Nigeria: A Case For “Judicial-Activism” In Post-Election Adjudication By Raymond Nkannebe

Last Wednesday, 8th January, 2020, a full panel of the Supreme Court dismissed the appeals arising from the challenge to the election victory of the governors of Abia, Niger, Delta and Taraba states respectively. According to the Court, all the appeals lacked merit as the petitioners were unable to prove the electoral infractions complained of, namely, overvoting particularly in the appeal brought by Dr. Alex Otti, and his party, All Progressives Grand Alliance (APGA), against Governor Okezie Ikpeazu, of Abia State.

In almost the same fashion, the apex Court on the 18th of December, 2019 dismissed the appeals of the petitioners challenging the victory of the governors of Kaduna, Oyo, Ogun, Katsina, Nassarawa, Lagos, Akwa Ibom and Ebonyi states at the gubernatorial elections conducted by the INEC on 9th March, 2019.

Before the end of this week, the Court will be expected to determine the appeals challenging the victory of the governors of Kano, Bauchi, Sokoto, Adamawa, Gombe and Imo states. But given the conservative stance the apex Court has taken as shown in its determination of the appeal of the PDP and it’s candidate Alhaji Atiku Abubakar against the return of President Muhammadu Buhari, as well as the referenced appeals above, it is easy to suggest that each of the remaining appeals will suffer the fate of their forebears and not necessarily because the case of the Appellants “lack merit” as is often refrained.

A very fundamental pillar of the democratic process especially in Third World countries such as ours, still experimenting with the concept of democracy as a system of government, is the role of the judiciary in the adjudication of disputes arising from periodic elections. It is a very important duty which the courts ought not to take forgranted given how elections here are fraught with all manner of controversy. Unfortunately however, the attitude of the Nigerian judiciary in this wise, leaves much to be desired. If anything, it has conduced to the militarisation of our electoral process, as politicians have learnt to rig their way into power and ask their opponent to go to Court, conscious of how impossible it is to upstage a winner at the courts with the state of our election laws and the attitude of the judiciary to their interpretation.

We saw the demonstration of this culture of rigging in a very disturbing fashion at the last senatorial election for Imo South West senatorial District. Whereas, the Returning Officer had declared that he returned the purported winner of the election under duress, for fear of his life, a challenge of that victory at the Imo state National and State House of Assembly Election Tribunal by the petitioners came to nought. And did not get any better upon an appeal to the Court of Appeal. By relying on mundane rules of technicality, both the trial Tribunal and the appellate Court held that the Petitioners did not prove their allegation of duress, on which the petition was erected and consequently dismissed the petition.

A peep into the history of the Supreme Court reveals that it’s unimpressive attitude to election adjudication has been with it for many years. In Awolowo v Shagari, the Court favoured an interpretation to section 34A(1)(c)(i) and (ii) of the Electoral Decree 1977 (No. 73) (as amended) that was clearly in conflict with the intention of the draftsman. In a decision that continues to attract critiques to this day, the court enacted a formula that superimposed the physical territory of a state to votes scored by a candidate.

Whereas the Decree had nominated that the winner of a presidential election must score the majority votes, as well as score at least 1/4 votes cast in 2/3 of Nigeria’s 19-state structure at the time, the Supreme Court held that 2/3 of the states does not mean the physical territory of the state, but rather, 2/3 votes cast within the state.

As it turned out, whilst Alhaji Shehu Shagari had met the requirements of 25% votes cast in 12 states, he however polled only about 19.4% of the votes cast in Kano state. This was enough to have warranted the Supreme Court to uphold the petition of Obafemi Awolowo and his defunct Unity Party of Nigeria, and order a run-off election, however the apex Court contrived a mathematical formula that scaled down 1/3 of the votes cast for the other candidates in the contested Kano state, and which eventually gave Shehu Shagari, 2/3 of the votes cast in 2/3 of Kano state, namely, 243, 423.

Over 40 years after Awolowo v Shagari was decided, the Supreme Court is yet to shed its rather conservative judicial philosophy in post- election adjudication for reasons best known to it, but which has by all means has stagnated the growth of our electoral system as the judiciary continues to be its weakest link.

A calm analysis of the judgements arising from election disputes handed down by the Court in the last 6 election cycles, reveals that it has chained itself to a set of precedents which understandably it is shy from departing from. Take for instance the disposition of the court that a Petitioner challenging over voting at an election must call polling unit agents from each of the polling units where these infractions are alleged to have been committed. Such a principle begs the question of feasibility as a Petitioner who makes this challenge in say, 1500 polling units could not be expected to field 1,500 witnesses within 10-14 days which he or she has to present the case in almost all election Petitions. And even on the part of the Judex, they cannot be expected to hear oral evidence and cross examination from 1,500 witnesses, evaluate same and take a position one way or another.

