Stopping Courts from Deciding Election Winners
By the time the court would have heard from all of them with the way our present law is couched, the incumbent would have long finished and left his office, and even if the Petitioner finally wins, it will be an empty victory bereft of substance”.
Nigeria conducts the worst elections, in Africa. During the 2003 general elections, a number of the candidates who were rejected by the electorate were declared winners by the Independent National Electoral Commission (INEC), with the connivance of the Presidency. Some compromised results of Governorship elections that could not be declared in the States' collation centres, were announced at the headquarters of the INEC at Abuja. To the dismay of the Nigerian people, the results of such controversial elections were upheld by the election petition tribunals and the appellate courts, on technical grounds. It is pertinent to recall that, the anti- democratic officials who manipulated the election results and subverted the democratic process, were not brought to book. Indeed, some of the highly placed criminal suspects, were protected by the immunity clause in the Constitution.
Through the application of technical rules, many candidates who did not win elections have been adjudged winners by the courts. In fact, the members of the public who cannot appreciate why results of elections are based on technical justice by the courts, have pointedly accused Judges of promoting electoral malpractice. In Buhari v Obasanjo [2005] 13 NWLR (Pt.941) 1 at 145, Justice PatsAcholonu (of blessed memory) underscored the daunting task faced by a Petitioner in challenging election to the office of President or Governor in Nigeria. According to his Lordship: “The very big obstacle that anyone who seeks to have the election of the President or Governor upturned, is the very large number of witnesses he must call, due to the size of the respective constituency. In a country like our own, he may have to call about 250,000-300,000 witnesses.
Regrettably, the observations of Justice Pats-Acholonu and other progressive Judges were ignored by the ruling party, which was a major beneficiary of the subversion of the democratic process. Hence, the official impunity continued and assumed a more dangerous dimension, during the 2007 general election. In line with the declaration of President Obasanjo that the election was a "do or die affair", there was massive violence in several parts of the country, leading to the unlawful killing of hundreds of people by security forces and armed thugs. But, majority of the election petitions which questioned the credibility of the dubious elections were dismissed by the election petition tribunals and the appellate courts, on the grounds that they were not proved beyond reasonable doubt. In Buhari v Yaradua LPELR-S.C 3/2008, the Supreme Court upheld the results of the Presidential election won by the PDP candidate, Alhaji Umaru Yar’adua of the PDP.
Out of the seven Justices of the Court who delivered the judgement, three gave a dissenting opinion. In criticising the majority decision, the three Justices said that the election was not conducted in accordance with the Electoral Act, as the ballot papers were counterfeit, as they were neither marked nor serialised. The judgement was lauded by the then ruling party, the People's Democratic Party (PDP).
But, the winner of the presidential election, Alhaji Umaru Yar’adua, admitted that the election was highly flawed. So, he set up a Panel headed by the Honourable Justice Mohammed Uwais, former Chief Justice of Nigeria, to investigate the electoral malpractice that marred the nation's elections, and recommend substantial reforms of the electoral process. The Panel carried out its assignment with diligence, and made far reaching recommendations.
Regrettably, the Yar’adua administration turned down the basic recommendations of the Panel, which included the appointment of members of the INEC by advertisement, and trial of electoral offences by an ad-hoc electoral offences tribunal. Similar recommendations of the Ahmed Lemu Panel and Ken Nnamani Panel set up by Presidents Goodluck Jonathan and Mohammadu Buhari respectively, were also ignored. Indeed, the Electoral Bill of 2019 which incorporated many of the recommendations of the electoral reform panels which was passed by the National Assembly, was not assented to by President Buhari. Thus, the courts have been saddled with the responsibility to determine the winners of disputed elections.
The Imo State Judgement No doubt, the judgement of the Supreme Court in the recently decided case of Hope Uzondinma & Anor v Rt Hon Emeka Ihediora S.C 1462/2019, was a judicial tsunami in Imo State and beyond. Based on several decisions of the Apex Court, the Imo State election petition tribunal and the Court of Appeal had ruled that, in order to prove the unlawful exclusion of the results in the 388 polling units, the Appellants had to call the polling unit agents to testify to the fact that the Governorship election took place in the said units. In his minority judgement, Oho JCA held that, the onus was on INEC to prove that the results pleaded and tendered by the Appellants were not genuine.
