‘Courts Cannot Choose Candidates for Elections’
Since the Nigerian Bar Association’s Section on Legal Practice bounced back after a two-year hiatus, it has not looked back in fulfilling its mandate to provide continuous legal education to its members. Again, the Section brings Nigerian Lawyers, Judges, Officials of the Independent National Electoral Commission, and other Stakeholders to Port Harcourt, the Rivers State capital on December 3, 2018, for a one-day Conference themed “The Role of Litigation in the 2019 Nigeria Electoral Process”. Onikepo Braithwaite and Jude Igbanoi had a chat with the Chairman of the Conference Planning Committee, Chief Ferdinand Orbih, SAN, on what the Conference seeks to achieve, and what Lawyers should look forward to in Port Harcourt
“The Role of Litigation in the 2019 Nigeria Electoral Process”, is the theme of the upcoming NBA Section on Legal Practice’s Committee on Democratic Process and Electoral Litigation’s one day Conference holding in Port Harcourt on December 3, 2018. As the Chairman of the Conference Planning Committee, what would you say is the purpose of this conference? What does the SLP intend to achieve with this conference?”
The Section On Legal Practice was set up by the Nigerian Bar Association, to among other things, assist its members to develop and improve their legal services to the public and promote and provide Continuing Legal Education. These aims and objectives of the Section, cannot be successfully achieved if it does not convene from time to time hold conferences such as the forth coming one, in order to sensitise the members of the legal community and indeed, Nigerians, about the laws, practices and procedures affecting every aspect of legal practice. There is no gain saying that, election petition litigation has assumed a very important role, in determining the eventual outcome of most political contests in our country. That being the case, it has become imperative to create a forum where Lawyers, Judges, politicians, the citizens, and the political umpire (INEC), can come together for cross- pollination and cross-fertilisation of ideas, with a view to deepening the political space. These, amongst other things, are what inspired the Section on Legal Practice (SLP) of the NBA and its Committee on Democratic Process and Electoral Litigation to come up with the idea of this conference, which shall take place on the 3rd of December, 2018 in Port Harcourt.
The conference is thus, aimed at a thorough examination
“THE BIG QUESTION HERE IS: CAN WE USE ADR MECHANISMS, SUCH AS MEDIATION, CONCILIATION AND ARBITRATION, TO RESOLVE ELECTORAL DISPUTES? LOOKING AT THE TYPICAL NIGERIAN POLITICAL COMBATANTS, THE ANSWER TO THIS QUESTION APPEARS TO BE A RESOUNDING “NO”. THE ANSWER TO THE QUESTION APPEARS TO BE IN THE NEGATIVE, BECAUSE IN NIGERIA, ALMOST EVERY POLITICAL BATTLE APPEARS TO BE “A FIGHT TO FINISH””
“ACCORDING TO THE PRESIDENT OF THE COURT OF APPEAL, A TOTAL OF 730 ELECTION PETITIONS WERE FILED AFTER THE 2015 GENERAL ELECTIONS. OF THESE, 39 WERE GOVERNORSHIP, 79 SENATORIAL, 179 HOUSE OF REPRESENTATIVE AND 380 STATE HOUSES OF ASSEMBLY ELECTION PETITIONS. IN ADDITION, 32 ELECTION PETITIONS ARISING OUT OF THE ELECTIONS CONDUCTED IN EDO AND ANAMBRA STATES, IN 2016. HER LORDSHIP SAID THAT, A TOTAL OF 110 TRIBUNALS WERE SET UP WITH 255 JUDGES TO HEAR THE PETITIONS. THESE FIGURES ARE INDEED VERY WORRISOME”
of every aspect of Nigerian election petition jurisprudence, in order to improve the system where necessary, and also prepare all stakeholders in the electoral process, to play their role in a most effective manner. We intend to use law as a tool for social engineering, as far as the electoral process is concerned.
With what Nigerians witnessed during, for example the APC Party Primaries, it is obvious that there will be challenges come 2019 elections. Is the Conference a way of training Lawyers, and sensitising INEC and the Judiciary of the tasks ahead and the roles they will play? Is one day sufficient for such a crucial program?