Given the documentary nature of most election Petitions especially where Petitioners allege over voting, it is almost counterintuitive to expect the petitioners to call polling unit agents from all the polling units challenged, especially when the results duly certified by INEC have all been frontloaded before the Court without objection by adversaries. It is sufficient if a general case is made, and few witnesses cutting across the strata of the electoral pyramid are called in vindication of same in line with the sui generis nature of election Petitions. To expect otherwise, is to put on Petitioners a burden which they cannot be expected to carry, but which unfortunately has been the norm.

Perhaps it is meet that the Nigerian Supreme Court come to terms with the fact that the truth finding process, is investigative in nature. It does not happen in a space. Thus, the tendency of the Court to relinquish it’s fact-finding duty under the cover of a pet-word, “dumping”, is with respect, the abadonment of a sacred Judicial function. So pervasive is this Judicial attitude of neglect to documentary exhibits that too many a counsel now hold the view that Records of Appeal compiled and transmitted at huge cost to appellants, are rarely studied by the Court before coming to a determination.

Further, despite the amendment to the Electoral Act in 2015 to give a leeway to accreditation of voters by use of the Card Reader Machines, the recent judgements of the Supreme Court have failed to give a judicial imprimatur to the innovation brought about by the Attahiru Jega led INEC. Not even the Electoral transparency inclined revision to the 2019 Guidelines issued by the Electoral Commission in the build up to the 2019 general elections, have been accorded any Judicial recognition by the apex Court.

In the particular cases of Adelabu v Makinde and Alex Otti v Ikpeazu, the apex Court took the view that the provisions of the INEC Guidelines are mere directives or instruction, the breach of which cannot be used as a ground to nullify an election, thereby giving judicial approval to the breach of the provisions of the INEC Guidelines issued to enhance the transparency of our electoral process.

The Supreme Court has severally blamed the National Assembly for not having taken steps towards amending the extant Electoral Act to give fillip to electronic voting as well as dethrone the voters register as the index of accreditation of voters. The Court may be right in this wise. But a docile legislature cannot tie the hands of a progressive Judiciary.

The Supreme Court of any nation is a policy Court, and its judgement on issues of National importance are as good as an Act of parliament. Against the backdrop of this, the defence of the apex Court makes nonsense of the powers it posses in shaping our nascent democracy. The current state of our electoral process as witnessed in the recently held Kogi and Bayelsa polls and the near impossibility of proof of electoral infractions given the current state of our electoral jurisprudence, is an opportune moment for a progressive and activist-judiciary, to ask the all-important-question- “What is the argument on the other side?”, as posed by one of the finest jurists of the 20th century-Lord Denning MR in the case of Parker v Parker (1954) ALL E.R P.22.

It is not that story of our Supreme Court is all gloom. But it’s attitude to post-election adjudication leaves so much to be desired and has engendered a culture of rigging. Whereas the Court has shown more activism in the dispatch of pre-election cases as was seen in its landmark decisions in Peter Obi v INEC (2007) ; Amaechi v INEC (2007) and very recently in Zamfara and Rivers states over the manner the APC in both states conducted their Primaries and state congresses respectively, such activism have not been seen in its determination of election Petitions which is the urgency of now.

Perhaps there is an end in sight. With the indication of the 9th National Assembly to revisit the Electoral (Amendment) Act which embodies some of the provisions, the lack of which has engendered the culture of rigging, it is expected that before the next round of elections, adequate legislative framework would have been put in place that would enable the Judiciary to give interpretative sanction to the much clamoured electronic voting which experts believe would reduce tremendously the gale of electoral heist.

But beyond the role of the legislative, the attitude of the Judiciary must also be tweaked to reflect a level headed progressiveness in accordance with the times. Consequently, the Court must be prepared to modify or outrightly depart from many of its decisions on electoral disputes which have all aggregated to make electoral contest, a nightmare for Petitioners. As society and law are organic constructs, the minimum requirements of the apex Court is for its decisions to be reflective of the changing flux in the life of the society where it operates for as one of the finest jurists to have bestrode that court once observed, “in a society labouring under the shackles of poverty, indigence and want, there is little if anything to conserve”.

Raymond Nkannebe, is a legal practitioner and public affairs commentator. Comments and Reactions to raymondnkannebe@gmail.com.