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When judges imperil democracy -Segun Adeniyi

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Ever since the Peoples Democratic Party (PDP) lost at the 2015 general election, I have taken special interest in its affairs. That is simply because our democracy will not thrive without a credible opposition. So, two weeks before last month’s national convention to elect the party’s National Working Committee (NWC) members, I sought appointment with the then caretaker chairman, Senator Ahmed Makarfi for a background chat on what was going on. And in our interaction, the former Governor of Kaduna State was rather candid about the party’s challenges and prospects, including how the chairmanship election was likely to go and the factors that would shape the entire convention.

However, what struck me in my discussion with Makarfi was the fear by the party leadership at the time that a particular Senator from the South-west has the capacity to single-handedly keep PDP in crisis because of his “strong connection” to some powerful Judges who can grant him a contrived ruling, order or injunction at any given time. What I took away from that encounter is the level to which corruption has eaten deep into our judiciary such that some of our politicians are no longer content with hiring Senior Advocates of Nigeria (SANs), they also have their own judges. Nothing exemplifies this sordid state of affairs than the fact that the people of Anambra Central Senatorial district have been denied representation for over two years now.

The unfortunate drama started on 28th March 2015 when Mrs Uche Ekwunife, then of the PDP, won the senatorial election that was later nullified on grounds that she was not validly nominated by her party. After exhausting all appeal options available to seek legal redress, Ekwunife was in December 2015 disqualified by the Appeal Tribunal, the final arbiter for all litigations for National and State Assembly elections. And by way of a consequential order, the court also directed INEC to conduct a re-run election within 90 days.

In compliance, INEC scheduled the re-run poll for 5th March 2016 without the participation of the disqualified candidate (Ekwunife) and her party (the PDP). This is in line with a 2009 Supreme Court ruling that parties that field candidates disqualified by the Appeal Tribunals cannot participate in court-ordered re-run elections because the 60-day period for nomination of candidates had elapsed while the disqualified candidates can also not be replaced because the period for withdrawal of nominations (45 days to a general election under the Electoral Act) has similarly elapsed. INEC has been invoking this Supreme Court judgment to edge out parties whose candidates were disqualified from participating in court-ordered re-run elections, including for two senatorial districts in Kogi State last year.

However, Anambra politicians are a special breed. When Ekwunife’s election was nullified, the two major parties, APC and PDP, insisted that they must replace their candidates with both of them conducting fresh primaries. The PDP nominated former Governor Peter Obi to replace Ekwunife while the APC nominated Mrs Sharon Ikeazor to replace another former Governor of the State, Dr Chris Ngige, the original APC candidate who had by then been appointed a Minister by President Muhammadu Buhari. Quite naturally, INEC rejected these two nominations in line with the Supreme Court decision and this ignited another round of legal fireworks that stalled the conduct of the court-ordered re-run election.

Meanwhile, a curious twist was added to the drama following the Supreme Court ruling in the cases involving Governor Samuel Otom of Benue State and Aisha Alhassan’s unsuccessful gubernatorial bid in Taraba State. According to the Supreme Court, the improper conduct of primaries in one political party cannot be used by a member of another political party to cause the nullification of an election. Since that Supreme Court decision came after the nullification of Anambra Central Senatorial election by the Appeal Tribunal, Ekwunife thought she could use the principle to secure back her seat so she again approached the Court of Appeal, Enugu Division; urging the court to set aside the judgment of the Appeal Tribunal and to restrain INEC from conducting the re-run election.

On 3rd March 2016, the Court dismissed Ekwunike’s case as follows: “This is an appeal cloaked in the guise of a motion. We cannot sit on appeal over our own judgement. This court is the final Court. Once a court delivers judgment, subject to the ‘slip rule’ principle, that Court becomes functus officio…There must be an end to litigation. The motion is incompetent and completely misconceived. It is hereby dismissed. Consequently the Motion praying for an order of injunction restraining the respondents from conducting fresh election is hereby struck out as having been overtaken by the outcome of this motion.”

Dissatisfied, Ekwunife approached the Supreme Court for redress in the light of that decision on Ortom and Alhassan. On 10th February 2017, the apex court, in dismissing the plea, reminded Ekwunife that “the decisions of the Court of Appeal in respect of appeals arising from the National and State House of Assembly election petitions shall be final” before ruling that “this Court has no jurisdiction to hear any appeals related thereto, no matter how cleverly framed”.

While that effectively marked the end of the road for Ekwunife’s bid to regain her senate seat, it was by no means an end to the Anambra Central Senatorial drama. With INEC rejecting his nomination as PDP candidate for the re-run election, Obi had dragged the commission to the Federal High Court, Abuja presided over by Justice Anwuli Chikere. And on 29th February 2016, barely one week before the poll scheduled for 5th March 2016, the Judge granted a perpetual injunction restraining INEC from conducting the re-run election without him (Obi) and the PDP. And since INEC had to obey the ruling, that effectively stalled the election.