In the leading judgement of the Supreme Court read by KekereEkun JSC, the judgement of the tribunal and majority decision of the lower court were set aside, while the minority judgment of Oho JCA was upheld.
It was her Ladyship's view that, the failure of the INEC to prove the allegations contained in its pleading that the results in the 388 polling units were fake or forged, was fatal to the case of the Respondents. More so, that INEC had pleaded that the genuine results would be produced at the trial, which it never did. Thus, she held that: "The authorities of this court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not applicable in the circumstances." The Apex Court also faulted the rejection of the evidence of the Deputy Commissioner of Police,
“IN THE LEADING JUDGEMENT OF THE SUPREME COURT READ BY KEKERE- EKUN JSC, THE JUDGEMENT OF THE TRIBUNAL AND MAJORITY DECISION OF THE LOWER COURT WERE SET ASIDE, WHILE THE MINORITY JUDGMENT OF OHO JCA WAS UPHELD"
who tendered the collated results of the 388 polling units that were excluded by INEC. While relying on the authority of Nnadi v Ezike (1999) 10 NWLR (Pt 622) 228, the court said that the police officer was properly summoned by the Court "to show that the scores recorded therein were excluded from the Forms EC8B (ward collation results)".
Since the Apex Court adduced reasons for the judgement last week, a number of Lawyers have subjected it to all manners of interpretations, in the social media. As far as I am concerned, the judgement has radically changed the nation's electoral jurisprudence. It has also taken care of Justice Pats-Acholonu's concern, that a Petitioner in a Presidential or Governorship election would need to call 250,000 and 300,000 witnesses
to prove the allegations of electoral malpractice. It also means that, an election petition can be proved on the basis of election results tendered properly by one or two witnesses, including police officers.
Since election petition tribunals and courts cannot be substituted for the electorate, their decisions which are essentially based on technicalities have exposed the judiciary to unprecedented ridicule. Street protests are now organised, to discredit the decisions of the Supreme Court. However, Lawyers and politicians who are bent on demonising the Supreme Court, are advised to appreciate that the courts exist under a bourgeois democratic dispensation, to resolve conflicts among members of the ruling class. Contrary to the general belief, the court is not the last hope of the common man as he is barred from gaining access to the court, due to lack of financial means.
Accordingly, the critics of Nigerian courts want to learn from the Plaintiff in the celebrated case of Gore v Bush 531 U.S. 98 (2000). In a split decision of 5-4, the election of George Bush was upheld by the United States Supreme Court. But, in his powerful dissenting opinion in the case, Justice John Paul Stevens said that, the court's majority decision ''can only lend credence to the most cynical appraisal of the work of Judges throughout the land''. The dissenting opinion which was endorsed by Justices Breyer and Ruth Bader Ginsburg, added:
''It is confidence in the men and women who administer the judicial system, that is the true backbone of the rule of law. Time will one day, heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the nation's confidence in the Judge, as an impartial guardian of the rule of law.''
In his reaction to the judgement Mr. Gore said that "I accept the finality of the outcome, which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity as a people and the strength of our democracy, I offer my concession.”
No doubt, Nigerian politicians are not as mature as Mr. Al Gore, to appreciate the role of the courts under a bourgeois democratic dispensation. However, with the increasing involvement of armed troops and thugs in the electoral process, the situation is getting much worse than the days of "do or die" elections. Meanwhile, electoral offenders are sacred cows.
Instead of teaming up with politicians to discredit the courts, Nigerian Lawyers ought to be worried that, our country records the highest number of election petitions in the world. But, while the winners of many disputed elections may never be known, the loser which is the judiciary, will always be known. The only way to prevent tribunals and Judges from deciding the winners of elections, is for INEC and State Independent Electoral Commissions, to conduct credible elections.
Femi Falana, SAN, Human Rights Lawyer and Activist, recipient of the prestigious the International Bar Association’s Bennard Simmons Award
“WHERE EVIDENCE IS EVALUATED BY THE APPELLATE COURTS AND IT IS FOUND THAT SOME VOTES WERE WRONGLY EXCLUDED OR WRONGLY CREDITED TO THE RESPONDENT, THE APPELLANTS COURTS HAVE A DUTY TO EXPUNGE THOSE OFFENDING VOTES OR ADD THOSE RESULTS WHICH WERE WRONGLY EXCLUDED”