INEC’s worry

•Courts of coordinate jurisdiction must guard against conflicting judgments

There is potent fear that conflicting judgments from courts of coordinate jurisdiction may become an albatross on the conduct of the 2019 general election by the Independent National Electoral Commission (INEC). Speaking at a workshop for judges on election petitions, chairman of INEC, Professor Mahmood Yakubu, stated: “there have been over 1,200 cases involving the commission since the 2015 general elections and not in a single case has the commission disobeyed a court order.”

That number of cases is high by all standards for an electoral process. To make matters worse, the INEC chairman noted that there are “conflicting judgments, especially by courts of co-ordinate jurisdiction at the high court level, (which) are putting the commission in a very difficult position and creating uncertainty in the process.” So, while the plethora of cases may turn the commission into a busy law chamber, the conflicting judgments inadvertently could turn it to a judge’s chamber.

Handling that magnitude of cases and sifting through the conflicting judgments to determine which one to obey is clearly beyond the competence of the commission. We are worried that unless the anomaly is quickly arrested, the conduct of the 2019 elections may be in jeopardy. Addressing the judges, including some of those responsible for the conflicting judgments, Prof Yakubu said: “the court in one judicial division may order the commission on a particular course of action only to be contradicted by another court of coordinate jurisdiction from another division or even within the same division on the same subject matter.”

Such confusion in a judicial process is unacceptable. To stave off the discordant tunes on election related matters, the National Judicial Council (NJC) must direct head judges to draw up practice directions for courts under them. In the eyes of the public, when courts make divergent orders on the same subject matter, the impression is created that one or more of the courts may have acted untowardly. Indeed, the general public believes that in such instances, the litigants may have shopped for favourable judges to do their bidding.

A glaring example of this anomaly is the conflicting orders of two courts with respect to the All Progressives Congress (APC) primaries in Zamfara State. Both the high court in the state and the high court in Abuja assumed jurisdiction and made disparate orders, with respect to the same subject matter. Addressing the judges, the INEC chair posited: “conflicting court orders are negatively affecting the consistency, neutrality, and public perception, not only of the commission, but the judiciary as well.” Even when the commission goes to great length to show its neutrality, making a choice between the cases puts it under unnecessary pressure.

The solution lies with the courts which must ensure that conflicting judgments are never made by courts of coordinate jurisdiction. We agree with the commission that “there is, therefore, the urgent need to address the issue of conflicting judgments in order to engender certainty in the electoral process.” Of course, the judicial process is built on the certainty of law, and courts are bound by the doctrine of stare decisis, which binds lower courts with decisions of the superior courts. So, under no circumstance should courts of coordinate jurisdiction contest superiority over the same subject matter.

The commission also expressed reservation that some courts, after making their findings, fail to make consequential orders to back the orders made. In such circumstance, INEC is forced to assume the responsibility of a court to avoid dangerous lacuna. According to Professor Yakubu, “in such cases, the commission is compelled to take a position relying on previous decisions of the court on the subject.” What else could it have done?