IS THERE A DANGER IN ALLOWING THE JUDICIARY TO HAVE THE FINAL SAY ON ELECTORAL DISPUTES?

A paper presented by Dr. Monday Ubani at the Annual Conference of the African Bar Association held at the University of South Africa, Pretoria, South Africa.

INTRODUCTION

The various electoral laws in Africa have provisions that empower the judiciary to own the final say on Electoral Issues, whether it concerns pre-election or post-election conflicts. No one should be in doubt as to the competence or capacity of the Judiciary in the continent to adjudicate on election issues, whether pre-election or post-election disagreements. The only snag here, call it alarm if you like, is that the judges that preside over these electoral cases are not gods, the Almighty. They are humans and susceptible to manipulations and inducements by desperate politicians who seek various political offices by all means possible in Africa.

Generally, ascension to power in most African States comes with so many office perks that it becomes a matter of life and death whenever the opportunity for Election presents itself. As a matter of fact, only a few countries in Africa can boast of a free and fair electoral process. In all fairness, they can easily be counted, as most lack transparency and credibility in their electoral processes.

As seen in most African states, they all look to the court for adjudication whenever the political class loses an election in a flawed process. The court is then expected to make good what has been “damaged from the foundation”. At this juncture, desperation sets in, and the judiciary and its officers are subsequently “placed on high jump”, with great expectations to satisfy the ultimate desire of declaring parties as winners even when some of them know too well that they did not win the elections. In such situations, anxiety sets in with diverse allegations and counter-allegations of monetary inducements. Undoubtedly, some judges succumb to pressure and alter the electorates’ mandate because they are humans too. This may not be a general phenomenon, but shreds of evidence abound here and there in the continent that such things do exist. Understandably, some judges remain upright and do not succumb to human pressure or inducements. Still, sadly the number of such honourable and forthright judges remains a matter of conjecture. As of today, the statistics of lower and appellate courts departing from judicial precedents on electoral issues remain frightening and alarming.

Litigating election disputes, we all agree, is contentious, complex, and excessively technical. The technicality of electoral dispute litigation is fueled by the strict requirements of the Electoral Act, coupled with judicial attitudes developed over the years. The complex and technical nature of election petitions is mainly responsible for the failure of election tribunals and courts in Africa to address the grievances of litigants despite efforts at resolving such election disputes. For example, a case of interest decided recently by the Supreme Court of Nigeria, a case involving Machina Vs Lawan, the former Senate President. Ahmed Lawan, the former senate President participated in the presidential primary elections of the All Progressives Congress(APC) in 2022. It was reported that he did not participate in the INEC-supervised primary polls for his re-election as a Senator. As a result, one Bashir Machina, who participated in the Yobe East Senatorial Primary Election, was returned unopposed.

When Ahmed Lawan lost his presidential bid, he ran back to pressurise Bashir Machina to surrender his primary win, but Machina refused. Lawan had to mobilise the whole apparatus of his party in a bid to retrieve the ticket from Machina.

In an unbelievable move, the APC subsequently submitted Lawan’s name as its senatorial candidate even though he did not participate in the senatorial primary polls. Then, Machina went to court alleging fraud. He started his litigation against Lawan, alleging fraud (a crime) by way of “Originating Summons” instead of “Writ of Summons”. And for that error called TECHNICALITY, the Supreme Court of Nigeria ignored the evidence, facts and common sense. It gave the senatorial ticket to the person who did not participate in the primary against the person who did and won by the votes of his people.

A newspaper columnist, Mr. Castro Ginigeme, a lawyer and former Adjunct Law Professor in the United States of America, had this to say concerning that judgement: ”Increasingly, Nigeria’s courts have become courts of technicality rather than courts of justice. Technical legal rules are supposed to be made a guide to justice, not a tool to thwart justice”.

In all these, let us remind ourselves of this everlasting truism stated by Associate Justice Robert H. Jackson of the US Supreme Court, the US Special Prosecutor at Nuremberg in 1945, who uttered these words””We are not final because we are infallible. Still, we are infallible only because we are final”. This means that decisions of Tribunals or courts are given by human beings with flesh and blood, and they are susceptible to human errors as the judges are not gods.

