VOX POP: Does Nigeria Need A Constitutional Court?
For every election cycle in Nigeria, hundreds, maybe even over a thousand or more petitions go to the Election Petition Tribunals set up in all the 36 States of the country and FCT, to be adjudicated upon, not forgetting pre-election matters that travel through the various levels of the courts as well – all of them time-bound. The 2023 general election cycle is no different, and this has seen the State Judiciaries empty and practically grind to a halt, short-staffed, as many Judges get drafted to election petition duty to sit on these Tribunals, with the resultant effect that justice delivery gets annoyingly slowed down to almost zero. Ordinary Litigants constantly get the short end of the stick and suffer the consequences of the avoidable delays, caused by election matters. Some have suggested that as election petitions continue to arise from virtually every election in Nigeria, the creation of a Constitutional Court manned by Judges strictly appointed for that task, is what is required to stop Judges of the State Judiciaries from being taken away from their already overloaded dockets. In this discourse, Chief Ferdinand Oshioke Orbih, SAN, Anthony Aikhunegbe Malk, SAN, Stephen Kola-Balogun and Dr Sam Amadi examine this idea of a Constitutional Court, and suggest how best Nigeria can take advantage of this novel proposition
A Constitutional Court to the Rescue?
Chief Ferdinand Orbih, SAN, FCArb
An election is the process of choosing by popular vote, a candidate for political office, in a democratic system of government. The process in an election starts from the voting by political party members to choose candidates to represent the political party at the ward level and the primaries, up to the polling day when these political party candidates are presented by the political party to the electorate. The process of election includes the accreditation of voters, the voting, collation, recording on all relevant INEC forms and the declaration of results; Collation of results must be concluded, before the results can be declared. That step cannot be jumped, in the election process. In the normal course of events, the process ought to end with the issuance of a certificate of return to the successful candidate, but does it? In Nigeria, the election process usually ends with an election petition. Professor Chidi Odinkalu recently reminded us of this reality in his recent piece titled As Nigeria’s Judges Get Set to Begin Voting wherein he poetically opined as follows:
“This week, the opening salvo will be fired to signal the onset of the final round of voting, in Nigeria’s electoral marathon. This is not a reference to the State-level ballots that occurred around the country on Saturday, 18th March. I refer instead to something far more consequential. Democracy may be about choices and decisions in theory. As practised in Nigeria, however, citizens are mostly spectators. In every election, Nigeria’s Judges have the final vote”.
It is factually inexact to say that Judges have the final vote in “every election in Nigeria”, because they neither have the final say nor vote in elections whose outcomes are not presented to them for adjudication. For instance, no Judge had a say or vote in their judicial capacity in the Presidential election of 2015, as the outcome of that election was not subjected to any judicial challenge. However, there is no disputing the fact that Judges have the final vote in all elections submitted to them for resolution, by way of election petitions. Thus, a man who came fourth in a Governorship election can become the winner of the same election, if the court so finds. Similarly, a man whose name was not on the ballot, and who did not campaign for votes and was not voted for can become a State Governor by judicial pronouncement in Nigeria. Under the Electoral Act, disputes are submitted to Tribunal or Court by way of an election petition. The Act provides that no election or return at an election shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in the Act referred to as an ‘election petition’) presented to the competent tribunal or court.
What is an Election Petition?
It is therefore, safe to define an election petition, as a court process complaining of an undue election or undue return presented to a competent tribunal or court.
In Nigeria, the right to present an Election Petition is governed by Section 134 of the Electoral Act which provides that an Election Petition may be presented by a candidate in an Election or a political party which participated in the Election.
Election Tribunal or Court
The Election Tribunals are a creation of the Constitution itself. Section 285(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which creates the Tribunals, provides as follows:
“There shall be established for each State of the Federation and the Federal Capital Territory one or more Election tribunals to be known as the National and State House of Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) Any person has been validly elected as a member of the National Assembly; or
(b) Any person has been validly elected as member of the House of Assembly of a State.”
The Court of Appeal acts as a Court of first instance in election Petitions challenging the election or Return of a President and/or Vice-President. It will be difficult to understand the adverse impact of Tribunals and Election Courts on the country’s adjudicatory system, without a knowledge of their composition.
