & ( 2), Section 66 (1)( a) – (j) & (2), Section 106
( a) – (d), Section 107 (1) (a) – (j) & (2), Section 131(a) – (d) ,
Section 137 (1)(a) – (j)  & (2), 177(a) – (d ), Section
182(1)(a) – (j) & (2) of the Constitution of Nigeria 1999 (as
amended),
exhaustive provisions were made for
qualifications and disqualifications of Candidates to all the
Elective Offices established by the Constitution of Nigeria
1999 (as amended)
and which can form the basis or grounds
for the challenge of an election to any of the said offices before
an Election Petition Tribunal. Now, since all these provisions
serve the same purpose of qualification and or disqualification of
Candidates, if they are not sufficient then it is suggested that a
further amendment of the Constitution of Nigeria 1999 (as amended)
in line with the provisions of Section 31(5) and (6) of the
Electoral Act 2010 (as amended) be effected and made an integral
part of disqualification of Candidates to obviate the duplications
leading to pre – and post – election litigations on the same ground
and or issue.

This duplicity was  impliedly but amply demonstrated by the
challenge to the result of the 2019 Presidential elections by
His Excellency Alhaji Atiku Abubakar, the
Presidential candidate of the Peoples’ Democratic Party against
His Excellency Muhammadu Buhari, the incumbent
President and Presidential Candidate of the All Peoples’ Congress.
In Abubakar V. INEC (2020) 12 NWLR (Pt. 1737) 37 @ p.
110,
the Supreme Court per I.T. Muhammad,
CJN,
had pronounced inter alia thus:

“Before I conclude on this issue, let me state that
whenever documents are tendered from the Bar in election matters,
the purport is to speed up the trial in view of time limitation in
election matters. Such tendering is not the end itself but a means
to an end. The makers of such tendered document must be called to
speak to those documents and be cross-examined on the authenticity
of the documents. The law is trite that a party who did not make a
document is not competent to give evidence on it. It is also the
tested position of the law that where the maker of the document is
not called to testify, the document would not be accorded probative
value by the court. That in deed is the fate of exhibits P80 and
P24…Finally, on this issue, it was contended by the appellants that
the variation in the names of 2nd respondent on Exhibit
R19 and R21 makes his relationship with the two documents doubtful.
Is “Mohammed” and “Muhammadu” the same name and belong to the
2nd respondent? The Court below made an elaborate
discussion on the issue and concluded that RW5 gave explanation on
the names and stated that they are the same….For me, as the
appellants failed to prove that any of the documents belong to
another person and as nobody has come out to claim any of the two
exhibits, I do agree with the explanation given by the RW5 and the
conclusions of the court below that both names “Mohammed” and
“Muhammadu” as contained in exhibits R19 and R21 belong to the
2nd respondent. On this note, I resolve issues one and
two against the appellants.”

It is clear that the above two decisions of the Supreme Court in
Peoples Democratic Party V. Biobarakuma Dei-Eremienyo & 3
Ors (2020) Vol. 305 LRCN 1
, and
Abubakar V. INEC [2020] 12 NWLR (Pt. 1737) 37 @ p. 110,
 
though based in Pre – election and Post – election
matters were canvassed on same issues and or grounds leading to the
deluge of cases justifying the constant intervention by the
Judiciary in Political cases at the behest of aggrieved persons by
virtue of Sections 31(5) and 87(1) of the Electoral Act 2010 (as
amended), which it is posited can legally and conveniently be done
away with as would be canvassed in details later in this paper in
order to drastically reduce and or bring to a halt the deluge of
Pre – election matters and the resultant constant intervention by
the Courts and the seeming ‘Judicialization of Politics in
Nigeria’       

THE CHALLENGES

LACK OF INTERNAL DEMOCRACY IN POLITICAL PARTIES IN
NIEGRIA2:
This is perhaps the mother of all
reasons why there is the seeming feeling of
‘Judicialization of Politics in Nigeria’ as
thought and coined by the Organizers of this Law Week. There seems
to be a great deal of lack of or non – observance of internal
democracy by the hierarchy of Political parties in Nigeria. The
founders and leaders of Political parties do award and in some
cases sell the party’s tickets to either the hig
   hest bidder or to whomsoever it pleases them to
give it to. Thus, the generality of the members of Political
Parties neither have any say or their way in the running of the
affairs of Political parties in Nigeria. Internal democracy was,
and is still to a large extent going by the avalanche of complaints
and the deluge of pre – election litigations, a mirage and mere
wishful thinking in Nigerian Political parties. The Godfathers,
Kingmakers and the Moneybags rule the internal affairs of Political
parties and run the Political parties at their own whims and
caprices. With their blessings a person can become a Candidate just
at the same time he is becoming a member of a Political party and
without their blessings a member no matter for how long or
qualified would stand no chance to be given the ticket to run as
the candidate  of a Political party in Nigeria. Thus, internal
democracy was not considered a virtue in the affairs of Nigeria’s
Political parties.