However, two African countries have ignited the light of departure and stubbornly stuck to addressing the petitioner’s grievances without paying attention to an excessive technicality, fear of the incumbent or undue consideration of the political consequences of nullifying an improperly organised electoral process. The first country was Kenya, followed subsequently and swiftly by Malawi. Kudos to African Bar Association as we have held our Annual Conferences in these two great countries. The last conference was held in Malawi last year.

THE STORY OF KENYA AND COURT’S INTERVENTION
In August 2017, a highly contested election was held in Kenya: President Uhuru Kenyatta’s incumbent won by a narrow majority against his opponent Raila Odinga. However, Odinga did not accept his loss and filed the presidential petition, which later became the first to ever be successful on the entire continent and resulted in the nullification of the election. He referred to the electoral commission’s (IEBC) failure to comply with the electoral law and the quantity of discovered irregularities, such as missing security features on the ballot papers, including serial numbers, official stamps and signatures.

Even though the Kenyan Court has been confronted with alleged ballot rigging cases, this was the first time it ruled in favour of the petitioner in this historic judgement. The Supreme Court judges concluded the ruling with the following words: “The illegalities and irregularities committed were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC can, in good conscience, declare that they do not matter and that the will of the people was expressed nonetheless.”

THE STORY OF MALAWI AND THE INTERVENTION OF THE JUDICIARY
In May 2019, Peter Mutharika was re-elected President of the Republic of Malawi two years later. Afterwards, his opponents Lazarus Chakwera and Saulos Chilima failed to get a ballot recount and consequently filed a petition to challenge the election result. In February 2020, the High Court ruled in favour of the petitioners, thereby being the second court after Kenya, to annul a presidential election. They concluded their historic ruling by stating that” the irregularities and anomalies have been so widespread, systematic and grave such that the integrity of the results has been seriously compromised. The results cannot be trusted as a true reflection of the will of the voters as expressed through their votes”” Irregularities in Malawi included people voting more than once and erasing and manually amending ballot papers.

The beauty of these two decisions from the continent of Africa, where some people think or say we cannot get good things, is that the judgement was very much interested in probing whether the mandate of the majority was thwarted, warranting the nullification of the process and decreeing a re-run in both countries.

Allowing the courts to intervene in an electoral process means that there is a purpose for the said intervention. It is to ensure that the process is free, fair and credible. It is not for the courts to substitute the majority’s will with that of the minority they represent.
Most times, the court has created chaos and caused more damage than what the extant laws provide for them to achieve. Again let us go back to Nigeria, the giant of Africa.

In 1993, what you may consider a bizarre event occurred in the continent of Africa, and the location was Nigeria. General Ibrahim Badamosi Babaginda was President and Commander in Chief under whose watch the heinous act against Nigerians was committed. The foundation for the annulment of the June 12 presidential election of 1993 was laid less than 36 hours earlier. However, the building blocks were assembled over several months by an entity known as Association for Better Nigeria(ABN), led by the late Francis Arthur Nzeribe and one Abimbola Davis. You will have to judge whether the Association deserved that name they gave to themselves.

On Thursday, June 10, 1993, Justice Bassey Ikpeme chose an ungodly hour of 9.35 pm to launch her voyage into infamy. Though it was an interlocutory application filed by the ABN, apparently over-mobilized and over-induced, she made a final pronouncement on an interlocutory application. She decreed that the elections should be stopped, contrary to the provisions of Section 19(1) of Decree 13 of 1993, which ousts the jurisdiction of the courts over the election matter.

National Electoral Commission(NEC) promptly issued a statement disregarding the notorious court order, stating that the elections should go as scheduled. Despite all the shenanigans by the conspirators involving the Aso Rock cabal (The military leaders, the Ministry of Justice led by the then Attorney General, Chief Clement Akpamgbo SAN, the Judiciary led by Late Justice Ikpeme and ABN ably led by Late Arthur Nzeribe) and against all expectations, the elections held. There was no rain or reports of violence or rigging as usual at every election in Nigeria. It was generally peaceful, free and fair as Nigerians were ready to endure anything just to exit the military from power in Nigeria.