Composition of Tribunals
The 6th Schedule to the Constitution provides that a Governorship and Legislative Houses Election Tribunal shall consist of a Chairman and two other members. The Chairman shall be a Judge of a High Court and the three other members shall be appointed from among Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal, or members of the Judiciary not below the rank of a Chief Magistrate.
The Court of Appeal as an election court of first instance, consists of 5 Justices of the Court.
Negative Impact of Electoral Adjudication on the Justice System
Firstly, the large number of pre-election and post-election cases is overwhelming the entire justice delivery system, to the extent that it may collapse if urgent steps are not taken to rescue it. Let’s look at the numbers to buttress this point. As of 6th January 2023, about forty days to this year’s general elections, the INEC had been joined in 791 intra-party lawsuits in different courts of law. This was 61 suits less than the 852 recorded in the build-up to the 2019 general elections. Professor Yakubu, the INEC Chairman told Chatham House recently that:
“In the 2019 general elections, the Commission was involved in 1,689 cases, made up of 852 pre-election matters and 807 post-election and 30 electoral offences cases.”
The pre-election matters are usually determined by the Federal High Court. Given the time limit of 180 days constitutional provision within which they must be completed, the pre-election matters practically shut down most divisions of that court to any other business during the period leading to the elections under review.
Secondly, as we have already pointed out, the election petitions pertaining to the Governorship and legislative houses are to be determined by the Election Tribunals. These three-man Tribunals are constituted by the President of the Court of Appeal, and sworn in by the Chief Justice of Nigeria. On Monday, the 7th of November 2022, 307 serving Judges drawn from High Courts, Sharia Courts of Appeal, Customary Courts of Appeal and Magistrates Courts were sworn in by the Chief Justice of Nigeria, well ahead of the current 2023 Election Tribunal season. That may not signal the end of recruitment exercise, as more Tribunals are likely to be appointed as the need arises depending on the number of Election Petitions that will be filed by aggrieved politicians and their political parties. The effect of withdrawing these Judges away from their normal stations to perform Tribunal duties is staggering. For the next six months-for the remaining part of this legal year till the beginning of the next one, their courts will be closed to the litigating public. And, if any of them was involved in hearing pre-election matters, their courts would have shut down for one year, if we take the prescribed six-month period to hear and determine pre-election matters at their stations and the succeeding six months, they would be away on Election Tribunal duties outside their usual stations. If you add the period of their annual leave which they usually take when they return from Tribunal duties, some courts would have been shut down for at least 13 months because of election-related matters. Yet, we complain of delays in our justice delivery system.
Thirdly, any Lawyer who practices at the Court of Appeal will agree with me that, because of the deluge of the pre-election matters (that journeyed from the Federal High Court to the Court of Appeal), that Court, especially its Lagos, Kaduna, Enugu, and Abuja divisions has dealt with little else other than pre-election matters in the last six months. A more chaotic situation is playing out at the Supreme Court. The Supreme Court which is functioning at less than its established capacity because of the failure of the system to fill existing vacancies, is so inundated with pre-election matters that it had to create three panels of Justices from its extremely lean human resources to hear pre-election matters. Every other category of matters is at a standstill. As a result of the deluge of pre-election matters, the Supreme Court Cause List now looks more congested than that of a typical Lagos Magistrates Court. The quality of justice even in the election related matters that is engaging the attention of our courts under the present dispensation, is also bound to suffer. The Judges of the Federal High Court and the Appellate Courts who are attending to the pre-election matters, are not robots. As human beings, fatigue is bound to set in under the above circumstances, and with fatigue comes errors and mistakes. We have seen such unusual errors of judgement, in recent times. The Judges, though responsible for some of these avoidable errors, are not to be blamed. A motor car driver, no matter how skilful, who embarks on a twenty-four-hour journey without rest is an accident waiting to happen.
Fourthly, the disruption to the Justice administration system, occasioned by our Electoral Litigation Management architecture, is not only at the High Court level and the Supreme Court. It is even more chaotic, at the Court of Appeal. Very soon, as the election petitions move from the Tribunals to the Court of Appeal, the President of the Court of Appeal would have to create special panels to hear appeals arising from the Governorship Election Petitions. Justices of the Court of Appeal will be moved from their judicial divisions to other divisions, to constitute these panels. In some cases, some election petition appeals pertaining to legislative houses will suffer because of this.
