Bayelsa and Judicial Musical Chairs By Olusegun Adeniyi

 

When it comes to elections, Nigerian politicians have always played by their own rules. It is therefore no surprise that many of them no longer believe in securing electoral victory with votes of the electorate. Now, they register their own political party or secure the endorsement of one of the numerous briefcase parties, get their name on the ballot and then wait for the election to be over before employing judicial ambush. Lawyers in their service look for any technicality with which to approach the courts to seek ‘redress’. Unfortunately, too many of these characters succeed in receiving judgements that do not in any way advance the course of our democracy and electoral jurisprudence.

On Monday, the Bayelsa State Gubernatorial Petition Tribunal sitting in Abuja nullified the election of Governor Duoye Diri based on a petition filed by the Advanced Nigeria Democratic Party (ANDP) that claimed the party was unlawfully excluded from participating in the election. The tribunal also ordered the Independent National Electoral Commission (INEC) to conduct a fresh election in Bayelsa state within 90 days. This development is a continuation of the judicial drama which began in February when the Supreme Court sacked David Lyon of the All Progressives Congress (APC) as the governor-elect a day to his inauguration. That ruling was based on grounds that his deputy, Biobarakuma Degi-Eremienyo, deposed false information regarding his name and qualifications. The order of the apex court that compelled INEC to declare the party with the highest number of lawful votes and geographical spread winner of the election brought Diri, the defeated Peoples Democratic Party (PDP) candidate, to power.

This is the subtext to the current case by a little known political party excluded from the election for not meeting constitutional requirements. From my findings, the ANDP nominated an ineligible candidate who was below the age of 35, as demanded by the constitution for the office of deputy governor. However, the party claimed that their nominee was 38 years old, even though the affidavit submitted by the candidate (CF001) contradicted the CF002B it submitted. By his own hand, the ANDP deputy governorship candidate said he was born on 10th February 1985 which makes him ineligible because as at the time of the election he was 34 years old. He was 35 only in February this year.

The deadline for submission of nominations elapsed on 9th September 2019 and INEC wrote the party four days later (13th September 2019) to draw its attention to the invalidity of the nomination of Peter Esinkuma David based on the requirement of age as stipulated in sections 177 (B) of the 1999 constitution (as amended). In response, the ANDP asked INEC to substitute the ineligible candidate with another candidate, Miss Janet Inowei, during the period for withdrawal/substitution. The commission replied the party on 27th September 2019, saying that the period for fresh nomination was over. And that political parties could only substitute an eligible candidate for another eligible candidate which was not the case being canvassed by the party. According to INEC, it was no longer possible for the ANDP to submit a fresh nomination for the position, which is what the party was trying to do. “Since your party did not submit valid nomination before the deadline, it cannot substitute said candidate on the grounds of death or voluntary withdrawal in accordance with the provisions of sections 35 and 36 of the Electoral Act 2020 (as amended) which assumes prior existence of valid nomination”, INEC wrote in the memo to the party.

However, in its majority judgement, both Justice Yunusa Musa and Justice S. M. Owodunni agreed with the ANDP that INEC has no power to reject a valid nomination. But it is in the 73-page dissenting judgement by the tribunal chairman, Justice Muhammed Sirajo, that the issues become clear. While the Electoral Act was enacted in 2010, amended in 2011 and further amended in 2015, according to Justice Sirajo, those who query the powers of INEC to exclude unqualified candidates or imagine that aggrieved parties can approach the tribunal or court anytime they like need to go and read Section 285 of the 1999 constitution as amended by the Fourth Alteration No. 21 Act, 2017 which was gazetted on 12th June 2018.

After stating that the ANDP was not unlawfully excluded from the election, Justice Sirajo now concluded: “Assuming, however, that I am wrong in holding that the nomination of the petitioner’s deputy governorship candidate is invalid and that the exclusion of the petitioner and her candidates is not unlawful, this petition is still liable to be dismissed for the following reasons: (A) The petition is grounded on pre-election matter which robs this tribunal of jurisdiction to entertain same (B) the petition filed on 26/02/2020 after the decision of the first respondent to exclude the petitioner from the election dated 27/09/2019 is statute-barred, having not commenced within 14 days of the decision complained of.”