Interim results on Sunday, June 14, showed that one Chief Moshood Abiola was leading with an overwhelming majority in 19 States while his rival, Chief Tofa, had a clear majority in 11 States. Suddenly, the unexpected happened. Another Court from Abuja has agreed with ABN that NEC, the electoral umpire, should be restrained from announcing any results from the States in the Federation. Nigerians felt that this was a joke taken too far. After some of them recollected themselves, the courts became the centre of attraction. Following popular demands for the release of the results, two orders came in a row for the reversal of the order of the Abuja Court. Lagos high court Judge Hon Justice Moshood Olugbani ordered NEC to release the results within 24 hours. Dr. Beko Ransome-Kuti, the Chairman of Campaign for Democracy, issued an ultimatum to NEC to release the results within 24 hours, or the CD would do so.

Events took a more bizarre turn as Justice Dahiru Saleh, Chief Judge of the Federal High Court Abuja, declared the elections void allegedly because the NEC had ignored the late-night injunction of Justice Bassey Ikpeme to conduct the election. What gave the government of the day away as the ones behind this strange event was that the Attorney General of the Federation, Chief Clement Akpamgbo SAN served the judgement of Hon. Justice Saleh on Professor Humphrey Nwosu, the then NEC Chairman. He warned Nwosu that he would be on his own if he disobeyed.

NEC’s Director of Legal Services, Bukhari Bello, a bold and strong-willed man, immediately appealed against the judgement. When he was about to get a verdict delivered, the elephant in the room behind all these shenanigans came out from where he was hiding all this while and directing the drama. President Babaginda brought his chest out, flagrantly annulled the results, and announced the suspension of NEC as an umpire. At that point, both NEC and the courts that initiated the drama were incapacitated to act.

JUDICIARY AS THE LAST HOPE IN ELECTORAL DISPUTES?
Recruitment of leadership is a very grave responsibility in any democracy. As such, it must be handled with every circumspection to ensure the majority’s will is upheld and respected. Where there is a failure of orderliness and fairness at the polling units and Collation Centres, the extant laws in every democracy, whether here in Africa or elsewhere, usually invest the courts with the onerous responsibility of ensuring that the anomalies noticed at the Polling Units and grievances at the Collation Centres are addressed and redressed. The courts must carry out this demanding responsibility to respect the majority’s will. Never should they allow the majority’s will to be subverted with the enthronement of technicality over substantial justice.

In Lawan‘s case in Nigeria, which I had earlier referenced, there was uncontroverted evidence that his party APC did not cancel the earlier Primary Election held on May 28, 2022, before organising another one on June 9 of the same year in clear breach of S.84(5) of the Electoral Act. The minority justices in that case also found out that the APC did not give INEC 21 days mandatory notice before conducting another primary election on June 9, meaning that INEC did not monitor the June 9 Primary Election as required by law.

The minority justices were convinced that as long as APC has not contradicted those findings of fact and stated that they are perverse or unreasonable, that defeats their entire appeal. But the majority opinion differed and dwelt on the technicality. Justice Centus Nwaeze, who read the apex court’s majority judgement, held that Machina, Lawan’s primary challenger, was wrong to have commenced the suit at the trial court through Originating Summons, given his allegations that the APC acted fraudulently in submitting Lawan’s name to INEC as their candidate. He said, and I quote,” The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants. The 1st Respondent accused the APC of fraudulently substituting his name with that of Lawan. Where there is an allegation of fraud, it should not be commenced by an Originating Summons. There was a need to call witnesses to prove allegations of fraud”.

Does the above majority decision satisfy the true meaning of Justice in the real sense of that word? Has justice been served here? I don’t think so; the people’s choice has been thwarted here using undue technicality.

Nevertheless, there are times OUR COURTS have engaged in self-realization and refused to be bogged down by technicality over substance. In the two cases referenced above, Kenyan and Malawi Supreme Courts were vociferous in their majority decisions in upholding substantial justice over technical justice.

Even the Supreme Court of Nigeria, as far back as in 2007, in an unprecedented judicial audacity in the case of Rotimi Amaechi Vs Celestine Omehia, sacked Omehia, affirming Rotimi Amaechi as the winner of an election in which he did not campaign. In reasons issued in January 2008, Hon Justice Adesola Oguntade retired, who read the lead judgement to which other 6 justices concurred had this to say: “The sum of the recent decisions of this court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser taking home all the laurels in a civil case. At the same time, the supposed winner goes home worse than he approached the court””. Hon. Justice Olayiwola Aderemi added his authoritative voice to this issue. He said, ”This court has a standing and rigid invitation to do substantial justice to all matters brought before it. Justice to be dispensed by this court must not be allowed to be inhibited by any paraphernalia of technicalities””. While at the Court of Appeal, our respected Justice John Okoro, now at the Supreme Court, had this to say concerning technicality over substance. In the case of Balogun V E.O.C.B Nigeria Limited, he was recorded to have said,” Good law, in my opinion, must have a human face; good rule should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good practice will not encourage a situation where a party in the litigation will only return home with a Pyrrhic victory, which in reality is no victor”.

