By Georgewill JCA
A Court of Appeal Justice of the Benin Division, Sir Biobele Abraham George will has said that there is no judicialization of Politics in Nigeria.
He said this during paper presentation at the Law of Week of the Nigerian Bar Association, Yenagoa Branch, which took place on 30th of April, 2021 at Chief D.S.P. Alamieyesigha Banquet Hall, Government House Yenagoa, Bayelsa State, Nigeria
According to him, judicialization in the context of the paper presentation means ‘excessive or overbearing role’ being played by the Judiciary in the Politics of Nigeria.
Hon. Justice Georgewill pointed out that there is no judicialization of Politics in Nigeria because the Judiciary does not go out of its way, as conferred on it by law, to meddle with Political cases in Nigeria.
Read the paper presentation below:
THEME: JUDICIALIZATION OF POLITICS IN NIGERIA: TRENDS, CHALLENGES AND OPPORTUNITIES
Court of Appeal, Benin Division, Lord Chancellor, Diocese of Niger Delta, Church
“Justice is for all the parties and particularly in Election Petition proceedings also the electorates whose votes must be allowed to be counted in the determination of who represent them and acts on their behalf for the period or term of the office contested for by the parties at the Election. There is therefore, only one standard of justice for all the parties, and none is entitled to a higher or lower standard than the other. The Court must hold the balance and ensure, as far as practicable under its extant rules of practice and procedure, a level playing field for all the parties” per Georgewill JCA, in Elohor & Anor V. Inec & Ors (2019) LPELR – 48806(CA) @ pp. 36 – 47.
The Nigerian lexicon can easily identify with the phrase ‘Politicization of the Judiciary in Nigeria’ meaning bringing undue influence or interference of Politics into the affairs of the Judiciary. However, this new phrase ‘Judicialization of Politics in Nigeria’ as coined by the Organizers of this Law Week is completely a new one likely to be added to the English lexicon by Nigeria soon! The word ‘Judicialization’ cannot be found in the English lexicon and is therefore, not an English word and thus not of any precise meaning. However, in my attempt to fully understand its connotation, it took the reaserch acumen of Prof Solomon T. Ebobrah, the Chairman of the 2021 Law Week Planning Committee Chair of the NBA Yenegoa Branch, who drew my attention to a paper titled “The Judicialization of Mega – Politics and the Rise of Plitical Courts” by Ran Hirschl, publisehed in the Annnual Review of Political Science 11, No. 1 (2008) at page 94 to find it the term ‘Judicialoization’ defined as “the ever – accelerating reliance on Courts and judicial measn for addressing core moral predicatmants, public policy questions, and political controversies”.
It appears to me that the above succinct definition of the term ‘Judicializatio’ perfectly fits the bill within the context of the theme of this paper, and I therefroe, adopt same in this apaper as the correct connotation of the term ‘Judicilaisation’. It would thus refer to the unwieldy or increasing and overwhelming role being played by the Judiciary in the Political life of this Country. Simply put, it captures, what may aptly be described as, the ‘excessive or overbearing role’ being played by the Judiciary in the Politics of Nigeria.
Thus, the first question is whether there is indeed a ‘Judicialization of Politics in Nigeria’? In other words, is there any unwieldy or excessive or overbearing role being played by the Judiciary in the Politics of Nigeria? For me as a person, as well as being a member of the Nigerian Judiciary, who believes so much in the utilitarian value of adjudication as being key to averting and avoiding violence, intractable disputes, self help, communal and family wars and such like in our Society, which are all potential purveyors of societal destruction and or disintegration, if not checked timely through peaceful constitutional means and avenues for resolution, which is the Court, the answer is a resounding No! I therefore, do not see any unwieldy or excessive or overbearing role being played by the Judiciary in the Politics of Nigeria capable of giving birth to the new phrase ‘Judicialization of Politics in Nigeria’ This is so because, in my humble view, all that the Judiciary does is as constitutionally and statutorily conferred and vested on it.
In other words, for me there is no, and there can never be any, ‘Judicialization of Politics in Nigeria’ since the Judiciary does not go out of its way, as conferred on it by law, to meddle with Political cases in Nigeria and therefore, it is important to make it abundantly clear that the time would or may never come when it would be desirable that the Judiciary should hands off its Constitutional role in intervening in the Politics of Nigeria to ensure, as allowed by the laws of the land, that ‘Politics in Nigeria’ is played by the Rules and practiced in accordance with the laws of the land and for the overall benefit of the vast majority of Nigerians. Politics ought not and should not be played, as it is being so, pervading, played presently in Nigeria, so unjustly to the detriment of the vast majority of Nigerians at the whims and caprices of the privileged few, the ‘Politicians’ However, I have no doubt in my mind that to many others, it would appear that, the answer to the first question posed in this paper is a resounding Yes!
Thus, having been invited by the Organizers of this Law Week to speak on this theme, most probably, from the prism of those who believe that there is indeed an ongoing ‘Judicialization of Politics in Nigeria’, of excess or overbearing interference of the Judiciary in Politics in Nigeria in the determination of the several issues and questions which ordinarily, if there were to be transparency in Politics in Nigeria, should be left for the Politicians to resolve without any recourse to adjudication, I shall proceed in this paper on the presupposition that there is ‘Judicialization of Politics in Nigeria’ Welcome to my Paper!!
BRIEF STATEMENT OF THE ISSUE
There is today, as it was yesterday, a consensus amongst the generality of Nigerians that Nigeria has and continued to suffer lack of transparency in governance at all levels of Government and a concomitant failure of justice in the body polity as a whole and therefore, none of the arms and or levels of Government is spared. This obvious lack of transparency has permeated all spheres of life in this Country, ranging from the ‘Legislature’ to the ‘Executive’ and to the ‘Judiciary’, none of which arms of Government is spared! This has also led to lack of internal democracy in Political parties in Nigeria and the resultant injustices both intra and inter Political parties, leading to an avalanche of abuse of the rights of members of Political Parties with the attendant upsurge in political cases initiated by aggrieved members of Political parties seeking redress before the last hope of the common man, and eventually the last hope to even the yesterday men and women of power and might, the Courts.
It is ironic that in Nigeria, in which going by the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the ‘Legislature’ is the first arm of Government at both the Federal and State Levels, had virtually surrendered its primus position to the Executive, mainly due to where the power over the resources of this Country and the States resides. There is therefore, the obvious case of inadequate checks and balances between the Legislature and the Executive. Thus, Executive powers are gradually becoming infinite without any real checks by the Legislature! Regrettably, this has become more p ronounced, and particularly more so since the return to Civil Rule or what Nigerians had come to perpetually term as our ‘nascent democracy’ since 1999.
For instance, by the provisions of the Constitution of Nigeria 1999 (as amended), though Chapter II is rendered non justiciable but the Legislature is endowed with the power to legislate on those issues provided for under Chapter II of the said Constitution, and by so doing convert them to become justiciable for the benefit of the Citizenry with rights of enforcement through the Courts whenever the Executive fails to comply with such laws geared towards the entrenchment of those very vital socio – economic rights provided for the benefit of the Citizenry by the Constitution but made non justiciable, perhaps for good cause, had over the years failed to live up to this responsibility. The result, the citizenry continues to depend on the benevolence of the Executive to be able to enjoy those provisions, which are rights even if socio – economic and not fundamental rights, as mere privileges under Chapter II of the Constitution, including such indispensable right as the right to Education!
Honestly, I consider the political rights of the citizenry of this great Country too important to be left only at the complete mercy, whim and caprices of Politicians. Today, as it has always been, Politics in Nigeria is all about self interest and less of real service to the people. Thus, ‘Judicialisation of Politics’ is not limited to Nigeria nay Africa but has become a worldwide phenomenon. However, but regrettably whilst the scope of intervention of the Judiciary in advanced democracies, such as the United States of America, is limited and swift as clearly demonstrated by the post 2020 November Presidential Election and the almost fifty post – election litigations that were swiftly, effectively and with finality determined by the Judiciary paving the way for the inauguration of the newly elected President of the United States of America on 20th day of January 2021 without any pending post – election litigations challenging his due return as the duly elected President of the United States of America, but it is not so in Nigeria, where both pre – and post – election litigations have become of infinite possibility and unlimited scope on the political landscape of Nigeria.
Upon being intimated of my nomination to prepare and deliver this paper on this seemingly novel theme, I had to conduct some researches into this new phenomenon in other jurisdictions of the World, and interestingly, one can hardly find any decided cases on pre – election matters in any of the civilized democracies of the World, notably in the United States of America and to some extent even in the United Kingdom and the question is why? The answer is not too far to seek! It is because Political Parties there, which are founded principally on clear ideology and laudable vision, have ingrained in them seamless mechanism for internal democracy, thus obviating the need for any judicial intervention by the Courts. After all, unless the members of the Political Parties approach the Courts, the Courts would not and can never intervene. The Court never interferes but it only intervenes!
Thus, pre – election matters, I dare say, are features of undeveloped or developing democracies in the World, notably in India and particularly in Nigeria, where pre – election litigations is fast overtaking post – election litigations under our watch and thereby being allowed to fester even to the detriment of political growth and stability, when a candidate duly declared and returned as elected by the umpire, INEC, could still be ordered to vacate office, not through nullification of his election in an Election Petition by the Election Tribunal or Court, but by virtue of a decision of the Court in a pre – election litigation. Where then is the place of the significance of the wishes of the electorates as expressed by their votes in the election in this fast spreading phenomenon of removal of elected candidates via pre – election litigation? Regrettably, none I can find or see!
THE TREND: POLITIC PARTIES AND ELECTIONS IN NIGERIA1
It is the general belief, whether right or wrong, that in Nigeria, the Political class, the members of Political parties, are making it practically impossible to conduct free and fair elections. Yet, these are the very class of people who requires free and fair elections for democracy, which they claim to practice, to thrive in the Country. It was principally the lack of free and fair elections, coupled with other factors, including lack of transparency in Governance and large scale corruption that had in the past heralded the death knell for the 1st, 2nd and 3rd Republics in Nigeria. In this wise, it is a truism that Nigeria’s electoral history has been fraught with failed elections, a recurring development that has gradually become a distinctive feature of our Electoral system, hence the deluge of political cases, including pre – and post – election litigations. Elections are either violent or they are fought bitterly. They are usually marred by rigging and other voter fraud as well as manipulation of Electoral Officers by Political Parties. The winner takes it all and the loser is dared to go to Court! Poor elections and skewed election results and outcomes have over the years signposted the Country’s record of poor leadership, political stagnation, and economic backwardness.