It is clear from the foregoing that our justice delivery system is gasping for breath under the crushing weight of pre-election and election petition litigation. We are at a cross-roads. So, what is the way forward?
The Way Forward
To do the same thing repeatedly and expect a different result, is what psychiatrists call insanity. Our electoral litigation management architecture has been in place since 1999. And, it is not working, period. We must accept that. The system is beyond reformation. It must be dismantled and rebuilt, for it to have some semblance of order in the following manner:
a. Reconstitute the Courts
We have often paused to ponder why a tribunal of three Judges uprooted from jurisdictions other than their usual ones, should be constituted to hear Election Petitions arising from a State House of Assembly election or the National Assembly elections. There is no rationale or justification for it. We do not know what specific problem this has solved. Does it lead to better judgments? We very much doubt this. Does it check the much talked about corruption? This is also doubtful. The fact that you are sitting alone as a Judge or with other Judges, cannot stop you from being corrupt, if you are inherently corrupt.
If a High Court Judge sitting alone is given exclusive original power to determine commercial disputes involving billions of Naira, criminal jurisdiction to sentence a human being created by God to death, civil jurisdiction to determine the actual parentage of a child whose paternity is in issue: why can’t such a Judge be clothed with jurisdiction to determine a simple question (in our humble opinion) of whether or not a member of a State House of Assembly or of the National Assembly was validly elected? Why can’t a High Court Judge determine whether a political party complied with the provisions of the Electoral Act, in conducting its party primaries to determine its candidates at an election. We see no reason why a panel of three High Court Judges from the State where an election was held, cannot be empaneled to hear and determine an election petition arising therefrom.
b. Create Constitutional Courts
If we cannot trust our High Courts to handle a simple question as to who scored the highest number of valid votes cast at a House of Assembly or National Assembly election, then let us create Constitutional Courts to handle both pre-election and post-election matters. Let’s not kid ourselves about whether there will always be election petitions. Of course, there will always be election petitions. It is a culture ingrained in the minds of the average Nigerian politicians. To them (except for a few), the only acceptable outcome of an electoral contest, is their own victory. Nothing more, nothing less. And, since there can only be one victor, the defeated will always go to Court or Tribunal with or without justification.
Some colleagues have argued that Constitutional Courts will be idle, since elections only come up once in every four-year circle. That argument is not valid, because our court business is seriously disrupted for election-related matters in more than thirteen months of those four years. Besides, jurisdiction over other purely constitutional matters such as violation and enforcement of fundamental rights can in addition, be donated to the Constitutional Courts if created. That will, in no small measure, also decongest the High Courts and the Federal High Courts, who currently have power to hear and determine such matters.
The problems associated with our electoral litigation management system are enormous. We cannot solve them by ignoring them, or by papering over the cracks while hoping that they will simply walk away. No. We must tackle this hydra-headed monster head-on, lest it consumes us.
Chief Ferdinand Oshioke Orbih, SAN, FCArb, DSSRS
Time for a Specialised Constitutional Court to Determine Election Cases
Chief Aikhunegbe Anthony Malik, SAN
Although, the aphorism “justice delayed is justice denied” is one of universal acceptance and application, the apophthegm, nonetheless, seems to have acquired a monstrous notoriety in relation to the Judiciary in Nigeria. The unfortunate situation is precipitated by the inordinate delays that generally bedevil judicial proceedings in Nigeria. Sadly, and despite the existence of a High Court in all the States of the Federation as well as the Federal Capital Territory, the Federal High Court and the National Industrial Courts with special and exclusive jurisdictions to deal with specific disputes, not much has been achieved in the area of quick dispensation of justice. The situation is not any different in Courts of summary jurisdiction. The natural result being an unwholesome public disenchantment in and total distrust for judicial processes, resort to jungle justice, resignation to fate in the face of clear violation of [even] constitutionally guaranteed rights, etc. The foregoing has made the aphorism “the Judiciary is the last hope of the common man” , to become nothing but a mere figure of speech!