The Constitution of Political parties are mostly observed in the
breach and the aggrieved dared to go to Court. Though on paper,
primaries, whether direct or indirect, is touted to be an integral
part of the administration of the internal affairs of Political
parties in Nigeria, but in practice it is avoided by the hierarchy,
leaders, moneybags and kingmakers like a plague. They pay mere lip
service to it and rather thrive on imposition of candidates. So bad
is the adverse effect of absence of internal democracy that even a
performing office holder can be out rightly denied the opportunity
of participating in the process leading to the selection of a
candidate for a Political party for a second term in office,
notwithstanding the wishes of the generality of members of the
Political party and or even the desires of the electorates at
large. In this regard, the case of the Lagos State APC Governorship
Primaries in 2019 as well as the Edo State APC Governorship
primaries in 2020 readily comes to mind. See for example Article 20
of the All Progressives’ Congress enshrining primaries, whether
direct or indirect, as the mode of selection of its candidates for
general elections.  Similar provisions exist in all the other
registered Political parties in Nigeria.

Internal democracy is the panacea to the myriads of
disappointments by members of Political parties in Nigeria with the
resultant avalanche of complaints by aggrieved members of Political
parties and the deluge of pre – election litigation throughout the
length and breadth of this Country. Thus, to curtail the constant
derailment of the Constitution of Political parties in Nigeria, and
the resultant cacophony of voices and the incessant recourse or
resort to the Courts by the many aggrieved members of Political
parties, there must be good leadership of Political parties founded
on internal democracy and duly anchored on strict adherence to the
Constitution of Political parties. There is urgent need to nip in
the bud the pervasive erosion of internal democracy in the
management of the affairs of Political parties. Since, Political
parties are the base from which leaders of the Nigerian society
emerge, in the absence of independent candidacy, only good
leadership and governance of Political parties can give rise to
good leadership of the larger society. This is so because one
cannot give out what one does not have. It is simply ‘nemo
dat quod non habit’
! The more lip service is paid to the
overriding need, which is now imperative in the Political landscape
of Nigeria, for internal democracy, the more likely there will be
rise in the resort and or recourse to the Courts in Pre – election
litigation by aggrieved members of Political parties. As long of
internal democracy is eroded in the affairs of Nigeria’s Political
parties, so long there would be no ‘de – judicialization of
Politics in Nigeria.
’ The key therefore, to keeping the
Judiciary out of Politics in Nigeria is internal democracy in
Nigeria’s Political parties! This would have the soothing effect of
satisfaction to vast majority of members of Political parties where
there is strict adherence to the provisions of their Parties’
Constitution and where the whims and caprices of the privileged few
in the parties, the Godfathers, the Moneybags, the Kingmakers and
the hierarchy, would be effectively curtailed. Then there would be
less and less Pre – election litigations in the politics and
affairs of Political parties in Nigeria.

The important role and or fundamental position of Political
parties in modern political process and democratic governance
cannot be over emphasized, hence the need to instill the practice
of internal democracy in Nigeria’s Political parties3.
What then are the challenges to internal democracy in Political
parties? These would range from; lack of party ideology, the
overbearing role of party’s elected officials in the Executive and
Legislative Arms of Government, lack of observance of process or
mechanism for selection of party’s candidate for general elections,
lack of independent source of funding and the disruptive role of
moneybags, lack of or breaches of agreed zoning formula, highjack
of party’s primaries, lack of consensus building mechanism, lack of
discipline, and arrogance of the hierarchy of Party’s
executives.

THE OPPORTUNITIES

GIVING EFFECT TO THE TRUE WISHES OF THE ELECTORATES
EXPRESSED THROUGH THEIR VOTES AND MAKING THEIR VOTES
COUNT:
Intervention by the Courts had in many deserving
cases ensured that the wishes of the electorates is respected and
made to prevail and their votes count. Fraudulent elections, where
they are proved according to law, are set aside and either fresh or
bye or rerun elections ordered and conducted by the Electoral
Umpire. Instances of these abound, ranging from the 1983
invalidation by the Court of the purported return and declaration
of Chief Akin Omoboriowo as the Governor of Ondo
State and the restoration of the wishes of the electorates of Ondo
State by the due return and declaration of Chief Michael
Ajasin
as the duly elected Governor of Ondo State by the
Court, the 2007 earthshaking decision of the Apex Court dismantling
the stark injustice meted to Chibuike Rotimi
Amaechi
by the People Democratic Party by his due return
to the Rivers State Government House, the Brick House, as Governor
of River State in place of the then Governor Celestine
Omehia
, the 2008 invalidation by the Court of the
purported return and declaration of Prof O.
Osunbor
as the Governor of Edo State and the restoration
of the wishes of the electorates of Edo State by the due return and
declaration of the Comrade Governor, Admas
Oshiomole
as the duly elected Governor of Edo State by the
Court. In recent times, there have been the decisions of the Courts
in the Governorship tussles in Imo State and Bayelsa State
respectively as decisively determined by the Apex Court. Thus,
without the timely and due intervention by the Judiciary, at the
behest of these aggrieved persons, these injustices and several
others that doted our political landscape would have been left un –
redressed and rather ingloriously perpetuated in the psyche of the
Nation. By its well – deserved interventions in deserving cases,
the Judiciary continues to make significant contribution to the
deepening of the Nation’s democratic experiences and thereby
fostering the tenets of credible elections in Nigeria.