Let me start by saying that, it will be unfair to isolate the APC, and pin the label of turbulent primaries on it. The problem of turbulent primaries was not peculiar to the All Progressives Congress (APC). The Peoples Democratic Party (PDP), the Social Democratic Party (SDP), the All Progressives Grand Alliance (APGA), the Accord Party (AC) and indeed, all the major political parties, had their fair share of the problems associated with electoral contests in Nigeria. Indeed, there are challenges already, and many more challenges as we march slowly
but surely towards the 2019 general elections. These disputes and challenges, are the reasons for organising this Conference. We know from experience that most of the disputes associated with these primaries and the forth coming general elections will end up in the various courts and/or tribunals, set up under the Constitution to address such disputes.
At the Conference, Nigerians will have the opportunity to hear directly from INEC; the extent of its preparedness for the forth coming elections, the challenges it faces, and how the courts can enhance the performance of its role in the electoral process. For the political actors, and INEC officials, there is a need to sensitise them, as to what is expected of them under the law, in order to minimise the number of disputes that may arise from their activities. The Lawyers know that, election petitions are highly technical in nature. There is therefore, a need to refresh their knowledge and sharpen their skills is this aspect of legal practice, so that at the end of the day, the country will be the beneficiary.
As for the Judiciary, it will be an opportunity to hear from the beneficiaries of its services- INEC, Lawyers, Politicians and indeed, the public. The Judiciary will thus, have the opportunity to consider whether there is need to revisit otherwise settled principles of law, in order attain the ideals of justice in the electoral disputes that may arise for determination before them.
As to whether one day is sufficient for the Conference, all I can say is that, given the importance of the theme of the Conference, one day may appear inadequate to do justice to it, but sometimes it is not how far, but how well. In other words, the success of the Conference, will be determined not by the length of time slated for it, but by how well such time is managed and the intellectual depth or content of the deliberations.
Can you give us an insight into the personalities that will present and discuss papers at the Conference?
We are not prepared to let the whole cat out of the bag, at this point in time. In different words, we can only partially satisfy your curiosity, to the extent that we will tell you some of topics for discussion and name a few of the experts that will give us the benefit of their experience at the Conference. Our host, his Excellency Governor Nyesom Ezenwo Wike, the Governor of Rivers State, will deliver the keynote address and declare the Conference open. There will be a show case session wherein the topic
“INEC, Judicial Interventions and the Cumulonimbus of Nigeria’s Elections; Bringing 2019 Elections
Under the Radar”, will be x-rayed by experts and stakeholders. We expect INEC to lead this discussion, its level of preparedness, the challenges (if any), the impact of judicial interventions on its activities as far as the forth-coming 2019 general elections, will be discussed by a panel comprising of Governors from different political parties, other members of the Executive, as well as the Legislative arms of government and the Bar. Time will be created for the audience to robustly interact with the panel on the issues, which may arise in the course of the discussions.
After the showcase session, the Conference shall focus its attention on the vexed issue of Burden of Proof in Election Petitions, and whether or not, the time has not come for the Judiciary to embrace reforms in this aspect of our electoral jurisprudence. We shall have yet another session, wherein the topic “Key Issues And Challenges in Conducting Election Petitions In Nigeria” will be presented, and examined in great detail.
Our Panellists and Discussants include, some of the brightest and the best in the field of election petition practice in Nigeria. If you describe them as the crème de la crème of election petition practice in Nigeria, you will not be far from the truth. This team of experts is an admixture of old warhorses or veterans, and a few relatively younger ones. Let us open the window a bit, so that you can peep and see what we are talking about. Mallam Yusuf Ali, SAN E. C. Ukala, SAN, Dr. Onyeshi Ikpeazu, SAN, D. C. DenWigwe, SAN, Chief Charles Edosomwan, SAN, Mrs Victoria Awomolo, SAN, Mr. Kehinde Ogunwimiju, SAN, and Oluwole Osaze Uzzi Esq to mention but a few, are some of the gurus that will be there to either present or discuss papers. Some of our Judges with a great wealth of experience in deciding electoral disputes, will also be there to give us their perspective on the issues. Time will be well managed, so that the audience will have a good opportunity to participate in the discussions.