Establishment of a Special Court
In recent times, there have been sustained calls for the establishment of special Courts to deal exclusively with or handle election cases, including but not limited to pre-election matters, election petitions and electoral offences. The calls are accentuated by the conviction that such specialised courts will bring about the desired speed and efficiency. Indeed, the fact that election cases are sui generis in nature, makes more pungent the argument for the establishment of a special or constitutional court[s] to handle or adjudicate over election cases where the special set of rules shall be applied. Being in a class of their own, it appeals to common sense and logic that electoral matters should be tried in special courts. Additionally, the indubitable fact that the 1999 Constitution, by dint of Section 285, prescribes time limits or time lines within which disputes arising from pre-election cases, election petitions and resultant appeals must be commenced and disposed of, lends credence to the agitation for the creation of the specialised courts.
In our legitimate quest to abide by the constitutional stipulation as to time in disposing of election cases, regular matters in our various High Courts now wittingly or unwittingly suffer neglect or outright abandonment, while the election related matters are prioritised. The situation is even worse, in relation to cases pending in courts ordinarily manned by Judges who are drafted by the President of the Court of Appeal into election tribunals. The litigants whose cases are in such courts, often feel the brunt more. This unfortunate situation engenders delay in the dispensation of justice.
On the flip side, the expertise and effectiveness which specialisation would most likely bring about for the Judges appointed to man the special Courts, would naturally lead to a high level of uniformity in the decisions in electoral disputes. The gains made in the area of labour related disputes by the establishment of the National Industrial Court of Nigeria by virtue of Section 254c of the Constitution, is a ready testament to this fact. It is my view that by establishing specialised courts for election-related disputes, the menace of forum shopping by politicians would be permanently and completely eradicated.
I hold the strong view that the benefits derivable from the operation of special courts, far outweigh whatever disadvantages one may contemplate. Accordingly, a further amendment to the Constitution is what is required, to bring about this revolutionary change. The amendment will take into cognisance and embody provisions relating to mode of appointment, qualifications, salaries and emoluments, training and re-training of Judges and support staff, etc,, etc.
Chief Aikhunegbe Anthony Malik, SAN
Clamour for a Constitutional Court and the Justifications
Now that our National elections have come and gone, our courts, once again, in the aftermath of those elections, are about to become besieged with election petition cases. Judges and Lawyers will be distracted from their usual daily routine of handling civil, criminal and commercial matters, to attend to those election petition cases. This will no doubt result in a massive build up, culminating in a backlog of cases for our Judges to resolve both administratively and in open court. This may also take years to address or overcome. It’s for these reasons that many have begun to clamour for the 1999 Constitution to be amended once again, in order to make provision for a Constitutional Court.
A Constitutional Court would be a first instance court in the country when it comes to the interpretation, protection and enforcement of the Constitution. It would deal exclusively with constitutional matters, particularly those cases that raise questions about the application or interpretation of the Constitution. Ideally, the Constitutional Court will have unlimited jurisdiction to determine all causes relating to the enforcement of or connected with the interpretation of the Constitution, enforcement of fundamental rights of citizens, determination as to whether any person has been lawfully elected into any office from the President, to State Governors, National Assembly Members, State Houses of Assembly Members and the conduct of Party Primaries, in so far as there are issues that relate to the interpretation of specific provisions of the 1999 Constitution as amended, and judicial review applications as they relate to specific constitutional bodies.
The main advantage of a Constitutional Court is that it will provide the easiest way to achieve finality and uniformity in constitutional interpretation which may not be forthcoming in a diffused system, where different courts at the same or different levels may decide on different interpretations of the Constitution. A Constitutional Court would also facilitate access to justice, promote constitutionalism, the rule of law and respect for human rights.
