Supreme Court Rulings: A Setback On Electoral Reform
It was my in intention to wait for the release of the Supreme Court document stating the reasons behind their judgment regarding the Abia Governorship case before penning this article but having read the reasons they gave for the Akwa Ibom and Rivers state rulings , it was easy to surmise what they are going to say regarding Abia state.
It is going to be the same concocted and convoluted argument about the unconstitutionality of the Card Reader and all the balderdash about the Voters Register and lack of enough evidence to prove election irregularities. In most civilized countries, the judiciary and indeed the Supreme is said to be the last refuge for the aggrieved. More than just a last refuge, it is supposed to be the only hope for justice.
Unfortunately for the aggrieved citizens of Nigeria the Judiciary has become a safe haven for the criminally minded and election riggers. Rather than being the bulwark against corruption, the Nigerian Judiciary has become its greatest facilitators. It is therefore, no surprise that millions of Nigerians were perplexed and disappointed by the Supreme Court’s recent Governorship verdicts which in my opinion, were a complete and unprecedented travesty of justice.
When the Supreme Court ruled on the Rivers state Governorship case in favor of the PDP and Wike, I had a foreboding of some sort, but I took consolation in the fact that the circumstances behind that of Abia was different. But even then the Rivers state ruling was a huge surprise considering the massive election malpractices that reportedly took place there. Now when you look at the Supreme Court rulings regarding all the oil producing states , one cannot help but wonder if there is more to it than meets the eye or were they trying to send a message to Buhari for ignoring all the court orders issued against him.
When you consider the fact that it took the justices less than an hour to reach their decisions on each of these cases, you begin to ask yourself if they bothered to examine the evidence before them or were their rulings pre-determined in which case the trials were merely public shows of judicial process. To any discerning mind it is not difficult to conclude that by these rulings, the Supreme Court more or less passed a vote of no confidence on quite a number of our Appellate Court judges by rejecting their judgments, an act which by itself is unprecedented.
Again, when you read reports of a guy who embezzled 2.1 billion naira of Police pension funds being sentenced to only 2 years in jail by an Abuja Judge or pay a measly sum of less than 300,000 or Ricky Tarfa being dragged to court by the EFCC for the obstruction of justice and a payment of 225,000 Naira to one Justice Mohammed Yunusa, a federal High court judge, you cannot but conclude that the Nigerian Judiciary has sold its soul. You can now buy the judgment you want if you know the right Senior Advocate to intercede for you.
Now let’s look at the Supreme Court Card reader argument, I may not be a legal scholar but I damn well know that paragraph (15a) of the 1999 constitution confers on INEC the power to organize, undertake and supervise elections and in Sec 153 of the act, confers on INEC the power to issue regulations, guidelines and manuals for the conduct of elections. So I am perplexed on how the Card Reader violated any known law, except for the fact that it actually enhanced the free and fair conduct of elections as in sec 49 of the Act, which is a constitutional mandate to INEC.
As Mr Mike Igini, the INEC official in-charge of Edo state recently pointed out, the Card Reader verification of identity was to enable the INEC presiding officer determine during accreditation that a prospective voter was indeed who he or she claimed to be before being issued a voting card. He went further to say, it was a condition precedent to voting as stated in Sec 49 of the Electoral Act and since it is common knowledge that accreditation usually precedes voting, how does doing so with the aid of the Card Reader violate any law. ?
One undisputable fact that needs to be noted is that the Card Reader was funded by law under the 2013 and 2014 appropriation Act passed by the national Assembly. It was said to be also demonstrated at the Senate and subsequently tested in 12 states. Since the national Assembly by its instruction in the Act said that the presiding officer should be satisfied that the voter is authentic before he or she votes, is it not left for INEC to devise a way of ensuring this satisfaction requirement or reaching this threshold.? It is my candid opinion that the Supreme Court justices in reaching their decisions, confused the Card reader and the Verification process for which it was meant for with actual voting.
The fact is that the two processes were different. The threshold of the presiding Officer being satisfied regarding the identity and authenticity of the voter before issuing a ballot paper was supposed to take place before voting. So one precedes the other. As Mr Igini contended, since it is possible to be registered and accredited and still fail to vote, the total number of votes could be less than the accredited number of voters, but not more without incident forms.
Which was exactly what happened in the Obioma Ngwa local Government of Abia State, where it was incontrovertibly proven that the voting result sheet showing 82,000 votes far exceeded the number of accredited voters which was less than 50,000 in which case the result should have been cancelled in accordance with Section 53 of the Electoral Act. Which begs the question, how did the Supreme Court come to the conclusion that elections could not be canceled?
