2007 Elections: What The Courts Must Do

By

Mamman Lawan Yusufari

yusufaari@hotmail.com

 

Despite the fear that the term-elongation monster is still alive, there are strong indications that elections will hold come 2007: updating Voters’ Registers, though full of hitches, is in progress; some federal political appointees have resigned to vie for elective posts; presidential and other aspirants have emerged; political parties are poised for elections; the police have expressed their readiness to provide ‘security’ during the elections; etc. More hope-rekindling however are the President’s utterances on his post-Aso Rock life.

 

Courts must not be left behind in preparing for the elections. Traditionally, courts have been reactive institutions. They settle conflicts if and only when they are approached. Since it is normal (or inevitable) for the courts to be approached with petitions after elections, and that they have powers to validate or void elections, they are key players in the electoral process. It has therefore become imperative for the courts to be ready as well.

 

But how would courts prepare for elections? In cases where tribunals have to be specially set up, the relevant authorities could surely start identifying competent persons to man the tribunals and perhaps projecting number of such tribunals and their running costs. For judiciaries with need, constructing more court rooms and admitting more hands into the bench would facilitate the petitions without prejudice to conventional cases. These are however routine checks. The courts need to go a step further by screwing up their courage to do justice in determining the petitions.

 

Courage to do justice has always been a needed quality. But a special one is needed for a special exercise that puts the ‘destiny’ of about 130 million people or part thereof in the hands of few. Deciding on an important issue like election puts the integrity of the courts at stake and impacts on the polity as a whole. Judges earn more respect for courageous decisions. Their image is smeared for disappointing stands. Upholding good elections is judicial nod and motivation on future exercises. Annulling bad elections is punishment and deterrence against the future. When elections fraught with malpractices are validated, it is no less judicial endorsement of fraud and a tacit approval of subsequent frauds.

 

But what do we mean by justice in this sense? Is it different from the one the courts dispensed on the 2003 election petitions for instance? As always, judgements on those petitions were backed by reasons, factual and legal. In that sense, justice had been done since decisions were based on application of the law to given facts. In fact, those who got their elections upheld have reason to brag even though they conceded defeat at some point earlier. The legal sophistication in 2007 may surpass that of 2003 so it is inconceivable that courts would ground their decisions on mere beliefs.

 

However, if we mean well for our country, we must depart from the 2003 version of justice. If the elections were (and still are) generally believed to be anything but free and fair, then we should not be carried away by the decisions that endorsed them. Evidently, just like there was no will on the part of the government to allow votes to count, so was there no will on the part of the courts to right the election wrongs. Because passions had cooled down with lapse of time, perhaps the courts thought it was better to let the sleeping dogs lie. After all, law should quench, rather than ignite, violence. It may thus be argued that the courts simply found reasons to support opinions they formed even before evidences were concluded. Brave decisions like those of Justices Zannah and Nabaruma against Governors Boni and Ngige; upholding the Ngige decision by the Appeal Tribunal headed by R. D. Muhammad JCA; Nsofor JSC’s dissenting “black Saturday” judgement; etc. provided enviable exceptions.

 

One ‘beauty’ of secular legal systems is that every type of judgement could be grounded on law. It is in recognition of lapses of this nature that the law allows the Supreme Court to reverse even its own judgement when for instance a previous one was reached in error of the law (per incuriam) or if it occasions a miscarriage of justice. In addition to the human imperfection, a tradition in legal cycles has it that legal drafters (who ordinarily happened to be lawyers) deliberately make the law flawed and technical. There is always a room for ‘valid’ argument in law. This may describe the “lawyers are liars” saying. If law is straightforward they reason, knowledge of English language would suffice in the legal field and lawyers would be thrown out of business. With this ‘quality’ of law therefore, it only requires judicial courage to resist electoral malpractices come 2007 so that we can have our electoral process sanitized and our civil rule democratized.

 

If a Lagos High court could declare Shonekan’s interim government illegal on the ground that the Decree ushering it was signed by Babangida at a time when he had no authority, it should not be difficult to annul an election which is widely unapproved of. Electoral wrongs must be met with judicial wrath or else the “just-get-declared-winner” syndrome in Nigerian elections will continue unabated leaving the courts as mere passion-cooling forums. Threats of violence should not intimidate justice. Chief Richard Akinjide (SAN) as Attorney-General acting for the Federal government once argued before the Supreme Court that for fear of violence that might erupt, the court should not tamper with the Allocation of Revenue Act of 1981, constitutionality of which was being challenged. Fatayi-Williams, the then CJN, replied that the fear of likely violence would not make the court endorse an illegality. In the end, the Act was nullified for being unconstitutional!

