Is judiciary ready for 2019 polls?

In Nigeria, elections usually end at the tribunals. With the general elections around the corner, is the judiciary ready for the disputes which may arise therefrom? ROBERT EGBE asks.

THE elections will start on February 16 with those of the President and the National Assembly.

Governorship and State Assembly/Federal Capital Territory (FCT) council elections follow on March 2.

The presidential contest will pit President Muhammadu Buhari of the All Progressives Congress (APC) against no fewer than 13 other candidates. His main challenger, however, is former Vice President Atiku Abubakar of the People’s Democratic Party (PDP).

According to analysts, so far, electioneering has been heated, but largely non-violent. They submitted that a credible vote would strengthen democracy.

But they warned that a tight contest followed by controversial election tribunal rulings could fuel events that would test the country’s stability, especially where such decisions conflict with legal precedents.

Election-related matters are usually contentious and are often considered and treated by politicians and other stakeholders as do or die.

To some, the bitter exchanges between party loyalists and claims of fake news and hate speech are signs that the elections will be contentious.

A January 3 report by Time Magazine listed the polls among the five global elections to watch this year. The others are in India, Israel, Ukraine and the European Union (EU), where parliamentarians would be elected.

On December 15, the United States Government expressed fear that the elections might be marred by violence.

It noted, however, that the public disturbance that the elections would cause might not be “large-scale nationwide conflict” but “localised violence.”

The US Assistant Secretary of State for the Bureau of African Affairs, Tibor Nagy, made this known in his presentation at the US Congress hearing on Nigeria’s forthcoming elections in Washington DC.

Nagy said: “I can tell you from my impressions during my travels and my previous service in Nigeria that I fear there will be some violence around these elections, as has been the case with previous elections.

“I do not anticipate large-scale nation-wide conflict, but rather localised violence. We are already seeing increased tensions and polarization as the election approaches.

“We assess that politicians are turning to narratives of identity politics in an attempt to improve their popularity, with potentially serious consequences for national unity.

“However, Nigeria’s political system and society have weathered such tensions before.”

INEC’s alarm

On January 18, last year, the Independent National Electoral Commission (INEC) Chairman Prof. Mahmood Yakubu said the commission was hamstrung by conflicting court orders.

He told the Chief Justice Walter Onnoghen that the commission was served with six conflicting judgments and orders from courts of coordinate jurisdiction within a short period of three months in 2016, during the PDP leadership crisis.

Yakubu said: “Similarly, the commission was confronted by conflicting pronouncements by the lower courts on matters already decided by the superior courts, including the Supreme Court. This is making the work of the commission very difficult and creating unnecessary negative publicity perception for INEC and, I must say, the judiciary as well.”

INEC’s Director, Legal Services, Mrs. Oluwatoyin Babalola noted several cases where lower courts failed to be bound by decisions of superior courts or their own decisions on similar facts.

Babalola observed that in Labour Party vs. INEC (2009), the Supreme Court decided that where an election was nullified on the ground that the winner of an election was not qualified to contest the election, the disqualified candidate and the political party that sponsored him are not allowed to participate in the fresh/re-run election.

But Hassan Abdullahi v. Abdul Ogwu Alhassan, as well as Idoko Moses Ododo v. Oshodi Isaac Ausa, both delivered on January 2, 2016, the Court of Appeal nullified the election of the disqualified candidates and ordered INEC to conduct fresh elections with the same disqualified candidates and their political parties.

Babalola said: “Where the courts depart from precedents, it creates uncertainty as to the state of the law and consequence of particular conduct. Where courts of coordinate jurisdiction give conflicting decisions/orders, it can lead to disobedience of court orders, cause confusion in the polity and to the Election Management Body.”

‘Deluge of litigations’

According to the Yakubu, INEC has been subjected to more litigations than any public institution.

He said within two years (2016 and 2017), the commission was involved in 1,134 court cases, comprising 454 outstanding cases and 680 determined cases, arising from the 2015 general elections.

In the party primaries of the 89 registered political parties contesting next month’s general elections, the commission said 396 petitions are already pending in court.

At a two-day training workshop for INEC correspondents in Abuja, the INEC chair described the primaries as most acrimonious in the nation’s recent history.

He said apart from the 396 petitions filed, INEC had also received 302 requests for Certified True Copies (CTCs) of reports of party primaries and copies of personal particulars of candidates.

Yakubu added: “These requests are obviously a prelude to more court actions. In addition, we have also received 52 petitions and protests from aggrieved party aspirants.”

Election tribunals

As in previous elections, the courts, beginning with election tribunals, will play a major role in resolving election disputes.

Their role is as defined in the Electoral Act, 2010 (As amended), which provides that appeals arising from governorship and presidential elections terminate at the Supreme Court while the National Assembly and state Houses of Assembly appeals also end at the Court of Appeal except where they are pre-election matters.