WIDENING AND OPENING UP THE DEMOCRATIC SPACE:
By prompt judicial interventions, the hitherto over restricted
space for formation and registration of Political parties have been
widened with the result that there is presently a great deal of
political space for persons desirous of involving themselves in
politics to do so on their own terms without being limited to very
few options by way of existing Political parties. Once, an
association meets the requirements of the law it is in the spirit
of the right to freedom of association assured of being registered
as a Political party to propagate its visions and canvass for votes
from the electorates. This liberal approach to registration of
Political parties was only made possible by the proactive nature of
the Nigerian Judiciary. Today, Nigerians are offered the almost
limitless opportunities in their choice of Political parties to
achieve their dreams of serving their people. Perhaps, there is
still one step forward needed to be taken in the Politics of
Nigeria by due further amendment of the Constitution of Nigeria
1999 (as amended) to provide for independent candidacy, which would
finally break the monopoly of the moneybags, godfathers and their
ilk, when qualified and societal acceptable persons can jettison
the money bags and existing ideology lacking Political parties to
contest elections on their own right as independent candidate,
which is one of the hallmarks of full blown advanced democracies of
the World, such as the United States of America.

THE WAY FORWARD – KEYS TO REDUCED JUDICIALIZATION OF
POLITICS IN NIEGRIA

OVERALL GOOD GOVERNANCE, TRANSPARENT AND CREDIBLE
ELECTIONS:
 Whilst, conducting transparent and
credible elections has remained an albatross in Nigeria, the bigger
problem which had become anathema to transparent and credible
elections in Nigeria is lack of good governance. There can be no
transparency and or credibility in any sphere of a Nation’s life,
including its elections, in the absence of good and responsive
leadership in Governance. However, good Governance is not the
exclusive preserve of the Executive at any level of governance in
this Country. The requirement for good governance entails the total
efforts and collaboration of all the three arms of Government, with
each arm ensuring transparency and commitment to its
constitutionally assigned roles in the governance and development
of the Nation. Without a transparent Legislature there can be no
overall good governance, and without a transparent and credible
Judiciary there can be no overall good governance. It follows
therefore, nothing can be farther from the truth than when only the
Executive is expected and looked upon not only by the Citizenry but
also by its co – burden bearers, the Legislature and the Judiciary,
to provide the overall good governance for the people of
Nigeria.

Overall good governance is therefore, the function of all the
three arms of Government working assiduously together to make
things work smoothly to the good and benefit of the Citizenry. One
step of assurance to good, transparent and credible election is the
swift adoption of the experimental Card Reader to become an
integral part of the super structure of Nigeria’s Electoral System
in the same way as the Voters’ Registry has been and still is.
Nigeria must embrace the technology of the Card Reader. It has the
greater potential, if put to good and effective use, of checking
rigging at Elections in Nigeria. To this end, there is need for
complete overhaul of the Electoral System by way of urgent and
comprehensive reforms and perhaps wholesale amendment of the
Electoral Act 2010 (as amended). Rather, but regrettably too,
emphasis has always and still is on the results of the election, no
matter how contrived and the loser is admonished and in some rare
cases dared to go to Court if he so wishes! Thus, whether the votes
of the electorate were duly counted and each vote given its prime
place in the collation of the total outcome of the election is of
little concern to most of the ill trained ad-hoc staff, mostly
engaged by the Electoral umpire, and whose main interest is the
payment of their allowances. Serious efforts should be made at
inculcating patriotic zeal in all who would be recruited and or
called upon to serve as ad-hoc staff in every election in Nigeria.
The polling unit is at the base of the pyramid and once things are
not done right there it permeates all the other levels in the
hierarchy of the election. A collation center can only but collate
whatever was brought forward to it from the polling units,
 yet whilst the collation centers are heavily fortified with
security and better welfare or allowances, the polling units are
mostly left to their own imagination. This must stop!

Nigeria is in dire need of Electoral best practices as obtained
in advanced democracies. Electoral offences must be duly
investigated no matter who was or is involved and assiduously
prosecuted where an infraction is established. An Electoral
Offences Commission is now long overdue. The independence and
credibility of the Electoral body must transcend its mere
nomenclature but must be guaranteed. It is time for the Chairman
and Members of the Electoral Body to be appointed independently of
the Executive to ensure their real independence and to owe their
allegiance to no one but only to the Nigerian State and its people.
It must be well funded and its sources of funding must be
guaranteed by a first line charge on the consolidated revenue fund.
It need not and must not owe any allegiance to the Executive but to
the Nigerian State and its people only! Thus, to move Nigeria
forward and institutionalise democratic culture through credible
elections, the Electoral System must be rejigged and election
malpractices, in whatever shape or form, effectively checked by
correcting all the lapses apparent in the electoral system,
institutions and machinery. Thus, for democracy to thrive in
Nigeria, and the resultant road to good governance and consequent
development, transparent and credible election is a sine quo none!
There is no doubt that, and as experienced in advanced democracies
of the World, notably the United States, a stable and virile
democracy will invariably enthrone an unimpeded socio – economic
development in Nigerian.

