Lawyers and the Electoral Process

By

Mamman Lawan Yusufari

mammanlawan@yahoo.com

 

The saying “everybody’s business is nobody’s business” does not seem to have a place in an electoral process. Being a process that leads to the emergence of leaders who, at the stroke of a pen, could make or mar the lives of many, everybody should have an axe to grind with it. Everybody should therefore contribute in making an electoral process a success. This contribution is a civic responsibility. It is national service. Shying away from it could be suicidal. Apathy towards electoral process does help place wrong persons in right places and it is the society that suffers at large. As Edmund Burke rightly said, “the only thing necessary for the triumph of evil is for good men to do nothing”.

 

Responsibility in electoral process cuts across classes. But its degree may vary. To the unlettered farmer for instance, it suffices if he sacrifices some time and votes for the right person(s) in a law-complying manner. Of course he could do more for instance as a party member influencing party decisions particularly as they affect who the party should field as candidates. But to elite, the responsibility is higher. Besides the duties he shares with other compatriots, he could be of service to INEC as a Returning Officer, Supervisor, Presiding Officer or Polling Clerk during elections. He could also run for election.

 

Lawyers’ responsibility is rivaled perhaps only by that of journalists. Their role is dictated by the uniqueness of their profession. There is scarcely any area of national (and personal) life that the law left untouched. In particular, the electoral process is all law-woven: it is set in motion by law; it is expected to be carried out according to law; and any disputes arising from it are settled by law. The indispensability of law may have informed the pride of lawyers as ‘learned gentlemen of the honourable profession’. Coincidentally, an electoral process requires both knowledge and honour. Lawyers should therefore invoke these qualities in our current electoral process. Hon. Justice Lawal Gummi, the Chief Judge of the FCT, spoke in this sense when he recently called on lawyers to use their powers in the promotion of development and to resist any attempt to be used to achieve anti-democratic ends.

 

Lawyers can facilitate the electoral process in various capacities. They have a role to play before, during, and after elections. They share with other elites roles in voting, party memberships, election duty, or seeking election. Professors of law and their junior colleagues, Senior Advocates and their counsel in chambers, seasoned industry in-house lawyers and their younger ones, lawyers ‘in diaspora’ wherever they may be working, should directly contribute to the electoral process. At crucial moments such as now when Nigeria is facing general elections amidst fears and uncertainties, lawyers should come forth to be counted as professionals concerned with the nation. The offer of the Nigerian Bar Association (NBA) of 20,000 of its members to INEC for election duty in the April elections is a giant step in this direction.

 

With the numerical strength of lawyers and the relative respect they enjoy, their participation in the electoral process would make a difference. Besides its own merits, it might galvanise other elites into action and this would help sanitise the electoral process. Election exercise for instance would no longer be the exclusive business of politicians and hired thugs. With lawyers, doctors, paramedics, engineers, journalists, educationists, etc. replacing the usual hands (mostly students) as election officials, we will minimise rigging and other electoral malpractices because they are more unlikely to be coerced or bought.

 

Although the impact of lawyers elected into the legislative organ has not been ascertained (in the case of the executive, no distinction seems visible), it would be right to assume that the organ would work better with lawyers having regard to its duty (law-making) and the training of the lawyer-members. At committee levels, the legal expertise of lawyer-members would certainly be useful not least in committees like those of Judiciary and Human Rights. And of course the checking role of the legislature against the executive would be better performed when the legislatures are membered by people of honour and integrity. The historic rejection of the third term bid by the Senate in May last year would not have been possible if it were a collection of lackeys.

 

Lawyers could add their voices, individually or collectively, in debates on knotty legal issues as they affect the electoral process once the issues are not sub judice. A current issue is whether or not INEC has the power under the law to disqualify a person as a candidate standing for election. Few lawyers have spoken out. But the voice of one person, though not neutral in the controversy, was surely loud. EFCC’s stand that politicians indicted by its report, which the government accepted, cannot contest election cannot be divorced from the lawyer in its Chairman, Nuhu Ribadu, who made it clear that personally, this is his interpretation of the law. Leaving aside the charge of bias, he should be seen as contributing to the electoral process in particular, and to national development in general.

 

Here again, the NBA has not been left behind. It has lived up to expectation by adding its voice to the disqualification controversy. The Association has stated that it has filed an action seeking for an interpretation of section 137 of the Constitution containing the indictment provision. This is in addition to formally writing Prof Iwu ventilating its concerns about INEC’s “application of many provisions of the Electoral Act, to a number of vital matters, which may have serious consequences for the Electoral Process”. The Association threw its weight behind the decision of Hon. Justice Babs Kuewumi of the Abuja Federal High Court.

