Faulty electoral system, Huge burden on Judiciary’

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Management of election petitions in Nigeria

The administration of election petitions in Nigeria says a lot about who we are as a people. I think the burden should be shifted to our political elite because if elections are peacefully conducted without the deployment of thugs, boasts and threats, things could be better. It is only in this country that you hear people say they are going to capture a place during election. Are they fighting a war? When you go into elections as if you are at war then whoever loses is not bound to take it lightly. Now, why do we have election petition tribunals? In those days it used to be the High Courts of the respective places that handled matters that arose during elections. But trust Nigerians, we corrupted it and this led to loss of faith in the system. And as a measure of improvement, tribunals, which are ad-hoc arrangements recognized by the constitution, were set up. They have very limited areas that are not beyond election and post-election disputations. There have been cases in the past of election petition tribunal members collecting bribes. One even went as far as the Court of Appeal which led to Obasanjo’s regime retiring and disgracing some judges on the issue of corruption. What this tells me is that in this country, nothing is sacrosanct that we cannot compromise. This is sad, very sad. The judicial process ought to be respected ordinarily but our elites, because when you hear of bribery and all the rest, it is the elite in politics that perpetrate them using ethnic, religion, old school ties and so on and so forth to pervert justice.

Unfortunately many of those judges forget that when you are appointed a judge, you are standing instead of God over your fellow men. And rather than remaining truthful to the oath they swore, some of them, of course very few, misconduct themselves. Luckily the NJC has been doing its very best to look into this matter but then, it is the judiciary that is being damaged in the process. And this worries me as a lawyer because, India, the largest democracy is not expending as much energy as we do on election petitions in Nigeria. The array of disputes arises from the bad attitudes of our politicians. For them it is either they get it or nobody else does. Democracy is work in progress, I think once we are able to reform our electoral process the way we should and we change our attitudes, perhaps we will depend less on the judiciary. I recall a few years ago, I had a discussion with a learned Justice of the Supreme Court and he said, “Mr. Adedipe, look around, go through the All England Law Reports and tell me how many election petitions you find there.” The United Kingdom has had judgments for over 1000 years, so conventions and good conduct rule. But we shouldn’t be afraid to go to courts; after all in year 2000, George Bush went to court over an election. I believe that the tribunals serve their useful purpose but we need to reform our electoral process to reduce the pressure on our judges.

Reforming the Judiciary too

On this I have a view that could be termed extremist. There is a book by Lord Denning, ‘Landmarks In The Law’ where he narrated a story of when, in 1620, the Chief Justice of England was accused of taking bribe by some litigants. Parliament looked into the matter and the man confessed. The total amount he probably took was about 1,200 Pounds but look at the verdict; he was fined 40000 Pounds and was made to forfeit all his assets, banned from holding public office and was kept in prison at the King’s pleasure. Now that is a very bruising verdict but to send a strong message that the position you hold is one of trust and you cannot afford to misconduct yourself. If you do, the punishment would be so severe that others would learn a lesson. Some 20 years ago, a judge was retired in the UK and his offence was that he took a loan from a QC who in the future might have a case in his court. But here we do things as if anything goes. Until we get a message across that when a judge misconducts himself, the punishment would be higher than the offence, we wont get it right. That is one area that I want us to look critically into. It is not enough that you find a judge guilty and he is retired. He might as well go for the kill and get something that he will live on for the rest of his life. But if he knows that the punishment would scar him and his family for life, he won’t do it.

Mark you, in our country, the verdict of the courts hardly satisfies people and this is as a result of even the perception that the tribunal might have been compromised. I say perception because more often than not, people make wild allegations and when you ask for proof, the answer is that everybody knows that the tribunal has been compromised. But for me as a lawyer that is very wrong. Unless you have proof, don’t make allegations.

The Rivers State election tribunal verdict

Well, as one of the counsels that was engaged by the PDP in defence of the elections that took place in Rivers State, I can only state straightaway that the judgment of the Rivers State election petition Tribunal appeared to me to be faulty and the basis for that judgment would be surely tested at the appellate levels. I say this with all sense of responsibility and profound humility. I do not think that it is right to annul a state election on the basis that INEC directives were not complied with. I would have thought that the election should have been annulled if the Electoral Act was violated. Directives are directives and the Electoral Act made it abundantly clear that the non-observance of directives of INEC will not on itself, be a ground for annulling or questioning of an election. The court of appeal in Agbaje and Ambode made it clear that the usage of card reader, though a beautiful innovation, has no legal basis as the card reader itself is an innovation by INEC and INEC is not a legislative body. Do recall that there is no legislation backing this issue of card reader. So to use that as a basis for annulling an election probably needs a review or an approval by the appellate court. So for now, I do not agree with the verdict of the Rivers State Election Petition Tribunal.

Section 138 (2) of the Electoral Act says that directives are not part of the law of INEC. And when you look at Section 149 of the Electoral Act, which is the one dealing with accreditation, there is no role for the card reader there. So to say that an election is annulled because of card reader is not right. In any event it was part of the case at the tribunal that they uploaded those information and then shut down the system with the admission that there could still be further information in the system before it was shut down. You cannot use that, in my humble opinion, to annul an election. I would have thought that the tribunal would look for more substantial reasons. The case that was being made was that election didn’t take place. So if you say election didn’t take place, you bring people that wanted to vote but couldn’t vote. In the case of Rivers, I think about three or four voters were brought outside of soldiers and policemen and members of the DSS who by the way, under the law, have no role to play. For them to give and opinion and the tribunal rely on that has raised very serious issues of law. But we will leave it at that for now.

Card reader usage should have been legalized

Of course, once you run a constitutional democracy, that is a government by law and whatever you do must be backed by legislation. You do not just innovate and use your own whims and say what you have done remains the law. Why do you have the National Assembly? If you cannot pass it through the NASS then you have to make do with what the law has provided. I believe that beautiful and commendable as that innovation is, it is not backed by legislation. The directive or guideline of INEC remains what it is, mere guidelines, hand-made to assist, but you cannot say if they are not followed to the letter, an election becomes automatically invalid. That certainly cannot be. We are going on appeal to test the validity and the soundness of the judgment.

Allegations of FG and APC influence

Again I am not in a position to comment on this but I will comment on some things that give me some disquiet in the course of this litigation. It is the first time in my experience that soldiers and policemen who were accused by the petitioners will be brought in by the same petitioners to come and give evidence that election didn’t take place. If election didn’t take place, where did they get the soldiers that they accused of taking part in electoral malfeasance? I do not know whether the Federal Government played any role. This is a purely judicial matter; we must recognize that. But the change in the personnel of the tribunal midway raises more questions than answers. We need to let people have confidence in what is going on. I don’t know the basis upon which, for instance, the tribunals were brought, without any legal instrument, from Rivers to Abuja. I do not know the basis upon which, midway into the trial, the panel was reconstituted. When you do these things, you give the people the impression that you are up to no good and so, whichever way it goes, people are bound to complain. Like I said, these are serious issues of the law that will be looked at at the appropriate forum.

Source: http://www.ngrguardiannews.com/2015/10/faulty-electoral-system-huge-burden-on-judiciary/