ENTHRONING AND ENFORCING INTERNAL DEMOCRACY IN POLITICAL
PARTIES4:
Political parties must be made to
enthrone, entrench and practice internal democracy by abiding by
the provisions of their Constitutions. There must be regular
convening of their National Executive Meetings, Elective and Non
Elective Conventions as prescribed in their Constitutions. They
must be observance of financial guidelines for Political parties.
There must be functional and trustworthy internal dispute
resolution mechanisms. There must be transparency in the use and
administration of the finances of the Political party. There must
be clearly defined mechanism and guidelines for Party primaries for
selection of its candidates for elections. There must be
independent sources of funding and payment of dues by all members
to secure neutrality of the Party Executive in all matters
affecting the members, particularly in the conduct of its
primaries. To reduce recourse and or resort to the Courts, there
should be established mechanism for Alternative Dispute Resolution,
which usually ensures a win – win outcome, to be widely explored in
the resolution of internal disputes and disagreements within the
Political party for party cohesion and mutual trust. Every
registered member should be a stakeholder and his views should
count at his level of participation in the affairs of the Political
party.

POLITICAL PARTIES COMMISSION: It is suggested
that to make breaches of Constitutions of Political parties dire
and unattractive, a Political Parties Commission be established by
law either independently or under the auspices of the Independent
National Electoral Commission. This body should be charged with the
exclusive responsibility to receive and investigate all allegations
of and or reported breaches of the Constitution of Political
Parties, which I had earlier suggested must be made non justiciable
in our law being mainly a political question, and to make
recommendations to the Independent National Electoral Commission
for the proscription of such Political party if the investigation
confirms such breach. I think it is high time in this Country to
not only talk tough but also to walk the talk!

Alternatively, since it is a truism that failure or lack of
internal democracy should be sanctioned by the Electoral Body, the
Electoral Act 2010 (as amended) should be amended
to empower the Independent National Electoral Commission to receive
and investigate complains of breaches of the Constitution of a
Political party with powers to enforce compliance and mete out
sanctions, including in extreme cases of proved infractions,
proscription of the Political party. Since internal democracy is
key to good administration of Political parties and for the
protection of generality of members of a Political party from the
whim and caprices of the privileged few, its breach, being
cancerous to the growth and development of Party politics, must be
met with surgical redress, including proscription where necessary
to send a strong signal to Political parties that internal
democracy is not an option but a sine qua none for the existence of
any registered Political party in Nigeria.

REDUCTION OF JUDICIAL INTERFERENCE IN PARTY
POLITICS:
A Political party, as duly registered under law
and abiding by its Constitution and careful to observe and practice
internal democracy, is supreme in the management and control of its
affairs and its relationship with its members. Thus, the Political
party is best suited and should empowered by law to take binding
and final decisions affecting the management of its affairs and
also as affecting its members and therefore, the intervention by
the Courts in the internal management of the affairs of Political
party and the relationship between the Political party and its
members must be drastically reduced and should at appropriate level
of enthronement and enforcement of internal democracy in all
Political parties in Nigeria by the Electoral Body, be eliminated
and brought  to an end. The Court is not a supervisor or
superintendent in the management of the internal affairs of a
Political party, including its relationship with its members.
 Thus, the Court should neither choose Candidates for a
Political party nor Officers for a Political party. These are
clearly ‘Political Questions’ which should be made non justiciable
by law and be left to the Political parties to handle and resolve
with finality without nay intervention of or interference by the
Courts. To this end, it is suggested that the Constitution of
Political parties should by law be made non justiciable and let the
Political parties decides with finality all such Political
questions for which they are best suited and eliminate all forms
interventions and sometimes clear interferences by the Courts with
the internal affairs of Political Parties.

OUTLAW OR REDUCE TO THE BAREST MINIMUM GROUNDS FOR PRE –
ELECTION MATTERS IN NIGERIA:
I find, and with utmost
humility, the provisions of Sections 31(5) and 87 (1) of
the Electoral Act 2010 (as amended)
as unnecessarily
meddlesome, intrusive and needless interference with the internal
affairs of Political parties on questions which are clearly
political in nature and should therefore, be preserved for the
Political parties to decide with finality politically without the
meddlesomeness of the Courts. Thus, in my view, a law authorizing
and thereby emboldening ‘a person’ who believes
that a declaration made by a Candidate in INCE Form CF001 and
submitted to INEC is false and wants to challenge the declarations
made by a Candidate to do so is a receipt for disaster and should
be amended and expunged without any further delays to insulate the
Courts from delving into matters in Pre – election cases, which are
already part of the qualifications and non – qualifications of
Candidates and are subject to challenge in an Election Petition by
a Candidate in an Election, than to open a duplicitous floodgate,
as has been open, for a deluge of pre – election litigations by
every Tom, Dick and Harry!