 

However, we must pause to acknowledge some bottlenecks. First, the system does not want our judges to be so courageous. Election tribunals are constituted either fully by serving justices or by magistrates with a blend with lawyers and laymen of integrity. In Nigeria where abuse of power is not uncommon, a serving judge or magistrate puts his job at risk if he decides against the wish of the state. Besides the dismissal ‘stigma’, ex-judges find readmission into society difficult let alone securing employment somewhere. The ideal fall back would have been a private legal practice. But this too is limited by a constitutional provision barring ex-judicial officers from advocacy. So they would rather play it safe than jeopardize their now highly lucrative job.

Another bottleneck has to do with substance of the law. Electoral laws contain provisions laying grounds under which an election could be annulled. The popular grounds are non-qualification of a declared winner age-wise or certificate-wise and electoral malpractices like rigging. A person challenging an election on any of these grounds is required to prove his allegation before a court could annul the election. It is often not difficult to prove that a candidate was not of the required age or had no requisite certificate. The difficult allegation to prove, and which happens to be the commonest one in election petitions, is malpractice or rigging. It is difficult because the law places a high standard of proof for it: proof beyond reasonable doubt.

 

The law presumes conduct of elections to be free and fair. Rebutting the presumption lies on he who alleges otherwise. And personal knowledge of what transpired during elections cannot be used by judges. The court must be convinced beyond reasonable doubt by the Petitioner, through evidence, that the election was rigged for instance. Not only that, (i) that the rigging affected the outcome of the election (i.e. the result would have been different); (ii) that the Respondent (the person whose election is being challenged) did the rigging, aided or abetted it. If malpractice is alleged to have been done by agents, there must be proof that the Respondent authorized the agents to do so.

 

And by the law, not every evidence is admissible in a proving effort. A witness for instance must testify to what he has personally observed or heard and not something relayed by another person. Since electoral laws require voters (including candidates) to return home immediately after casting their votes because movements are restricted on election days, you are left with only party agents and election officials as persons who observed the election process in their unit as a whole. Party agents are rarely believed by courts for their tendency of bias towards their parties. When you have the evidence of a presiding officer contradicting that of his polling clerk, which most often happens, a doubt is cast making it difficult to annul the election on that ground.

 

One other legal bottleneck is the need for agreement between the allegations contained in the petition and the evidence brought forth in proof. The law requires them to tally. If for instance the petition states that number of total votes in a ward exceeds total number of accredited voters and goes further to give particulars (as required by law) that in polling unit A the excess is 50, but produces Voters’ Register for polling unit B as evidence, such evidence becomes inadmissible for being at variance with the petition, the fact that both units are in the same ward notwithstanding. Similarly, evidence must be based on facts in the petition before it becomes usable. Election petitions are required to be filed within few weeks after declaration of results but certain evidences may appear after the filing. And the law is so rigid that amendment of grounds of a petition is not permitted after few days of filing thereby making it impossible to incorporate facts to support new-found evidence. Thus certain evidences, though relevant, cannot be used.

 

Getting to the point of proof is a tall order. Court cases are always characterized by one (interlocutory) application or the other while the substance of the complaint before the court is awaiting attention. It could be an application for amendment or one for the striking out of the matter for say, non-compliance with the law. And the merits or otherwise of an application can only be determined after it has been duly heard by the court. So no matter how frivolous an application looks, the principle of natural justice demands that it be heard before it is so held. Some applications raise jurisdictional issues which must be preliminarily determined because if they succeed, the matter as a whole terminates. Such determination could take time not least because it is subject to appeal. As most election petitions are time-framed, many petitions abate at this interlocutory stage. Lawyers, especially defending ones, hold these applications as weapons. They procrastinate the main issue pursuing one application after another.

 

Nevertheless, getting round the bottlenecks is not an insurmountable problem provided there is the will from the courts. The task of proving malpractice to a satisfactory level is not as difficult as the courts’ assumption of courage to void fraudulent elections. Petitions against elections that matter most are mostly handled by the ‘who is who’ of the legal profession thereby ensuring very high standard of advocative skills. Problems with the law, statutory or judicial, are not intractable either. The laws were made and could be unmade. The legislature could change the statutes. Appellate courts could depart from precedent in the interest of justice. In any case, the courts have a role to play. Their law-making powers are far-reaching. They have on several occasions applied statutory provisions in manners unintended by the legislature; filled-in statutory gaps; departed from, and distinguished previous decisions all in a bid to do justice. Surely, courts have way if they have will. Luckily, we are blessed with many brainy judges equal to the task.

 

There is evidence that Nigerian judges can resolve firmly on an issue. Disturbed by their inability to realise their securities against borrowers hiding behind prohibitive ex parte orders, bankers once pleaded with the courts not to grant such orders in the interest of the ‘economy’. Thereafter, ex parte orders became almost unobtainable. If there could be this resolve for the sake of the ‘economy’, why not a resolve against electoral malpractices for the sake of the nation? A collective resolve not to tolerate malpractices would help instill courage in individual judges. Our courts share the blame for the mess which characterizes Obasanjo’s second term. In determining 2007 election petitions, they must not permit a repeat. As they judge, they are being judged!

 

 

Mamman Lawan wrote in from the University of Warwick Law School, England.