As Mr Igini rightly pointed out Banks, JAMB and WAEC do not need an act of law to back up any process of identification they opt to use in ascertaining the true identity of the candidates who present themselves for their exams. In my opinion, that was exactly what INEC did in using the Card Reader as an identification tool before the voting process and such does not need an act of legislation by the National Assembly for it to be legal.
The truth is that every Government functions not only by the issuing of laws but by departmental policies in the form of operational guidelines, regulations and manuals. Let’s say for instance, the Federal Government sets up by law a Population Census Commission to conduct a national census and mandates them to ensure that anyone who is counted is a Nigerian. If the Census Commission now decides to use the presentation of birth certificates as prove of identity, is this Supreme Court going to declare the entire Census operation as invalid? I am just wondering.
As most learned jurists will confirm, a Supreme Court opinion that does not provide lower courts and litigants with clear guidance is worthless. These rulings were in my view anchored in the principle of originalism, which seeks to interpret the constitution as it was understood at its adoption. As the just recently passed U. S Supreme Court Justice Anthony Scalia once stated, ‘the test of a Supreme Court ruling is over the long run’.
He went forward to ask” if a ruling requires the society to adhere to the principles contained in the constitution, would it not lead to a society that is essentially governed by justices version of what the constitution says.? In his opinion, ‘a system of Government that makes the people subordinate to a committee of unelected lawyers does not deserve to be called democracy”.
This is exactly what we now have in Nigeria, a group of Justices interpreting the law in a way that suits their purpose, hence instead of their judgment being rooted in law they hedged their bets by concocting less specific standards and issued opaque opinions which in my opinion are indefensible. Their decisions was not only transparently false that it demeans the institution, but it was also couched in a style that is pretentious and its content confusing.
Our inherent problem as a nation is that we have come to accredit to these Supreme Court Judges a level of superior intellect undeserved. The truth is that these judges are not above making mistakes or interpreting the law wrongly. We tend to forget that some of them were not exceptionally brilliant attorneys when they were practicing in the bar. Many as attorneys were flawed in their reasoning, thinking and articulation of the law and as such being elevated to the Bench does not suddenly bestow on them a degree of infallibility. We also tend to forget that these judges are political appointees, who owe their appointments to their closeness to certain persons or politicians, not so much on merit or intellect.
A case in point is what is now happening in the United States with the sudden passing of a Supreme Court judge. The politics of it all now is that while President Obama wants to appoint a replacement most likely someone with liberal views, the Republicans on the other hand want to be the one to do so with a possible Republican president after the November elections. With 4 Conservative- leaning and 4 liberal -leaning Justices at the U.S Supreme Court, being able to shift the balance to one side is now a contentious issue in this year’s presidential campaign.
Ex- U.S President George Bush probably would not have been declared the winner of the 2008 election over Al Gore if a conservative leaning Supreme Court had not stopped the vote recounting exercise in Florida. It is therefore not beyond the realm of possibility that there may be some political overtones behind all these Supreme Court rulings in favor of the PDP, or the influence of a justice whose husband is a close confident of one of the appellants, not to mention the fact that the same appellant, Governor Wike has publicly confirmed that he was getting regular advice from this ex-Governor, whose wife would have done well to recuse herself from the case.
Be that as it may, the Supreme Court by these rulings have succeeded in doing irreparable harm to our electoral process. It is now open sesame to rigging. The word out there is, do whatever you have to do to win or be declared the winner. If need be burn down the polling booths or INEC office and then get yourself a Senior Advocate who knows his way around getting to Judges, and after you have succeeded in winning your case, hold a thanksgiving service and pledge your fidelity to God.
The new mantra is, depend on the card Reader to your own detriment. When you consider the number of times we have tried to reform our electoral process, the faulting of the Card Reader use is indeed a monumental setback. It therefore behooves the National Assembly to do the needful and rectify the electoral act as it relates to the Card Reader.
There must also be consequences for election rigging, for it is not just enough that a candidate is made to forfeit his or her victory with no accompanying punishment for election malpractice. The forthcoming INEC re-runs will once again present us with a test case of how far reaching the Supreme Court decision is, and with no effort so far in making the Card Reader usage conform with the now Supreme Court required legal backing , I am afraid we are heading to a bridge to nowhere.
Nnanna Ijomah is a Political Science Lecturer in New York City.