It is my view that such a provision must either be expunged or
amended to limit it to any candidate in an election and should be
as part of an Election Petition to obviate the recourse to
countless Pre – election matters which usually now outlive the
Election itself and in some cases even the Election Petitions. The
provisions on qualification, and by implication non qualifications,
as spelt out in the Constitution of Nigeria 1999 (as
amended)
and as earlier set out in this paper, are enough
and can even be amended if need be to accommodate this ground to
put paid to this open vista for ‘a person’ to
commence a Pre – election matter over disqualification of a
Candidate, when that person is not even a member of the Political
party affected nor a Candidate of any of the other registered
Political parties.

To my mind, and I so strongly believe it to be so, this is a
misplaced locus standi! In a recent unreported decision of the
Court of Appeal Benin Division in Appeal No. CA/B/12A/2021:
Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors

delivered on March 8, 2021, I had cause to reiterate inter alia
thus:

    “The provision of Section 31(5) of
the Electoral Act, 2010 (As Amended), talks of ‘a person’ and is
the 1st Respondent not within the meaning ‘a person’ in
Nigeria? The Appellant did not say so!….Thus, it would appear that
going by the succinct provisions of Section 31(5) of the Electoral
Act, 2010 (As Amended).…the meaning of “a person” as used in
Section 31(5) of the Electoral Act 2010 (as amended) presupposes
any person, including the 1st Respondent, since it
appears to be open – ended to all and at the same time inclusive of
all and without any restriction or exclusion. Thus, whether or not
one is a member of a Political Party or any particular Political
party, as in the instant appeal, a PDP Card carrying member
challenging the qualification of a candidate of the APC, is of no
moment as the law allows the 1st Respondent so to
do!”

Now, if the provisions of Chapter II of the Constitution
of Nigeria 1999 (as amended)
dealing with clear socio –
economic rights of the Citizenry is made non –
justiciable5 and the Society is coping well with it, I
do not see any reason, and justifiably so, why the law should not
make all matters touching on and arising from the management of the
Constitution of a Political party as Non Justiciable. I believe
such a step, though radical in nature but very beneficial and
laudable is one sure means for the drastic reduction of Judicial
interventions and or interferences in the internal affairs of
Political parties in Nigeria, and would also be accommodated by the
society to ensure the reduction to the barest minimum of Pre –
election matters in Nigeria.

Political parties in Nigeria, though they pride themselves as
political families whenever it suits their fancy, are not a family
in any sense of the word ‘family’ but are mere coming together of
persons with common interest but with neither common aspirations
nor permanent interest such that aggrieved members should be able
to exit a Political party without bringing the roof down on the
party. In order words, where strict observance of the Constitution
of Political parties is made a sine quo non for its continued
existence by law and where internal democracy is achieved, any
decisions taken by such a Political party as affecting its members,
being a political question, should be final and a member who feels
so aggrieved should exercise the option of exiting such a Political
party and join or form another one if he feels so strongly about
it. After all, ‘Judicialization of Politics in
Nigeria’
had since opened and widened the Political
landscape for easy formation of associations for registration as
Political parties in Nigeria by the Independent National Electoral
Commission.

However, it would appear that one of the reasons for the
reluctance by aggrieved members to exit heir Political party, which
had dealt unkindly with them contrary to the provisions of the
Constitution of the Political parties and rather inundating the
Courts with Pre – election cases, is the absence of independent
candidacy in the Nigerian Constitution and thereby limiting the
political landscape and space. It is therefore, suggested that
serious thoughts should be given to the possibility of re – or
introducing independent candidacy into our National polity and
Electoral system. Truly, there are some individuals in Nigerian
societies, who are formidable in character and totally accepted by
their people, and who can hold their own and do even better in a
free, fair and credible election against any Political parties in
their own localities.

It is therefore, suggested and with the deepest humility, that
the Nigerian Judiciary should be spared the duty of resolving any
legal question bordering on a political question, involving the
issue of internal affairs of Political parties and politics in
general. Politics should be left for those best suited for it – the
Politicians! It is a truism that in advanced democracies the
Judiciary does stay clear of ‘Political Questions’6
which are better decided by the concerned other Coordinate arms of
Government. In my view, once proper modalities and needed
amendments are made to our Electoral laws and all other laws
enabling it in that behalf and internal democracy and supremacy of
Political parties is duly established in Nigeria and accepted by
the members of Political parties, the Judiciary being made to stay
clear of all issues bordering or involving ‘political questions’
would not amount to any abdication of judicial responsibilities by
the Courts staying away from determining a any legal questions
bordering on a political question.

