THE COURT: A THREAT TO THE 2011 POLLS?
Attahiru Jega, Chairman of Nigeria’s electoral commission, INEC, has never wasted any time in drawing attention to difficulties faced by the body in its attempt to conduct “free and credible polls” in April. Last year, he complained about funding, then he followed that up with complaints about the timetable. On both issues, he more or less got what he wanted- more money and an extension of the timetable for the polls. He has now thrown another complaint into the bag, in the form of a petition submitted to the Chief Justice of Nigeria in which he protested the abuse of ex parte orders by the courts, particularly by High courts of co-ordinate jurisdiction, with “all the orders contradict (ing) one another”. Jega’s is miffed by these “frivolous ex parte orders” which are given at “the drop of a hat”. In his view, this amounts to “a ploy to sabotage the democratic process… a deliberate effort to subvert the framework” for achieving credible polls… “with grave consequences to our national stability and cohesion.” He wants “the role of the judiciary” to be reconsidered, and lawyers to be made to give undertakings that they will stop shopping mischievously from one court to the other for injunctions.
An ex parte order is essentially an interlocutory injunction; its effect is to maintain a status quo ante bellum, until the determination of the substantive issues but it arises from the judge hearing from an interested party only, while the litigant goes in search of material facts and without the other party being served any prior notice. It has been open to gross abuse and this is not the first time that public concerns will be raised about this. In 2007, the Economic and Financial Crimes Commission had complained about how its work was being obstructed by the granting of frivolous ex parte orders by compromised judges. Moronkeji Onalaja, JCA (as he then was) says “in granting ex parte interlocutory injunctions many judges forget the rule and principle of natural justice of fair hearing and audi alteram partem entrenched in our Constitution of giving every person in the defence and prosecution of his case, fair hearing which rule cannot be waived or compromised or damnified without hearing him…” The INEC Chairman noted that by the end of February 2011, the electoral commission has been served with about 150 court summons, 70 of which are ex parte orders, and more are bound to show up before and after the elections. His allegations are weighty; his concerns are perfectly in order.
The role of the judiciary in resolving electoral disputes is a mixed bag of law and morality. This does not amount to a denigration of the significance of the courts. The centrality of the courts in adjudicating electoral matters is unexceptionable, for the alternative is pure anarchy and chaos. As Niki Tobi, JCA (as he then was) put it, obiter, in Onagoruwa v. IGP: “Nigeria is a democracy and by the grace of Almighty God, it will remain a democracy for all times. The foundation of any democracy is anchored on the rule of law both in its conservative and contemporary meaning. Putting it naively, we are paid mainly and essentially to uphold the rule of law in the entire polity. And so once we fail to uphold the rule of law, anarchy, despotism, and totalitarianism will pervade the entire society. The social equilibrium will be broken. Law and order breaks down…We as judges cannot afford to see the society decay to such irreparable level. We must rise up fully to our duties by vindicating the tenets of the rule of law in our practised democracy.”
How well do judges discharge this responsibility? Do they not pose a threat to the 2011 polls with their frivolous and contradictory orders? The ink had hardly dried on Jega’s petition to the CJN when again a Federal High Court ruled that there should be no gubernatorial elections in five more states: Sokoto, Kogi, Cross River, Bayelsa and Adamawa, “because constitutionally there are no vacancies in those states” and although Section 180 of the amended 1999 Constitution may give a different impression, it cannot have a retroactive effect under the circumstance. This ruling, if it stands, has implications for INEC’s work; even if it goes on appeal, there will be a direct impact on the extant framework, and it is all the more curious because a court of equal jurisdiction had ruled differently on the same subject. The law is supposed to be a social modulator; the duty of the courts is to uphold the rule of law not to create such confusion that could result in chaos and anarchy.
In real terms, there is nothing Jega’s INEC can do about aggrieved politicians taking their cases to the courts. Any political office seeker who feels that his fundamental rights have been trampled upon by party processes or others has every right to seek redress in the court of law. We would prefer that he or she does so rather than resort to self help or jungle justice. Indeed, since 1999, there has been a renewed interest in election litigations. With many election disputes resolved in favour of the plaintiffs, many have been encouraged to go to the tribunals and the courts and fight all the way. The emerging pattern is that every political office seeker has therefore learnt to put together a legal team as he is putting together other election materials: I understand this may include the recruitment of judges! It is, however, the responsibility of the courts to attend to every litigant who can prove that his or her rights have been infringed upon, and to do justice accordingly. This has had both positive and negative outcomes with regard to elections. Nigerian politicians now take elections as a matter of life and death.
President Olusegun Obasanjo had described the 2007 elections as a “do or die affair.” In 2011, Ogun State Governor Gbenga Daniel has been quoted as saying “I will fight till the end.” There are many court cases arising from the recent primaries, the negative news is that the Alternative Dispute Resolution (ADR) option represented in part by the Reconciliation Committees (although these are interested parties) is not working because the combatants prefer to fight in the law courts. In the process, they have turned the courts also into an arena for a “do or die” conflict rather than a place of refuge for the aggrieved. Jega is concerned because the election time table may be derailed. He claims that many lawyers are offering to represent the electoral commission pro bono, still huge costs will be involved. And more significantly, too much time may be wasted, with implications for national stability. I will examine these issues in turn anon, for therein lies the crux of the matter.
