Re: “The Judiciary as an Alternative Electorate”
In this Rejoinder, Asiwaju Awomolo discusses the two recent Supreme Court decisions, in the cases concerning the APC Party Primaries in Zamfara and Rivers States vis a vis the comments of Professor Itse Sagay, SAN, which he declares, have no roots in the facts of the cases, concluding that, the court decisions are sound, just and unimpeachable Professor Sagay’s Comments
The two recent decisions of the Supreme Court, in the cases of intra party disputes of the All Progressives Congress(APC) in Rivers State and Zamfara State, have again brought the Supreme Court into the spot light and have attracted diverse commentaries. Indeed, the public statement of Professor Itse Sagay, SAN and the Chairman of the Presidential Advisory Committee Against Corruption (PACAC), a creation of the Executive arm of government, published in many National dailies on Tuesday 4th June, 2019, is seen in many quarters, as a clear reflection of the inner caucus of the Executive arm of Government
The learned Senior Counsel believed that, in the case of Rivers State, “the Supreme court effectively returned unopposed, the Peoples Democratic Party (PDP), and that the APC electorates in Rivers State were deprived of their right to vote”.
For Zamfara state, “the Supreme Court transferred all the victories of the APC to the PDP”. He regarded the decision of the Supreme Court, as “bizarre” in Nigeria Democratic practice.
The fulcrum of the learned professor’s criticism of the judgement, is reflected in the few questions he posed. He asked:
I.“if the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote?
II. Is the electorate to be punished for the transgressions of party officials?
III. Should the Judiciary place the electorate's decision and install losers in office?
IV. Could the Judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity?
V. Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights?
VI. Should the Judiciary take over the electoral rights of the electorate?
VII.Is this not a clear case of technical law completely overthrowing justice?
VIII.Have the members of the Supreme Court not achieved a level of creativity and authority, to provide a solution without burying democracy and taking over from registered voters, as the judicial electorate.” He concluded his thoughts on the decision of the Supreme Court in these words, “if this judgement had been an international one, it could have been described as “shocking the conscience of humanity”; in this case, it shocks the conscience of Nigerian humanity”.
For the education of many Nigerians who read the deep opinion of the respected teacher of law, but not the judgement of the court, I will in this rejoinder make a copious reproduction of the relevant parts of the judgement.
Zamfara State
For the avoidance of doubt, the judgement of the Supreme Court was in Appeal No. SC/344/2019 between APC, Inuwa Abdulkadir 1st National Vice Chairman of North West Zone of APC, as Appellants v Senator Kabir Garba Marafa
and 180 others as Respondents, delivered on 24th May, 2019. The learned Justices who delivered the judgement were Hon. Justice Ibrahim Tanko Mohammad, the Acting Chief Justice of Nigeria, Hon. Justices Olukayode Ariwoola, John Inyang Okoro, Paul Adamu Galinje and Uwani Musa Abba Aji, a few of our best legal brains.
The fact of the case as captured in the certified true copy of the judgement, are as follows:
“As part of its preparation towards the conduct of 2019 general elections, INEC prepared a time table in which it set out a schedule of activities leading to the general elections. One of the activities was a directive to all the political parties, to conduct their primary elections and submit the names of their candidates for the general elections to it, between 18th August and 7th October, 2018. In obedience to the directive of INEC, the National Working Committee of the first Appellant, in line with paragraph 20 (a)(b) and (c) of the APC guidelines for the nomination of candidates for the 2019 general elections, set up a 7 member election committee headed by Engineer Abubakar Fari to conduct its primary elections in Zamfara State, on the 3rd of October, 2018. On the 3rd of October, 2018, the primary elections which started and continued successfully in some areas, was later halted and suspended by the Committee, due to escalation of violence and protests
The National Working Committee of the 1st Appellant, rescheduled the primary elections to the 7th of October, 2018, and appointed a different Committee, this time under the leadership of Major General Abubakar Mustapha Gana Rtd, to conduct the primary elections.
Due to tension and the shortage of time, the election could not hold. The Committee, suspended the election.
