By Segun Ayobolu
There are at least two developments in recent times that have tended to lend some degree of support, even of an essentially superficial nature, to the claim in some quarters particularly on the part of those who lost out in election petition cases arising from the various 2023 elections that the judiciary in the country is corrupt and lacks integrity and credibility. It must be stated that never in the history of electoral jurisprudence in this country has judicial decisions aroused such enthusiastic interest, tension, and heightened public expectation as in the aftermath of the February 25 presidential elections. This was due to the decision of candidates of the Peoples Democratic Party (PDP) and Labour Party (LP), Alhaji Atiku Abubakar and Mr Peter Obi, respectively, to challenge the electoral outcome in court each claiming that he won the election.
In the run-up to the verdicts of both the Presidential Election Petition Tribunal (PETP) and the Supreme Court (SC) respectively, the various judges on both panels were subjected to unprecedented levels of psychological intimidation, bullying by unrestrained blatantly political pastors and social media blackmail and harassment. Refusing to be cowed, the judges on both panels, delivered judgements unanimously upholding the victory of President Bola Ahmed Tinubu of the All Progressives Congress (APC). Attacks on the judges particularly on social media, which had hitherto reached a crescendo, were ebbing after the SC judgement on the presidential election appeals, when retiring Justice Musa Datijo, in delivering his valedictory speech on the occasion of his retirement from the SC, launched a withering onslaught on the integrity of his colleagues and the credibility of the judiciary as an institution.
Among others, the retiring jurist attacked what he described as rampant corruption including nepotism in the judiciary; the non-representation of two zones in the country, the North-East and South-West, at the apex court; alleged non-transparent management of budgetary allocations to the apex court and what he described as the excessive powers of the Office of the Chief Justice of Nigeria (CJN) underscored by the latter’s being the Chairman of all critical agencies under the judiciary including the National Judicial Council (NJC), Federal Judicial Service Commission (FJSC), National Judicial Institute (NJI) and the Legal Practitioners Privileges Committee (LPPC).
As Chairman of these bodies, Justice Datijo lamented, that the CJN “neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies” including appointments of Chairmen, Board, and Committee members. The learned jurist’s fiery denunciation of the judiciary provided fuel for those who had desired all along to incinerate that institution for the simple reason that decisions on electoral petitions did not go their way. Datijo decried his marginalization in the running of the judiciary even as Deputy Chairman of the NJC by virtue of his seniority on the bench.
Justice Datijo came across as a no-nonsense anti-corruption crusader with a commitment to high levels of integrity. How come then did he rise to the apex of the Judiciary if the institution is as corrupt and flawed as he painted it? Again, despite the excessive powers that he claims the occupant of the Office of the CJN wields, is it not true that it was the virtual revolt of other SC judges that forced the retirement of Justice Mahmoud Mohammed as CJN in 2016? And if the CJN shares control over the various institutions in the judiciary with a Deputy CJN or other judges, will there not be the possibility of a leadership crisis to the detriment of the judiciary if differences of opinion occur among them? But this does not mean that the CJN should not carry his brother judges along in presiding over the judiciary.
The second development that has considerably raised the cacophonous decibel of a mob lynch against judges was the controversy attendant on the release of the Certified True Copy (CTC) of the Court of Appeal Tribunal sitting on the election petition case as regards the Kano State governorship election in which the candidate of the New Nigeria Peoples Party (NNPP), Alhaji Abba Kabir-Yusuf, was declared winner by the Independent National Electoral Commission (INEC) at the end of the March 18, 2023, election. However, the Kano State Election Petition Tribunal annulled Yusuf’s election declaring the APC’s Alhaji Basiru Gawuna as the rightful winner of the election, a decision which the Court of Appeal upheld in its judgement of Friday, November 17.