Does holding this Conference presuppose that litigation is the only mechanism for resolving electoral disputes?
Your question is a very interesting one, because the world is fast moving away from the use of litigation as a dispute resolution mechanism. Mediation, conciliation and arbitration (collectively referred to as Alternative Dispute Resolution), are now the preferred means of settling disputes. The reason for the evolution from litigation to ADR, is that the world has realised that resolving a dispute by litigation does not bring about peace between the disputants. A court or tribunal can resolve a dispute, but the state of war between the
contending parties often remains. Whereas, where resort is made to ADR, the disputants may remain friends. In some instances, a business dispute may be resolved through arbitration, and the parties go back to continue their business relationship. The big question here is: can we use ADR mechanisms, such as mediation, conciliation and arbitration, to resolve electoral disputes?
Looking at the typical Nigerian political combatants, the answer to this question appears to be a resounding “no”. The answer to the question appears to be in the negative, because in Nigeria, almost every political battle appears to be “a fight to finish”.
In intra-party disputes, even the internal dispute resolution mechanism embedded in the political parties’ constitutions, is either ignored by the political gladiators, or is rendered ineffective. This, more than anything else, is responsible for the gale of defections by politicians from one political party to another, during the conduct of their party primaries. The reason why the ADR is hardly used to settle electoral disputes, is the nature of the dispute itself. In every electoral dispute, the winner takes all. There is no method to split the spoils of victory.
The nature of electoral contest not withstanding, some countries such as the United States of America (in some States), have statutory provisions that make it mandatory for disputants in electoral contests to first and foremost have resort to ADR, before approaching a court or tribunal for a resolution of their dispute. The same is also possible, in Nigeria. More importantly, political parties must strengthen their internal dispute resolution mechanisms, in such a manner that, their members will have confidence in submitting their grievances to it. That is what it is supposed to be, and hence, the legal principle that courts do not ordinarily have jurisdiction to entertain a pure intra party political dispute. Courts shy away from such disputes, because it is ordinarily not the business of the court to choose candidates for a political party at an election. If courts were to be saddled with the business of choosing candidates, then they should also be prepared to go out and campaign for such candidates. Surely, that will be most undesirable, indeed.
However, it must be pointed out that, in some exceptional situations, the Electoral Act 2010 (as amended), empowers the court to look into disputes, arising from primaries conducted by the political parties to choose their candidates. The time, space and forum provided by this interview, does not permit us to look at these exceptions in detail. Suffice it to say that , they are mostly restricted to situations where a political party, in
‘COURTS CANNOT CHOOSE CANDIDATES FOR ELECTIONS’
conducting its primaries, blatantly refuses to follow the provisions of the Electoral Act or its own constitution.
The Chief Justice of Nigeria recently gave instructions to the effect that, all electoral matters must be concluded before the end of November, 2018. How feasible is this? What effect would it have on matters that are not concluded within this stipulated period?
These particular questions, are difficult for us to answer at this point in time. The questions appear simple, but we do not have sufficient facts to answer them. It is true that, newspapers reported that the Chief Justice of Nigeria said so. However, newspaper reports of this statement made by the Chief Justice of Nigeria, Honourable Justice Walter Onnoghen, without more, are not helpful. The feasibility or otherwise of this directive by the CJN, and the effect it would have on matters that are not concluded within the stipulated period, would be dependent on the nature and content of the statement. For instance, is it a policy statement? Is the statement in the form of a Practice Direction? Is it applicable to all electoral matters? Is there a cut off point? In other words, if it is a Practice Direction, what is the effective date? Is its applicability restricted to the pre-election matters pertaining to the 2015 general election, or those pertaining to the 2019 general election? These questions must first be answered, before we can answer your question pertaining to the statement attributed to the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen.