The 7th of October, 2018 was the closing date for party primaries and submission of names of candidates. This being so, the State Government directed the State Party Executives to conduct the primaries at all levels before 12.00 midnight of 7th October, 2018. This was purportedly done within the short period, and the list of those elected were submitted to INEC. A letter from the Acting Secretary of INEC to the 1st Appellant, stated clearly that, for its failure to conduct primary elections in Zamfara State and submit a list of candidates for the general elections within the stipulated period, it had barred itself from fielding candidates for the Governorship, National Assembly and State Assembly Elections in Zamfara State, for the 2019 General Elections. Being apprehensive that the list submitted by the
State Party Executive to INEC, may not be approved, the 141st-178th Respondents in this appeal, as Plaintiffs at the trial court at paragraph 16 of their statement of claim
dated and filed on the 30th of October, 2018, claimed the following reliefs:
"a) An order declaring as lawful and valid, the primary election conducted by the APC (herein Plaintiff’s party) under the supervision of the 3rd Defendant and security agents on the 3rd and 7th for the purpose of producing candidates to vie for various election offices which produced the Plaintiffs, under the platform of the 1st Defendant.
b) A declaration that any decision or steps taken to reverse the result of the primary election duly conducted on the 3rd and 7th day of October, 2018 and monitored by the 3rd Defendant, is, or will amount to a nullity, void and of no effect whatsoever.
c) A declaration that the 1st Defendant is bound to recognise, accept and forward to the 3rd Defendant the list of candidates that emerged winner in the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State, held on the 3rd and 7th October, 2018, and monitored by the 3rd Defendant.
d) A declaration that the 3rd Defendant cannot refuse or shut out the 1st Defendant from presenting, forwarding to it, the list of candidates that emerged winners in the Governorship, National and State Legislative Houses
Primary Elections in Zamfara State, same having been conducted on 3rd and 7th October, 2018, before the deadline set by the 3rd Defendant for Political Parties to hold their Primary Elections.
e) A declaration that the 3rd Defendant cannot refuse to accept and publish the list of candidates that emerged winners of the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State, submitted to it for the 2019 General Election
f) An order of this Honourable Court directing the 3rd Defendant to accept the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on the 3rd and 7th October, 2018 and monitored by the 3rd Defendant
g) An order directing the 3rd Defendant to accept and accord due recognition to the list of candidates that emerged winners in the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State, held on 3rd and 7th October, 2018
h) An order mandating or compelling the Defendants to recognise and accept the list of candidates that emerged winners in the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on 3rd and 7th October, 2018
I) An order directing the Defendants to recognise only the result of the primary election of the 1st Defendant, held on the 3rd and 7th of October, 2018 in Zamfara State
J) An order of perpetual injunction restraining the Defendants either by themselves, through their lawful agents, privies or assigns from taking (six taking) any steps towards cancelling, rejecting the result of the primary election held on 3rd and 7th October, 2018 and monitored by the 3rd defendant.
K) The cost of filling and prosecuting this suit.”
(These are preemptive claims, Plaintiffs being fully aware of the law against them and the INEC position therein).
The trial court entered judgement in favour of the Plaintiffs, and directed INEC to accept the list of names of successful candidates of the APC for the Governorship, National Assembly and State House of Assembly elections produced and submitted by the Zamfara State Chairman and the Secretary of the APC.
The 1-140th Respondents appealed to the Court of Appeal, and meanwhile, INEC conducted elections and the APC candidates “won by majority of the landslide figures”.
The Court of Appeal allowed the appeal, and set aside the judgement of the trial Judge. When the case came up before the Supreme Court, learned counsel for all the parties argued their briefs. The Supreme Court – in its judgement, dismissed the appeal because:
(1) APC violated and disregarded mandatory provisions of Section 87 of the Electoral Act 2010.
(2) The State Executive Committee of the APC in Zamfara State, had no power to conduct primaries and forward the names of the party candidates to INEC, therefore, the APC candidates participation at the elections were invalid and illegal.
In 1999, when Nigeria returned to constitutional democracy, the leadership of all the registered Political parties, was in the hands of former political gladiators of the 1st, 2nd and 3rd Republic. They were former Ministers, Governors, political office holders, and party chieftains. In fact, the practice of all the political parties reflected lacked of internal democracy, discipline, loyalty and party supremacy.
Indeed, nominations for elective positions, were at the whims and caprices of the godfathers. Nominations of candidates for elective positions were arbitrarily changed, depending on the mood of party leadership. The Parliament amended the Electoral Act, to insist that to change a nominated candidate, the party must swear to an affidavit to show “cogent and verifiable reasons” for changing the nominated candidates.