The Judiciary, I am aware and it has been said so consistently
over the years, is never hungry for jurisdiction and therefore,
where there is no jurisdiction it would not go out of its way to
assume jurisdiction. For example, it has been the settled position
of the law that the provisions of Chapter II of the Constitution of
Nigeria 1999 (as amended), notwithstanding their importance dealing
with the socio – economic rights of the Citizenry, are non 
justiciable unless and until the Legislature legislates on any
aspect of it to make it justiciable and it has ever since remained
so and no Court had ever dabbled into it no matter how overzealous
or altruistic such interventions would have been for the interest
and benefit of the people of this Country being brazenly deprived
of their socio – economic rights by Government after Governments at
all levels in this Country. See generally, Onuoha V. Okafor
(1983) NSCC 494; Alegbe V. Oloyo (1983) NSCC 315;

Balarabe Musa V. PRP (1981)2 NCLR 453;
Dalhatu V. Turaki (1981)2 NCLR 763; Inakoju V. Adeleke (2003)7 SC
1; AGF V. Abubakar (2002) 14 NWLR (Pt. 788) 466; AC V. INEC (2007)1
SC (Pt I) 1; Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 222,

and Amaechi V. INEC (2007)12 NWLR (Pt. 1048)
367.

Thus, it would appear that both Sections 87 (1) and
31(5) of the Electoral Act 2010 (as amended), 
which
seems to be the two principal sources of Pre – Election Matters in
Nigeria, would serve no further useful purposes if the far reaching
amendments being suggested in this Paper are accepted and adopted
and all issues arising under Sections 31(5) & (6) and 87
(1) of the Electoral Act
2010 (as
amended),
 are vested either in the Political Party
or the Political Parties Commission and or INEC to deal with
finality as political questions and therefore, non – justiciable.
In such an Electoral System or regime, such cases as
Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367, and
all other cases in that line of authorities would have been
rendered needless and unnecessary if there is the suggested legal
mechanism to investigate and sanction Political Parties for failure
to observe internal democracy and abiding by their Constitution
with the possible sanction of proscription. In such circumstances,
Chibuike Rotimi Amaechi and others in his shoes
would not have in the first place been denied of the ticket but for
lack of internal democracy and complete absence of sanction for
such conducts by Political Parties.

The above suggestion if accepted, adopted and implemented would
further insulate the Judiciary from intervening in such matters
which truly borders on the supremacy of the Political parties where
there is functional internal democracy and a legal mechanism to
sanction default by Political parties. Thus, Sections 31(5)
and 87(1) of the Electoral Act 2010 (as amended)
are, in
my view, completely unnecessary since issues bordering on
qualifications and disqualifications of Candidates at an Election
in Nigeria have already been comprehensively dealt with in the
Constitution of Nigeria 1999 (as amended) and
therefore, allowing ‘a person’ to challenge a Candidate before the
election proper is held is completely distractive but has
regrettably become one of the major sources of
‘Judicialization of Politics in Nigeria’.

There is therefore, the serious or dire need in Nigeria for the
expansion of the frontiers of the ‘Political Question’ doctrine and
thereby making the provisions of the Constitutions of Political
parties as Non Justiciable. There is also the further urgent and
almost imperative need to outlaw Pre – election matters in the body
polity and electoral system in Nigeria by causing appropriate
amendments to the Electoral Act 2010 (as amended)
to that effect. There is also the need, in my humble view, to limit
and restrict the right to challenge the outcome of any elections
conducted under the Electoral Act 2010 (as
amended)
to only the Political party and or Candidate that
was declared in the second position or first runner up to the
Political party and or Candidate declared the winner and returned
as elected by the Electoral Umpire at any given elections in
Nigeria.

LIMITATION OF LEVELS OF APPEALS:  There is
the urgent need in Nigeria, and justifiably so, for Constitutional
limitation of the level of appeals in both Pre – and Post –
Elections litigations. It is suggested that all appeals arising
from all Pre – election matters, in addition to the laudable
Constitutional time lines for their expeditious hearing and
determination, if there still be any need in law for such matters
largely based on political questions within the supremacy of
Political parties to determine with finality, to still be allowed
to inundate the Courts, should end at the Court of Appeal,
notwithstanding the issue or issues canvassed therein by the
parties. There should be no further appeal from the decisions of
the Court of Appeal in Pre – election matters to the Supreme Court.
In respect of Post – election litigations, it is suggested that, in
addition to the laudable Constitutional time lines for their
expeditious hearing and determination, all appeals arising from
decisions of the Election Petition Tribunals in respect of
elections into the National Assembly, Office of Governor and the
State Houses of Assemblies should end at the Court of Appeal,
notwithstanding the issue or issues canvassed therein by the
parties. There should be no further appeal from the decisions of
the Court of Appeal in such Post – election matters to the Supreme
Court. However, in respect of Presidential Election, since the
Court of Appeal serves as the Court of First instance, the appeal
as it is presently the law should continue to lie to the Supreme
Court for final determination.