However, the point must be made that, time is of the essence in electoral matters. Persons occupying political offices, should be those to whom the electorate has donated its mandate, and not those who stole such a mandate. The system must not, through any act of commission or omission, allow impostors to flourish. This is why, there is a need for speedy determination of electoral disputes, by the courts or tribunals. The Constitution has taken care of delays in the determination of electoral disputes to a large extent, by stipulating the time within which such disputes must be determined. There is however, no similar Constitutional or statutory provision, stipulating time lines within which pre-election matters are to be determined. We must praise the Judiciary, for coming to the rescue, to fill that gap through judicial activism. Our Judiciary has come up with the highly commendable legal principle that, where a matter which qualifies as a pre-election matter, is instituted after an election had taken place, a court will no longer have the jurisdiction to entertain. The exception to this principle is that, if it is the type of dispute which is referable to an Election Petition Tribunal, you may have a second opportunity to litigate it in an election court or tribunal.
It is from this perspective that, the statement attributed to the CJN can be described as a desirable and welcome development. It is in the interest of the polity, that all disputes pertaining to party primaries and/or nomination of candidates, submitted to courts for adjudication, are settled before the holding of the elections to which they relate. To do
otherwise, is to give room to imposters to contest elections without the mandate of their party members.
In other jurisdictions like South Africa for example, we have observed that the number of election petitions, after every national election keeps reducing, and electoral disputes are now almost at a zero level in most African countries. Why then, unlike others, does Nigeria keep experiencing an increase in election petitions? Are most of the cases that of bad losers who refuse to accept defeat, or is that our electoral system is so flawed and fraught with malpractices? What does this say about our democracy?
While it is true that it in other jurisdictions, the number of election petitions after every general election keep reducing, we are not too sure that in Nigeria, it is on the increase. We however, agree with you that, the number of electoral matters following every General Election, is way too many. The figures are staggering. According to the President of the Court of Appeal, a total of 730 election petitions were filed after the 2015 general elections. Of these, 39 were Governorship, 79 Senatorial, 179 House of Representative and 380 State Houses of Assembly election petitions. In addition, 32 election petitions arising out of the elections conducted in Edo and Anambra States, in 2016. Her Lordship said that, a total of 110 tribunals were set up with 255 Judges to hear the petitions. These figures are indeed very worrisome. Those 255 Judges were uprooted from their normal line of duty, to election courts and tribunals. That means that, the cases in their usual courts suffered from lack of attention during the period that they were on election petition duty. This is unacceptable. The question really is: must we as a people, continue like this? This question, must be answered in the negative. If we do not take steps to address the structural deficiencies in our body polity that gave rise to these numerous election petitions, one day the system will collapse on our heads.
There are many factors, that give rise to the numerous election petitions that bedevil the system. The first and perhaps the most important of these, is the Electoral Act, and the burden of proof imposed on the Petitioner. For a Petitioner to succeed in an election petition, the law requires that you must not only prove substantial irregularities, but you must also demonstrate in addition that, the irregularities substantially affected the result of the election. What then, is the correlation between the burden of proof outlined above and the number of election petitions? This legal principle that was designed to reduce the number of election petitions, has produced the opposite effect of increasing them. The burden of proof makes it very difficult for the Petitioner to succeed in the court/ tribunal, and because of this, the Politician would rather rig an election to succeed, than to allow the election to undergo due process. Very often, the Politician would rig an election and tell his opponent to go to the
tribunal, if he or she is not satisfied, knowing fully well the difficulty in setting aside an already declared result. Closely associated with this, is the legal presumption that all declared results are regular until the contrary is proved. Another factor militating against success in election petitions, is the principle that to successfully prove over voting, you must call party agents, polling unit by polling unit, to prove that fact. Even in cases where the electoral documents such as polling units results and Voters Register prima facie show this, the law still requires the Petitioner to call witnesses from the polling units affected, to establish that fact. Now the difficulty in calling these witnesses does not lie in they’re not being available, but on the fact that, a Petitioner will not have sufficient time allowed by law to call them. Where, for instance, a tribunal in a governorship petition gives a Petitioner to prove his petition in a constituency of over 4,000 polling units, how many witnesses can such a petitioner call before he/she runs out of time? At most the Petitioner who is diligent enough to manage the given time well will call a maximum of 150 witnesses. That petition will definitely fail, unless there are other allegations contained therein to sustain it. Given that scenario, politicians will continue to rig elections, and aggrieved politicians will continue to head for the tribunal, despite the fact that it is easier for a camel to go through the eye of a needle, than to succeed.