In developed and advanced democracies of the World, the conduct of a free and fair election is sine qua non and is usually made possible by the fair and just activities and management of the affairs of Political Parties. Thus, free and fair election is a prerequisite for a thriving democracy as it gives legitimacy to a Government and fulfilled hope to the Citizenry in the Government of their own choice. It engenders positive socio – economic and political developments and also enhances political mobilisation and participation of the electorates leading to the development of positive political culture and the resultant confidence of the Citizenry in both the Political parties, elections and the resultant Government put in place at their own behest.
In Nigeria, the modus operandi of Political parties had for years been winning all and every elections at all cost and remaining in power by all means. It is simply a ‘do or die’ affair. It is a matter of life and death! Hence, the desperation as every election year draws close since those in power having tasted power even dread the thought of life outside of power. Regrettably, it is these desperations and the resultant skewed electoral processes in Nigeria that led to the abortion of democratic rule thrice by the Nigerian Military, in 1966, 1983 and 1993 but for which Nigeria would have today become one of the advanced democracies of the World, nay Africa, if we had remained in civil rule since 1960 till date.
An Election is simply a decision making process through which a people choose some individuals to hold offices on their behest and behalf. Thus, democracy is a system of Government in which the Citizenry participates in the decision making process by voting or electing those who govern them through a free and fair electoral process. The machinery through which this is accomplished in most democracy is the Political Parties. Thus, it is imperative that for democracy to thrive in Nigeria, the Political Class must rise to the task of ensuring internal democracy to check the eroding of the electoral processes over the years that has proved to be defective, weak, inefficient, and unable to guarantee the conduct of credible elections. Indeed, all elections commencing from the 1st Republic through the 4th Republic have been characterised by electoral malpractices and the Political parties exhibit a high level of political indiscipline and freely perpetrated wide – ranging electoral malpractices and large scale corruption leading to either Military intervention and or loss of faith and confidence by the Citizenry in the resultant Government.
In 1959, towards the set goal of declaration of independence and self – governance for Nigeria, the Electoral Commission of Nigeria was set up by the then Colonial Government to conduct the 1959 General Elections. Incidentally, Nigeria, which has a rich history of multi – party system right from its independence, perhaps due to its multi ethnic configuration, had at the time of its independence about twenty – six political parties which were duly registered to contest the 1959 General elections. However, the three dominant Political parties were the Northern Peoples Congress led by Sir Ahmadu Bello, the Action Group led by Chief Obafemi Awolowo, and the National Council of Nigeria and Cameroons led by Dr. Nnamdi Azikwe. The Elections were held and although the turnout of voters for the election was low, by a coalition of the NPC and NCNC a new Government was ushered in at independence in 1960, with the AG forming the opposition in the West Minster styled Parliament.
In 1960, the new Government of Tafawa Balewa set up the Federal Electoral Commission to conduct the immediate post – independence election for the Federal level in 1964 and for the Regions in 1965. Regrettably, as it was then and as it is still today, both elections failed to meet the standard of free and fair election in which the votes of the people count and be the determinant factor on who emerges as duly elected by the people, the results of which elections were rejected by the opposition, leading to widespread violence, including killing, arson, looting and destruction of properties, particularly in the then Western Region. From then till date, elections in Nigeria had remained acrimonious, violent and anything but free and fair to guarantee the prevailing of the wishes of the Citizenry!
In 1978, the final draft of the Constitution by the Constituent Assembly was adopted as the 1979 Constitution of the Federal Republic of Nigeria. Subsequently, a Federal Electoral Commission was set up to conduct General elections in which a person to be elected President of Nigeria, under the 1979 Constitution must have the highest number of votes cast in addition to receiving at least 25 percent of the votes cast in two – thirds of the 19 States of the Federation, the interpretation of which gave rise to the first major intervention of the Judiciary in Politics in Nigeria. The 1979 General elections were contested by the then five registered Political parties, namely; National Party of Nigeria, Unity Party of Nigeria, Nigeria Peoples Party, People’s Redemption Party, and Great Nigeria People’s Party (GNPP). As it turned out, the ensuing election appeared to be much better than the elections conducted during the 1st Republic and though seemingly peaceful, free and air but was not without its own hiccups of interpreting the novel requirement of votes of at least 25 percent in two – thirds of the then 19 States of the Federation. A total of 47,433,757 voters were registered out of which only 16,846,633 voted at the Presidential Election in which the NPN was declared the winner with UPN coming a distant second.
In 1983, rather than improve on the 1979 General Election considered to be fairly peaceful, free and fair to a large extent, the 1983 General Election fell back into the inglorious era of the 1st Republic Elections and became a very fraudulent one with glaring cases of large scale electoral malpractices. It was bitter. It was manipulated. Money became the dominant and determinant factor. Incumbency power was at its height of display. The Federal Electoral Commission proved itself to be highly incompetent and failed the Nation in the 1983 Elections. Regrettably, violence erupted and characterised the political landscape coupled with economic mismanagement and several other glaringly militating factors, on December 31, 1983, the Nigerian Military intervened once again in the Nation’s polity and Nigerians heaved a sigh of relief.
Between 1989 and 1993, during the abortive or still born 3rd Republic, there were another round of Elections conducted by the newly created National Electoral Commission, which elections going by the new breed and grass root political idea coupled with the open ballot system introduced by the then Military Government, were seemingly and apparently free and fair though certainly not credible. These elections were contested by the two Political parties brought into existence by executive fiat of the then ruling AFRC, namely; the Social Democratic Party, which was ‘a little to the left’ and the National Republican Convention, which was ‘a little to the right’ It appeared Nigeria was once again on the march and on the right path to true democracy with the smooth successful holding of the elections from Local Government Councils across the Country to the Governors of the States and the National Assemblies all put in place until it was the turn of the Presidential Election which held on June 12, 1993 and all hell seems to have been let loose when a seemingly peaceful, free and fair Election, in which it was reported that the Presidential candidate of the SDP, Chief Moshood Kashimawo Abiola, had secured 57 percent of the total votes cast as so far announced from 16 States, was on June 24, 1993, while the results from the remaining States were still being collated, annulled by the then Military Ruler, Gen Ibrahim Badamosi Babaginda, who had also suspended the National Electoral Commission and discontinued the transition programme. The rest, as they say, is history.
Fast forward to 1999, Nigeria commenced another transition to civil rule programme under the then Military Government of Gen. Abdulsalam Abubakar, who took over power after the death of Gen. Sanni Abacha with May 29, 1999 as the terminal date and an Independent National Electoral Commission was set up to midwife this exercise, and which out of a total of 25 Parties that sought registered, registered only 3 as Political parties, namely; the People’s Democratic Party, the All People’s Party, and the Alliance for Democracy. Subsequently, General elections were held in Nigeria and on May 29, 1999, Gen Olusegun Obasanjo, the Presidential Candidate of the PDP, having been declared and returned as duly elected by INEC, became the President of Nigeria. This election, by all account, though peaceful was not very credible but Nigeria moved on!
In April 2003, Nigerians trooped out to the polling booths to elect their leaders at the various levels of Governance heralding the second time of civilian to civilian transition in Nigeria after the 1983 transition, though short lived. A total of 30 Political parties contested the 2003 General elections, which was akin to a war of money. Regrettably, the money bags had a field day to the extent, as it was widely believed, of determining both the Candidates of Political parties as well as influencing the outcome of the elections into many of the elective offices. It was virtually a clean sweep for the ruling PDP, which in that euphoria declared its intention to be in monopoly of political power in Nigeria for the next 60 years. There were widespread protests against the results of the 2003 General elections and for the first time in the Nigerian political lexicon, the phenomenon referred to as ‘carry go’ became the pervading slogan!
On April 23, 2007 Umaru Yar’Adua was declared the winner by Independent National Electoral Commission with a result of 24, 638, 063 votes representing 70 percent of the total vote cast at the 2007 General elections. However, the results were promptly rejected by the 1st and 2nd runners up. Happily, and perhaps for the first time in the Nigerian political history, a person who has been elected as President of Nigeria admitted publicly that the 2007 General Elections, from which he had emerged as President of Nigeria, were indeed flawed and had set in motion processes for drastic reforms of the Nigerian Electoral System but painfully he did not live long enough to actualize this laudable vision following his untimely death in office in 2010 before the next General elections of 2011.
On April 16, 2011, Presidential elections were held in Nigeria after its postponement from April 9, 2011 when it was originally scheduled to hold and on April 19, 2011 the Electoral umpire declared as duly returned and elected the incumbent President and Candidate of the Peoples’ Democratic Party, His Excellency Dr. Goodluck Ebele Jonathan. However, in the aftermath of the declaration of the result of the 2011 Presidential elections, widespread violence erupted in the Northern parts of the Country but subsequently, peace was restored and Nigeria kept marching on!
As the year 2015 fast approached, there was palpable anxiety in the air about the approaching 2015 General elections slated for February 14, 2015. A winner of the Presidential election was constitutionally required to poll a majority of the valid votes cast amounting to at least 50 percent plus one vote of the total cast and also to secure 25 percent of the votes in two – thirds of the States of the Federation. The campaigns were fierce and intensive and the ethnic and religious divides were so pronounced that it became apparent that notwithstanding which of the two frontline Candidates was declared the winner and returned as duly elected as the President of Nigeria, there were likely several ground to reject the results of the 2015 Presidential election. However, the results were eventually released declaring as winner and returned elected as President of Nigeria, the Candidate of the All Progressives Congress, Gen Muhammadu Buhari, and Nigeria scored at once two – firsts, namely; the defeat of an incumbent President by an opposition Candidate and the refusal by the incumbent President to challenge his loss at the polls before the Presidential Election Tribunal. The rest, as they say, is history. Nigeria marched on!