The Judiciary, and the Supreme Court in particular, maintained the established principle that, the nomination of candidates for an election is an internal affair of a political party, and the courts should have nothing to do with it. The amendment to the Electoral Act was given Judicial approval and enforcement until 2007, when the PDP in Rivers State, changed the nomination of Rt Hon. Rotimi Amaechi few days to the election, and substituted him with Chief Celestine Omehia.
The Supreme Court, in exercise of its powers as final court in the land, and in doing justice, restored Rotimi Amaechi as Governor of Rivers State, even though it was after the election. That decision was criticised as a usurpation of the rights of the electorate in Rivers State, who voted for Chief Omehia, and not Amaechi.
The parliament amended the Electoral Act to avoid a repeat of the Rivers State experience, which was replicated in few States. It enacted Section 87 of the Electoral Act, with a view to upholding internal democracy, fairness, party discipline, loyalty
“THE LEARNED PROFESSOR, WITH RESPECT, ARGUED AS IF THE JUDGEMENT OF THE SUPREME COURT SHOULD BE FOR THE PURPOSE OF SCORING DEBATING POINTS, WITH A VIEW TO ACHIEVING PUBLIC APPLAUSE AND POLITICAL PATRONAGE, ON THE THEORY OF JUSTICE, IN A DEMOCRACY”
and party supremacy.
The courts, particularly the Supreme Court, gave judicial authority to these provisions. Political parties have in subsequent elections, complied strictly with the law, and those who violated the law had their candidates nullified, and the political parties with the highest votes, were made to replace nullified candidates.
Breach and Disregard of Section 87 of the Electoral Act
In the case under discuss, there is an established breach and disregard for the provisions of the statute by the Appellants, due to internal indiscipline, disregard for party constitution, hierarchy and authority. There was manifested rivalry in both Rivers and Zamfara States by factious and irreconcilable differences, that robbed the party of its success at the 2019 general election, except that of the President.
The learned Professor, with respect, argued as if the judgement of the Supreme Court should be for the purpose of scoring debating points, with a view to achieving public applause and political patronage, on the theory of justice, in a democracy.
Nigeria is operating a Constitutional democracy, where obedience to the Constitution and the laws of the National Assembly must be held sacrosanct, and none should be persuaded by sentiments and theory of the concept of democracy, that has no place in the law.
The decision of the Supreme Court, concluded
with an order to the effect that, “A party that has no candidates in an election, cannot be declared the winner of the election. This being so, the votes credited to the alleged candidate of the 1st Appellant in the 2019 general election in Zamfara State, are wasted”.
The candidates of parties other than the 1st Appellant APC with the highest number of votes and the required spread, stand elected into the various offices that were not contested for in Zamfara State in the 2019 General Election”.
The learned Professor did not throughout his statement, fault the finding and conclusion of the court. The Supreme Court, as the final court, has the power to make consequential orders to give effect to the judgement of the court.
Zamfara State has a population of over 3 million people, with almost 2 million registered voters. It cannot be stated that, all the 2 million registered voters in the State belong to only one party. It cannot also be argued that, all the registered voters are members and sympathisers of APC.
Every citizen of Zamfara State deserves to be governed in accordance with the Constitution of the Federal Republic of Nigeria 1999 as amended, and the laws of the National Assembly.
The APC as a political party, is bound by the Constitution and Laws of the National Assembly. Participation in an election and fielding candidates for offices in the 2019 General Election was a choice, and the Supreme Court cannot force the party to respect the law or enforce discipline and decorum in the party.
The electorate in Zamfara State, were not deprived of their constitutional right to vote. Those who voted for APC candidates had options, and were not deceived or misled, because APC leadership and their supporters in the State knew of the violation of mandatory provisions of the law. They knew the fruits of their decision, hence they rushed to court with preemptive prayers, hoping the courts will cover their illegality.
The Judiciary did not replace the electorate’s decision and install losers on Zamfara citizens, because the APC primary conducted by the State Executive Committee of the party, has been pronounced upon in numerous cases, as a nullity. The law has become established that, where voters in the exercise of their franchise, choose a candidate whose standing is void in law, such votes are regarded as thrown away. A candidate whose candidature is invalid and void, cannot claim to have lawful votes. The votes cast for APC candidates were unlawful votes, so the candidate with majority of lawful votes, is bound to be declared the winner.
Learned Professor perhaps wished the Supreme Court, on the ground of theory of democracy, had reversed its rules, depart and walk away from its well established principles, that Section 87 of the Electoral Act must be obeyed. The choice of the Zamfara State electorate, which the law regarded as void, cannot be a foundation for any benefit.
