Cheta Nwanze, Lead Partner, SBM Intelligence

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Access to justice is imperative for Nigeria’s development 14 Feb 2020

Chief Justice of Nigeria, Tanko Muhammad

The executive arm of the Nigerian Federal Government has consistently undermined the judiciary. Right from the decades of military rule to the various civilian administrations – the current government inclusive – the executive has subverted the judiciary for its own purposes, and many of the men and women of the bench have acquiesced to this violation of the principle of separation of powers.
In 2019, the administration of President Muhammadu Buhari carried out what was no less than a “coup” when it accused the then-Chief Justice of Nigeria (CJN), Walter Onnoghen, of failing to declare his assets and suspended him from office. Some people expected the Judiciary to assert its constitutionally-guaranteed independence as a co-equal branch of the Federal Government, and reject this blatant usurpation of its authority. But when that did not happen, partly because the judiciary cannot enforce its own pronouncements, everyone – including the judiciary and the public – eventually accepted the new CJN that the executive favoured.
The ‘Onnoghen saga’ was not unconnected with the then-upcoming 2019 general election, which was expected to be very close, and likely to require judicial intervention. Since the incumbent administration could not count on the Onnoghen-led Supreme Court to play ball, Justice Onnoghen had to go, so as to replace him with a more pliant Chief Justice.

These calculations eventually bore fruit. As part of its ruling on the petition by former Vice President Atiku Abubakar and his party, People’s Democratic Party (PDP), challenging the re-election of President Buhari, the Supreme Court upheld the judgment of the Presidential Election Petition Tribunal (PEPT) and declared that the president did not need to present a Secondary School Leaving Certificate. This is true based on Section 131 of the Constitution, which defines the provisions for eligibility to run for the office of the president. One of the provisions is "education of at least School Certificate level or its equivalent." Furthermore, Section 318 of the Constitution does define “School Certificate level or its equivalent” to include "the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission.”

The Supreme Court also said the submission of an affidavit should suffice as a substitute for a valid certificate. However, the PDP contended they had reasonable ground to believe Buhari submitted false information in his affidavit regarding his qualification and certificate to INEC. But the apex court rejected this claim. This decision ran contrary to decades of laid down precedent and indeed the rules of evidence established by the same court.

On January 14, 2020, the Supreme Court delivered another judicial thunderbolt. Again, disregarding its own previous decisions without declaring them overturned, the Supreme Court sacked Emeka Ihedioha of the PDP as Governor of Imo State and declared Hope Uzodinma of the All Progressives Congress (APC) as the duly elected Governor. In order to arrive at this intriguing bit of judicial abracadabra, the court had to do a number of striking things.

First, the Supreme Court overturned the decision of a lower court that had rejected the election results from some 388 polling units Uzodinma presented, claiming they were wrongly excluded by INEC. However, it affirmed the ruling of a lower court – which denied the PDP's presidential candidate's claim that INEC had servers on which the authentic election results were stored. Abubakar contended that the results declared by INEC giving victory to Buhari were bogus.  

Second, by accepting copies of election results presented by a Deputy Commissioner of Police, a witness called by Uzodinma’s legal team, the apex court disregarded the rules of election petitions stating that results of elections can only be tendered by INEC. In fact, the court discountenanced INEC's documentary evidence showing that the election did not hold in the purported 388 polling units.

Third, by awarding victory to Uzodinma, the Supreme Court overlooked the fact that the additional 213,695 votes attributed to the APC from the 388 polling units outstripped the number of registered voters. How come the apex court was silent on the incongruity of the 127,209 excess votes?

Fourth, the Supreme Court did not state whether in declaring Uzodinma duly elected, he met the constitutional requirement of scoring at least 25 per cent of votes cast in two-thirds of the local government areas (LGAs). In fact, even with the results from the 388 polling units, he did not meet that mandatory spread.