On February 23, 2019, Nigerians once again trooped out to the polling booths scattered around the nooks and crannies of Nigeria to elect their President. There were palpable tensions and anxieties in the land, which had come to characterize every General elections in Nigeria but whether the election would be peaceful or violent is usually determined on the ‘D – Day’ which is the election day. It was widely reported that there were widespread violence in Rivers State and Kano State respectively during the 2019 General Elections, which had infamously brought my home town of Abonnema, the Headquarter of Akuku – Toru Local Government Area of Rivers State, into both National and International attention. I watched, along with my colleague, The Hon Justice William Annan Atuguba JSC., (Rtd) formerly of the Supreme Court of Ghana, on the internet with horror the horrific shootings going on in my home town of Abonnema whilst in faraway Freetown, Sierra Leone on an International assignment.
On February 26, 2019 at about 11.53pm, the Independent National Electoral Commission declared as winner and returned as duly elected the incumbent President, His Excellency Mohammadu Buhari, and Candidate of the All Progressives Congress with a total vote cast of 15, 191, 847 votes representing 56 percent of the total votes cast at the 2019 Presidential elections beating his closest rival, His Excellency Alhaji Atiku Abubakar, the candidate of the opposition party, Peoples’ Democratic Party, who polled 11, 262, 978, and who promptly rejected the results. The rest, as they say, is now history, even as Nigerians await, with bathed breath, the fast approaching 2023 General Elections. Nigeria marches on!
HISTORY OF FORAY OF THE NIGERIAN JUDICIARY INTO POLITICAL CASES
The Constitution of the Federal Republic of Nigeria 1999 (as amended) created the three arms of Government in Nigeria, namely; The Legislature, The Executive and the Judiciary. This is in line with the concept of separation of powers and is to ensure checks and balances between the various arms of Government, without which powers may be left unchecked with its disastrous consequences on Good Governance and the Rule of law. Thus, the Nigerian society, at both the Federal and State levels is managed by these three arms of Constitutionally recognized authorities to enable the respective Governments to manage the Country and the States more efficiently. Without separation of powers and appropriate effective system of distribution of powers, there can indeed be no rule of law. See Section 4 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended.) See also Section 5(1)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended).
However, the Judiciary, the focus of this paper, is the third arm of Government and is primarily charged with the interpretation of the laws of the land. Thus, it plays a very significant role in the strengthening of the rule of law and ensuring compliance with the laws of the land. It engenders the Nigeria’s ‘nascent democracy’. It is part of the Constitutional mechanism for check and balances between and amongst the three arms of Government and acts as the watchdog of the society, being, as it is often said at common parlance, the last Hope of the Common man! See Section 6(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
From the inception of Civil Rule on independence between 1960 – 1963 to the 1st Republic between 1963 – 1966, through the 2nd Republic between 1979 – 1983, and the aborted 3rd Republic between 1992 – 1993 and the 4th Republic since 1999, there has been judicial interventions in the Political life of Nigeria, yet the real foray of the Judiciary, unstoppable as it has now become through the years, into political issues commenced in full force in 1979, when the almighty formulae of 122/3 of 19 States of Nigeria – a judicial mathematics – was introduced into the Nigerian Electoral lexicon by the Supreme Court of Nigeria, in a split decision in which Obaseki JSC and Eso JSC did not concur with the majority decision as delivered by Fatayi – Williams CJN, whilst endorsing the forceful arguments of Chief Richard Akinjide SAN in affirming the return and declaration of Alhaji Shehu Shagari, the Presidential candidate of the National Party of Nigeria, as the duly elected President of Nigeria, while dismissing the spirited efforts by way of the appeal to the Apex Court by Chief Obafemi Awolowo, the Presidential Candidate of the Unity Party of Nigeria, to upturn the said return and declaration by the Federal Electoral Commission.
Interestingly, from then on through the short lived democratic experimentation under the then Military Rule of General Ibrahim Badamosi Babangida, in the short lived 3rd Republic to the inauguration of the 4th Republic on May 29, 1999 till date, the Judiciary, due to no fault or ambition of its own, has consistently been invited and its powers invoked by Politicians of all dispositions to determine of the outcome of vast majority of elections conducted in Nigeria, whether at the Federal or States and even at the Local Government levels of Governance in Nigeria. This is no thanks to the never say die spirit of the Nigerian Politicians, in and out of office. Thus, even Councillorship Candidates are ready to pursue their cases up to the Supreme Court, if there be any such provisions in our laws. In a recent unreported decision of the Court of Appeal, Benin Division in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors delivered on March 8, 2021, I had cause to ponder inter alia thus:
“In law therefore, a pre – election matter does not become academic or hypothetical merely because the election had taken place. Thus, pre – election matters commenced in line with the extant law on electoral matters would remain live issue notwithstanding the holding of the election while the pre – election matter was already pending in Court…My lords, I had even asked myself the question, whilst considering this issue, if indeed the claims of the 1st Respondent had become merely academic, why would or should the Appellant even bother appealing against the judgment of the Court below arising from a Suit which had become merely academic and of no longer any utilitarian value to any or all of the parties as vehemently contended on his behalf by his learned Senior Advocate in this appeal? The answer, to my mind is not farfetched, and I hope I am right, it is because while lawyers pride themselves as masters of the law, the Politicians are master game planners and they would never give up unless and until either they realize their desire to ‘serve their people’ or the Apex Court in an appeal before them tell the Politicians with finality that it is all over, then they would take a bow and rest but bid their time for the next election! In this wise, they are far wiser than the lawyers!”
After the 2007 General Elections, there was an attempt to reduce the levels and layers of interventions by the Nigerian Judiciary in electoral matters by pegging all post – Election litigations, including National Assemblies and Governorship Elections to end at the Court of Appeal, except the Presidential Election was met with resistance no thanks to the debacle in the appeals in some Governorship Appeals, notably Sokoto and Edo States, leading to the very needless amendment to return Governorship Elections Appeals to the Supreme Court, the result of which has been unending litigations.
The foray of the Judiciary into Political cases has come with it various challenges, ranging from allegations of corruption and and distraction of the Judicial system from facing and resolving timeley the day to day issues of ordinary Citizens of this Country in preference for so much time and resources and energies spent on Political cases, ranging from Pre – Election to Post – Election ligations. However, due intervention of the Judiciary has also brought with it the unique opportunities of ensuring that the votes of the Citizenry counts and therefore, only those whom the electorates have truly expressed their wishes to govern them through the ballot box to do so emerge to govern them. Thus, whenever the Electoral system and or the Political parties fail the people, the Court, upon proper invitation, comes to the rescue by intervening to ensure that the votes of the electorates counts! In Elohor & Anor V. INEC & Ors (2019) LPELR – 48806(CA) @ pp. 36 – 47, I had cause to reiterate inter alia thus:
“In Election Petition proceedings also the electorates whose votes must be allowed to be counted in the determination of who represent them and acts on their behalf for the period or term of the office contested for by the parties at the Election…The Court must hold the balance and ensure, as far as practicable under its extant rules of practice and procedure, a level playing field for all the parties”
After the 1979 General elections, a landmark Election Petition was heralded into the Nigerian Political landscape by the challenge of the 1979 Presidential Election by the candidate of the Unity Party of Nigeria, Chief Obafemi Awolowo, who vigorously and spiritedly contested the declaration and due return of the candidate of the National Party of Nigeria, Alhaji Shehu Usman Shagari at the Presidential Election Tribunal to the Supreme Court on Appeal. This landmark case could easily be regarded as the first major foray of the Judiciary into Political cases in Nigeria, heralding as it were a deluge of political cases, both pre – and post – election litigations in the coming years and which has led, perhaps, to the view as expressed in the theme of this law week, the ‘Judicialization of Politics in Nigeria’
On August 11, 1979 the electorates in Nigeria had trooped out to the polling booths across the Country to elect for themselves a leader, from the five Presidential Candidates, namely; Alhaji Shehu Usman Shagari of the NPN, Chief Obafemi Awolowo of the UPN, Dr Nnamdi Azikiwe of the NPP; Alhaji Aminu Kano of the PRP, and Alhaji Ibrahim Waziri of the GNPP, this time as President of Nigeria under the brand new 1979 Constitution of Nigeria, which was a radical departure from the immediate post – Independence Westminster styled Era akin to the model of Government in the United Kingdom to the Executive Presidential System akin to the model of Government in the United States of America. On August 16, 1979 the candidate of the NPN, Alhaji Shehu Usman Shagari, was returned and declared as the elected President of Nigeria having, according to electoral umpire, Federal Electoral Commission, received a majority of the votes cast at the Presidential Election in satisfaction of the provisions of Section 34 A (1)(c)(i) and (ii) of the Electoral Decree No. 73 of 1977(as amended), which provided inter alia that a Presidential candidate will be deemed to have been duly elected to such office where he has the highest votes cast at the election, and he has not less than one quarter of the votes cast at the election in each of, at least, two – thirds of all the States in the Federation.
In the Election Petition presented to the Presidential Election Tribunal sitting in Lagos, Chief Obafemi Awolowo, the Presidential Candidate of the UPN, had contended that the election of Alhaji Shehu Usman Shagari, the Presidential Candidate of the NPN, was invalid by reason of non – compliance with the provisions of Part II of the Electoral Decree, 1977 in that although Alhaji Shehu Usman Shagari had received the highest total votes of 5,688,857 at the said election, he had less than one – quarter of the votes cast at the election in each of at least two – thirds of all the 19 States in the Federation and prayed for the nullification of the return made by the electoral umpire and for the holding of another election in accordance with Section 34A(3) of the Electoral (Amendment) Decree No. 32 of 1979. The parties filed and exchanged their pleadings and issues were duly joined and the matter went to trial.
Chief Obafemi Awolowo testified for himself and called one witness, one Professor Ayodele Awojobi, a Professor of Engineering at the University of Lagos and an applied mathematician who testified that there are 38,760 possible two – thirds of Kano State going by Local Government Area and that in the absence of a computer, it will take at least one year to declare the result in respect of two – thirds of Kano State. The Respondents did not call any evidence. In its judgment, the Presidential Election Tribunal saw no merit in the Petition and thereby dismissed it. Chief Obafemi Awolowo was aggrieved with that decision and had promptly appealed against it to the Supreme Court of Nigeria on the grounds inter alia that the Election Tribunal misdirected itself in law in construing two – thirds of 19 States as 122/3 instead of 13 States when in law and especially within the context of Section 34A(1)(c)(ii) of the Electoral Decree 1977 as amended, a State being a corporate body or a legal person cannot be fractionalised, that the Election Tribunal misdirected itself when it held that the dominant requirement in the election is the number of votes cast in each of the States, “two – thirds State” would be synonymous with two – thirds of the total votes cast in that State and not the physical or territorial area of such State, and that the Election Tribunal misdirected itself when it took the total votes cast for Alhaji Shehu Usman Shagari of the NPN in Kano State, 243,423 votes instead of two -thirds thereof 162,282 votes to determine whether or not he scored at least a quarter or 25 per cent of the total votes cast in two – thirds of Kano State, 203,460 votes.
