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Judicial Activism As Final Arbiter

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The activism of Prof. Attahiru Jega, Chairman of Nigeria’s Independent National Electoral Commission (INEC) earned him the appellation, “Man of the Moment”. The recently concluded 2015 elections have generally been characterized by increased activism of stakeholders especially Nigerian citizens who deserve special commendation for doing all they could to express their frustrations via the ballot box. Post election tribunals are expected to follow the conduct of elections in states such as Rivers, Akwa Ibom, Taraba to mention a few but, will the judiciary act as true guardians of our democracy or will a tenuous judicial history repeat itself?

On his part the Chief Justice of Nigeria, Mahmud Mohammed seems bent on continuing in the air of activism judging from his address to 242 newly appointed election tribunal judges selected where he made the statement, “Let me use this opportunity to sound a note of warning to all judicial officers. Do not allow any political party or politician to compromise your integrity or your future. We must never again be used as tools to truncate our nation’s democracy.” In a democracy, citizens’ votes are meant to be the deciding factor between political candidates, however given the proclivities for electoral fraud in Nigeria – the Judiciary is usually the final arbiter between political candidates or parties. An independent judiciary is required for Nigeria to sustain the momentum gained in its latest keenly contested electoral process. The performance of the judiciary after the past elections in 2003, 2007 and 2011 has been mixed – what lessons are there to be learned? In 2015, the judiciary needs to demonstrate courage and activism in upholding fair democratic outcomes.

Election monitors largely decried the 2003 elections, declaring it “rigged”. However, for those who sought redress, the performance of the judiciary was lackluster. The courts did not annul results even though there was evidence of false votes and bribes. For example, in Plateau State, the courts were presented with a photocopy of the cheques that Governor Joshua Dariye used to bribe the police and other agencies; yet, that was not enough to annul his election. On the federal level, three justices of the court held that there was no compliance with the electoral laws including certification of election materials, subscribing to oaths of impartiality among others, yet they disagreed that such reason was compelling enough to annul the entire 2003 presidential election, although a minority judgment of the court read by Justice Nsofor annulled the presidential election conducted nationwide in its entirety on the grounds that the election was invalid by reason of non compliance with the provisions of the Electoral Act. Also, judges were found complicit in bribery cases. For example, the National Judicial Council found justices in the Anambra South Senatorial Election Tribunal guilty of receiving bribes. This was also the case in Akwa-Ibom.

Additionally, there were cases of delayed judgments, for instance, judgment in the case of Peter Obi Vs. Chris Ngige Of Anambra State was delivered after 35months, about three-fourths of a governorship tenure.

In 2007, following widespread consensus on the gross misconduct in the electioneering process, election tribunals courageously nullified elections of state governors and some members of house of assembly in Abia, Bayelsa, Enugu, Adamawa, Ondo, Ekiti, Kogi and Edo States on the ground of electoral malpractices. The judiciary however reversed itself in some instances as the Court of Appeal overruled the decisions of the tribunals and ordered for re-run elections in Bayelsa, Enugu, Adamawa, Sokoto and Kogi. Overall, the judiciary performed better in 2007.

In 2011, the Chairman and President of the Court of Appeal, Justice Isa Salami was removed from the Presidential Judicial Tribunal at the instance of the President and on the recommendation of some members of the National Judicial Commission. This was a result of some accusations between Justice Salami and the then Chief Justice of Nigeria. The circumstances surrounding removal of judges and reconstitution of the tribunal lent some doubt to the tribunal’s performance. General Buhari’s then political party CPC alleges that the reconstitution changed the tone of the tribunal. 2011 however saw little judicial revocations of elections compared to 2007.

Since 2007, there has been a drop in the quantity of election petitions. According to a National Human Rights Commission report, arising from the 2007 general elections alone, there were 1,299 election petitions challenging official results out of a total of 1, 496 elective offices, representing about 86.5%. From the 2011 elections, there were 769 petitions, which was 51.4% of electoral posts challenged. One explanation is that the sharp drop in the quantity of petitions from 2007 to 2011 reflects an improvement in the quality and acceptability of 2011 elections. Another tenable explanation is the increase in quality of evidence as a result of greater citizen activism.

The judiciary should shape political outcomes by interpreting the electoral law and providing a mechanism for the resolution of disputes. The laws of Nigeria currently allow the judiciary to play this role via Elections Petition Tribunals to handle judicial petitions arising from the conduct of polls, with a view to determining the authenticity or otherwise of such polls. Specifically, section 239 of the constitution governs petitions in respect of the Presidential Elections. It constitutes the Court of Appeal as the court of original jurisdiction, with appeals going to the Supreme Court. However the judges need to take on an air of activism if they are to be in tune with the mood for “Change” that Nigeria’s democracy seems to be crying out for.

–Soji Apampa is the co-founder of The Integrity Organization, which was founded in 1995. Twitter: @sojapa

 

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