The Bane Of Democracy, Courts Have The Power To Stop Inauguration.

By Stanley Maduabuchi Ofoegbu Esq

It is certainly and firmly established that the Constitution is the mother of all laws upon which other Laws derive their validity including the Electoral Act of 2022. The fact that the Supremacy of the Constitution cannot be questioned had already being settled by a long list of decided authorities among which is MARWA and ORS V NYAKO and ORS (2012) LPELR-7837 (SC).

Section One sub three of the 1999 Constitution had in clear terms, captured the supremacy of the Constitution. According to section one, the Constitution is Supreme and its provision shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. According to sub 3, if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail and that other law shall to the extent of its inconsistency be void.

Similarly, section 6 of the 1999 Constitution provides for the judicial powers which is vested in the courts. The powers are both statutory and inherent. The said powers abolished the primitive common law ideology that the king does no wrong and hence, places every person under the direct control, supervision and sanctions of the law. See RANSOME-KUTI V A.G FEDERATION (1985)2 NWLR (pt.6) 211.

By the virtue of the Supremacy clause and section 6 of the Constitution, the court is empowered to restrain all persons including governments, artificial bodies and parastatals from behaving contrary to the tenets of the Constitution irrespective of what other law provides.  However, a pertinent question is, to what extent is the restraining powers of the court in section 6 of the Constitution?

By statutory powers of the court, the courts particularly, courts of record have express powers to void any law that is inconsistent with the powers of the Constitution irrespective of how beautiful the laws appear. It is in this regard that in no fewer cases, the court has struck down laws made by the National and states houses of Assembly for being inconsistent and or trying to limit the powers of the courts especially in line with section 4 (8) of the Constitution.

By the inherent powers of the court, the court is empowered to invoke the doctrine of equity and fairness. It is empowered to invoked measures where it is of the opinion that a process is contrary to the intendment of the Constitution and Justice at large especially, where the constitution did not expressly outline measures to be taken at any given time over a particular process. Hence, with respect to the burning issue of whether the courts can halt the inauguration of the President Elect  by INEC irrespective of whatever is contained in the Electoral Act of 2022?

The inherent powers of the court include the powers to maintain Status ante bellum and preservation of the ‘res’. They are all inherent powers of the court donated by section 6 of the Constitution of Nigeria as amended. These powers of the courts are well established from time immemorial and are meant to ensure that Justice is not over reached and that the exercise of the court’s jurisdiction is not rendered a waste thereby leading to dissipation and abuse of judicial process.

See MEKWUNYE V CARNATION RESGISTRARS LTD and ANOR ( 2021) LPELR-55187 (CA) , AKAPO V HAKEEM-HABEEB and ORS (1992) LPELR-325 (SC).  Consequently, since there is no provision in the constitution restraining the courts from stopping the inauguration of the any president elect or any elected official as declared by INEC, the courts are within their Constitutional powers to restrain the inauguration of any persons whose election and declaration is being challenged at the tribunal by invoking the doctrine of the ‘res’ and status quo ante bellum’ pending the outcome of the tribunal.

This is further denoted by the fact that under the law, whatever is not prohibited is allowed. Secondly. Neither the Constitution nor the Electoral Act makes the office of the president or any elected official so special such that their inauguration cannot be stalled less, the Heavens fall.

Furthermore, any provision outside the Constitution that restrains or purport to restrain the courts from invoking the doctrine of maintaining status quo ante bellum and the res will run contrary to section 1 (3) of the Constitution, section 6(6) of the Constitution with respect to the inherent powers of the courts and section 4 (8) which restrain all law-making bodies from enacting laws that oust the jurisdiction of the courts.

In addition to the above, there is no particular section of the Electoral Act 2022 that restrains the court from restraining or stopping the Inauguration of any elected officer whose declaration is being challenged. Even if there exist such a provision, such provision is inconsistent with section 6 (6) of the constitution with respect to the powers of the court among other Constitutional provisions. Such provision is liable to be declared a nullity.

Section 138 of the Electoral Act 2022 which appears to give a little salt to some argument that the court cannot stop inauguration, talks about the elected official remaining in office even after the nullification of the election that produced him after the tribunal must have delivered its verdict provided the elected individual appeals within time. The said section has nothing to do with inauguration and the power of the court to stop same and hence, that section of the law has no umbilical cord with the ice of inauguration and consequently, of no moment.

In UNONGO  V AKU ( 1983) 14 NSCC 563 and KADIYA LAR (1983) 14 NSCC 591  The Supreme struck down certain provisions of the Electoral Act of 1982 which mandated the court to hear and determine election petition cases within 30 days from the date of the Election concerned as being unconstitutional and against the doctrine of separation of powers and the powers of the courts.  The apex court while recognizing the powers of the National Assembly, held that they lacked the powers to decide to the court when a particular matter shall be heard and disposed when the Constitution itself had already made 90 days compulsory after taking of final addresses. What then is so special about election petition that other cases should suffer?

It is no doubt that once elections are concluded, Judges are usually pencilled down to hear and decide all disputes arising from the petitions. This eventually, affects other cases filed in the court which suffers set back and delays due to the unavailability of judges who are sitting to hear election petition cases.

At this point, one wonders why other litigants will have to wait while political cases filed by politicians are disposed within the shortest possible time even in the face of equality before the law. Why can’t same treatment given to politicians in deciding their cases within the shortest time be given to ordinary citizens too? Why the first-class treatment of politicians over political cases?

Why rank a particular class higher than others even before the eyes of the law in a democratic setting?

SELFISHNESS is the bane of the Nigerian democracy. Politicians are only interested in what will benefit them. The stomach infrastructure ideology is their guiding parameter. Upon the striking down of certain provisions of the Electoral Act of 1982 for being inconsistent with the Constitution, the constitution was amended by the National Assembly irrespective of the rigorous process involved knowing fully well that is was the only way to stamp permanently their selfish ambition without questioning knowing that once the Constitution speaks, no one can do otherwise. This denote the fact that what a greedy and selfish man cannot do, does not exist.

Today, we have a constitution that provides for time frame for hearing and deciding election cases irrespective of the inherent powers of the courts. No one can challenge those provisions as being inconsistent as the constitution is a single document and no section of it can be declared inconsistent even if on the face of it, it appears to be so inconsistent. The decisions of the apex court in Unongo Aku and Kadiya v Lar can no longer hold water and non-can rely on it for the purpose of challenging the powers of the National Assembly for prescribing the time within which election petition can be heard and determined. By the amendment of the Constitution, the hands of the court and the ordinary citizens with respect of time frame within which to decide election matters are now tied.

While democracy continue to suffer and travail under the auspices of selfish politician with the efficacy of stomach infrastructure, INEC are not less evil. The just concluded Elections shows that INEC is the chief enemy of the Nigerian democracy. The flagrant subversion of the will of the people and wilful disobedience to the orders of court and the Electoral Act by INEC, will never be forgotten in a hurry. The sham process called presidential election of 2023 is something that should not be discussed early morning less, one ends up with a bad day.

One thing is certain, good trees, produces good fruits. Bad laws are product of bad politicians who emerged from bad process of INEC irrespective of how good the will of the people may appear. INEC and selfish politicians, we have a long way to go in Nigeria.

Stanley Ofoegbu Esq

08068515340, 08037750926. Ofoegbustanley72@gmail.com