 

This controversy has accentuated the role of lawyers in the electoral process. On the face of it, the decision of Justice Kuewumi has settled the controversy. That by virtue of section 32(5) of the Electoral Act 2006, only a court of law can disqualify a candidate running for election. In particular, INEC has no powers to disqualify the Vice President as a presidential candidate under the platform of Action Congress (AC). But another ratio in the decision which says that INEC has the power to verify candidates submitted by political parties to ensure that constitutional provisions have been complied with still leaves questions unanswered. For instance, does it mean that INEC cannot disqualify but can screen out a candidate believed to have been indicted? If the answer is yes as the decision suggests, what, in their effect, is the distinction between disqualification and screening out?

 

INEC must have taken advantage of the amorphous nature of the decision in ‘screening out’ the Vice President. His decision to challenge his non-inclusion in the list of the presidential candidates by filing a fresh suit is testimony that the Justice Kuewumi decision is equivocal. It is now sought to be determined whether section 137 of the Constitution is self-executory i.e. whether INEC can, in the absence of a pronouncement by a court of law, unilaterally strike off the name of the VP from the list of presidential candidates. It is in appreciation of the problem despite Kuewumi’s decision that the NBA resolved to head for the court in search for an interpretation of the section.

 

While verdicts are being awaited, others are already out. More recently, Hon. Justice Liman of the Federal High Court Kaduna nullified the substitution of Sen. Usman Albishir with Sen. Mamman Ali as ANPP gubernatorial candidate in Yobe State. The same court in another case quashed the report of the Ayua-led Administrative Panel of Inquiry together with the government’s White Paper thereon. Another Federal High Court in Abuja presided over by Hon. Justice Abimbola Ogie issued a mandamus compelling INEC to recognise Nicholas Ukachukwu as ANPP gubernatorial candidate in Anambra State. Appeals may follow especially that INEC reacted negatively.

 

Whichever way the final decisions go, it must be appreciated that the legal tussles do augur well for the electoral process and the nation as a whole. Court decisions are important for the present as well as for the future because judicial precedent is a source of law in our jurisprudence. Key players in these tussles are lawyers. Court proceedings are initiated and argued by them at the behest of their clients. It is only then that courts can decide. Appeal processes too are handled by lawyers. The speed with which matters are disposed of depends to a great extent on their co-operation besides the nature of the proceedings. In short, litigation lawyers contribute positively to the electoral process. Applying the neoliberalist unintended consequences theory, this credit is not diminished by the fact that private lawyers are hired.

 

However, while some lawyers earn credit, others on whose deaf ears the admonition of Justice Gummi seem to have fallen, can only incur the ire of well-meaning persons in the country. For, it is hard to see a worse use to achieve anti-democratic ends than being used to derail the electoral process. As good lawyers are engaging the courts to determine who contests for what in the forthcoming elections, it has come to light that the National Democratic Party (NDP), through its lawyers, is seeking for the stoppage of the scheduled elections. This move is reminiscent of the June 12 crisis partly fuelled by lawyers who obtained (acting for Nzeribe’s Association for Better Nigeria) court orders restraining NEC from announcing the presidential election results. The orders came in handy for the junta which subsequently annulled the elections. Amidst suspicion of term elongation plan, ‘the learned gentlemen of the honourable profession’ should desist from giving spoilers chance to scuttle the electoral process.

Lawyers should also be honourable enough to place national interest above their (or their clients’) personal interests in handling election petitions. It is part of the success of the electoral process for election petitions to be justly and expeditiously determined. They should always remember the ethics of their profession which teaches that as an advocate, a lawyer is a minister in the temple of justice whose duty shall be to assist the court in arriving at a just decision irrespective of who wins. Lawyer’s primary duty is owed not to his client, but to the court. Assisting the court extends to bringing to its attention legal authorities adverse even to the assisting lawyer’s case.

 

It is good practice for lawyers to face the substantive matter before the court rather than engage in unnecessary technical objections meant to stagnate proceedings. A petition determined in the twilight of a Respondent’s term in office is more academic, for the present, than practical even if the Petitioner succeeds giving the Respondent’s right of appeal. Employing technicalities to delay proceedings is lawyer’s version of abuse of power. The justice system will do better without the likes of a retired lawyer who scolded his succeeding son for proudly finishing a case which financed his (the son’s) studies in college, university and law school.

 

The point is not that lawyers are exceptional breed. In fact, judged by the bad eggs among them, lawyers will be unreliable in any nation-building project. It is that as elites, they owe responsibility to society; and by virtue of their profession, they possess special powers. Responsibilities are often under-estimated and powers are open to abuse. Lawyers should never under-estimate their responsibility and should use their powers judiciously to make a difference. There is no better time than now as Nigeria faces the 2007 general elections.

 

 

 

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