See EMINEKE v D.P.P. (2012) NWLR
(PT. 1315) 556 AT 594, 600, 602.,EMEKA v OKADIGBO (2012) 18 NWLR (PT. 1331) 55 AT 88.
The judgement of the Supreme Court, is no doubt a corrective policy decision, like they did in Rt. Hon. Rotimi Amaechi’s case and many others. Judgements of the Supreme Court address policies, institutions and not individuals. Corrective and retributive justice, is an aspect of justice, and the Supreme Court has never failed in this respect.
The learned Professor referred to Section 140(1), (2) & (3) of the Electoral Act 2010. With respect, that provision of the Electoral Act, is relevant only in the Election Tribunal where the Court of Appeal is the court in respect of Presidential Election Petitions, while the National Assembly, Governorship and House of Assembly Petitions, are tried at the Tribunal. The Justices of the Supreme Court know the law sufficiently, to have had no regard to the provision of Section 140 of the Electoral Act 2010. The facts of the case, do not justify an order for fresh election; indeed, such order would have been contrary to express provision of the Constitution.
Nigerians are fully aware that, since the learned Professor became the Chairman of the PACAC, he has constantly found nothing good in the Judiciary, and the Supreme Court in particular, where he believes there is “corruption”, even though none has been prosecuted or convicted by a court of law for corruption.
The Judiciary is not the maker of the law, that is the function of the Legislature. No court is permitted to interpret the law, to suit any of the parties. The court is not creative, as to make its decision suit the convenience of the parties in litigation. Indeed, the Supreme Court in the case of Rt. Hon. Rotimi Chibuike Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 207 made a very profound statement, on the beauty and ramification of democracy. Hon. Justice Dahiru Musdapher, JSC of blessed memory, spoke the word of the court when he said, “Democracy’s world is rich and multifaceted. Democracy should not be viewed, from a one dimensional vantage point. Democracy is multidimensional, it is based both on the centrality of laws and democratic values, and at their centre, human rights. Indeed, democracy is based on every individual enjoyment of rights, of which even the majority cannot deny him simply because the power of the majority is in its hands.
Roland Dworkin in a Bill of Rights for Britain 1990 pages 35 – 36 stated
“--- true democracy is not just a statistical democracy, in which anything, a majority or plurality want is legitimate for that reason, both communal democracy in which majority decision is legitimate only when it is a majority decision within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal through the vote, and through the freedom of speech and protest, but that the decision must treat everyone with equal concern and respect, that each individual person must be guaranteed. Fundamental civil and political right no combination of other citizen can take away, no matter how numerous they are, or how much they despise his or her race or morals or way of life” pages 339-340 With respect, the learned professor was right when he said “the key word here is that the court has attained a Stature in the pursuit of JUSTICE to provide a remedy, even if one did not already exist.”
That proposition is not new; indeed, the Supreme Court found appropriate remedy in Amaechi’s case, where neither the Constitution nor Electoral Act provided one.
Hon. Justice Oguntade, JSC had this to say:
“this court and indeed, all courts in Nigeria, have a duty which flows from a power granted by the Constitution of Nigeria, to ensure that citizens of Nigeria, high and low, get the justice which their case deserves. The powers of the court are derived from the Constitution, not at the sufferance or generosity of any other arm of the Government of Nigeria. The Judiciary, like all citizens of this country, cannot be a passive on-looker when any person attempts to subvert the administration of justice, and will not hesitate to use the powers available to it, to do justice in the case before it.”
One can read between the lines that, the learned Senior Counsel intends that because APC had smuggled itself to contest the election, won by “landslide victories”, it should retain its candidates in offices, and thus, be protected from
the consequences of the party’s unconstitutional and invalid conduct. That, in my view, would have been inconsistent with the principle of rule of law, constitutional democracy and Justice.
Hon. Justice Pius Aderemi JSC (of blessed memory) in Amaechi’s case had a word for that direction of thought. He said :
“.....it is true that in modern democratic societies, Judges occupy a privileged position. Let me say that, that privilege springs from public recognition that democratic government and society as a whole, can only function fairly and properly within a framework of laws, justly, fearlessly and fairly administered by men and women, who have no obligation save to justice itself. I hasten to enter a caveat, and it is that it does not of course, mean that Judges are licensed to do exactly as they like; quite opposite. They must allow themselves to be guided by well tested principles so fashioned, that lead to justice...”