Historical Basis for a Constitutional Court
The first real constitutional crisis in Nigeria stemmed from the Western Regional crisis in the 1st Republic, that led to the Privy Council decision in Adegbenro v Akintola,  3 All E.R. 544. In this case, the Governor of the Western Region of Nigeria, Sir Adesoji Aderemi had removed Chief Akintola from office as Premier of the Western Region, and appointed Adegbenro as the new Premier of the Region. Chief Akintola then sued the Governor and Adegbenro, claiming that he had been wrongfully removed, since, in his opinion, the Governor had no right to remove him from office as Premier without a prior resolution of the House of Assembly reached on the floor of the House of Assembly, to the effect that the Premier no longer commanded the support or confidence of the House. The proceedings were commenced by a Writ of Summons dated 21st May, 1962. The High Court of Western Nigeria in which the suit was instituted referred the matter to the Federal Supreme Court for a decision, since it involved a constitutional question. The decision of the Federal Supreme Court was in favour of Akintola, but Adegbenro took the decision to the Privy Council on appeal. The appeal from the decision of the Federal Supreme Court of Nigeria was dated 7th July, 1962, and it was on the same issues referred to the Federal Supreme Court by the High Court of Western Nigeria. The Privy Council allowed the appeal, and reversed the decision of the Federal Supreme Court which had earlier given its own answers to the questions referred to it by the High Court of Western Nigeria in favour of Akintola. The Privy Council was of the view that the Constitution did not specifically state that the Premier had to be removed on the floor of the Western Region House of Assembly. The Privy Council also pointed out that the convention of removing a Premier on the floor of Parliament as was done in the UK did not apply in our case, because there was now a written Constitution in place, which specified the procedure to be adopted in removing a Premier and, as such, parliamentary convention no longer needed to be applied.
It is interesting to note that the Western Nigeria High Court, instead of assuming jurisdiction in the case cited above, decided to refer it to the Federal Supreme Court since the issues involved a constitutional question on the interpretation of the Western Region of Nigeria Constitution. In other words, we recognised as far back as then, the importance and need for certainty in the interpretation of constitutional questions, by referring them to the Federal Supreme Court which effectively was a Constitutional Court.
It is equally interesting to note that, even though eventually there was a political reversal of the Privy Council decision when the Federal Government decided to retrospectively abolish all appeals to the Privy Council from the Federal Supreme Court, the fundamental principle seemed to be recognised and fully established by the decision of their Lordships of the Privy Council, to the effect that it’s the actual words of the Constitution that are to be construed, and not those conventions which were mistakenly deemed to have been impliedly attached to the Western Region Constitution. The Constitution perhaps, did not in terms say what the people of Western Nigeria had become accustomed to, but neither did it imply that the terms must be changed. This constitutional principle was once again adopted, even if not specifically stated as such, in the 2nd Republic case of Awolowo v Shagari & Ors (1979) 6-9 S.C. 37.
This was an appeal requesting that the 1979 Presidential election that was conducted by the Federal Election Commission (FEDECO), be nullified. The matter was first heard at the Presidential Election Tribunal in Lagos. Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN ) alleged that as far as the records showed, no candidate scored up to 25% of the votes cast in 13 States of the Federation. The 3rd Respondent FEDECO, nevertheless, declared that the 1st Respondent, Alhaji Shehu Shagari, had won the Presidential Election. Chief Awolowo disagreed with the result as declared, and appealed.
Chief Awolowo as Appellant, requested that the election be declared void, and that FEDECO should hold a run off election, which should ordinarily have followed upon the failure of any of the candidates to win at the first ballot. Alhaji Shehu Shagari was a member of the 2nd Respondent Party, the National Party of Nigeria (NPN). He polled 5,688,857 votes. He also scored at least 25% of votes cast in each of the twelve States namely, Bauchi, Bendel, Benue, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto and in the thirteenth State – Kano, he scored 19.94%. Chief Awolowo scored 4,916,651, in total.
Issue for Determination
The correct interpretation of Section 34A(1)(c)(ii) of the Electoral (Amendment) Decree No. 32 of 1979 and the relevant provisions of the 1979 Constitution.
The appeal was dismissed and costs were awarded against the Appellant, on the grounds that Alhaji Shagari was lawfully declared the winner, and that he satisfied the requirements of Section 34A(1)(c)(ii) of the aforementioned Decree and the relevant sections of the 1979 Constitution. Also, that even if he didn’t get more than one third in the 13th State, Section 111 & Section 110 of the Decree would have come to his aid, and that judgement would have still been given to him.
If we had a Constitutional Court at that time, the Presidential Election Tribunal might have almost certainly referred this question to the Supreme Court directly for interpretation as the High Court of Western Nigeria did in Adegbenro v Akintola (Supra). Secondly, if we are to follow the reasoning of the Privy Council in Adegbenro v Akintola (Supra), the Supreme Court appears correct in determining that 2/3 of 19 States is not 13 in that, 13 is more. In truth, it is actually 12 2/3. There was substantial compliance with the Constitution. If the Constitution wanted 13 States, it ought to have been specific by stating that in the event of a fraction, you must round off to the nearest whole number; but the 1979 Constitution made no such reference. Wasn’t this the lesson we ought to have learnt in Adegbenro v Akintola (Supra)?