 

Since this case is going all the way to the Supreme Court, I agree with the Bayelsa governor that there is no cause for worry. The main concern is the disruption being caused in the polity by those adept at employing legal maneouverings (apology to President Olusegun Obasanjo) to promote unworthy causes. Ironically, it would seem that a majority of the judges did not evaluate evidence at their disposal before arriving at their verdict. The affidavit to INEC in support of Inowei’s personal particulars gave her date of birth as 26th November 1984. The implication is that she only attained the age of 35 on 26th November 2019—ten days after the election that was held on 16th November 2019. Therefore, even the woman whose name was sent to substitute an ineligible deputy governorship candidate is also ineligible!

Meanwhile, it was in a bid to put an end to this kind of situation that INEC in February last year de-registered 74 of the 91 registered parties that participated in the 2019 general election. The decision, according to INEC, followed a comparative review of the court-ordered re-run elections arising from litigation as well as the failure of these mushroom parties “to meet the criteria provided by section 225(a) of the 1999 constitution (as amended)”. But another spanner has been thrown into the works in a rather controversial manner. On 29th July this year, the court of appeal, Abuja Judicial Division, in an appeal filed by the National Unity Party (NUP) affirmed the power of INEC to deregister. Exactly 12 days later, on 10th August, another Court of Appeal in the same judicial division, delivered a contrary judgement. “Faced with two conflicting judgements from the same court, the commission is not in a position to pick and choose which one of them to obey. Consequently, the commission will approach the Supreme Court for a final resolution”, according to a statement by INEC spokesman, Festus Okoye.

While a multiplicity of political platforms can lead to greater political participation, there is an urgent need to consider the implications of allowing dozens of briefcase political parties on the ballot at every election cycle. The antics of these no-hopers who simply wait to exploit some legal loopholes after the polls have become a challenge. In recent years, INEC has been burdened with repeat elections instigated by these candidates on grounds of ‘unlawful exclusion’ which they ordinarily had no fighting chance of winning as we have seen in the case of Bayelsa State. The greater challenge is that these characters are being indulged by our courts, sometimes with conflicting judgements as we can also glimpse from the issue of their deregistration.

In my column, ‘when Judges Imperil Democracy’, I alluded to how politicians now use the instrumentality of the law to game the system. I quoted from the lecture, “Keeping a Republic: Overcoming the Corrupted Judiciary”, by Robert H. Bork, a Professor at the Yale Law School and a former American Solicitor General, acting U.S. Attorney General and erstwhile Circuit Judge of the U.S. Court of Appeals for the District of Columbia Circuit. He argued that the rule of law requires that “the principles announced and relied upon by judges be neutral in their application” which means that “a principle, once chosen, be applied according to its terms to all relevant cases without regard to the judge’s personal views of the parties or issues before him.”

While this, according to Bork, requires discipline, since no judge can possibly avoid seeing a case without his own worldview coming into play, “there is a chasm between a judge who knows that and consciously strives for objectivity and a judge who knowingly undertakes to impose his vision of justice upon the parties before him and upon the society.” Yet, as I have also argued in the past, it is that deliberate choice to impose a vision of justice that is most often at variance with public good that is at the root of the problem in our judicial sector today.

It is the responsibility of the courts to settle legal disputes, including electoral matters. But nullifying the votes of the electorate on the basis of technicalities does not in any way advance the cause of democracy. That Judges now determine who wins election in our country has encouraged all manner of electoral petitions from politicians who may not have participated in the process beyond filing papers. I have heard stories of how some of these politicians approach election winners, asking for scandalous sums of money to prevent them going to court.

On the whole, the damage election petition cases have done to our judiciary is enormous and this should be addressed. The National Judicial Council (NJC) needs to restore sanity to the bench by dealing with blatant deviant behaviours that bring the judiciary to disrepute and threaten the rule of law in Nigeria. Beyond that, there must also be reforms to help rid our politics of mercenaries. We cannot continue with a situation in which neither those who cast ballots nor those who count them matter due to the antics of politicians who have perfected the art of using courts to shortchange the peoples will.