The viruses of election litigation

Ogunsakin Mustapha
13 Min Read
Ebun Olu Adegboruwa SAN

By Ebun-Olu Adegboruwa, SAN

There is an ill wind blowing through the fabric of our judicial system that may affect all of us ultimately, if not arrested urgently. In one way or the other, we are all potential litigants. Democracy is accepted worldwide as the best method of leadership recruitment, as exemplified by the secret ballot system whereby the electorate has the golden opportunity of choosing those who will govern them.

The 1999 Constitution prescribes a four-year tenure for all elected positions created under it. In further deference to democratic ethos, election itself has ceased to be the only means of choosing leaders. Aggrieved persons now have the opportunity to deploy legal means to either challenge the process of leadership recruitment or indeed the outcome of the election proper. In Nigeria, this has been categorized into pre-election matters and election petitions. Thus, it is possible that the people may elect a Governor through the ballot and he may still be disqualified by the Court, as was the case with Mr. David Lyon. He was elected by the people of Bayelsa State as the Governor but his running mate in the election, who was to be sworn in with him as the Deputy Governor, was disqualified on account of discrepancies in his documents. Similarly in Kano State recently, the Governor who was declared as elected by the people was ordered to be removed by the court and the certificate of return issued to his opponent.

Under and by virtue of Section 285 (9) of 1999 Constitution, a person who has any reason to challenge the choice of any candidate for any election is at liberty to approach the court to seek any declaration. This is termed pre-election matters. In the same vein, Section 285 (1)-(4) of the Constitution creates the regime of election tribunals with the exclusive mandate to entertain and determine petitions arising from the conduct of elections and the declaration of winners. By this arrangement, courts and tribunals have become the final destination in the determination of the winner of any election. These cases are time-bound as they must be concluded within a specific period of time. This should not be an issue at all in normal circumstances where due process of law holds sway but in Nigeria, abnormal things do happen.

Very recently, the Guardian newspaper reported a very disturbing situation, in its October 18 2023 edition. According to the headline of the said report, “INEC Credibility Sinks as 94% Contested Posts Await Tribunal’, rolling out some alarming statistics to the extent that 1,209 out of 1,280 elective offices to be decided by court verdict, free, fair, credible elections held in only 71 polls, representing 5.55%, 24 out of 28 gubernatorial cases for court validation, umpire earmarked N3B to defend decisions in court, electorate blames INEC, politicians, lawyers for flawed democracy, etc. The Independent National Electoral Commission, INEC is inundated with not less than 1,000 pre-election cases arising from or connected to the 2023 elections. INEC Director, Legal Drafting and Clearance, Mrs. Oluwatoyin Babalola confirmed this in her presentation at a two-day capacity workshop for journalists in Nasarawa State last week. Substantively, over 1,200 cases are pending before various Election Tribunals for determination. The cumulative result of this is that the political class in Nigeria is very litigious, preferring to contest every electoral issue. This should ordinarily be good news for lawyers as it will keep them busy and bring more income. But this is not about lawyers as Nigeria is greater than any group of professionals. The reality is that this has caused the political terrain to become uncertain and unsteady. As it happened in Bayelsa State, it is possible to remove a Governor-elect on the eve of his swearing in.

Not long ago, Senator Muhammad Bulkachuwa shocked the nation when he revealed that he had served as courier to assist his fellow legislators to secure some judicial favour to boost their electoral fortunes. Being the husband of the immediate past President of the Court of Appeal who was directly in charge of constituting and managing all election tribunals, the understanding of many is that Senator Bulkachuwa at different times during his tenure as a Senator assisted in influencing judicial decisions one way or the other, through his marital affiliation to a judge. Another Senator, Elisha Abbo accused the current Senate President of masterminding his removal and also plotting that of many others. These statements have been modified, in the usual Nigerian fashion.