THE REAL REASONS FOR JUDICIAL INTERVENTION
The essence of the court’s intervention in election matters is to promote democratic culture and strengthen the people’s confidence in the democratic process. But if we reduce our courts to counting electorates” votes or voting for the candidates that should lead, we are destroying the judiciary and, at the same time, democracy. If we create a crisis of confidence in the court in their role of intervening in electoral issues, then we are in grave danger. Already the politicians are taking undue advantage of some judicial lapses to wreak havoc in the system.

They are ready to manipulate, rig, create chaos and ”win” by foul means and challenge the ”loser” to go to court, knowing that the judiciary as an institution in the continent suffers some institutional lapses. Institutions generally are not strong in the continent, leading to a loss of confidence and creating enormous problems in the long run. Take the Kenyan Election of 2007 as an example. The Incumbent president was declared the winner, while Raila Odinga also claimed victory. Due to losing confidence in the judiciary, he preferred other options than recourse to the courts. The consequence was civil unrest, resulting in several hundred deaths and the displacement of up to 600,000 persons. The election was regarded as generally flawed and led to the deepening of ethnic divisions and serious post-election violence lasting into 2008.

The same thing happened in Nigeria in 2007. The general elections of April 2007, supervised by one Professor Maurice Iwu, were adjudged by most observers to fall a long way short of the standards for credible, free and fair elections and to be the worst in Nigeria’s post-independence history. The election was so flawed that the apparent winner, His Excellency Late Umaru Yar’aduaa, considered the election deeply inadequate. He quickly set up an Electoral Reform Committee headed by the former CJN of the country to midwife a new Electoral law and system. The Committee, headed by Hon Justice Uwais, did an excellent job recommending comprehensive electoral reforms, which, if followed, would have made us take some progressive electoral steps. Still, unfortunately, the report has been thrown into the dustbin to date.

The hope that the judiciary would strengthen democracy by upturning the electoral results agreed upon by local and international observers, including the alleged winner, as flawed, was dashed as the highly manipulated electoral process was upheld as valid by the Supreme Court of Nigeria. The Supreme Court upheld the lower court’s findings that the Petitioner’s lawyers had not provided substantial evidence to overturn the official result. However, Hon. Justice Niki Tobi of the Supreme Court had this to say: “We’re not saying that all went well in the conduct of the election.” Laying the blame on the country’s political elite, he said: ”The way politics is played frightens me. It is a fight to the finish.”

The court’s holding that the election went well sent shock waves to people’s marrows until today. This was an election that witnessed widespread electoral malpractices throughout all the stages of the elections. There were failures in the late delivery of voting materials, late commencement of polls in most of the States, ballot box stuffing, allocation of votes where voting did not take place, falsification of votes, deliberate denial of election materials to polling units, especially where opponents have strong supporters etc. Despite all these, the Nigerian Courts in 2008 held that the election was free, fair and credible. INCREDULOUS!

Having fought and lost elections in 2003, 2007 and 2011, former President Buhari, who opposed the losses in court wherein he also failed, had to issue a physical threat: ”If what happened in 2011 (alleged rigging) should happen again in 2015, by the grace of God, the dog and the baboon would all be soaked in the blood.” Recall that in the 2011 general election when he lost the presidential election to former President Goodluck Ebele Jonathan, several innocent lives were cut short, especially in Kaduna and Bauchi, and thousands of people were displaced to date across Northern Nigeria. So his threat during the 2015 general election, which was yet to take place then, was not unusual. He was finally quoted to have stated that he would not go to court anymore if he lost the 2015 general election.