AMAGALM OF JUSTICES AND JUDGES TO HEAR AND DETERMINE ALL
ELECTION PETITIONS ONCE AND WITH FINALITY
: There is the
need to reduce the time, energies and resources as well as tensions
in the land over Post – election matters by Constitutionally
providing for an amalgam of Justices and Judges to sit together as
the Election Petition Tribunal and their decisions reached thereon
on any Election Petition within the Constitutional time lines of
180 days as final, and therefore, not subject to any appeals. To
this end, in constituting the various Election Petition Tribunals,
Justices and Judges shall be drawn from all the hierarchy of Courts
in Nigeria into each Election Petition Tribunal or Court and making
their decision once given final. This will obviate the huge
resources and time and space usually allocated in Nigeria for
myriads of Election Petition Tribunals and Courts on appeals to
Post – Election litigations to the detriment of other equally, if
not more important, National and Citizenry based issues in the
Courts, which takes the back seat and play the second fiddle to
Post – election Matters. Thus, for all Councilors and Chairmen
Elections, all Election Petitions, qualified to be heard by an
Election Petition Tribunal, should be heard and determined by an
Election Petition Tribunal made up of three persons, including a
High Court Judge as Chairman, one Chief Magistrate and one Legal
Practitioner as members and their decision, which must be reached
within 90 days, shall be final. For all States Houses of Assembly
and National Assembly Elections, all Election Petitions, qualified
to be heard by an Election Petition Tribunal, should be heard and
determined by an Election Petition Tribunal made up of three
persons, including one including a Justice of the Court of Appeal
as Chairman and two High Court Judges as members and their
decision, which must be reached within 180 days, shall be final.
For all Governorship and Presidential Elections, all Election
Petitions, qualified to be heard by an Election Petition Tribunal,
should be heard and determined by an Election Petition Tribunal
made up of five persons, including a Justice of the Supreme Court
as Chairman, two Justices of the Court of Appeal and two Judges of
the High Court as members and their decision, which must be reached
within 180 days, shall be final.

In my view there is absolutely no need for the dissipation of so
much energies, huge resources and the limited available judicial
time to be spent all on Post – election litigations running all the
way through the Judicial hierarchy from the Election Petition
Tribunals to the Court of Appeal and in some cases to the Supreme
Court to the huge detriment of all other cases involving equally
and most importantly the lives. livelihood, wellbeing, rights,
obligations and liabilities of the vast majority of the people of
Nigeria, when all Post – election matters can and should be dealt
with decisively and with finality by an amalgam of Justices and
Judges from all the level of hierarchy of Courts once and for all.
In truth, it is the same Justices and Judges that would still hear
all these Post – election matter and their unending appeals in the
staggered manner it is presently being done in Nigeria.

The above suggestions, which seems radical and even
revolutionary in a sense, are open to debate and fine tuning but it
is my belief that it is one of the panacea to the feared
‘Judicialization of Politics in Nigeria’ wherein
the intervention of the Judiciary is being eradicated in Pre –
election matters and drastically minimized in Post – election
matters to just one level of intervention. In reality, and in
practical terms, this would also reduce if not eradicate the
pervasive and much touted allegations and inference of judicial
corruption in the handling of both Pre – election and Post –
election matters in Nigeria. It does appear, from my close study of
the determination of Presidential Election Petitions during my
international assignment in Sierra Leone, that an amalgam of
Justices from the Supreme Court of Sierra Leone, Justices from the
Court of Appeal of Sierra Leone and Judges from the High Court of
Sierra Leone are empaneled at once as the Presidential Election
Petition Tribunal to hear and determine all Presidential Election
Petitions once and for all and with finality, with no room for any
appeals.

OBITER: NEED FOR INTEGRITY BASED POST – ELECTION
LITIGATIONS IN NIGERIA
: For integrity
based and seamless Post – election litigation in Nigeria, which is
an integral part of the election processes and a requirement for
free, fair and credible elections in Nigeria, there is need, in the
appointment of Judges to the Election Petition Tribunals, to be
based solely on integrity and merit. Only Judges with proven record
of integrity and commitment to their duties should be considered
and so appointed. They must demonstrate their personal commitment
to rendering undiluted justice and that persons to finally emerge
as winners or duly elected must reflect the true wishes of the
electorates as expressed by them through their votes, which must
count! There must be intensive and regular training for all Judges
of all the cadre of the Courts from whose pool Judges are appointed
to the Election Petition Tribunals coupled with specific training
for those eventually so appointed. There must be enhanced
allowances to the Judges so appointed to assure their integrity,
which is measured by their commitment to principles of justice and
fairness and ensure their contentment, which is receiving with
contentment what one should get as approved allowances and not
necessarily what one ought to get. There should be timely approval
and prompt releases of funds earmarked for Post – election
litigations and improved facilities for the operation of the
Election Petition Tribunals across Nigeria. It must always be kept
in mind that the 2023 General elections are almost around the
corner and it is a very crucial election in Nigeria coming
immediately before the completion of tenure of most of the
incumbents in 2023.