In the judgment delivered on Wednesday, September 26, 1979, the Full Court of the Supreme Court of Nigeria Coram: Atanda Fatai-Williams, CJN, Ayo Gabriel Irikefe JSC, Mohammed Bello JSC, Chukwunweike Idigbe JSC, Andrews Otutu Obaseki JSC, Kayode Eso JSC , and Muhammadu Lawal Uwais JSC in Chief Obafemi Awolowo V. Alhaji Shehu Shagari & Ors (1979) LPELR – 653 (SC), dismissed the Appeal (by a split majority decision of 6 – 1) and held per Fatayi – Williams CJN, inter alia thus:
“It is at this stage that the Returning Officer ought to determine what is two – thirds of 19 States. This is a matter of law as it deals with the interpretation of the provisions of Section 34A(1)(c)(ii) of the Decree….the Federal Military Government must be deemed to know that two – thirds of 19 States will be 122/3 of States….If the number 13 which is the nearest to two – thirds of a State had been intended the Federal Military Government would have said so in clear terms. In any case, as between 13 States and 122/3 States, the figure of 122/3 considering all the circumstances, appears to us to be the intention of the Federal Military Government in the context of sub-paragraph (ii) of Sub-section (1)(c) of Section 34A. Furthermore, it is, we think, fallacious to talk of fractionalisation of the physical land area of a State when the operative words of Section 34(1)(c)(ii) relate undoubtedly to the votes cast by the voters in the State at the election…Moreover, until election returns can be computerized in this country, the “mathematical canon of interpretation” put forward by Professor Awojobi in his testimony before the Election Tribunal will remain impractical and legally unacceptable.”
However, both of their lordships, Obaseki JSC and Eso JSC, disagreed with the majority view of two – thirds of 19 States as amounting to 122/3 States rather than 13 States but since the majority had spoken whatever their lordships held, the rest is history! There was a record of appearances of array of high flying counsel in this landmark Appeal. It is worthy of note that the questioned Presidential Election was held on 11/8/1979, the results were declared on 16/8/1979 and yet by 26/9/1979 all post – election litigation on it had been concluded with up to the level of the Supreme Court before the inauguration of the newly elected President on 1/10/1979
In 1983, due to widespread violence resulting from the wide held belief of large scale irregularities in the conduct of the General Elections of that year, there were a deluge of Election Petitions challenging the outcome of the said Elections as declared by the Electoral Umpire but regrettably, that was when technicalities in law held sway riding roughshod far and above substantial justice, and thus a great number of these Election Petitions challenging the General elections failed while the results of the said elections which were clearly perceived and believed to have been irregular were nevertheless upheld by the Courts, purely on technical grounds. However, in very few of these cases, particularly in Ondo State as between Akin Omoboriowo of the NPN and Chief Michael Ajasin of the UPN in Chief Akin Omoboriowo & Ors V. Chief Michael Adekunle Ajasin (1984) LPELR – 2643 (SC), these glaringly perverse results of the General Elections were ably and admirably reversed by the Court and substantial justice rendered not only to the successful Petitioners but also to the electorates so that their true wishes as expressed by them through their votes prevailed.
In 1993, the justification for the annulment of the widely believed freest and fairest Presidential Election in the annals of history of Presidential Elections in Nigeria was found in the series of interventions by the Courts both pre – and post – election at the behest of political actors and activists which became a ready excuse and or a lee way for the then Military Ruler, Gen Ibrahim Badamosi Babangida to annul the June 12, 1993 Presidential Election whilst collation of results were still ongoing in the remaining few States, the results of majority of the States having already been announced by the Electoral Umpire. Of note was the Suit filed on June 10, 1993 by the Association for Better Nigeria, represented by one Abimbola Davies, before an Abuja High Court that the Presidential election be suspended on grounds of corruption going on in Party politics. The Court wasted no time in granting such an insidious as well as invidious request and thereby retraining the National Electoral Commission from conducting the Presidential Election.
Still in 1993, in just the 3rd month of the Interim National Government under the leadership of Chief Ernest Shonekan between August 26 1993 November 17, 1993, and set up by the retreating Military Ruler, the Courts intervened once again. This time a Lagos High Court, at the behest of a Suit filed by the generally and popularly acclaimed winner of the June 12, 1993 Presidential Election, Chief M.K.O. Abiola, declared the Interim National Government as an illegal contraption. The immediate consequences and effects of this intervention by the Courts on Nigeria and the rest as they say is now history! But going down the memory lane, the transition to civil rule was eventually truncated and thus leading Nigeria to nowhere while the generally believed and popularly acclaimed winner of the June 12, 1993 Presidential Election, Chief M. K. O. Abiola, after about a spell of four years spent in detention died on July 7, 1998, shortly after the death of the then Nigerian Military Ruler, Gen Sanni Abacha on June 8, 1998.
In the aftermath of the 1999 General elections and consequent upon the return and declaration of Gen Olusegun Obasanjo, the Presidential Candidate of the Peoples Democratic Party as the winner of the 1999 Presidential Election in Nigeria, the Courts intervened once again but at the behest of Chief Olu Falae, the Presidential Candidate of the Alliance for Democracy, who challenged the results of the Presidential Election vide an Election Petition No. CA/A/EPPR/12/1999 presented to the Presidential Election Petition Tribunal of the Court of Appeal Coram: Dahiru Mustapha JCA, Aloma Mariam Mukhtar JCA, George Adesola Oguntade JCA, Justin Thompson Akpabio JCA, and Dennis Onyejife Edozie JCA. The parties filed and exchanged pleadings and the matter proceeded to hearing. At the trial, Chief Olu Falae called 15 witnesses, while Gen Olusegun Obasanjo called 3 witnesses. All the other Respondents, the 2nd – 60th Respondents, did not call any witness but rested their defense on the evidence called by the other parties. At the conclusion of trial, the Petition was dismissed. See Chief Olu Falae V. Gen Olusegun Obasanjo & Ors No. 2 (1999) 4 NWLR (Pt. 599) 476 (CA).
In April 2003, General elections were held in Nigeria and in the aftermath of the outcome of the elections, the Courts had once again intervened at the behest of aggrieved persons. Thus, several Election Petition Tribunals were set up in accordance with Section 285(l) (a) and (2) of the Constitution of Nigeria 1999 (as amended). However, despite the hues and cries of massive irregularities, by both local and international observers, most of the results from these generally believed flawed elections were upheld by the Courts likely due to lack of evidence to substantiate these alleged irregularities. Thereafter, the political life of the Nation went on as usual with nothing significant learnt by the Politicians as well as the Political parties from the largely flawed 2003 General Election in which the phenomenon of ‘carry go’ was introduced into the Nigerian Political lexicon. Truly, so sad indeed!
The Courts have regularly on the behest of aggrieved persons intervened in a deluge of pre – election matters over the years. Principally, there are two sections of our laws giving rise to the avalanche of pre – election cases in the Courts, namely; Sections 31(5) and 87(1) of the Electoral Act 2010 (as amended).
By Section 31(5) of the Electoral Act 2010 (as amended), it is provided as follows:
“A person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false”
By Section 87 (1) of the Electoral Act 2010 (as amended), it is provided as follows:
“A political party seeking to nominate candidates for election under this Act shall hold primaries for aspirants to all elective positions”
Let me first deal with the provisions of Section 87 (1) of the Electoral Act 2010 (as amended), which appears to be the major source and cause of the deluge of pre – election litigations in this Country, underscoring the obvious lack of internal democracy in Political parties in Nigeria, leading to the interventions by the Courts, at the behest of aggrieved member of Political parties, with the resultant perception of ‘Judicialization of Politics in Nigeria’
In PDP V. Sylvia  13 NWLR (Pt. 1316) 85 @ p. 148, the Supreme Court per Chukwuma – Eneh JSC., had opined inter alia thus:
“The clear object the provisions of Section 87 is intended to achieve besides the inculcation of internal democracy in the affairs of political parties in this country moreso in the conduct of their party primaries includes thus making them transparent and providing level playing ground for their contestants in party primaries….”
On his part, Rhodes -Vivour JSC had opined inter alia thus:
“Where the political party conducts its primary and a dissatisfied contestant at the primary complains about the conduct of the primaries, the Courts have jurisdiction by virtue of the provisions of Section 87 (9) of the Electoral Act to examine if the conduct of the primary elections was conducted in accordance with the party’s Constitution and Guidelines. This is so because in the conduct of its primaries the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its own constitution.”
In Shinkafi V. Yari (2016) 1 SC (Pt. II) 1 @ p. 31, the Supreme Court had expatiated inter alia thus:
“It is now trite that where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct of the primaries, the Courts have jurisdiction by virtue of the provision of Section 87(9) of the Electoral Act 2010 (as amended) to examine if the conduct of the primary was in accordance with the party’s Constitution and Guidelines. The reason is that in the conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its Constitution.”
In CPC V. Ombugadu  18 NWLR (Part 1385) 66 @ pp. 129 – 130, the Supreme Court per Ngwuta JSC, (God bless his soul) had expatiated inter alia thus:
“A political party is greater than the numerical strength of its membership just like a country, for instance, Nigeria, is greater than the totality of its citizens. It follows that in the case of a Political party, such as the 1st Appellant herein, the interest of an individual member or a group of members or a group of members within the party, irrespective of the place of such member or a group in the hierarchy of the party, must yield place to the interest of the party. It is the greed, borne of inordinate ambition to own, control and manipulate their own Political parties by individuals and groups therein and the expected reaction by other party members that result to the internal wrangling and want of internal democracy that constitute the bane of Political parties in Nigeria…it is apparent that a few powerful elements therein hijack the parties and arrogated to themselves right to sell elective and appointive positions to the party member who can afford same…Politicians must learn to play the game of politics in strict compliance with its rules of organised society.”