Thank God he won the election. Naturally, he did not have any reason to go to court, and there were minimal skirmishes and chaos in the land post-election. Surprisingly, the loser of that election and incumbent President Goodluck Ebele Jonathan also shunned the court. He accepted the election outcome and congratulated the winner, President Muhammadu Buhari, which earned him several accolades to date.

Countries like Gabon, Liberia, Madagascar, Sierra Leone, Zimbabwe, etc., are all billed to hold or to have held their presidential elections this year, 2023. President Julius Maada Bio has won re-election in Sierra Leone’s tense presidential vote. The election commission confirmed his victory recently, but his primary challenger Samura Kamara quickly rejected the results. However, he promised not to go to court to dispute the election results because he did not believe in the nation’s judiciary. This is his second time losing to the incumbent President Maada Bio of the Sierra Leone People’s Party(SLPP). Meanwhile, he went to court after the first loss and failed woefully. Feeling that the judiciary would not be different from the first experience, he chose to shun the court for redress in the last election. Sad, isn’t it?

But that is not the case in Nigeria. Even though the Nigerian courts have never upturned Presidential results from 1960 till date, the number of electoral cases pre- and post-elections in Nigeria is frightening. The three major presidential candidates are all in court, with two from different parties, the Labour Party and People’s Democratic Party challenging the electoral victory declared by the Electoral umpire on the current President Ahmed Bola Tinubu GCFR of the All Progressive Congress (APC). They have all closed their cases, with written briefs filed and exchanged. We await adoptions and possible dates for Judgement. We wish parties and the country well in the coming weeks and months.

We also all await the general elections of other countries in the African Continent, like Madagascar, Gabon, Liberia and Zimbabwe. We all wish them free, fair and credible elections with no acrimony and crisis in the coming months before the end of the year.

CONCLUSIONS
Choosing leaders whose objectives are for service by the electorates should be without acrimony and the attendant bloodshed and deaths accompanying it in the continent.

The continent should insist that all nations within it must strengthen the independence and integrity of their election management bodies and the judiciary to guarantee free, fair and credible polls in the continent. And where irregularities sufficient to affect the credibility of elections are noticed, it should step in to effect immediate redress either by nullifying the elections or proclaiming the correct winner in the contest. This they must do without fear or favour.

Leadership choice is an important responsibility that should not be toyed with or handled with kid gloves on the continent. We have seen what effective and sound leadership has done for developed economies, and we as a continent cannot afford not to brace up to ensure that we strike a golden cord in mapping out proper strategy and mechanisms that will throw up effective leadership capable of taking the continent to an enviable height globally. Civilization started in Africa, but the continent has been manned by inept and corrupt leadership not necessarily chosen by the people but imposed through foul means. Unfortunately, these visionless and corrupt leaders have kept most countries in the continent retarded and unprogressive for many decades and still counting.

Whatever ideas we can generate, let us develop them as a continent and prescribe the same to all African countries to follow, enabling a credible electoral process that will throw in leaders capable of awakening the sleeping continent. In Malawi, I presented a paper in which I advised that deploying technology in our electoral process would reduce irregularities in the system. The reason is that too much human involvement in the process creates several loopholes and room for manipulation. Digitalizing our elections with proper education and orientation will mitigate these irregularities.

Above all, public offices in the continent should be well-defined and separated from the occupants. We have observed with shock that in the continent, a public officer uses public money to pursue personal goals and interests, giving room for stupendous abuse with impunity. Contrast this with the President of America like Biden, who cannot, as a president, dip his hands in the public treasury to buy an expensive wristwatch for himself or his family or service his appetite for expensive chocolate. Any day he is discovered to have tried it, he will be on his way out as he will be called out by the press and the public, and if care is not taken, impeachment proceedings may be commenced against him. They have built a responsible system and enthroned responsible leadership that is accountable due to an electoral system that guarantees that the majority makes the choice of their leaders with attendant oversight functions that will ensure the removal of such leader who has decided to be irresponsible in governance. We should cultivate such a system here in the continent if we want to advance the continent. Anything short of such a system is a complete waste of precious time.

Finally, we must trust our judicial system to help strengthen our democracy in Africa, even though the judiciary still owes itself a grave responsibility to generate public confidence through a clear display of bold decisions and forthrightness in upholding rights and dispensing justice without fear, favour or ill will.

Dr. Monday Ubani
Chairman, Election Reform Commission of AFBA.

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