Perhaps the most devastating confirmation of the contagious nature of the viruses of election litigations came from the President of the Court of Appeal herself, through the directive that she issued for all election-related appeals from the Northern States to be transferred to the Abuja Division whilst those from the Southern States should go to the Lagos Division. From reports monitored in the media, the directive was issued following allegations and petitions against state tribunal judges alleged to have been compromised by the governors whose tentacles may also extend to appeals pending in their respective states. In simple terms, there is palpable concern from the authorities of the Court of Appeal that election cases are likely to be compromised through corruption and corrupt practices, thus confirming the previous confession of Senator Bulkachuwa and the subsequent allegations of Senator Abbo on the subject matter viruses. Beyond the cold facts of the case and the industry of the lawyers therefore, it has become clear that there are other extraneous factors that determine the outcome of cases in court, especially those related to elections. We cannot throw up our hands in the air in despair but rather face the grim realities as they unfold. If we cannot determine the true winner of elections through the ballot, if the decision of the court on the election has become the buyer’s game, then we are in for trouble and better prepare ourselves for the war to come. One day, the people will revolt and the judiciary itself will cave in.

A virus is an infectious agent that helps to spread negative things, be it diseases in humans or malicious actions affecting data in technology. The two major viruses spreading from election-related cases are Corruption and Delay. Upon the conduct of any general election, about 400 judges are selected across the nation, on national assignment as judges of election petition tribunals. This assignment takes on average six months to conclude, during which time the regular businesses of the judges are disrupted, suspended or canceled outrightly. For other judges who are not on this assignment, they are to attend to pre-election matters which are given priority over and above all other cases. This is just for the High Courts. In the appellate courts, election-related appeals dwarf all other appeals and render them comatose. In times past when we had uniform elections, it was possible to harmonize this regime and console ourselves that it comes once every four years. But we now have off-cycle elections and bye-elections as is the case with the upcoming elections in Kogi, Bayelsa and Imo States in November 2023. The effect of this is that judges now work round the year in order to determine election-related cases. As a solution, some have suggested pulling out retired judges who are less than seventy years to handle election petitions while some others propose a Special Court. Whatever the case, it is clear that there is an urgent need to convene a national dialogue on this matter comprising judges, lawyers and legislators, for the purpose of discussing and agreeing upon a workable solution. The diagnosis for now is that there is danger ahead.

The virus of corruption simply kills the judicial system and pollutes our body polity. It makes nonsense of our elections for if it is possible to influence the outcome of election-related cases, why would anyone bother to invest in rigorous campaigns when he can easily save money to buy the case? In this frightening scenario, anyone and everyone who has some means of connecting judges can easily be declared the winner. And it doesn’t require that he/she should have enough money to go round. After all, with the largesse of security votes and limitless allowances surfacing in bank accounts that jump scrutiny, the “winner” can go round to settle when he/she assumes office.

This is why politics has become a viable investment in Nigeria such that some banks give out huge loans to fund political ambitions because the return on investment is very sure and huge. At the 11th convocation ceremony of Afe Babalola University held last week, its founder, Aare Afe Babalola, SAN lamented that politics has become the only lucrative and viable business in Nigeria. And this must be due to corruption and access to free funds. The clock is ticking so fast and something has to be done urgently to arrest the drift.

The political class cleverly amended the Constitution to ensure that political cases are given accelerated hearing, to the detriment of other cases pending in the courts. The Court of Appeal is overburdened whilst the Supreme Court is thoroughly overwhelmed, now that the apex court has been depleted in the number of justices due to retirement and death. In the Lagos Division of the Court of Appeal, there is a blanket embargo on other cases not connected with elections as there are no hearing dates for these cases and those earlier fixed for hearing have been vacated so as to give room for election-related appeals.

I call upon the National Judicial Council, the Nigerian Bar Association and the National Assembly to urgently come up with an authoritative platform that will address these issues in order to create a workable solution that will save the judiciary and by extension, Nigeria. We must contain the viruses.

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