The two cases cited above reinforce the need for a Constitutional Court, in order to provide certainty in constitutional interpretation. The cases also highlight the advantages of having a Constitutional Court. In Akintola v Adegbenro (Supra), we noted that cases that raise constitutional questions should ordinarily be referred to Constitutional Courts for interpretation. This, is in addition to the other overall benefits of a Constitutional Court as already highlighted above.
Calls for a Constitutional Court by BOSAN
The Body of Senior Advocates of Nigeria (BOSAN) last December, joined the argument for a Constitutional Court and called for its immediate establishment, in order to address the issue of undue delay in court cases occasioned by the prioritisation of political cases. The proposed Constitutional Court, according to BOSAN, would handle all constitutional, political and election matters.
Chief Adegboyega Awomolo, SAN, who spoke on behalf of BOSAN, added that the court would be a Federal Court, and of equivalent status to that of a High Court with divisions in all the States of the Federation and the Federal Capital Territory.
Chief Awomolo, SAN further explained that the judicial system had reached a stage where the National Assembly, the Judiciary and other stakeholders in the administration of our Justice sector need to urgently consider establishing a National Constitutional Court of Nigeria. He pointed out that all decisions of the court would be appealable to the Court of Appeal, and all appeals would end at the Court of Appeal. He claimed that if, or when the Court was eventually established, there would no longer be the need to take away about 500 Judges from their normal court responsibilities to sit on Election Tribunals all over the country, and that the cost of establishing and maintaining this court would more or less be equal to the sums being expended and wasted on provision of logistics, convenience and security for Judges along with hundreds of support staff who are made to traverse the length and breadth of Nigeria to adjudicate on political and election cases.
For all the reasons already highlighted, especially those of particular concern to BOSAN, a National Constitutional Court is not only desirable, but imperative. Ideally, it should be established similarly to the Federal High Court and the National Industrial Court, to deal specifically with constitutional law matters and in determining whether laws that are challenged are in fact unconstitutional, or whether they conflict with constitutionally established rules, rights and freedoms, amongst other matters. We referred constitutional matters of significance to the Federal Supreme Court in the past as noted in Adegbenro v Akintola (Supra), and now in this 4th Republic, we will almost certainly continue to have several breaches and infractions to the Constitution. It’s not in all cases, that many of the constitutional questions that arise can be referred directly to the Supreme Court at the first instance. In fact, in the 1st Republic we only had four regions, the Federal Capital Territory of Lagos and the Federal Government to contend with. Now we have 36 State Governments, the Federal Capital Territory of Abuja and the Federal Government to contend with. Since disputes between States, between States and the Federal Government, and disputes between the National Assembly and the Federal Government can be referred directly to the Supreme Court, I would differ slightly from BOSAN, and instead, advocate that appeals from a newly established Constitutional Court should go directly to a newly constituted constitutional arm of the Supreme Court. Overall, a Constitutional Court would undoubtedly help in ensuring that both Judges and Lawyers become better acquainted with constitutional aspects of our laws, while the Constitutional Court itself would become the first guardian of the Constitution and all other democratic institutions established under it.
Stephen Kola-Balogun, Legal Practitioner, Lagos
A Better Electoral Justice Administration
Dr Sam Amadi
The judicialisation of Nigerian elections has reached a dangerous level. With the shambolic 2023 election, we expect that we will have record numbers of cases filed at different tribunals. Apart from the obvious problem with judicialisation, which is that the judicial branch illegitimately gets to choose leaders for the people, the prolonged litigation past the period those elected should be sworn in, creates unusual anxieties and uncertainties that are bad for stable governance. It is never good for social stability, for an administration to resume with uncertainty whether its tenure will be cut short by the courts.
This uncertainty and anxiety may take a dangerous turn this time, if the President-Elect is sworn in before the Court of Appeal delivers its verdict. Think about a scenario where the Tribunal nullifies the election, or decides that either Mr Peter Obi or Mr Atiku Abubakar won the 2023 Presidential election. Mr Bola Ahmed Tinubu appeals the decision. The appeal is not heard before May 29. Who will be sworn in as President? Tinubu, who was declared President-Elect by the Independent National Electoral Commission (INEC) but subsequently invalidated by the Court Of Appeal, or either Peter Obi or Atiku Abubakar, who is now declared as elected by the Tribunal, but which decision is now contested at Supreme Court?