In Mato V. Hember & ORS (2018) 5 NWLR (Pt.1612) 258, the Supreme Court had per Onnoghen CJN, emphatically stated inter alia thus:
“Both the Electoral Act and the Constitution of the 2nd Defendant make it mandatory that primaries be conducted in the Headquarters of the Constituency. The failure to comply with these provisions makes the entire exercise null and void…The truth must be told and that is, that the 1st and 2nd Defendants did not respect the provisions of the Electoral Act and the constitution of the 2nd defendant in the conduct of the primaries. This Court has decided in quite a number of cases that political parties must obey their own constitutions as the court will not allow them to act arbitrarily or as they like” .
In Alhaji Shuaibu Isa Lau V. LAU V. PDP & Ors. (2017) LPELR- 43800 (SC), the Supreme Court per Augie JSC, had stated inter alia thus:
“This is a hard and very bitter lesson for Political parties to learn. They may have chosen candidates or eminent personalities they want to present as candidates to INEC, but they have to play by the rules….The chosen candidates must comply with requirements of the law; they must abide by the provisions of the Electoral Act, which creates a level playing field for all aspirants who seek to contest elections…So, the Political parties and their candidates must obey the rules.”
See also Dahiru & Anor V. APC & Ors. (2016) LPELR – 42089 (SC); Boko V. Nungwa (2019) 1 NWLR (Pt. 1654) 395; Tarzoor V. Ioraer (2016) 3 NWLR (Pt. 1500) 463.
Let me now consider the provision of Section 31(5) of the Electoral Act 2010 (as amended), another, and perhaps the current fastest source and cause of pre – election litigation, underscoring the obvious lack of proper definition of rights of persons to intermeddle in the internal affairs of Political parties to which they do not even belong and leading to the interventions by the Courts, at the behest of any person who is so led to intermeddle with the internal affairs of a Political party to which he is a stranger, with the resultant perception of ‘Judicialization of Politics in Nigeria’
In Peoples Democratic Party V. Biobarakuma Dei-Eremienyo & 3 Ors (2020) Vol. 305 LRCN 1, the Supreme Court per Eko JSC; had held inter alia thus:
“Section 31 (5) of the Electoral Act complements Section 182 1 J of the Constitution. It empowers any person who has reasonable grounds to believe that any information given by a candidate submitted by that candidate is false to file a Suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false. The sanction for presenting to INEC Form CF001 containing false fact about the personal particulars or information of the candidate, by virtue of Section 31(6) of the Electoral Act, is an order by the High Court disqualifying such candidate from contesting the election”
In a recent unreported decision of the Court of Appeal in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors delivered on March 8, 2021, I had cause to ponder inter alia thus:
“Now…the provision of Section 31(5) of the Electoral Act, 2010 (As Amended) talks of ‘a person’ and is the 1st Respondent not within the meaning ‘a person’ in Nigeria? The Appellant did not say so! Thus, it would appear that going by the succinct provisions of Section 31(5) of the Electoral Act, 2010 (As Amended) and on the authority of Lawrence V. PDP (2018) 5 NWLR (Pt. 1613) 464 @ p. 481, the meaning of “a person” as used in Section 31(5) of the Electoral Act 2010 (as amended) presupposes any person, including the 1st Respondent, since it appears to be open – ended to all and at the same time inclusive of all and without any restriction or exclusion. Thus, whether or not one is a member of a Political Party or any particular Political party, as in the instant appeal, a PDP Card carrying member challenging the qualification of a candidate of the APC, is of no moment as the law allows the 1st Respondent so to do! I have no difficulty whatsoever resolving seven against the Appellant in favor of the 1st Respondent.”
Now, whilst the above cases dealt with the provisions of Section 31(5) of the Electoral Act 2010 (as amended), which appears to complement the provision of Section 182(1)(j) of the Constitution of Nigeria 1999 (as amended), per Eko JSC, in Peoples Democratic Party V. Biobarakuma Degi – Eremienyo & 3 Ors (2020) Vol. 305 LRCN 1, by the provisions of Section 65( 1) & ( 2), Section 66 (1)( a) – (j) & (2), Section 106 ( a) – (d), Section 107 (1) (a) – (j) & (2), Section 131(a) – (d) , Section 137 (1)(a) – (j) & (2), 177(a) – (d ), Section 182(1)(a) – (j) & (2) of the Constitution of Nigeria 1999 (as amended), exhaustive provisions were made for qualifications and disqualifications of Candidates to all the Elective Offices established by the Constitution of Nigeria 1999 (as amended) and which can form the basis or grounds for the challenge of an election to any of the said offices before an Election Petition Tribunal. Now, since all these provisions serve the same purpose of qualification and or disqualification of Candidates, if they are not sufficient then it is suggested that a further amendment of the Constitution of Nigeria 1999 (as amended) in line with the provisions of Section 31(5) and (6) of the Electoral Act 2010 (as amended) be effected and made an integral part of disqualification of Candidates to obviate the duplications leading to pre – and post – election litigations on the same ground and or issue.
This duplicity was impliedly but amply demonstrated by the challenge to the result of the 2019 Presidential elections by His Excellency Alhaji Atiku Abubakar, the Presidential candidate of the Peoples’ Democratic Party against His Excellency Muhammadu Buhari, the incumbent President and Presidential Candidate of the All Peoples’ Congress. In Abubakar V. INEC (2020) 12 NWLR (Pt. 1737) 37 @ p. 110, the Supreme Court per I.T. Muhammad, CJN, had pronounced inter alia thus:
“Before I conclude on this issue, let me state that whenever documents are tendered from the Bar in election matters, the purport is to speed up the trial in view of time limitation in election matters. Such tendering is not the end itself but a means to an end. The makers of such tendered document must be called to speak to those documents and be cross-examined on the authenticity of the documents. The law is trite that a party who did not make a document is not competent to give evidence on it. It is also the tested position of the law that where the maker of the document is not called to testify, the document would not be accorded probative value by the court. That in deed is the fate of exhibits P80 and P24…Finally, on this issue, it was contended by the appellants that the variation in the names of 2nd respondent on Exhibit R19 and R21 makes his relationship with the two documents doubtful. Is “Mohammed” and “Muhammadu” the same name and belong to the 2nd respondent? The Court below made an elaborate discussion on the issue and concluded that RW5 gave explanation on the names and stated that they are the same….For me, as the appellants failed to prove that any of the documents belong to another person and as nobody has come out to claim any of the two exhibits, I do agree with the explanation given by the RW5 and the conclusions of the court below that both names “Mohammed” and “Muhammadu” as contained in exhibits R19 and R21 belong to the 2nd respondent. On this note, I resolve issues one and two against the appellants.”
It is clear that the above two decisions of the Supreme Court in Peoples Democratic Party V. Biobarakuma Dei-Eremienyo & 3 Ors (2020) Vol. 305 LRCN 1, and Abubakar V. INEC  12 NWLR (Pt. 1737) 37 @ p. 110, though based in Pre – election and Post – election matters were canvassed on same issues and or grounds leading to the deluge of cases justifying the constant intervention by the Judiciary in Political cases at the behest of aggrieved persons by virtue of Sections 31(5) and 87(1) of the Electoral Act 2010 (as amended), which it is posited can legally and conveniently be done away with as would be canvassed in details later in this paper in order to drastically reduce and or bring to a halt the deluge of Pre – election matters and the resultant constant intervention by the Courts and the seeming ‘Judicialization of Politics in Nigeria’
LACK OF INTERNAL DEMOCRACY IN POLITICAL PARTIES IN NIEGRIA2: This is perhaps the mother of all reasons why there is the seeming feeling of ‘Judicialization of Politics in Nigeria’ as thought and coined by the Organizers of this Law Week. There seems to be a great deal of lack of or non – observance of internal democracy by the hierarchy of Political parties in Nigeria. The founders and leaders of Political parties do award and in some cases sell the party’s tickets to either the hig hest bidder or to whomsoever it pleases them to give it to. Thus, the generality of the members of Political Parties neither have any say or their way in the running of the affairs of Political parties in Nigeria. Internal democracy was, and is still to a large extent going by the avalanche of complaints and the deluge of pre – election litigations, a mirage and mere wishful thinking in Nigerian Political parties. The Godfathers, Kingmakers and the Moneybags rule the internal affairs of Political parties and run the Political parties at their own whims and caprices. With their blessings a person can become a Candidate just at the same time he is becoming a member of a Political party and without their blessings a member no matter for how long or qualified would stand no chance to be given the ticket to run as the candidate of a Political party in Nigeria. Thus, internal democracy was not considered a virtue in the affairs of Nigeria’s Political parties.
The Constitution of Political parties are mostly observed in the breach and the aggrieved dared to go to Court. Though on paper, primaries, whether direct or indirect, is touted to be an integral part of the administration of the internal affairs of Political parties in Nigeria, but in practice it is avoided by the hierarchy, leaders, moneybags and kingmakers like a plague. They pay mere lip service to it and rather thrive on imposition of candidates. So bad is the adverse effect of absence of internal democracy that even a performing office holder can be out rightly denied the opportunity of participating in the process leading to the selection of a candidate for a Political party for a second term in office, notwithstanding the wishes of the generality of members of the Political party and or even the desires of the electorates at large. In this regard, the case of the Lagos State APC Governorship Primaries in 2019 as well as the Edo State APC Governorship primaries in 2020 readily comes to mind. See for example Article 20 of the All Progressives’ Congress enshrining primaries, whether direct or indirect, as the mode of selection of its candidates for general elections. Similar provisions exist in all the other registered Political parties in Nigeria.