So, the thing to do is to change the law, but this is easier said than done. The Politicians in the legislature who have the constitutional duty to amend the law, will always consider their interest first. They believe that they will always win elections, and so, would prefer to maintain the status quo. It will take a heavy dose of patriotism, for Politicians to rise up to the occasion, and do the needful in this regard. There is also a pressing need, for the courts to revisit some of the legal principles governing election petitions. Until the point is made that, you cannot rig an election with impunity and get away with it, Politicians will continue to rig elections, and the aggrieved Politicians, will continue to go to court.
Given your pedigree in politics, one would have expected you to be an active participant on the political turf. Your late father, was a national figure in the Shehu Shagari dispensation. Our late father, the inimitable Chief M.C.K Orbih, was indeed, a consummate politician, a grassroots mobiliser, and a philanthropist to the core. At age 24, he was already a council member representing his people at the then Etsako District Council. At 31, he was in the House of Representatives representing the then Afenmai East Federal Constituency. So, he was not only prominent in the politics of the first republic, he was also prominent in the politics of the 2nd Republic.
As to why I am not in politics, I will tell you what most people do not know about me. I am a retired politician. I retired from politics, over 30 years ago. I was a member of the National Republican Convention. I was the first and only Edo State Legal Adviser, of that party. I contested election for membership of the 1988 Constituent Assembly, and lost that election by one vote. I turned my back on politics, because my party the National Republican Convention, refused to congratulate Chief M.K.O. Abiola who won the June 12, 1993 Presidential Election. I felt that so disappointed, that I decided to leave politics for politicians. I have since then, faced my legal practice squarely. And, I have no regrets for leaving politics. My younger brother, Chief Dan Orbih, is carrying the political flag of the Orbih family, and carrying it very well. We are proud of him.
Nigeria’s topmost rank of Lawyers, have been accused of refusing to discourage politicians from engaging in frivolous election petitions. That even when they know such politicians do not have good cases, they still encourage them, by accepting their unmeritorious briefs. What is your take on this?
The fault is not with the top rank of Lawyers, to use your words. There is no Lawyer worth his salt, that will encourage his client to file a frivolous election petition. A good election petition can be lost, not due to the fault of the Lawyer, whether senior or junior, while a bad election petition can be won. Those involved in electoral jurisprudence, will tell you that, so many factors interplay in the process of winning or loosing an election. That an election petition is lost, does not mean that it is frivolous. For instance, in 2012, some election petition appeals, lapsed due to effluxion of time. It was not due to the fault of the Lawyers or the Judges who were supposed to hear them, but the system.
The bottom line is that, we need to revisit and amend the architectural framework of our electoral jurisprudence, if we must positively advance our democracy. Having regard to the foregoing, the need for the Conference on the role of litigation on the 2019 electoral process scheduled to hold in Port Harcourt on the 3rd of December, 2018, cannot be over emphasised. We hope to see This Day Law in Port Harcourt!
We will be there! It sounds like it will be an extremely instructive conference, from which there will be a lot to learn. Too interesting to miss. We look forward to it, and wish you successful deliberations.
Thank you.
“UNTIL THE POINT IS MADE THAT, YOU CANNOT RIG AN ELECTION WITH IMPUNITY AND GET AWAY WITH IT, POLITICIANS WILL CONTINUE TO RIG ELECTIONS, AND THE AGGRIEVED POLITICIANS, WILL CONTINUE TO GO TO COURT”