With respect, one fails to see the relevance of the argument of technicality, rather we see substantial justice having its roots on the clear facts of this case. The mandatory provision of Section 87 of the Electoral Act and the trite law that, only the National Chairman and Secretary of a political party can submit nomination of the party candidates, not State Chairmen or such subordinate office, stuck to by the Supreme Court, promote substantial justice.
Justice is no doubt an abstract concept, and it is easier to describe than to define it. The formula of justice that has spanned world literature from Homer, through Aristotle and the Greek thinkers, Cicero, Antrose Augustine and Roman Jurists. Justician Pandects equated justice with equity, which is defined as Honeste viverer, alterum non laedere suum cuique tribuere - to give honestly, not to hurt another to give each his due.
Justice in my view, means justice to all political parties, justice to the people of Nigeria whose taxes were spent on law makers who enacted the Act, which must be obeyed by all, without exception, the INEC who enforce and carry out the laws.
Justice to all the people of Zamfara and Rivers States, whose political rights were capriciously violated by the political gladiators, who frittered away their votes by disobedience to the Constitution and the law. Justice of course, to the Judges and Justices of our courts, who are the greatest living assets of our race, without whom our democracy would have been truncated by the politicians since 1999, when Nigeria returned to Constitutional democracy.
On the whole, the lamentation of the learned Senior Counsel on the principle of democracy, justice and political rights, with respect, have no root in the facts of this case. The opinion expressed on the judgements, is a mere academic exercise, theories on justice, without relevance to the well thought out decision, based on Constitution, Statute, basic principles of the Rules of Law in an egalitarian society.
Hon. Justice Chukwudifu Oputa, JSC, counselled on the quality of fairness thus:
“The quality of fairness and impartiality, allow the judge to turn the wheels of justice objectively, and not subjectively. In the chambers of the Legislature or the Executive, it may be necessary and at times politically expedient, to listen to the sirens of power and influence. But, in the halls of justice, the battle is against expediency, it is a battle for protection from power- the power of the Executive, the power of the police, the power of prosecution, the power of big business, the power of the wealthy
status and influence, and the most subtle of all, the power of the majority”.
The statement believed that, “the Zamfara and Rivers State Judgements are a national tragedy which should not be allowed to
throw up the unimaginable injustice”. There was a call for application for a review, of the two judgements.
It is conceded that, every court has the power to set aside it’s decision where the judgement had been obtained by fraud. However, the attitude of the Supreme Court to review its decision, has never been for the asking. This is because, where a Court has decided an issue and the decision of the court is truly embodied in some judgement or order, that it has been made effective, then the court cannot re-open the matter and cannot substitute a different decision in its place. To alter it, must in those circumstances, invoke such appellate jurisdiction as may apply.
The Supreme Court restated the law succinctly in the case of TOMTEC (NIG) LTD v F. H. A. 2009 18 NWLR (Pt 1173) 358 @ 382;
it was stated thus:
“Courts of record have the inherent jurisdiction, to set aside their judgements/ decisions/orders, in appropriate cases, or under certain circumstances, which include when:
(a)the judgement is obtained by fraud or deceit, either in the court or of one or more of the parties; (b)the judgement is a nullity: (c) it is obvious that the court was misled into giving the judgement, under a mistaken belief that the parties consented to it:
(d) the judgement was given in the absence of jurisdiction;
(e) the proceedings adopted was such as to deprive the decision or judgement, of the character of a legitimate adjudication;
(f) where there is fundamental irregularity.
I end, as I borrow and adapt the words on Marble of Sir Winston Churchill, which I believe reflect the popular feeling of Nigerians, on the Nigerian Judiciary as the last hope of the common man:
“There is nothing like them in our land. They have to interpret the law, according to their learning and conscience. They are distinguished from great officers of the State, and other servants of the Executive high or low, and from leaders of Commerce and Industry. The Nigerian Judiciary with its traditions and records, is one of the greatest living assets of our race and people and its independence, part of our message to the ever growing world, that is rising swiftly around us”. They deserve our respect and appreciation. Asiwaju Adegboyega Awomolo, SAN, Abuja
“ON THE WHOLE, THE LAMENTATION OF THE LEARNED SENIOR COUNSEL ON THE PRINCIPLE OF DEMOCRACY, JUSTICE AND POLITICAL RIGHTS, WITH RESPECT, HAVE NO ROOT IN THE FACTS OF THIS CASE. THE OPINION EXPRESSED ON THE JUDGEMENTS, IS A MERE ACADEMIC EXERCISE....”