Internal democracy is the panacea to the myriads of disappointments by members of Political parties in Nigeria with the resultant avalanche of complaints by aggrieved members of Political parties and the deluge of pre – election litigation throughout the length and breadth of this Country. Thus, to curtail the constant derailment of the Constitution of Political parties in Nigeria, and the resultant cacophony of voices and the incessant recourse or resort to the Courts by the many aggrieved members of Political parties, there must be good leadership of Political parties founded on internal democracy and duly anchored on strict adherence to the Constitution of Political parties. There is urgent need to nip in the bud the pervasive erosion of internal democracy in the management of the affairs of Political parties. Since, Political parties are the base from which leaders of the Nigerian society emerge, in the absence of independent candidacy, only good leadership and governance of Political parties can give rise to good leadership of the larger society. This is so because one cannot give out what one does not have. It is simply ‘nemo dat quod non habit’! The more lip service is paid to the overriding need, which is now imperative in the Political landscape of Nigeria, for internal democracy, the more likely there will be rise in the resort and or recourse to the Courts in Pre – election litigation by aggrieved members of Political parties. As long of internal democracy is eroded in the affairs of Nigeria’s Political parties, so long there would be no ‘de – judicialization of Politics in Nigeria.’ The key therefore, to keeping the Judiciary out of Politics in Nigeria is internal democracy in Nigeria’s Political parties! This would have the soothing effect of satisfaction to vast majority of members of Political parties where there is strict adherence to the provisions of their Parties’ Constitution and where the whims and caprices of the privileged few in the parties, the Godfathers, the Moneybags, the Kingmakers and the hierarchy, would be effectively curtailed. Then there would be less and less Pre – election litigations in the politics and affairs of Political parties in Nigeria.
The important role and or fundamental position of Political parties in modern political process and democratic governance cannot be over emphasized, hence the need to instill the practice of internal democracy in Nigeria’s Political parties3. What then are the challenges to internal democracy in Political parties? These would range from; lack of party ideology, the overbearing role of party’s elected officials in the Executive and Legislative Arms of Government, lack of observance of process or mechanism for selection of party’s candidate for general elections, lack of independent source of funding and the disruptive role of moneybags, lack of or breaches of agreed zoning formula, highjack of party’s primaries, lack of consensus building mechanism, lack of discipline, and arrogance of the hierarchy of Party’s executives.
GIVING EFFECT TO THE TRUE WISHES OF THE ELECTORATES EXPRESSED THROUGH THEIR VOTES AND MAKING THEIR VOTES COUNT: Intervention by the Courts had in many deserving cases ensured that the wishes of the electorates is respected and made to prevail and their votes count. Fraudulent elections, where they are proved according to law, are set aside and either fresh or bye or rerun elections ordered and conducted by the Electoral Umpire. Instances of these abound, ranging from the 1983 invalidation by the Court of the purported return and declaration of Chief Akin Omoboriowo as the Governor of Ondo State and the restoration of the wishes of the electorates of Ondo State by the due return and declaration of Chief Michael Ajasin as the duly elected Governor of Ondo State by the Court, the 2007 earthshaking decision of the Apex Court dismantling the stark injustice meted to Chibuike Rotimi Amaechi by the People Democratic Party by his due return to the Rivers State Government House, the Brick House, as Governor of River State in place of the then Governor Celestine Omehia, the 2008 invalidation by the Court of the purported return and declaration of Prof O. Osunbor as the Governor of Edo State and the restoration of the wishes of the electorates of Edo State by the due return and declaration of the Comrade Governor, Admas Oshiomole as the duly elected Governor of Edo State by the Court. In recent times, there have been the decisions of the Courts in the Governorship tussles in Imo State and Bayelsa State respectively as decisively determined by the Apex Court. Thus, without the timely and due intervention by the Judiciary, at the behest of these aggrieved persons, these injustices and several others that doted our political landscape would have been left un – redressed and rather ingloriously perpetuated in the psyche of the Nation. By its well – deserved interventions in deserving cases, the Judiciary continues to make significant contribution to the deepening of the Nation’s democratic experiences and thereby fostering the tenets of credible elections in Nigeria.
WIDENING AND OPENING UP THE DEMOCRATIC SPACE: By prompt judicial interventions, the hitherto over restricted space for formation and registration of Political parties have been widened with the result that there is presently a great deal of political space for persons desirous of involving themselves in politics to do so on their own terms without being limited to very few options by way of existing Political parties. Once, an association meets the requirements of the law it is in the spirit of the right to freedom of association assured of being registered as a Political party to propagate its visions and canvass for votes from the electorates. This liberal approach to registration of Political parties was only made possible by the proactive nature of the Nigerian Judiciary. Today, Nigerians are offered the almost limitless opportunities in their choice of Political parties to achieve their dreams of serving their people. Perhaps, there is still one step forward needed to be taken in the Politics of Nigeria by due further amendment of the Constitution of Nigeria 1999 (as amended) to provide for independent candidacy, which would finally break the monopoly of the moneybags, godfathers and their ilk, when qualified and societal acceptable persons can jettison the money bags and existing ideology lacking Political parties to contest elections on their own right as independent candidate, which is one of the hallmarks of full blown advanced democracies of the World, such as the United States of America.
THE WAY FORWARD – KEYS TO REDUCED JUDICIALIZATION OF POLITICS IN NIEGRIA
OVERALL GOOD GOVERNANCE, TRANSPARENT AND CREDIBLE ELECTIONS: Whilst, conducting transparent and credible elections has remained an albatross in Nigeria, the bigger problem which had become anathema to transparent and credible elections in Nigeria is lack of good governance. There can be no transparency and or credibility in any sphere of a Nation’s life, including its elections, in the absence of good and responsive leadership in Governance. However, good Governance is not the exclusive preserve of the Executive at any level of governance in this Country. The requirement for good governance entails the total efforts and collaboration of all the three arms of Government, with each arm ensuring transparency and commitment to its constitutionally assigned roles in the governance and development of the Nation. Without a transparent Legislature there can be no overall good governance, and without a transparent and credible Judiciary there can be no overall good governance. It follows therefore, nothing can be farther from the truth than when only the Executive is expected and looked upon not only by the Citizenry but also by its co – burden bearers, the Legislature and the Judiciary, to provide the overall good governance for the people of Nigeria.
Overall good governance is therefore, the function of all the three arms of Government working assiduously together to make things work smoothly to the good and benefit of the Citizenry. One step of assurance to good, transparent and credible election is the swift adoption of the experimental Card Reader to become an integral part of the super structure of Nigeria’s Electoral System in the same way as the Voters’ Registry has been and still is. Nigeria must embrace the technology of the Card Reader. It has the greater potential, if put to good and effective use, of checking rigging at Elections in Nigeria. To this end, there is need for complete overhaul of the Electoral System by way of urgent and comprehensive reforms and perhaps wholesale amendment of the Electoral Act 2010 (as amended). Rather, but regrettably too, emphasis has always and still is on the results of the election, no matter how contrived and the loser is admonished and in some rare cases dared to go to Court if he so wishes! Thus, whether the votes of the electorate were duly counted and each vote given its prime place in the collation of the total outcome of the election is of little concern to most of the ill trained ad-hoc staff, mostly engaged by the Electoral umpire, and whose main interest is the payment of their allowances. Serious efforts should be made at inculcating patriotic zeal in all who would be recruited and or called upon to serve as ad-hoc staff in every election in Nigeria. The polling unit is at the base of the pyramid and once things are not done right there it permeates all the other levels in the hierarchy of the election. A collation center can only but collate whatever was brought forward to it from the polling units, yet whilst the collation centers are heavily fortified with security and better welfare or allowances, the polling units are mostly left to their own imagination. This must stop!
Nigeria is in dire need of Electoral best practices as obtained in advanced democracies. Electoral offences must be duly investigated no matter who was or is involved and assiduously prosecuted where an infraction is established. An Electoral Offences Commission is now long overdue. The independence and credibility of the Electoral body must transcend its mere nomenclature but must be guaranteed. It is time for the Chairman and Members of the Electoral Body to be appointed independently of the Executive to ensure their real independence and to owe their allegiance to no one but only to the Nigerian State and its people. It must be well funded and its sources of funding must be guaranteed by a first line charge on the consolidated revenue fund. It need not and must not owe any allegiance to the Executive but to the Nigerian State and its people only! Thus, to move Nigeria forward and institutionalise democratic culture through credible elections, the Electoral System must be rejigged and election malpractices, in whatever shape or form, effectively checked by correcting all the lapses apparent in the electoral system, institutions and machinery. Thus, for democracy to thrive in Nigeria, and the resultant road to good governance and consequent development, transparent and credible election is a sine quo none! There is no doubt that, and as experienced in advanced democracies of the World, notably the United States, a stable and virile democracy will invariably enthrone an unimpeded socio – economic development in Nigerian.
ENTHRONING AND ENFORCING INTERNAL DEMOCRACY IN POLITICAL PARTIES4: Political parties must be made to enthrone, entrench and practice internal democracy by abiding by the provisions of their Constitutions. There must be regular convening of their National Executive Meetings, Elective and Non Elective Conventions as prescribed in their Constitutions. They must be observance of financial guidelines for Political parties. There must be functional and trustworthy internal dispute resolution mechanisms. There must be transparency in the use and administration of the finances of the Political party. There must be clearly defined mechanism and guidelines for Party primaries for selection of its candidates for elections. There must be independent sources of funding and payment of dues by all members to secure neutrality of the Party Executive in all matters affecting the members, particularly in the conduct of its primaries. To reduce recourse and or resort to the Courts, there should be established mechanism for Alternative Dispute Resolution, which usually ensures a win – win outcome, to be widely explored in the resolution of internal disputes and disagreements within the Political party for party cohesion and mutual trust. Every registered member should be a stakeholder and his views should count at his level of participation in the affairs of the Political party.
POLITICAL PARTIES COMMISSION: It is suggested that to make breaches of Constitutions of Political parties dire and unattractive, a Political Parties Commission be established by law either independently or under the auspices of the Independent National Electoral Commission. This body should be charged with the exclusive responsibility to receive and investigate all allegations of and or reported breaches of the Constitution of Political Parties, which I had earlier suggested must be made non justiciable in our law being mainly a political question, and to make recommendations to the Independent National Electoral Commission for the proscription of such Political party if the investigation confirms such breach. I think it is high time in this Country to not only talk tough but also to walk the talk!
Alternatively, since it is a truism that failure or lack of internal democracy should be sanctioned by the Electoral Body, the Electoral Act 2010 (as amended) should be amended to empower the Independent National Electoral Commission to receive and investigate complains of breaches of the Constitution of a Political party with powers to enforce compliance and mete out sanctions, including in extreme cases of proved infractions, proscription of the Political party. Since internal democracy is key to good administration of Political parties and for the protection of generality of members of a Political party from the whim and caprices of the privileged few, its breach, being cancerous to the growth and development of Party politics, must be met with surgical redress, including proscription where necessary to send a strong signal to Political parties that internal democracy is not an option but a sine qua none for the existence of any registered Political party in Nigeria.