Section 134(2) and (3) of the Act provides a 180-day time limit for election petitions to be concluded, while similar provisions are contained in Section 285(6) and (7) of the 1999 Constitution (as amended).

Section 285(6) reads: “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”

Subsection (7) provides: “An appeal from a decision of the election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment.”

Following the 2015 polls, the judiciary set up 110 Election Petitions Tribunals manned by 255 judges.

Seven hundred and forty-nine appeals emanated from the tribunals’decisions, while the Abuja division had an additional 75 appeals in the year 2016/2017.

Seven hundred and thirty of the petitions from the 2015 polls were heard by the Court of Appeal.

They consisted of 39 governorship elections petitions, 79 Senatorial petitions, 179 House of Representatives and 380 State Houses of Assembly petitions.

In addition, 32 election petitions were filed in 2016 which included Bayelsa and Edo States and other re-runs, and 21 petitions were filed in 2017, including Anambra State governorship and other reruns.

Judges’ work suffer for election duties

Following their appointment to hear election petitions, judges will shoulder these extra duties for almost three months.

One implication of this is that it might slow work in the judges’ courts, thus swelling backlog of cases.

This is a cause for concern because in some court jurisdictions across the country, 10 to 15 year-old cases are still on the cause list.

Nigerian Bar Association (NBA) President Paul Usoro (SAN) noted this last September 24 at a special Supreme Court session to mark the beginning of the 2018/2019 legal year.

He said apart from the expected election-related appeals. “There is still a huge backlog of appeals, mostly civil appeals that are pending before Your Lordships. We note with deep appreciation, Your Lordships’ efforts, notably in the last Legal Year, to clear the deck of these backlog of matters. But then, the pile still remains.

“We know that there are still appeals pending before Your Lordships that were filed in 2003, 2004, 2005, 2006 – appeals that remain outstanding for more than 10 years. When this time-span is added to the time span that it takes for the appeals to journey from courts of first instance to Your Lordships, then the delays in our judicial process becomes quite pronounced, frightening and discouraging not only to litigants but also to the Bar and other stakeholders in the justice administration sub-sector.”

What should the judiciary do?

Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, the NBA and other members of the Bar have suggested ways to help the judiciary better cope with elections fallout, backlog of cases and judicial delays.

The CJN also recently met with the Independent National Electoral Commission (INEC) Chairman, Prof Mahmoud Yakubu, where he assured him that the appellate system of the judiciary will serve to correct anomalies created by lower courts in election petitions.

According to him, conflicting court orders were bound to arise as a result of multiple court cases filed by politicians at different courts, which were bound to have different facts and interpretations by judges.

‘Judges must stick to judicial precedents’

The CJN also warned judicial officers against giving decisions on election petitions that conflict with legal precedents.

Justice Onnoghen, who spoke at a recent training for justices of the Court of Appeal, said judges must stick to the principle of stare decisis, i.e. the legal principle of determining points in litigation according to precedent.

The CJN noted that there is a need for re-orientation of judges’ attitudes towards their obligation to stare decisis, “thereby creating a legal environment built on certainty of the law’’.

He added: “On judicial precedents as it relates to election and pre-election matters, I want to remind us that the Supreme Court has decided in a number of cases that the principles of judicial review, such as Mandamus, Certiorari, Prohibition, etc, do not apply because election and election related matters, such as pre-election causes are suis generis (of its own kind).”

‘Professionalism, integrity required’

According to the NBA, judges must maintain standards of professionalism, if the judiciary is to successfully weather the coming electoral storm.

Usoro noted that judicial pronouncements in contentious and difficult political appeals “in no small way worked to maintain the peace and cement the unity and indivisibility of Nigeria, our great country’’.

“Riots, unrests and political chaos in different parts of our Federation have been averted consequent upon Your Lordships’ decisions and pronouncements in some of these matters.”

“These are very weighty responsibilities and functions which Your Lordships continue to carry out and fulfill selflessly and without any self-adulation or self- exaltation’’.

According to him, the Bar and other Nigerians “expect Your Lordships to maintain, in the coming National Election season, the standards of decorum, professionalism, discipline and integrity that have always been the hallmark of Your Lordships and also ensure that those standards percolate to and are fully and strictly replicated by Their Lordships of the lower courts’’.

Usoro advised: “Any judicial officer that is found wanting in that regard, we respectfully posit, must be swiftly and decisively punished and routed out from the pack of judicial officers.”

‘Prioritise digitalisation’

Prof. Yemi Akinseye-George (SAN) urged the National Judicial Council (NJC) to prioritise the digitalisation of courts to reduce delays.

“Court digitalisation must be a matter of priority. Locally developed software for e-recording of courts should be deployed. This will enhance speedy dispensation of justice as judges can have access to e-recorded proceedings both audio and video.

“It will also help to address the problem associated with de-novo (repeat) trials following transfer of judges, death, promotion or retirement,” Akinseye-George said.