By Casmir Igbokwe
The Independent National Electoral Commission (INEC) is not called the umpire for nothing. It has shown over the years that it can make or mar an electoral process. In other words, it holds the major key to the smooth conduct of any election. In its hands lies the success or failure of the 2023 general election in Nigeria.
Nevertheless, the Judiciary is a key partner in this journey to enthrone a workable democracy in Nigeria. As many examples have shown, even if INEC declares a candidate victorious in an election, the court can still nullify the result of that election.
A typical example is the case involving Celestine Omehia and Rotimi Amaechi in Rivers State. Omehia purportedly won the 2007 governorship election on the Platform of the Peoples Democratic Party (PDP). He was actually sworn in as governor on May 29, 2007. But in October of that same year, the Supreme Court declared Amaechi as the lawfully elected governor. Amaechi had won the PDP primary election but was curiously removed from the ballot by his party and INEC on the basis that the Federal Government indicted him for corruption. He ended up governing Rivers State for eight years. In Imo State, Emeka Ihedioha, also of the PDP, won the governorship election in 2019. But the Supreme Court ruled otherwise. It declared Hope Uzodimma of the All Progressives Congress (APC) governor in January 2020 even when he came fourth in the general election. He is still the governor until date.
In the Second Republic, the presidential candidate of the National Party of Nigeria (NPN), Alhaji Shehu Shagari, was declared winner of the presidential election of 1979. The Federal Electoral Commission (FEDECO) had announced on August 16, 1979 that Shagari scored 5.7 million votes nationwide to beat his closest challenger, Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN), who scored 4.9 million votes. Chief Awolowo, went to court to challenge that victory on the premise that though Shagari scored the highest number of votes, he did not fulfill the legal requirement that he should have not less than 25 per cent of the votes cast at the election in each of at least two-thirds of the then 19 states of the federation. Mathematically, two-thirds of 19 is 12.66. Awolowo approximated it to 13 since the electoral law did not envisage the fractionalization of a state. Shagari got 25 per cent of the votes cast in 12 states. Based on this, Awolowo prayed the court to nullify his election because he met the 25 per cent requirement in only 12 instead of 13 states. The Supreme Court, then presided over by Justice Fatai Williams, ruled in favour of the NPN. It maintained that Shagari won 25 per cent of 12 states and 25 per cent of the two-thirds of votes in the 13th state which was Kano. This judgment has remained controversial in Nigeria’s judicial history.
What the NPN did to avoid this type of trap in the next election in 1983 was to try to score, by every means possible, 25 per cent of the votes in 16 out of 19 states of the federation. But allegations of massive rigging tainted the outcome of the election. The courts did not help matters as they ruled in favour of the ruling party to the chagrin of many Nigerians. There were violent protests in some parts of the country. The series of events that followed eventually led to a military coup and an end to the Second Republic. Subsequent Nigerian elections have always been marred by rigging and other irregularities. That is why our courts have always been busy after every election cycle.
Realising the importance of the judiciary in the advancement of justice and democracy, the Body of Senior Advocates of Nigeria (BoSAN) recently expressed worry about the ‘flawed’ appointment policy of justices to the Court of Appeal and Supreme Court of Nigeria. According to the SANs, some of the justices are not competent because they were made judges on quota system basis in the first place. In their speech delivered at a Valedictory Court Service for retired Justice Abdu Aboki of the Supreme Court, BoSAN urged the National Judicial Council (NJC) to discard the policy of promoting justices of the apex court from the Court of Appeal. In the speech, delivered by Chief Onomigbo Okpoko (SAN), BoSAN lamented that this was responsible for the level of mediocrity and incompetence in the judiciary.
“Our submission to the appointing authorities is that the policy of replacement of retiring justices from their place of origin is not sound and should be discarded,” it said, adding that “the policy of geographical spread in public service and in public service appointments is acknowledged today, to be the foundation for the mediocrity and incompetence in some areas of the public service of our nation.”
It urged the NJC to appoint the best candidates to man our courts. After all, it said, “justice is blind, and so does not look at or see the faces of litigants. Justice knows no tribe and has no colour or religion. It has no specified location because it is everywhere.” It urged the NJC to expand its scope in the appointment of justices to include the bar and the academia.
Although balancing appointments to ensure no state or region feels marginalized is important, it must not be to the detriment of merit. The NJC should critically examine the recommendation of BoSAN whenever it wants to fill up the space in the Supreme Court. Currently, there are 13 justices in the apex court. The constitutional provision on the number of justices is 21. One wonders if the current number of justices is enough to handle litigation that may likely trail the 2023 election.
Retired Justice Aboki recommended amending the constitution and other extant laws to ensure that only appeals relating to presidential election should come to the Supreme Court. Others, he advised, should end up at the Court of Appeal in order to lessen the burden on the justices of the apex court. We should heed this advice.
Besides, our judges need to embrace justice more than technicalities in deciding election petitions. There should be no room for what happened in Osun governorship election of 2018. The PDP candidate, Ademola Adeleke, had defeated the APC candidate, Gboyega Oyetola, at the tribunal. But when the case came up at the Court of Appeal, the story changed. The Appeal Court upturned the verdict of the tribunal mainly because a member of the tribunal, Peter Obiora, was said to be absent on a particular day during the sitting of the tribunal. The Supreme Court upheld the judgment of the Court of Appeal. In doing this, it relied on the technicality of the absence of one of the tribunal members rather than the merits of the case. This type of ruling should be completely avoided in 2023. Advancement of our democracy can majorly be propelled by a strong and independent judiciary.
May I once again recommend our justices to the Supreme Court of Kenya. That court has shown that one of the major foundations of a strong democracy is the judiciary. In 2017, it did not resort to technicalities to resolve the electoral dispute between the immediate past President, Uhuru Kenyatta, and the veteran opposition leader, Raila Odinga. When it appeared the then President Kenyatta did not win convincingly, the court called for a rerun. Kenyatta still won after the rerun. This cleared every doubt about the outcome of that election.