Ann Widdercombe, former British parliamentarian, despairing on the notion of justice after seeing two judges reach for two extremes of the continuum while sentencing on two remarkably similar offences, wrote in exasperation: “One can be forgiven for concluding that justice is a lottery… in which the luck of the draw is determined by the judge allocated to the case”. It was scant consolation to her that the judges were actually exercising lawful discretion within the guidelines set by the law but while one judge went for the harshest sentence allowed, the other chose the most lenient. I invite the reader to imagine her sense of outrage if the judges had acted outside of the principles and guidelines laid down by the law and gone on a flight of fancy as we have seen in our judiciary in recent times.
I have heard many people parody Charles Dickens and say that “The law is an ass” in justifiable but misconceived outcry over recent decisions of our courts, particularly the Court of Appeal. I say misconceived because not even Mr. Bumble through whom Dickens uttered the immortal statement in Oliver Twist could have fathomed the full dimension of judicial prestidigitation that would afflict our own distant shores 177 years later. So, yes, the law can be an ass in the sense of its obstinance and unbending application, but never in the sense of its willful non-application or deliberate manipulation such as when a judge, while not complying with the law in the first instance, rules that an election is void for non-compliance with the law!
This is the dreary state of the non-functioning of judicial process in which Justice Thurgood Marshall described justice as a metaphor for “Mere access to courthouse doors”.
Nothing illustrates this state of our judicial process better than the decisions that tumbled in from the election tribunals and the Court of Appeal with regard to Rivers State.
Yet we must provide a context in order to fully understand the pernicious character of the judgments that gushed out of those courts in respect of the elections that took place on 28 March and 11 and 12 of April 2015 in Rivers State.
On Tuesday 21 April 2015, while fielding questions in a session under the auspices of Civil Society Organizations Situation Room in Abuja, the former INEC chairman, Prof. Attahiru Jega, had this to say about the Rivers elections: “On the petition against election irregularities in Rivers State, the commission sent three national commissioners to the state to investigate it. Some people don’t (sic) want election to hold, they are the ones calling for cancellation. We investigated the allegation of fake result sheets in Rivers State, our reports showed that there was nothing like that”.
Jega’s comment is insightful, those who never wanted election to hold in the hope that the new order at the federal level would provide them untrammeled leeway to Government House in Port Harcourt have largely succeeded in foisting a false and sinister narrative on the country that there were no proper elections in Rivers State. Sadly, indeed, they have also succeeded in luring the judiciary into brazen partisanship using the same pretext as we shall see presently.
But, again, in another forum in faraway United States, at the Center for Strategic International studies, Washington, DC, Prof. Jega said the following about Rivers elections: “We created a three-man team to investigate the allegations of electoral malpractice (in Rivers State), it was not true that elections didn’t take place in majority of the state, it was not true that result sheets were manipulated. There was no evidence of malpractice or photocopied result sheets and no substantive evidence to establish alteration”.
These are the emphatic and unequivocal words of the man who knows more than anyone in Nigeria about the elections he conducted and supervised; a man whose praises have been sung to the skies as the personification of rectitude and integrity. So why did the Rivers election tribunals and the Court of Appeal reverse the order of onus of proof by not requiring the petitioners to prove their allegations of non-voting and other irregularities and by so doing disprove Prof. Jega? What did the judges and justices know that Prof. Jega and his INEC team didn’t?
An election is a momentous event with serious social, political, economic and even cultural implications for society. The processes leading up to it are no less dire. That is why courts had before now demonstrated remarkable restraint and eschewed arbitrariness in coming to a decision to annul an election. It is also in recognition of the fact that in the end, it is primarily the duty of the people to choose their leaders, not the job of the courts. J. A. Fabiyi, JCA (as he then was, now of the Supreme Court) put it very well when he said: “A judge should be satisfied beyond doubt that the election was void beyond doubt before knocking it down… A return is a serious matter and should not be lightly set aside”. (see Nwole v Iwuagwu [2005]16 NWLR pt. 952 p. 543 at 571).
But we saw a total repudiation of this admonition in the Rivers governorship election petition and the subsequent appeal, where the return of a candidate as governor was annulled solely on the basis of the evidence of two witnesses none of whom witnessed or participated in the election. The first one (PW40) was as raw a secondary or hearsay evidence as you will get which, beside breaching every rule of admissibility, is in addition, a naked denunciation of the Court of Appeal’s own decision barring INEC from denying the genuineness and authenticity of a result it has caused to be published. (see Ngige v Obi [2006] 14 NWLR pt. 999 at p.196-197). The second one, the so-called Card Reader Report from PW49 is not only unknown to the Electoral Act, it is not even mentioned anywhere in the suddenly all-important INEC Guideline and INEC Manual. So how can it be the sole means by which to prove accreditation and voting?