This possible scenario, underscores the importance of speedy and just administration of electoral justice in Nigeria. We have seen a high number of election cases in previous elections. The 2015 election has the lowest number of cases because of the improved quality of electoral management. With the worst election in Nigerian history in 2023, we should expect an avalanche of election cases, as everything from failure to hold elections in constituencies where results were declared to be outright falsification of results, will be on offer for Judges to resolve. Many stakeholders are concerned about how to ensure speedy resolution of these cases, so that election cases would be conclusively decided before inauguration of new governments. The gravest concern for me, will be Presidential election disputes.
Call for Constitutional Court
There is a call for a constitutional court that will be saddled exclusively with the adjudication of election cases. I think this proposal is faulty. The assumption is that a specialised court will be faster in dispensing electoral justice. But, this is not true. A specialised court created by a statute, like a constitutional court, may end up getting cluttered with so many cases, such that it grinds like the tribunals in dispensing justice. That single court will be overwhelmed. Again, the concept of a constitutional court is one that determines broad issues of utmost constitutional importance. Issues that border on sharing of power between components of a Federal State, especially where the history of distrust or segmented cleavages require a special court to protect the constitutional framework of cooperation and shared powers. That is not the nature of electoral disputes.
Nature of Electoral Disputes
The nature of electoral disputes is that they are often procedural and relate more to statistical disputes. So, the special tribunals established administratively by the President of the Court of Appeal as specified under the Sixth Schedule of the Constitution, is the way to go. The problem is that the procedures and the manner of judicial craft, may be the real cause of delay in electoral adjudication. Many of the cases that come before the tribunals need not come to tribunal, if there is proper management of election by the election management body. The court has been at the receiving end of the many failures of the election management board. If some of the lapses and deliberate mistakes are resolved, there will be less cases for adjudication. We saw the possibility of this situation in the 2015 general election, whose management was more transparent and credible. The result was a smaller number of election cases. This was an indicator of public trust in the electoral management system and its outcomes.
Judicial Approach to Electoral Justice
The judicial approach to dealing with the problem of administration of electoral justice, can take two approaches. First, there is a structural approach that improves the management of elections by the Independent National Electoral Commission (INEC), and restructures court procedures and rules to allow for more judicial control of proceedings. If INEC sees itself more as a regulator and less as a transaction manager, it will invest in regulatory tools and procedures that will allow it make decisions that will be respected by the court and accepted by candidates. For example, pre-election cases will be less if INEC issues more detailed guidance to parties on how to conduct their primaries. Such guidance will reduce some of the errors and irregularities that plague elections in Nigeria and reduce the number of election cases.
It is important to reform judicial procedure. Judges should be less inclined to allow Lawyers to argue before it, matters that need to be argued before the election management body in its quasi-adjudicatory jurisdiction. INEC as a regulator has adjudicatory powers, and must determine electoral issues before they come to the court. For example, disputes about qualification to stand for election, should be determined administratively by INEC through fair procedures. It is after this transparent and due process determination, that such a matter can come to court. If the INEC develops fair procedures and adjudicates fairly, many of such disputes will not make their way to the tribunal or court.
But, a constitutional solution for the Presidential election cases could be to legislate that when the disputes relate to a point of law or a challenge to the legality of the procedure, or interpretation of the Constitution or the electoral law, the matter should go straight to the Supreme Court, so that it can be adjudicated quickly. When it is about numbers or allegations of contested facts, then the matter will go through the usual tribunals established under Section 285 of the Constitution.
This twin approach of escalating disputes on law and constitutional interpretation directly to the Supreme Court in its original jurisdiction, is to ensure speedy resolution of such disputes before the inauguration of the President-elect. But, it will not necessarily reduce the number of election cases that come to court for adjudication. What will reduce the number of election cases, is better management of elections. And, strengthening the regulatory techniques and processes of INEC is one way of better managing elections in Nigeria, and reducing the incidence of election disputes.
Dr Sam Amadi, Abuja
Culled From This Day