CONCLUSION

The theme of this Law Week: “Judicialiszation of
Politics in Nigeria”
is novel and so also is the treatment
of it in this Paper, both novel and radical! It has been
demonstrated that though the Courts are empowered by the
Constitution of Nigeria 1999 (as amended), in various of its
provisions, particularly Section 6(6)(b), to hear and determine
disputes between the Citizenry and also as between the Government,
its institutions and the Citizenry, yet there are clearly defined
circumstances in which the Courts would decline to intervene
whenever they are not endowed with the requisite jurisdiction by
law so to do. The classical example of this, though many others
abound, is the provision of Chapter II of the Constitution of
Nigeria 1999 (as amended0, dealing with the very important socio –
economic rights of the Citizenry but yet made non justiciable by
law, and the Courts do stay away from intervening!

In Electoral matters, whether in Pre – election and or Post –
election litigations, the Courts have unwittingly with no fault of
their own been inundated with a deluge of Political cases.
Interestingly, nowhere is the deluge or avalanche or indeed the
tsunami of Political cases felt more nowadays than in Pre –
election matters, with the potential to rise through the base of
the superior Courts to the Apex Court on the pyramid and with
infinite possibilities, including the removal of persons already
sworn or about to be sworn into office. It has been suggested that
if adherence to internal democracy by due compliance by Political
parties with the provisions of their Constitutions is secured and
strictly enforced with sanctions for any proved breaches by either
the Independent National Electoral Commission or by the new
proposed body, the Political Parties Commission, and since the
principal grounds for the deluge of Pre – Election matters
inundating the Courts are issues bordering on lack of internal
democracy and making it seem there is “Judicialization of
Politics in Nigeria”
all such grounds for Pre – election
matters can be accommodated through pertinent amendments to the
extant laws and be incorporated into Post – election matters, and
therefore, Pre – election matters should be done away with in its
entirety or reduced to the barest minimum in Nigeria.

Finally, it has also been suggested that Post – election matters
be heard and determined by Election Petitions Tribunal constituted
by an amalgam of Justices and Judges from the hierarchy of the
Courts in Nigeria and be heard and determined once and for all with
finality within the Constitutionally stipulated time lines of 180
days, with no appeals.

Now, I must point it out at once that the scope of this novel
theme is huge but I have in these few 44 pages endeavored to, as
much as practicable, put down my thoughts and it is my hope that,
though it is almost impossible for a single paper of this nature to
cover the field, this paper would lead to fruitful deliberations
and thought provoking discussions and if that happens, then my
task, which at first appeared daunting and herculean, would have
been faithfully discharged.

APPRECIATION

I have in these few 44 pages attempted to put my thoughts on the
theme, though novel, as assigned to me as much I understand it.
However, I do not claim to have covered the field, bearing in mind
the novelty of the theme. I only hope that I have been able to
present this paper in a manner that is understandable and
underscores the crucial importance of the issues discussed herein.
It has been a privilege for me to prepare and present this Paper. I
express my deepest appreciation to Barr. Felix T. Okorotie, the
Chairman, the Executives and Members of the Yenagoa Branch of the
Nigerian Bar Association, as well as Prof Solomon T. Ebobrah, the
Chairman and Members of the 2021 Law Week Planning Committee, for
this singular honor and privilege. I acknowledge and appreciate all
the Writers and Scholars, whose works I had used in the preparation
of this paper for the guidance offered by their very enriching
works. However, I bear full responsibility for every errors or
omissions in the contents of this paper. In all, it has been a most
refreshing and rewarding exercise for me preparing and presenting
this paper before this distinguished participants. The joy of this
fellowship has been mine indeed! To God, Be all the Glory,
Amen.

Sir Biobele Abraham Georgewill JCA, DSSRS,
Ksc

Court of Appeal, Benin Division

Lord Chancellor, Diocese of Niger Delta, Church of
Nigeria Anglican Communion

Former Chairman, Presidential Investigation Panel of
Rules of Engagement by the Nigerian Armed Forces in the Fight
Against Insurgency and Militancy

Immediate Past Chairman, Sierra Leone Presidential
Commission of Inquiry on allegation of Corruption Against the
Government of President Dr. Ernest Bai Koroma from 2007 –
2018. 
 

BIBLIOGRAPHY

  1. See “Culture of Failed Elections: Revisiting Democratic
    Elections in Nigeria, 1959 – 2003” by Michael M. Ogbeidi University
    of Cape Coast, Ghana.
  2. See “The Courts And Internal Democracy
    In Political Parties” by Dr. Muiz Banire October 8,
    2018.
  3. See “Challenges of Internal Democracy in Nigeria’s
    Political Parties: The Bane of Intra – Party Conflicts in The
    Peoples Democratic Party of Nigeria” by Chris C. Ojukwu & Tope
    Olaifa 2011 Global Journals Inc. (US).
  4. ibid
  5. “Non – Justiciability of Chapter II of the 1999
    Constitution: A Hindrance To Nigeria’s Development” By Festus
    Ogun.
  6. For further readings on the issue of Political Question
    and Non – Justiciability, See “Justiciability Theory Versus
    Political Question Doctrine: Challenges of the Nigerian Judiciary
    in the determination of Electoral Cases” By W
    ahab
    O. Egbewole PhD & Olugbenga A. Olatunji.

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