But the bone of contention has been that the CTC of the judgement released to legal counsel to parties in the case ruled in favour of the ANPP in Kano. The Court of Appeal has since clarified that the mix-up in the CTC issued to the public was a result of a clerical mix up and it stands by its judgement. Of course, the Court of Appeal must be given the benefit of the doubt in the absence of any compelling evidence of underhand dealings in its judgement but this kind of careless scenario is exceedingly unhelpful to the image of a judicial institution consistently under fire by political partisans mostly piqued not necessarily by lack of integrity on the part of the judiciary but rather because the side they supported lost out in the courts.
Many of those who have been vehemently critical of the courts in election petitions have referred to decisions of the Court of Appeal to void the election of the PDP governors in Plateau, Kano, and Zamfara states and award victory to the ruling APC governors in those states. Former President Olusegun Obasanjo with characteristic trenchancy wondered why a few judges must now decide who won elections in which large numbers of people had already voted and made their choices. Incidentally, the Ota farmer spoke during a forum at his presidential library in Ota where he lamented what he perceived as the failure of liberal democracy in Africa and championed what was so obviously an ill-conceived and poorly thought through ‘Afro democracy’ for Africa.
Nobody who truly values democracy would question the role of the judiciary in adjudicating electoral disputes as prescribed by the constitution. In any case, judges do not willfully impose themselves as meddlesome interlopers to adjudicate in electoral disputes. If contestants in elections do not disagree with the outcomes and approach the courts for mediation, judges would have no role to play in the process. And if we happen to be an excessively litigious society in which invariably all elections are contested right up to the apex court in the country, how are judges to blame for that?
Some analysts have pointed out, rightly in my view, that those who excoriate the judiciary when they lose election petitions tend to express satisfaction with judges when cases are decided in their favour. Furthermore, it has been argued that in 2015 and 2019, courts have been known to ban all APC candidates from participating in elections in Rivers and Zamfara states either for intra-party disputes or outright violation of court orders. I am unaware that anyone complained at the time that the courts were working against the APC in favour of the PDP. Even then, judges must be aware of the sensitivity of their role as electoral arbiters and must be seen as much as possible to dispense with technicalities and predicate their rulings on substantial justice.
For instance, it is untidy for judges to dismiss an election petition on the basis that the ground of appeal by petitioners dealt with pre-election issues over which they had no jurisdiction only to resolve similar cases in favour of the petitioners by assuming jurisdiction in pre-election matters. Again, if courts decide to cancel a substantial number of votes of the winner of an election to award victory to the loser, the judges ought to seek to ascertain beyond reasonable doubt that such canceled votes were indeed fraudulently obtained and innocent voters were not being disenfranchised. The Supreme Court has a duty and responsibility to decide the election cases that come before it from the Court of Appeal strictly on merit in accordance with the tenets of justice in the interest of the judiciary and the polity as a whole.
In his classic on prebendal politics and democracy in Nigeria’s Second Republic, the eminent political scientist, Professor Richard Joseph, had offered useful insights into why it is dysfunctional for systemic stability if the judiciary becomes the last and inevitable electoral umpire. In his words. “Yet, if the Federal Electoral Commission could not be the Leviathan needed to supervise the 1983 elections, the Nigerian Judiciary was even less able to fill this role” and that “By assigning the adjudicating of electoral disputes wholly to the Nigerian judiciary, the drafters of these provisions (of the 1979 Constitution), assumed such an arrangement would contribute to political stability in Nigeria and provide a way for expeditious and impartial settlement of conflicting claims. As it turned out, many of the elections were so controversial, and the range of evidence opposing sides brought before the court was so different and of such questionable reliability, that the judiciary found its integrity placed at risk by its mere involvement in the process”.
Thus, the problem we face in 2023 concerning the judiciary and resolving election disputes is not new. It has been with us as far back as the Second Republic between 1979 and 1983. Neither the INEC nor the judges are to blame. Rather, the problem is with a political class that wants to win elections at all costs and by all means in the desperate quest for state power as a means of primitive accumulation of wealth. In the process, they do all in their power to corrupt and compromise electoral officials, security agencies, and finally the judiciary itself which has become the final decider of electoral victors due to a perverse, corrupt, and cynical political culture.
Credit: The Nation