REDUCTION OF JUDICIAL INTERFERENCE IN PARTY POLITICS: A Political party, as duly registered under law and abiding by its Constitution and careful to observe and practice internal democracy, is supreme in the management and control of its affairs and its relationship with its members. Thus, the Political party is best suited and should empowered by law to take binding and final decisions affecting the management of its affairs and also as affecting its members and therefore, the intervention by the Courts in the internal management of the affairs of Political party and the relationship between the Political party and its members must be drastically reduced and should at appropriate level of enthronement and enforcement of internal democracy in all Political parties in Nigeria by the Electoral Body, be eliminated and brought to an end. The Court is not a supervisor or superintendent in the management of the internal affairs of a Political party, including its relationship with its members. Thus, the Court should neither choose Candidates for a Political party nor Officers for a Political party. These are clearly ‘Political Questions’ which should be made non justiciable by law and be left to the Political parties to handle and resolve with finality without nay intervention of or interference by the Courts. To this end, it is suggested that the Constitution of Political parties should by law be made non justiciable and let the Political parties decides with finality all such Political questions for which they are best suited and eliminate all forms interventions and sometimes clear interferences by the Courts with the internal affairs of Political Parties.
OUTLAW OR REDUCE TO THE BAREST MINIMUM GROUNDS FOR PRE – ELECTION MATTERS IN NIGERIA: I find, and with utmost humility, the provisions of Sections 31(5) and 87 (1) of the Electoral Act 2010 (as amended) as unnecessarily meddlesome, intrusive and needless interference with the internal affairs of Political parties on questions which are clearly political in nature and should therefore, be preserved for the Political parties to decide with finality politically without the meddlesomeness of the Courts. Thus, in my view, a law authorizing and thereby emboldening ‘a person’ who believes that a declaration made by a Candidate in INCE Form CF001 and submitted to INEC is false and wants to challenge the declarations made by a Candidate to do so is a receipt for disaster and should be amended and expunged without any further delays to insulate the Courts from delving into matters in Pre – election cases, which are already part of the qualifications and non – qualifications of Candidates and are subject to challenge in an Election Petition by a Candidate in an Election, than to open a duplicitous floodgate, as has been open, for a deluge of pre – election litigations by every Tom, Dick and Harry!
It is my view that such a provision must either be expunged or amended to limit it to any candidate in an election and should be as part of an Election Petition to obviate the recourse to countless Pre – election matters which usually now outlive the Election itself and in some cases even the Election Petitions. The provisions on qualification, and by implication non qualifications, as spelt out in the Constitution of Nigeria 1999 (as amended) and as earlier set out in this paper, are enough and can even be amended if need be to accommodate this ground to put paid to this open vista for ‘a person’ to commence a Pre – election matter over disqualification of a Candidate, when that person is not even a member of the Political party affected nor a Candidate of any of the other registered Political parties.
To my mind, and I so strongly believe it to be so, this is a misplaced locus standi! In a recent unreported decision of the Court of Appeal Benin Division in Appeal No. CA/B/12A/2021: Audu Abudu Ganiyu V. Kadiri Sunday Oshoakpemhe & Ors delivered on March 8, 2021, I had cause to reiterate inter alia thus:
“The provision of Section 31(5) of the Electoral Act, 2010 (As Amended), talks of ‘a person’ and is the 1st Respondent not within the meaning ‘a person’ in Nigeria? The Appellant did not say so!….Thus, it would appear that going by the succinct provisions of Section 31(5) of the Electoral Act, 2010 (As Amended).…the meaning of “a person” as used in Section 31(5) of the Electoral Act 2010 (as amended) presupposes any person, including the 1st Respondent, since it appears to be open – ended to all and at the same time inclusive of all and without any restriction or exclusion. Thus, whether or not one is a member of a Political Party or any particular Political party, as in the instant appeal, a PDP Card carrying member challenging the qualification of a candidate of the APC, is of no moment as the law allows the 1st Respondent so to do!”
Now, if the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended) dealing with clear socio – economic rights of the Citizenry is made non – justiciable5 and the Society is coping well with it, I do not see any reason, and justifiably so, why the law should not make all matters touching on and arising from the management of the Constitution of a Political party as Non Justiciable. I believe such a step, though radical in nature but very beneficial and laudable is one sure means for the drastic reduction of Judicial interventions and or interferences in the internal affairs of Political parties in Nigeria, and would also be accommodated by the society to ensure the reduction to the barest minimum of Pre – election matters in Nigeria.
Political parties in Nigeria, though they pride themselves as political families whenever it suits their fancy, are not a family in any sense of the word ‘family’ but are mere coming together of persons with common interest but with neither common aspirations nor permanent interest such that aggrieved members should be able to exit a Political party without bringing the roof down on the party. In order words, where strict observance of the Constitution of Political parties is made a sine quo non for its continued existence by law and where internal democracy is achieved, any decisions taken by such a Political party as affecting its members, being a political question, should be final and a member who feels so aggrieved should exercise the option of exiting such a Political party and join or form another one if he feels so strongly about it. After all, ‘Judicialization of Politics in Nigeria’ had since opened and widened the Political landscape for easy formation of associations for registration as Political parties in Nigeria by the Independent National Electoral Commission.
However, it would appear that one of the reasons for the reluctance by aggrieved members to exit heir Political party, which had dealt unkindly with them contrary to the provisions of the Constitution of the Political parties and rather inundating the Courts with Pre – election cases, is the absence of independent candidacy in the Nigerian Constitution and thereby limiting the political landscape and space. It is therefore, suggested that serious thoughts should be given to the possibility of re – or introducing independent candidacy into our National polity and Electoral system. Truly, there are some individuals in Nigerian societies, who are formidable in character and totally accepted by their people, and who can hold their own and do even better in a free, fair and credible election against any Political parties in their own localities.
It is therefore, suggested and with the deepest humility, that the Nigerian Judiciary should be spared the duty of resolving any legal question bordering on a political question, involving the issue of internal affairs of Political parties and politics in general. Politics should be left for those best suited for it – the Politicians! It is a truism that in advanced democracies the Judiciary does stay clear of ‘Political Questions’6 which are better decided by the concerned other Coordinate arms of Government. In my view, once proper modalities and needed amendments are made to our Electoral laws and all other laws enabling it in that behalf and internal democracy and supremacy of Political parties is duly established in Nigeria and accepted by the members of Political parties, the Judiciary being made to stay clear of all issues bordering or involving ‘political questions’ would not amount to any abdication of judicial responsibilities by the Courts staying away from determining a any legal questions bordering on a political question.
The Judiciary, I am aware and it has been said so consistently over the years, is never hungry for jurisdiction and therefore, where there is no jurisdiction it would not go out of its way to assume jurisdiction. For example, it has been the settled position of the law that the provisions of Chapter II of the Constitution of Nigeria 1999 (as amended), notwithstanding their importance dealing with the socio – economic rights of the Citizenry, are non justiciable unless and until the Legislature legislates on any aspect of it to make it justiciable and it has ever since remained so and no Court had ever dabbled into it no matter how overzealous or altruistic such interventions would have been for the interest and benefit of the people of this Country being brazenly deprived of their socio – economic rights by Government after Governments at all levels in this Country. See generally, Onuoha V. Okafor (1983) NSCC 494; Alegbe V. Oloyo (1983) NSCC 315; Balarabe Musa V. PRP (1981)2 NCLR 453; Dalhatu V. Turaki (1981)2 NCLR 763; Inakoju V. Adeleke (2003)7 SC 1; AGF V. Abubakar (2002) 14 NWLR (Pt. 788) 466; AC V. INEC (2007)1 SC (Pt I) 1; Ugwu V. Ararume (2007)12 NWLR (Pt. 1048) 222, and Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367.
Thus, it would appear that both Sections 87 (1) and 31(5) of the Electoral Act 2010 (as amended), which seems to be the two principal sources of Pre – Election Matters in Nigeria, would serve no further useful purposes if the far reaching amendments being suggested in this Paper are accepted and adopted and all issues arising under Sections 31(5) & (6) and 87 (1) of the Electoral Act 2010 (as amended), are vested either in the Political Party or the Political Parties Commission and or INEC to deal with finality as political questions and therefore, non – justiciable. In such an Electoral System or regime, such cases as Amaechi V. INEC (2007)12 NWLR (Pt. 1048) 367, and all other cases in that line of authorities would have been rendered needless and unnecessary if there is the suggested legal mechanism to investigate and sanction Political Parties for failure to observe internal democracy and abiding by their Constitution with the possible sanction of proscription. In such circumstances, Chibuike Rotimi Amaechi and others in his shoes would not have in the first place been denied of the ticket but for lack of internal democracy and complete absence of sanction for such conducts by Political Parties.
The above suggestion if accepted, adopted and implemented would further insulate the Judiciary from intervening in such matters which truly borders on the supremacy of the Political parties where there is functional internal democracy and a legal mechanism to sanction default by Political parties. Thus, Sections 31(5) and 87(1) of the Electoral Act 2010 (as amended) are, in my view, completely unnecessary since issues bordering on qualifications and disqualifications of Candidates at an Election in Nigeria have already been comprehensively dealt with in the Constitution of Nigeria 1999 (as amended) and therefore, allowing ‘a person’ to challenge a Candidate before the election proper is held is completely distractive but has regrettably become one of the major sources of ‘Judicialization of Politics in Nigeria’.
There is therefore, the serious or dire need in Nigeria for the expansion of the frontiers of the ‘Political Question’ doctrine and thereby making the provisions of the Constitutions of Political parties as Non Justiciable. There is also the further urgent and almost imperative need to outlaw Pre – election matters in the body polity and electoral system in Nigeria by causing appropriate amendments to the Electoral Act 2010 (as amended) to that effect. There is also the need, in my humble view, to limit and restrict the right to challenge the outcome of any elections conducted under the Electoral Act 2010 (as amended) to only the Political party and or Candidate that was declared in the second position or first runner up to the Political party and or Candidate declared the winner and returned as elected by the Electoral Umpire at any given elections in Nigeria.
