Analysing Justice Nyako’s miscarriage of justice

AMONGST the high hurdles placed on the chequered paths of Nigerian politicians, as they march towards the much-anticipated 2023 general election is that of overtly exhibited miscarriage of justice. According to the Oxford Dictionary, that comes about as “an outcome in a judicial proceeding that is unjust, especially: an error made in a court of law that results in an innocent person being punished or a guilty person being free.”

Incidentally, one of the most controversial pronouncements that have engaged the attention of patriots in recent months has come from Justice Binta Nyako. The querulous issue that has sparked public outrage was her ruling that one Uche Ogah, who did not contest the party’s primary election as recognised by the All Progressives Congress (APC) was the governorship candidate of that same party in Abia State, for the 2023 election. That runs contrary to the party’s nomination of Ikechi Emenike whose name is already uploaded on the INEC website.

In fact, the APC national chairman, Alhaji Abdullahi Adamu, did not recognise the primary that produced Ogah and has clearly stated so, publicly. Good enough, the Court of Appeal has already affirmed Emenike’s candidacy. And considering the fact that a Federal High Court cannot upturn the decision of the appellate court, Justice Nyako’s ruling has triggered some pertinent, burning questions.

For instance, was she unaware that going by both the constitutional provisions and that of the electoral law, especially Section 84 (3) and (11) that it is the party that decides who the candidate is, and not the courts? So, did the APC err by reaffirming that Ikechi Emenike is indeed, their recognised candidate?

Furthermore, concerned Nigerians are wondering why Justice Nyako would even consider hearing Ogah – who has a pending appeal – in a fresh suit on the same critical matter? Was she not aware that the Court of Appeal had upheld the Emenike’s objection that Ogah filed an appeal out of the appropriate legal time of 14 days? So, why did she go ahead to give her ruling? The answers should be obvious to the public by now.

It would be recalled that Emenike’s lawyer,

Lateef Fagbemi, prayed the court to uphold the nomination of his client, as he was the product of a primary lawfully conducted by the APC National Working Committee.

It therefore, stands both common logic and legality on their heads that Justice Nyako invalidated the indirect primary that Emenike rightly won and ordered that APC should forward Ogah’s name to INEC as its duly elected governorship candidate for the 2023 election in Abia State. Whose interest was she serving by that miscarriage of justice?

As Warren Burger reminded humanity: “Concepts of justice must have hands and feet, or they remain sterile abstractions. The hands and feet we need are efficient means and methods to carry out justice in every case in the shortest possible time and at the lowest possible cost.”

Worthy of note is that Nigeria’s justice system is currently under close scrutiny by enlightened Nigerians. And that is especially one that should be firmly erected on a strong foundation, with the pillars of free, fair, credible and acceptable elections of international standards.

That should begin of course, with party primaries based on internal party democracy. Ogah should therefore, not have erroneously thought about accessing political power through the short cut.

In fact, Justice Nyako’s unbecoming ruling reminds us of the words of Barbara Boxer, an American politician and lobbyist who served in the United States Senate, representing California from 1993 to 2017. As she rightly stated: “We have fought for social justice. We have fought for economic justice. We have fought for environmental justice. We have fought for criminal justice. Now we must add a new fight – the fight for electoral justice.”

In that wise, the aberration of a Justice Nyako over ruling the judgments of the Courts of Appeal and thinking it would stand on the sinking sand of personalising justice is sheer self-deceit. She should have asked Uche Ogah the reason for rushing from Umuahia to Abuja in the search for some shady justice after the Abia APC held parallel governorship primaries in the state.

Though the APC declared Emenike winner of its governorship primary Abia State on May 26, 2022 an Abia High Court in a suit filed by Chinedum Nwole and two others declared that Emenike lacked the locus standi to contest the election because the party had suspended him.

The twist came however, in another ruling when Justice O.A. Chijioke granted Emenike a stay of execution on the restraining order earlier imposed. Another issue he wanted to be decided was if INEC could refuse to publish his name as the APC candidate for the 2023 governorship election.

Subsequently, on June 24, Justice Benson Anya of Abia High Court, Umuahia asked APC to submit Emenike’s name to INEC and for INEC to upload Emenike’s name on its portal. Good for him that the court ruled that INEC could not accept or publish the name of a candidate other than Emenike. But Ogah was not a party to the suit.

It was understandable therefore, that on July 19, 2022 Ogah’s attempt to file an appeal in Owerri against the judgment as an interested party was dismissed. His lawyers filed another appeal in Abuja.

As expected, Emenike’s legal team objected to the motion. It was based on the ground that it was filed out of time, outside the 14 days stipulated for filing of an appeal in pre-election cases. The Court of Appeal upheld the preliminary objection in favour of Emenike.

Ogah then filed a suit at the Federal High Court, Abuja. His lawyer, Solomon Umoh, said that INEC officials monitored the direct primary that produced Ogah as against the indirect primary from which Emenike emerged.

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”

-Martin Luther King Jnr.

What Ogah’s inordinate ambition has brought to the fore is the critical role judicial independence plays as an intrinsic element of constitutional democracy and the rule of law.

The import of the judgments made against Ogah at the Courts of Appeal is because the judges are eminently qualified to invoke the jurisdiction of the Court under Section 87(9) of the Electoral Act. The salutary aim isto examine if the primaries were conducted in accordance with the Electoral Act, the Constitution and the Guidelines of the Party.

Furthermore: “A person who was not a candidate/aspirant at the primaries cannot come to the Court to complain about the conduct of the primaries”. See Onuoha v. Okafor (1983) Vol.1 14 NSCC P. 494; (1983) 2 SCNLR 244; Dalhatu v. Turaki (2003) 15 NWLR (pt.843) P. 310; PDP v. T. Sylva & 2 Ors. (2012) 13 NWLR (pt.1316) 85.

Also, a political party must obey its own Constitution. See Emeka v. Okadigbo (2012) 18 NWLR (pt. 1331) 55 at 88 paras. F - G.

Moving forward, let us be guided by the timely admonition by the American politician and entrepreneur, John Jay Hooker: “The time has come for justice at the ballot box, and justice in the courts, and justice in the legislative halls, and justice in the governor’s office.”

One’s fervent prayer is that the likes of Ogah would not rely on the shoulders of Justice Nyako to rewrite the course of justice but strictly adhere to the tenets of democracy and the Rule of Law, as against anyone’s whims and caprices.