And we saw that when you allege irregularities or other malpractices in an election you no longer need to prove them! Rivers State has nearly 5,000 polling units and voting centres. But the petitioner called only 3 witnesses, including himself, who claimed to have been disenfranchised but none of whom tendered a voter’s card and/or voter’s register. This is a mockery of our law and the entire judicial process and particularly mocks the Supreme Court decision on the subject requiring that proof of non-voting, over-voting or similar irregularities must be established polling unit by polling unit and by direct evidence of witnesses on the ground. (see Kakih v PDP [2004] 5 NWLR pt.1430 p.377).
And we saw that the chairman of a tribunal can be peremptorily removed halfway through a proceeding and his replacement asked to continue from where he stopped and even rule on applications he never heard! In any proper judicial process this would have been the death knell unless trial was begun de novo. The principles of natural justice are immutable and cannot be overridden by the argument that election petitions are sui generis, and this is the clear intendment of paragraph 25 (2) of the 1st Schedule of the Electoral Act.
And we saw that only in Rivers did the card reader assume a primacy never before seen anywhere, nor seen anywhere else after, in determining accreditation and voting. Indeed, we saw that the Court of Appeal derogated from its own decision in Agbaje v Ambode in Lagos wherein it laid down the principle that the card reader is a new innovation not within the contemplation of the Electoral Act, and a petitioner cannot rely on it to nullify an election thus affirming the supremacy of the provision of s.138(2) of the Electoral Act. Interestingly, however, the Court of Appeal returned to re-affirm its decision in Ambode’s case in the latter case of Emehor v Okowa in Delta. And although did not directly consider the question, but upheld its broad principles in the two other cases of Gankon v el-Rufai (Kaduna) and Ladoja v Ajumobi (Oyo).
And we saw that in all cases related to Rivers State, particularly the governorship, the INEC Guidelines and Manual suddenly acquired a new legal imprimatur which even overrode the Electoral Act! We saw that the Court of Appeal devoted a large portion of its judgment on the Rivers State governor’s appeal extolling the importance of the Guidelines and declared it “mandatory”. But the same Court of Appeal had before now emphatically dismissed the Guidelines as “a mere directive” which “does not have the force of law… and there is no sanction for breaching it”. (see Agbaje v Fashola L.E.R. 2008 CA/L/EPT/GOV/01/2007 at p.16).
And we saw also that the Court of Appeal can in one fell swoop annul all of 12 House of Representatives and 3 Senate elections in Rivers, and in another strange instance, needed only a few minutes to cancel 12 state’s House of Assembly elections without bothering with the reasons for their decision in very terse judgments! The circumstances that led to those bizarre decisions were the subject of a petition to the President of the Court of Appeal, the contents of which were the subject of media publication and do not bear repeating here.
These illustrations paint an unedifying picture of our judiciary and in many ways constitute a serious breach of our laws. Such decisions are capable of provoking social upheavals of unimaginable dimensions consequent upon of a despairing public losing confidence in the system. It is pertinent to state that the law is not some esoteric alchemy incapable of any degree of exactitude and dependent on the caprice of a judge’s sleight of hand. That is why reliance is placed upon statutes and stare decisis (case law or precedent). Indeed, in the manner of Widdercombe’s bewilderment, one can be forgiven for concluding that we operate a one-court system because too often, the courts below create the impression that they are incapable of delivering justice, and that it is their inexorable destiny to flounder and double-down on error whereas it is the Supreme Court’s bounden duty to deal with it.
It is against this background that the Chief Justice of Nigeria, Justice Mahmud Mohammed recently spoke condemning the whimsical character of the judgments coming from the Court of Appeal and, the ensuing confusion in the judicial landscape. Chief Justice Mohammed’s condemnation has rekindled hope. The Supreme Court has a unique and historical duty to straighten our laws, redeem the integrity of our judiciary and strengthen our democracy. It has never shirked from that responsibility. Its decision a few days ago in the case of Aliyu Shinkafi v Abdulazeez Yari in the Zamfara governorship appeal wherein it restated that “The law requires the petitioner to lead evidence from the polling unit in order to show alleged over-voting” or other corrupt practices, is a heartening re-statement of the law and a re-affirmation that its decision in Kakih v PDP (supra) remains the position of the law on the subject. This decision could not have been more timely given the confusion and contradictions occasioned in many instances by the willful rejection of binding precedents by the Court of Appeal. The Supreme Court has once again taken a commendable step and risen above the fray to save the judiciary.
Solomon Bob, a lawyer, wrote in from Abuja.
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