AVOIDING THE PITFALLS IN ELECTION TRIBUNALS
The former university don advocated the total cancellation of any election with proofs of non-compliance with the Electoral Act, saying judges should not wait until the petitioners prove that substantial non-compliance affects the result, insisting that doing so would only amount to double jeopardy.
“Once there is any malpractice, fraud, manipulation, etc, which affects the outcome of an election, the election must be nullified regardless of whether the beneficiary of fraud had a hand in the malpractice. No one who does not have the electoral mandate of the people should be sneaked in by such a perverse logic. That is mandate stealing by judicial assistance.”
Sagay is not alone in this line of thought. Senior lawyer, Chief Udechukwu Udechukwu (SAN), faulted one of the grounds upon which an election may be questioned and consequently declared invalid by reason of corrupt practices as stipulated in 138 of the Electoral Act 2010. He cited the case of Oyegun vs Igbinedion (1992) 2 NWLR (PT 226) 747 at 759B where the Court of Appeal held that: “an elected candidate cannot have his election nullified on the grounds of corrupt practices or any other illegality committed in the process of the election unless it can be proved that the candidate expressly authorised the illegality.”
Speaking at a summit organised by the Negotiation and Conflict Management Group (NCMG) in Lagos, Udechukwu noted that one of the major reasons the courts have not been able to resolve most election disputes brought before them effectively since independence, is what happened in the case of Oyegun vs Igbinedion in 1992, adding that cheating is a gross malpractice and an illegality whether the petitioner was able to prove his case or not.
He said many years after the decision of the appellate court in the Oyegun vs Igbinedion case, various tribunals and appellate courts in the country have been using the decision to sustain in-office persons whose elections into public offices are manifestly indefensible and unjust to the polity. He added that it has always been disgusting to see legal practitioners stand before a tribunal to cite the case with every air of erudition and profundity and described it as “legal absurdity.”
He stated that by the principle in the case of Oyegun vs Igbinedion, even if a tribunal is confronted with a complete and irrefutable legal evidence, and the integrity of a process of election had been debased, discredited and totally eroded by corrupt practices and other illegal acts of persons other than the winner of the election, the winner would still be entitled to that result even if the electors had been evidently massively defrauded of their franchise.
He cited the case of Ogwuegbu vs Agommouo where a tribunal and the Court of Appeal refused to declare a winner based on the valid results, holding that the voters in the areas where the results were cancelled should have their rights to vote restored to them through a re-run in those areas. He stated that whereas recently, in the cases of Edo, Ekiti, Osun and Ondo states, the Court of Appeal declared Governors Adams Oshiomhole and Kayode Fayemi winners from valid votes cast alone.
According to him, given the propensity of the typical political practitioner in the country for rigging elections and the prevalence of corruption in the system, the legal framework for election dispute resolution as envisaged under the 2010 Electoral Act as earlier models, is mockery of justice and fair play and that it does not have any intention to redress genuine electoral disputes.
He submitted that the legal framework aims at technical justice even when the Supreme Court has consistently declared that technical justice is no justice at all.
On his part, former Edo State Governor, Prof. Oserheimen Osunbor, said another issue which could pose a serious challenge to the tribunals is where after invalidating and nullifying a substantial number of votes scored by a winner, declare the loser at the polls winner.
Osunbor, who has been a victim of such an abuse of power, spoke as guest speaker at the Nigerian Pilot Newspaper event. He called for an amendment to the 1999 Constitution that would bar election petition tribunals or courts from invalidating and nullifying a substantial number of votes scored by a candidate, who has been sworn into an elective office and declaring the petitioner or challenger at the polls the winner.
He sought to know why the National Assembly did not reintroduce in the Electoral Act, the provision in Section 140(2) which was struck down by the court considering the serious threat to democracy that it was meant to avert.
“Where an election tribunal or court nullifies an election on the grounds that the person who obtained the highest votes at the election was not qualified to contest the election or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election.
“Another issue that may pose a serious challenge to us as a nation is where courts or election petition tribunals, after invalidating and nullifying a substantial number of votes scored by a winner, declare the loser at the polls winner in the court of law. We have seen this happen in elective positions up to the office of governor. Elsewhere, election results are supposed to be a reflection of the will of the voters but often in Nigeria the voters are completely disregarded, their right to vote negated and their will rendered irrelevant.
“Instead, the will of one presiding judge, sitting with subordinate trusted judges, is substituted for the will of the entire voting population which may run into millions. There is obviously something intrinsically wrong with this practice and it may, if left unchecked, have grave security and other consequences for the judiciary, a state or even the country as a whole in future. Mindful of the inherent danger that this portends, the National Assembly introduced in the Electoral Act 2011 a provision in Section 140(2).
“However, in the case of Action Congress vs National Assembly, a Federal High Court in Lagos struck down the provision as being unconstitutional as it amounts to an infringement upon the discretionary powers of the court under Section 6 of the constitution.