Fifth, the Supreme Court declared that Ihedioha could not challenge the validity of Uzodinma's APC candidacy. The apex court dismissed Ihedioha’s application on the grounds that the contention over APC's “double nomination” was a “pre-election" issue that could not be brought up in a "post-election" appeal. It argued that the jurisdiction for pre-election matters is vested in the High Court.

However, in its prior decision of December 20, 2019, the apex court had upheld the decision of a lower court voiding the nomination of Uche Nwosu who had come second in the March 9 governorship poll as the candidate of the Action Alliance (AA). Nwosu had been a candidate of a faction of the APC before he defected to the AA. The Supreme Court voided his nomination on the grounds that Nwosu had been a candidate of another party, namely APC. Why did the Supreme Court affirm the election of a different candidate of a party it had previously recognised another candidate as its gubernatorial flagbearer?  

Sixth, the Supreme Court's nullification of Ihedioha's election was based on a technicality as one of Ihedioha's counsels, Rotimi Peter, rightly stated.

If the apex court’s decision was intended to advance access to justice, it should not have awarded victory to Uzodinma. If the court did not want to rely on precedent to void the candidature of Uzodinma, it should have ordered INEC to carry out a fresh election in Imo.    

2019 was an election year in Nigeria. It provided ample opportunity to assess the judiciary’s ability to guarantee the vitality of the country’s democratic health. At least four presidential candidates proceeded to the election tribunal to challenge Buhari’s electoral victory. The candidates were Abubakar of PDP, Ambrose Owuru of Hope Democratic Party, Aminchi Habu of People’s Democratic Movement, and a fourth petition by the candidate for Coalition for Change – although this was later withdrawn following an internal crisis within the party. None of these petitions succeeded at the tribunal.

The prominent petitioner, of course, was the former VP, who accused the ruling APC of tampering with the electronic servers allegedly used to store the election results. Abubakar and the PDP also alleged that the election was marred by widespread malpractices. Moreover, part of their allegations was that Buhari was not educationally qualified to contest the election on February 23, 2019.

One of the astounding claims made by the Supreme Court for dismissing Abubakar’s petition was that the PDP candidate ought to have presented at least 250,000 witnesses to prove his case, as opposed to the 62 witnesses he presented at the tribunal.

The oddity of this claim is manifest by the fact that neither the Constitution nor the Electoral Act makes any specific provision for the number of witnesses to be called in any court case save for some specific trials such as perjury.

There is a legal maxim that justice must not merely be done; justice must also be seen to be done. While the case from which this maxim arose concerned the appearance of bias in the rulings of a court, it can also be interpreted more broadly to say that a decision of a court must make logical sense, and be capable of being interpreted by the average citizen. Nigerian courts routinely fail to meet this requirement by delivering rulings that are utterly incomprehensible even to trained legal minds.

The executive arm of government has a key role to play in ensuring the effectiveness of the legal system and promoting public trust in the judiciary. Perhaps the clearest expression of the hobbled state of Nigeria’s judiciary during the Buhari era has been the patent disrespect for the sanctity of court rulings.

As part of its obligation to adhere to the principle of separation of powers, this administration needs to show commitment to the rule of law by obeying court orders. It also needs to actively promote the independence of the third arm of government. Anything short of this will continue to erode the confidence of Nigerian citizens in the ability of the judiciary to be the last hope of the common man. Faced with the prospect of miscarriage of justice, many people will continue to resort to self-help.

It is common practice for treaties and agreements to include dispute mechanisms. However, foreign investors who seek to do business in Nigeria routinely insert clauses into their agreements that require dispute resolutions to be carried out abroad. There can be no clearer statement of their lack of faith in the Nigerian judiciary.

In a country where the judiciary can be routinely influenced by the highest bidders, there can be no justice. Without justice, there can be no peace. Without peace, there can be no certainty; without certainty, there can be no investment; and without investment, there can be no development. Thus, the judiciary has a vital role to play in charting the country’s development path.