Judiciary and Electoral Hiccups Towards 2023 Elections

As the electioneering season gathers momentum in Nigeria, some individuals and political parties are said to be at crossroads as they attempt to seek redress in the court of law because of how they were handled in their quests to get to one position or the other in their political parties.

The two dominant political parties, All Progressives Congress (APC) and People’s Democratic Party (PDP), have demonstrated have failed to adhere to the tenets of internal democracy, as many party stalwarts have refused to leave their party for another. They have, however, dragged their parties to court, the ignoring the possibility that it could get the party disqualified for election, like the case of Zamfara and River States.

Currently, the issue of god father has become the anthem of some politicians, as their godfathers often frustrate primary elections in order to give nominations to their favoured candidates.

The Chief Justice of Nigeria, Ibrahim Tanko Mohammed, recently summoned the Chief Justices of Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo States over conflicting decisions on different issues, from the chairmanship tussle of the PDP to the gubernatorial candidate impasse of the All Progressives Grand Alliance, APGA, in Anambra State.

The CJN, while complaining about the “huge embarrassment” which such conflicting decisions have caused the judiciary, reportedly noted that the decision to summon the chief justices had become more compelling in light of the earlier warning of the NJC to judicial officers to be circumspect in granting ex parte applications.

Ex parte orders are made by courts upon the application of a party to litigation without hearing from the other side. They are also designed to deal with urgent matters which cannot await service of the processes of court on the other side where an incalculable damage is likely to be done to the party seeking the order or the subject of the litigation. Therefore, as has been decided numerous times by the courts in Nigeria, such orders should only be granted where there is a real urgency.

As the election year draws closer, courts will be flooded with applications bordering on pre-and post-election matters requiring adjudication. While INEC has the responsibility to conduct and manage elections, the judiciary is charged with the responsibility of resolving disputes arising from the process.

Matters brought before the courts should be determined on their merits, devoid of any external interference, to ensure the sustenance of the independence of the judiciary.

Recall, it was on the basis of judicial decision that the Supreme Court ordered that Mr. Rotimi Amaechi, who did not campaign as a candidate for election to the office of governor of Rivers State in the 2007 general elections, be sworn in as the duly elected Governor of Rivers State being the validly nominated candidate of the party (PDP) that won the election.

Therefore controversies, especially in political cases, can be reduced when the court takes a decision after hearing all the parties in the case; concluded without further waste of time on their merits to afford all candidates the opportunity to pursue their political ambitions.

Furthermore, lawyers should also be sanctioned where they run afoul of these principles or where they demonstrate a clear intention to abuse the procedure.

The 2022 Amended Electoral Act, which the President has promised Nigerians that his administration is committed to bequeath to an electoral system that guarantees that citizens’ votes will count, an electoral system that will produce a government that is truly representative of the people, has become a subject of litigation.

Due to the contradictory judgments coming from the Federal High Court and the State High Court in Abakaliki, stakeholders have called for the removal of governors who assert very powerful influential roles in the appointment of judges and the general administration of justice in this country.

The courts at the state level are deeply dependent on the Executive for their day-to-day survival and this is not healthy for the smooth administration of justice. 

The Independent National Electoral Commission (INEC) Chairman, Prof. Mahmoud Yakubu, expressed displeasure at the commission’s quarterly meeting with leaders of political parties held in Abuja recently, adding that the conflicting orders made by courts of coordinate jurisdiction were making the work of the commission difficult.

“I am aware that some of the cases are still in court and therefore subjudice.

“I must say that some of the decided cases are making our work difficult and we have been crying out loud for a long time.

“In particular, some pre-election litigations relating to the nomination of candidates for elections were not determined until after the elections.

“Consequently, in some instances, political parties were declared winners without candidates to immediately receive the Certificates of Return on account of protracted and conflicting litigations or where Courts rather than votes determine winners of elections.

“This situation is compounded by cases on the leadership of political parties, thereby making the exercise of our regulatory responsibilities difficult.

“It appears that in a number of electoral cases in Nigeria today, the settled law is now unsettled and the time-honoured principle of stare decisis does not seem to matter any longer.

“What is most disconcerting for us is that the more INEC strives to improve the credibility and transparency of our electoral process, the more extraneous obstacles are put in our way through litigations.

“However, the commission appreciates the recent statement by His Lordship the Chief Justice of Nigeria as well as the strongly-worded concern by the Nigerian Bar Association.

“We will work with both the Bar and the Bench to defend the electoral process in the best interest of our democracy.”

Yakubu hinted that the chairmen and leaders of political parties had a role to play, adding that INEC is both an umpire and a regulator.

“The commission is an umpire in dealing even-handedly with political parties collectively, but when it comes to the management of intra-party affairs, it is a regulator. We will play our role decisively,” Yakubu said.

Chairman Inter-party Advisory Council (IPAC), Dr Leonard Nzenwa, also expressed concern over the conflicting court judgments, stressing that the court of competent jurisdiction in the country on political matters had become embarrassing and theatrical.

Human rights lawyer, Femi Falana (SAN), has alleged that the Attorney General of the Federation and Minister of Justice, Abubakar Malami, manipulated the judgement of the Federal High Court in Umahia, Abia State, with regards to deletion of section 84 (12) of the Electoral Act 2022.

 The controversial section 84(12) of the Electoral Act reads: “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”

 With the provisions of the act, political appointees, including Amaechi, Minister of Transportation; Malami, Minister of Justice; Chris Ngige, Minister of Labour and Employment; Emeka Nwajiuba, Minister of State for Education; Godswill Akpabio, Minister of Niger Delta Affairs; Timipre Sylva, Minister of State for Petroleum Resources, among others who have been reportedly linked to presidential and governorship ambitions, must resign from their various offices if they want to contest in 2023.

Also, President Muhammadu Buhari had, after signing the bill into law, written the National Assembly requesting that the provision be expunged from the Electoral Act.

But the opposition party, the Peoples Democratic Party had on March 2, 2022, filed an ex-parte motion against the Nigerian government at the Federal High Court in Abuja seeking to stop attempts to tamper with the Act including the provisions of Section 84 (12) of the Act pending the resolution of the suit.

This was granted on March 7 by the presiding judge, Inyang Ekwo.

Meanwhile, two other suits were filed both in Ibadan, Oyo State and Umahia, Abia State by one Oyewole Bolanle and Nduka Edede respectively compelling the AGF to delete the provision.

On March 19, the Federal High Court sitting in Umuahia ordered the Office of the Attorney-General of the Federation to immediately delete Section 84 (12) of the Amended New Electoral Act.

The court in a judgment delivered by Justice Evelyn Anyadike held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever and cannot stand as it violates the clear provisions of the Constitution.

The Umuahia judgment was recognised as the AGF’s office gave the federal government’s position through the Special Assistant on Media and Public Relations, Umar Jibrilu Gwandu that the minister would accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment.

“The judgment of the Court will be recognized by the Government printers in printing the Electoral Act. The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

“The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be so treated accordingly. This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that make it a point of duty and obligation on all authorities and persons to have the judgment of the Federal among others, to be enforced,” the AGF office said.

Falana noted that Malami cannot delete section 84(12) of the Electoral Act unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside, either by the trial Judge or an Appellate Court.