LIMITATION OF LEVELS OF APPEALS: There is the urgent need in Nigeria, and justifiably so, for Constitutional limitation of the level of appeals in both Pre – and Post – Elections litigations. It is suggested that all appeals arising from all Pre – election matters, in addition to the laudable Constitutional time lines for their expeditious hearing and determination, if there still be any need in law for such matters largely based on political questions within the supremacy of Political parties to determine with finality, to still be allowed to inundate the Courts, should end at the Court of Appeal, notwithstanding the issue or issues canvassed therein by the parties. There should be no further appeal from the decisions of the Court of Appeal in Pre – election matters to the Supreme Court. In respect of Post – election litigations, it is suggested that, in addition to the laudable Constitutional time lines for their expeditious hearing and determination, all appeals arising from decisions of the Election Petition Tribunals in respect of elections into the National Assembly, Office of Governor and the State Houses of Assemblies should end at the Court of Appeal, notwithstanding the issue or issues canvassed therein by the parties. There should be no further appeal from the decisions of the Court of Appeal in such Post – election matters to the Supreme Court. However, in respect of Presidential Election, since the Court of Appeal serves as the Court of First instance, the appeal as it is presently the law should continue to lie to the Supreme Court for final determination.
AMAGALM OF JUSTICES AND JUDGES TO HEAR AND DETERMINE ALL ELECTION PETITIONS ONCE AND WITH FINALITY: There is the need to reduce the time, energies and resources as well as tensions in the land over Post – election matters by Constitutionally providing for an amalgam of Justices and Judges to sit together as the Election Petition Tribunal and their decisions reached thereon on any Election Petition within the Constitutional time lines of 180 days as final, and therefore, not subject to any appeals. To this end, in constituting the various Election Petition Tribunals, Justices and Judges shall be drawn from all the hierarchy of Courts in Nigeria into each Election Petition Tribunal or Court and making their decision once given final. This will obviate the huge resources and time and space usually allocated in Nigeria for myriads of Election Petition Tribunals and Courts on appeals to Post – Election litigations to the detriment of other equally, if not more important, National and Citizenry based issues in the Courts, which takes the back seat and play the second fiddle to Post – election Matters. Thus, for all Councilors and Chairmen Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of three persons, including a High Court Judge as Chairman, one Chief Magistrate and one Legal Practitioner as members and their decision, which must be reached within 90 days, shall be final. For all States Houses of Assembly and National Assembly Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of three persons, including one including a Justice of the Court of Appeal as Chairman and two High Court Judges as members and their decision, which must be reached within 180 days, shall be final. For all Governorship and Presidential Elections, all Election Petitions, qualified to be heard by an Election Petition Tribunal, should be heard and determined by an Election Petition Tribunal made up of five persons, including a Justice of the Supreme Court as Chairman, two Justices of the Court of Appeal and two Judges of the High Court as members and their decision, which must be reached within 180 days, shall be final.
In my view there is absolutely no need for the dissipation of so much energies, huge resources and the limited available judicial time to be spent all on Post – election litigations running all the way through the Judicial hierarchy from the Election Petition Tribunals to the Court of Appeal and in some cases to the Supreme Court to the huge detriment of all other cases involving equally and most importantly the lives. livelihood, wellbeing, rights, obligations and liabilities of the vast majority of the people of Nigeria, when all Post – election matters can and should be dealt with decisively and with finality by an amalgam of Justices and Judges from all the level of hierarchy of Courts once and for all. In truth, it is the same Justices and Judges that would still hear all these Post – election matter and their unending appeals in the staggered manner it is presently being done in Nigeria.
The above suggestions, which seems radical and even revolutionary in a sense, are open to debate and fine tuning but it is my belief that it is one of the panacea to the feared ‘Judicialization of Politics in Nigeria’ wherein the intervention of the Judiciary is being eradicated in Pre – election matters and drastically minimized in Post – election matters to just one level of intervention. In reality, and in practical terms, this would also reduce if not eradicate the pervasive and much touted allegations and inference of judicial corruption in the handling of both Pre – election and Post – election matters in Nigeria. It does appear, from my close study of the determination of Presidential Election Petitions during my international assignment in Sierra Leone, that an amalgam of Justices from the Supreme Court of Sierra Leone, Justices from the Court of Appeal of Sierra Leone and Judges from the High Court of Sierra Leone are empaneled at once as the Presidential Election Petition Tribunal to hear and determine all Presidential Election Petitions once and for all and with finality, with no room for any appeals.
OBITER: NEED FOR INTEGRITY BASED POST – ELECTION LITIGATIONS IN NIGERIA: For integrity based and seamless Post – election litigation in Nigeria, which is an integral part of the election processes and a requirement for free, fair and credible elections in Nigeria, there is need, in the appointment of Judges to the Election Petition Tribunals, to be based solely on integrity and merit. Only Judges with proven record of integrity and commitment to their duties should be considered and so appointed. They must demonstrate their personal commitment to rendering undiluted justice and that persons to finally emerge as winners or duly elected must reflect the true wishes of the electorates as expressed by them through their votes, which must count! There must be intensive and regular training for all Judges of all the cadre of the Courts from whose pool Judges are appointed to the Election Petition Tribunals coupled with specific training for those eventually so appointed. There must be enhanced allowances to the Judges so appointed to assure their integrity, which is measured by their commitment to principles of justice and fairness and ensure their contentment, which is receiving with contentment what one should get as approved allowances and not necessarily what one ought to get. There should be timely approval and prompt releases of funds earmarked for Post – election litigations and improved facilities for the operation of the Election Petition Tribunals across Nigeria. It must always be kept in mind that the 2023 General elections are almost around the corner and it is a very crucial election in Nigeria coming immediately before the completion of tenure of most of the incumbents in 2023.
The theme of this Law Week: “Judicialiszation of Politics in Nigeria” is novel and so also is the treatment of it in this Paper, both novel and radical! It has been demonstrated that though the Courts are empowered by the Constitution of Nigeria 1999 (as amended), in various of its provisions, particularly Section 6(6)(b), to hear and determine disputes between the Citizenry and also as between the Government, its institutions and the Citizenry, yet there are clearly defined circumstances in which the Courts would decline to intervene whenever they are not endowed with the requisite jurisdiction by law so to do. The classical example of this, though many others abound, is the provision of Chapter II of the Constitution of Nigeria 1999 (as amended0, dealing with the very important socio – economic rights of the Citizenry but yet made non justiciable by law, and the Courts do stay away from intervening!
In Electoral matters, whether in Pre – election and or Post – election litigations, the Courts have unwittingly with no fault of their own been inundated with a deluge of Political cases. Interestingly, nowhere is the deluge or avalanche or indeed the tsunami of Political cases felt more nowadays than in Pre – election matters, with the potential to rise through the base of the superior Courts to the Apex Court on the pyramid and with infinite possibilities, including the removal of persons already sworn or about to be sworn into office. It has been suggested that if adherence to internal democracy by due compliance by Political parties with the provisions of their Constitutions is secured and strictly enforced with sanctions for any proved breaches by either the Independent National Electoral Commission or by the new proposed body, the Political Parties Commission, and since the principal grounds for the deluge of Pre – Election matters inundating the Courts are issues bordering on lack of internal democracy and making it seem there is “Judicialization of Politics in Nigeria” all such grounds for Pre – election matters can be accommodated through pertinent amendments to the extant laws and be incorporated into Post – election matters, and therefore, Pre – election matters should be done away with in its entirety or reduced to the barest minimum in Nigeria.
Finally, it has also been suggested that Post – election matters be heard and determined by Election Petitions Tribunal constituted by an amalgam of Justices and Judges from the hierarchy of the Courts in Nigeria and be heard and determined once and for all with finality within the Constitutionally stipulated time lines of 180 days, with no appeals.
Now, I must point it out at once that the scope of this novel theme is huge but I have in these few 44 pages endeavored to, as much as practicable, put down my thoughts and it is my hope that, though it is almost impossible for a single paper of this nature to cover the field, this paper would lead to fruitful deliberations and thought provoking discussions and if that happens, then my task, which at first appeared daunting and herculean, would have been faithfully discharged.
I have in these few 44 pages attempted to put my thoughts on the theme, though novel, as assigned to me as much I understand it. However, I do not claim to have covered the field, bearing in mind the novelty of the theme. I only hope that I have been able to present this paper in a manner that is understandable and underscores the crucial importance of the issues discussed herein. It has been a privilege for me to prepare and present this Paper. I express my deepest appreciation to Barr. Felix T. Okorotie, the Chairman, the Executives and Members of the Yenagoa Branch of the Nigerian Bar Association, as well as Prof Solomon T. Ebobrah, the Chairman and Members of the 2021 Law Week Planning Committee, for this singular honor and privilege. I acknowledge and appreciate all the Writers and Scholars, whose works I had used in the preparation of this paper for the guidance offered by their very enriching works. However, I bear full responsibility for every errors or omissions in the contents of this paper. In all, it has been a most refreshing and rewarding exercise for me preparing and presenting this paper before this distinguished participants. The joy of this fellowship has been mine indeed! To God, Be all the Glory, Amen.
Sir Biobele Abraham Georgewill JCA, DSSRS, Ksc
Court of Appeal, Benin Division
Lord Chancellor, Diocese of Niger Delta, Church of Nigeria Anglican Communion
Former Chairman, Presidential Investigation Panel of Rules of Engagement by the Nigerian Armed Forces in the Fight Against Insurgency and Militancy
Immediate Past Chairman, Sierra Leone Presidential Commission of Inquiry on allegation of Corruption Against the Government of President Dr. Ernest Bai Koroma from 2007 – 2018.
- See “Culture of Failed Elections: Revisiting Democratic Elections in Nigeria, 1959 – 2003” by Michael M. Ogbeidi University of Cape Coast, Ghana.
- See “The Courts And Internal Democracy In Political Parties” by Dr. Muiz Banire October 8, 2018.
- See “Challenges of Internal Democracy in Nigeria’s Political Parties: The Bane of Intra – Party Conflicts in The Peoples Democratic Party of Nigeria” by Chris C. Ojukwu & Tope Olaifa 2011 Global Journals Inc. (US).
- “Non – Justiciability of Chapter II of the 1999 Constitution: A Hindrance To Nigeria’s Development” By Festus Ogun.
- For further readings on the issue of Political Question and Non – Justiciability, See “Justiciability Theory Versus Political Question Doctrine: Challenges of the Nigerian Judiciary in the determination of Electoral Cases” By Wahab O. Egbewole PhD & Olugbenga A. Olatunji.
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