It is not enough for the rule of law to be upheld, it is important for the rule of law to be just. The Bar and the Bench are definitely guilty as charged by Jega, but we should realize that the reason the courts now appear clogged with a deluge of litigations is largely due to the weakness if not complete failure of other relevant institutions, on which the integrity of electoral processes rest. During the last party primaries, the various political parties demonstrated a near-absolute lack of internal democracy. This is what has resulted in many of the law suits, and there is no guarantee those who are determined “to fight” will not sustain the conflict even after the elections. Politics is limited by the ego and the emotions that the politicians invest in it. In the course of party primaries, there were allegations of outright rigging, voter fraud, parallel congresses, and imposition of candidates. The political party system needs to be developed, INEC itself needs to be strengthened; during the elections, concrete steps should be taken to prevent fraud, otherwise there will be no end to a multiplicity of suits.
The second point is that the judiciary itself is weak. Litigants know this for a fact, and they are forever willing and ready to manipulate both the courts and the lawyers. The issue is that of corruption within the Bar and the Bench. The same week that Jega complained about many litigations and abuse of ex parte orders, the country was being treated to a protracted ego conflict within the judiciary: between the CJN and the President of the Court of Appeal with the latter openly accusing the CJN of corrupt practice in relation to an election matter! The general perception is that an election season is a boom season for lawyers and judges. The latter are willing to compromise the integrity of their office, and the politicians know those judges who can be approached to give friendly rulings. The lawyers themselves are no less mischievous. It is the duty of counsel to guide and lead the layman seeking justice; but many lawyers are experts at the adoption of delay tactics; they set up landmines in the path of the court; they jump from one court to the other, using all kinds of tricks to cause confusion; they compromise the sacred partnership that should exist between judges and counsel in the temple of justice.
Judges are supposed to do justice without fear or favour and exercise restraint and discretion, but judges these days are also beginning to act like politicians. Many have thrown judicial restraint to the dogs. It is not uncommon to see a table reserved for judges at owambe parties, with the judges also wearing aso ebi and frolicking on the dance floor with the same politicians and accused persons who have cases to answer before their courts. It is so bad judges now make public donations, and certainly it won’t be long before some Nigerian judges begin to accept chieftaincy titles from traditional rulers! The sheer indiscipline of judges and lawyers is at the heart of the problem. Both the Nigeria Bar Association and the National Judicial Council (NJC) would have to be more vigilant to instil discipline. When a judge unnecessarily indulges a mischievous counsel in his court, it is clear evidence that such a judge has been compromised.
One of the surprising developments in recent times is that of a counsel abusing judges in open court and getting away with the contempt! Judges abuse their powers of discretion with regard to the orders that they give. In the past, the NJC wielded the big stick with regard to judicial misconduct, but has the NJC also not lost part of its moral authority? “Sickness in the legal profession is the act of indiscipline whether due to outright unbecoming act or corruption or fraud. Every situation just like every person is under the law and if the law is sick, then the rot will quickly take over our society. It is for this reason that legal practitioners must be able to clear indiscipline within their rank with dispatch and effectiveness.” (per SMA Belgore, JSC as he then was, in Okike v. LPDC, 2005).
The third point has to do with reform. Since 1999, there has been so much talk about the reform of the justice administration system. To be fair, practice directions have been revised, the remuneration of judges has improved considerably, and rules of procedure have been reviewed in many states of the federation. But the reforms have not gone far enough. Funding is still an issue, and in many states the judiciary depends on the executive for funding and welfare. When a state government buys cars and houses for judges, and puts money in their pockets, what quality of justice can anyone expect from the courts? Too many incompetent, but well connected persons are also making it onto the Bench, and not enough training is being organized. Given the increasing importance of the judiciary to Nigeria’s democracy, a situation where many judges consider Caesar’s wife a foreigner to their own cause, and the Bench as strictly a meal ticket, is dangerous for the institution and the polity.
The fourth underlying point in Jega’s petition is the fear that the various pre-election cases could go on so indefinitely that they could derail the election time table. Judges are required to treat election petitions expeditiously, because election cases are sui generis, but there is no compelling order requiring judges to act within a specific time frame. In Section 137 of the 2002 Electoral Act, Section 148 of the 2006 Electoral Act which are both in pari materia with the 2010 Act, the law only refers to “accelerated hearing”, and that such cases should take precedence over other cases or matters before the courts. Judges claim the need to ensure fair hearing, overwork, lack of facilities, delay in getting material facts, while mischievous lawyers rely on technicalities to allow election cases drag indefinitely, and they are wrongly indulged. There had been a lobby to ensure, as in the 1982 Electoral Act, that all election matters are disposed of within a period of thirty days, but this was opposed as an attempt to violate the separation of powers and the right to fair hearing. (Unongo v. Aku 1983, 2 SCNLR 332).
What matters really is the public interest, but this is increasingly subverted by the courts; as the need to dispose of election disputes within “reasonable time” is substantially left to the “discretion of judges.” The Electoral Acts 2002, 2006 and 2010 all indicate that an elected person who has been sworn in can remain in office until the case against him is determined. And there can be no doubt that “do or die” Nigerian politicians will continue to go from court to court to buy time, to delay justice and of course, they may go as far as the ECOWAS Court. We lost the chance to cure this mischief by failing to remove many of the irregularities in the Constitution and the Electoral Act. It is perhaps more for this last reason that the INEC Chairman may not get what he is asking for, this time. The judiciary is also effectively on trial.