“Therefore, it beats me hollow why majority of the counsel to the respondents in the avalanche of petitions that trailed the 2007 general elections, for example, came to the Election Tribunals with the mindset that the plaintiffs or petitioners had to prove their cases beyond a reasonable doubt. Unfortunately, many of them found allies in majority of the tribunals, hence the long-winding and endless proceedings. And the politicians have got the message: go and collude with INEC and law enforcement officers to rig and let the opposition carry the burden of having to prove its case beyond a reasonable doubt!
“And why should an Election Tribunal sit as if it were a Crime Tribunal? At best, what a tribunal can do on any issue of an established crime in an election suit is no more than making a recommendation to INEC in line with Section 144 of the Electoral Act, 2022 [same as Section 157 of the Electoral Act, 2006]: ‘The Commission (INEC) shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition.’”
Clearly, the Supreme Court verdict in Unongo v Aper Aku has perpetrated and perpetuated injustice in Nigeria by creating the lacuna that allows election petitions to run, practically, in perpetuity! It has taken the power of election from the electorate and handed it over to the judiciary. It has encouraged electoral malpractice, bribery and corruption and political perfidy. It has encouraged do-or-die politics; rig first and win, let the other party go to court; we will be in government and fight from the mountain while the other party will fight from the valley no matter how long it takes! What more can one expect from an extra-constitutional judgment?!
I repeat, the Nigerian courts lack the jurisdiction to allow election proceedings against a sitting governor or the president. The courts only have jurisdiction in election suit before the candidate returned as elected by the Electoral Commission is sworn in as governor or president. That is why the 1979 or the 1999 Nigerian Constitution makes provisions for only four conditions that can make the seat of a governor or the president become vacant – (i) death, (ii) resignation, (iii) incapacitation or (iv) impeachment.
For the avoidance of any doubt, here is s.146 (1)(2) of the 1999 Constitution [essentially the same as s.134 (1)(2) of the 1979 Constitution]: “146. (1) The Vice-President shall hold the office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reason in accordance with section 143 or 144 of this Constitution. (2) Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of office of the last holder of the office.” [S.143 deals with impeachment while s.144 deals with permanent incapacity. Unlike death or resignation, impeachment and permanent incapacity involve long processes, hence the emphasis.] Removal of a sitting governor or the president on account of nullification of election by the courts was never contemplated by the framers of the Nigerian constitution.
In the first part of this discourse, I made the point that “a governor or the president, by virtue of s.308 of the constitution, is not a compellable witness; he cannot be subpoenaed by any court in the land. But the court can compel attendance of any candidate in an election, a governor-elect or the president-elect.” I also observed that “subsections 5 to 8 inserted into s.285 of the 1999 Constitution after the 2010 constitutional amendment exercise are in utter conflict with s.191, s.146 and s.308(1a), and run contrary to the intention of the framers of the constitution. Election petition proceedings must not drag into the tenure of a state governor or the president. Therefore, subsections 5 to 8 of s.285 ought to be struck down by the judiciary, as they are repugnant to common sense, natural justice and conflict with the intention of the framers of the constitution.”
The Supreme Court has to reverse itself. We cannot even say the court in Unongo v Aper Aku (1983) erred in law because this was a case of acting outside the constitution. But even if we concede that the apex court only erred in law, we should at this juncture advert our minds to the words of the Lord Chancellor when in 1966, the British House of Lords decided to abolish the absolute binding effect of their own rulings on points of law.
“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so… This announcement is not intended to affect the use of precedent elsewhere than in this House.”
The Nigerian Supreme Court now has to seize the first opportunity by the forelock to reverse itself intra-judicially.
What is the way out? Any concerned Nigerian citizen or any compatriot having an interest in this matter, in line with s.233(5) of the 1999 Constitution, can seek the leave of the Supreme Court to be joined at any of the election petitions involving any governor or the president if and when the case gets to the apex court. The application will pray the Supreme Court to discontinue, strike out or put on hold proceedings against a governor or the president for lack of jurisdiction.
On the issue of locus standi, which will inevitably arise upon such an application by any concerned citizen or any other person having an interest in the matter, we can find instruction in the position of the late Master of the Rolls, the legendary Lord Denning, in The Discipline of Law: “The court will not listen to a busybody who is interfering in things which do not concern him, but it will listen to an ordinary citizen who comes asking that the law should be declared and enforced, even though he is only one of a hundred, or one of a thousand, or one of a million who are affected by it. As a result, therefore, of the new procedure, it can I hope be said that we have in England an actio popularis by which an ordinary citizen can enforce the law for the benefit of all…”
Let it be said that we have in Nigeria an actio popularis… The Nigerian Supreme Court should not persist in error. In the immortal words of the late Justice Chukwudifu Oputa in Adegoke Motors vs. Adesanya, [1989] 13 NWLR, pt.109, 250 at page 275: “We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When, therefore, it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This Court has the power to overrule itself (and has done so in the past); for it gladly accepts that it is far better to admit an error than to persevere in error.”
If the 1979 election dispute could be concluded in less than two months, how much more the latitude of five months provided by s.178(2) or s.132(2) of the 1999 Constitution, as amended, which provides that a governorship or presidential election can be held 150 days before the swearing-in date?!
.Concluded