“Considering the serious threat to democracy that it sought to avert, one would have expected the National Assembly to re-introduce the provision by way of amendment to the constitution. Regrettably, this is not part of the constitution amendment proposals recently passed by the National Assembly now before the House of Assembly of the states for their approval.”
Osunbor warned that the country’s democracy and national transformation could be imperiled or remain unfulfilled unless the judiciary overcomes some of its current challenges and negative tendencies which have cast a big dent on its image and become a source of serious concern to many.He advised judges that the jurisdiction of an election petition tribunal should be limited to either upholding an election or annulling it where it is satisfied that the elections were marred by malpractices or substantial non-compliance with the provisions of the Electoral Act.
He noted that where an election is nullified, the only order open to the court should be to order fresh elections, which will be subjected to close monitoring by election observers to prevent a repeat of the malpractice.
The Professor of Law and two-time senator advised the President of the Court of Appeal not to sit on appeals from election petition tribunals empanelled or constituted by him, saying the current system whereby the President of the Court of Appeal appoints the panelists and thereafter sits on appeal from their judgment may create the impression in the mind of the loser that justice has not been done.
While arguing that corruption in the courts is not limited to judges, Osunbor called on the President of the Nigerian Bar Association, to restore discipline and good conduct in the legal profession. He alleged that some lawyers, including senior lawyers, connive with the opposing party to sabotage their client’s case in return for billions.
“The jurisdiction of an election petition tribunal should be limited to either upholding an election or annulling it where it is satisfied that the elections were marred by malpractices or substantial non-compliance with the provisions of the Electoral Act. Where an election is nullified, the only order open to the court should be to order fresh elections which will, of course, be subjected to close monitoring by election observers to prevent a repeat of the malpractice.
“It is an absurdity for a flawed election to produce a winner especially where a very high number of the votes recorded have been nullified and a large number of the voters thereby disenfranchised. The current situation whereby both INEC and the judiciary share the job of declaring a winner after an election should stop. Elections should be won or lost at the polls, not in the court of law.
“Corruption in the courts is not at all limited to judges as it is believed that some lawyers, including senior lawyers, connive with the opposing party to sabotage their client’s case in return for billions – a most grievous act of professional sacrilege, which should attract the attention of the President of the Nigerian Bar Association, in his commitment to restore discipline and good conduct by members of the legal profession. I commend him for showing good leadership.
“Again, it will be a mistake to assume that in all cases where judges are compromised, it has been due to financial inducements. Others may be due to intimidation, threats or blackmail by persons in position of authority over them. It is not in every case that money changes hands or is the primary method of inducement,” he said.
While admonishing tribunal judges as sitting begin in the various states of the federation, eminent lawyer, Chief Afe Babalola (SAN), charged the judicial officers, especially those handling election petition matter to dispense justice without fear or favour.
Babalola, while delivering a paper titled: ‘This Branch Must Not Fail: Exploring Paths to a New Future for the Nigerian Judiciary,’ said for the judiciary not to witness the type of the embarrassment it has witnessed in recent time, serving judges should not be allowed to hear election petition cases.
He argued that instead, retired judges should be made to handle these matters. He stated that while it may be true that retired judges may not be totally immune from corruption, it cannot be denied that they will, due to their age and experience, be less influenced by factors such as career advancement and monetary inducement.
The senior advocate said those who want justice from the society have important roles to play, stating that it was important for people to know that they owe the duty not to interfere with or corrupt the administration of justice.
He suggested that if the judiciary is to get out of the difficult situation it has found itself in recent time, a panel of enquiry similar to the late Justice Kayode Eso panel should be set up to investigate unethical behaviour, alleged cases of corruption, ineptitude resulting in low productivity, mal-administration and identify lazy, old fashion and incompetent judges.
He equally warned against leaking judgments to some parties in advance, even as he warned against delivering contradictory judgments, saying judges by their position are dispensers of justice and decide disputes that are brought before them in accordance with law.
“It cannot be gainsaid that the duty of the judge is probably the most crucial. The Judges have the sacred duty to ensure that justice is done to the parties in the cases adjudicated upon by them. But before the Judge can dispense justice, he must possess the necessary judicial qualities of integrity, deep knowledge of the law, honesty and a sense of justice itself.
“Judges don’t bribe themselves. They don’t corrupt themselves. It is litigants that corrupt the judiciary. In Election Petition matters for instance, the choice of legal representation by some politicians is informed not by the competence of the said Legal Practitioner but on their states of origins or religious background to match the origins and religious backgrounds of the members of the panel.
“In other words, the politician upon learning that the Chairman or majority of the members of the panel are from a certain part of the country or of a particular religion will immediately appoint a lawyer of a similar background in the warped belief that the fact alone will make it easier for the lawyer to reach out to members of the panel.”
Former the President of the Nigerian Bar Association (NBA), Mr. Joseph Daudu (SAN), speaking at the International Foundation for Electoral System (IFES) in Abuja urged the tribunal judges to be fair in the dispensation of justice. He equally urged the judges to diligently ensure that all legal disputes were disposed of within short time, to enable the country move forward.