Quite naturally, INEC challenged the curious judgment at the Court of Appeal while the All Progressives Grand Alliance (APGA) candidate in the election, Chief Victor Umeh, separately but on similar grounds, also approached the appellate court. And on 20th November 2017, the Court of Appeal delivered judgments in the two cases by setting aside the judgment of the Federal High Court (given by Justice Chikere). The Appeal Court also ordered INEC to conduct the re-run election within 90 days without the participation of Obi and PDP; and by inference, without APC if it is not Ngige that is being fielded.

Based on these judgments that should ordinarily put an end to all litigations, INEC has fixed next week Saturday, 13th January 2018 for the re-run election. But since we are dealing with politics in Anambra State, that cannot possibly be the end of the story. And it is not!

On 13th December 2017, a Federal High Court in Abuja presided over by Justice John Tsoho delivered a judgment in a case filed by Mr Obiora Okonkwo that he was the rightful PDP candidate in the primaries conducted on 7th December 2014. And according to Justice Tsoho, the said Okonkwo won the PDP primaries and on the basis of that; should be declared the Senator-elect! What’s more, Justice Tsoho also ordered the National Assembly to pay Okonkwo every kobo (perhaps including all the under-the-table allowances) that his “colleagues” in the Senate have received since June 2015!

The implication of the foregoing is that, at the moment, INEC is faced with two conflicting orders: the Court of Appeal ruling that the re-run election should proceed without the PDP and its candidate as well as the Federal High Court ruling that a Certificate of Return be issued by the commission to “Senator” Okonkwo so he can be known and addressed as “Most Distinguished”.

While we wait to see how the latest farce will play out, this case has thrown up a number of issues. When the election Petitions Appeal Tribunal nullified Ekwunife’s election, it was supposed to end all litigations by virtue of Section 246 (3) of the 1999 Constitution (as emended) which confers finality on the judgment of the Appeal Tribunal in legislative elections. But it is also evident that the people of Anambra Central are mere pawns on the chess board of some desperate political players.

What is even more unfortunate about the debacle is that the interest of both the APC and the PDP is the same: Neither wants the re-run election to hold. The PDP, because it cannot field a candidate and the APC because, since Ngige prefers a ministerial bird in hand to an unsure senatorial seat, he has decided not to run; yet the party cannot present any other candidate except him. That perhaps explains why there are still several other cases in court by different parties on the same Anambra Central Senatorial ticket, including by some little-known electoral no-hopers who may just be fronting for some big masquerades with vested interest.

Unfortunately, that is the way politics is played in Anambra State. In my book, “Against The Run of Play: How an incumbent president was defeated in Nigeria”, President Goodluck Jonathan recounted a meeting he had with the leadership of both the National Assembly and the judiciary on how to find an institutional framework in the bid to combat corruption in our country. Let me quote the former president here: “…I also invited Chief Judges from one state in each of the six geopolitical zones. I specifically requested for Lagos and Anambra to represent their zones. My choosing Anambra was because that is one state where every political aspirant goes into election with at least two court orders in his pocket. You cannot fight corruption without dealing with such issues”.

All said, it is the judiciary that really should feel ashamed by the shenanigans that are going on. Our court system is predicated on judicial hierarchy. Section 287 of the 1999 Constitution (as amended) clearly defines the hierarchy and lower courts are under obligation to obey the judgments of superior courts under all circumstances. Section 287 (1) & (2) state as follows: “(1) the decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Supreme Court; (2) the decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal”.

The pertinent questions therefore are: How come that, in this particular instance, a lower court (on 13th December 2017) could overrule a superior court on the same subject matter three weeks after the judgement of the superior court (delivered on 20th November 2017)? How come that a High Court can order the issuance of a certificate of return for an election that had been nullified more than two years ago by the Appeal Tribunal with a consequential order for its re-run?

In his lecture, “Keeping a Republic: Overcoming the Corrupted Judiciary”, Robert H. Bork, a Professor at the Yale Law School and a former American Solicitor General, acting U.S. Attorney General and erstwhile Circuit Judge of the U.S. Court of Appeals for the District of Columbia Circuit, argues that the rule of law requires that “the principles announced and relied upon by judges be neutral in their application” which means that “a principle, once chosen, be applied according to its terms to all relevant cases without regard to the judge’s personal views of the parties or issues before him.”

While this, according to Bork, requires discipline, since no judge can possibly avoid seeing a case without his own worldview coming into play, “there is a chasm between a judge who knows that and consciously strives for objectivity and a judge who knowingly undertakes to impose his vision of justice upon the parties before him and upon the society.” Yet, it is that deliberate choice to impose a vision of justice that is most often at variance with public good that is at the root of the problem we are talking about in Nigeria today.

At all times and in all circumstances, the role of the courts as the interpreter of the law, resolver of disputes and defender of the Constitution, requires that Judges abide by their oath. That explains why a judiciary debilitated by, or prone to, all manner of misconduct, including corruption and political interference, is a danger to society. Sadly, we can see the evidence of this in our polity and it is important for critical stakeholders to understand that we cannot continue like this if our nation must develop and thrive.

On the immediate case of Anambra Central Senatorial election, it is incumbent on the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, to intervene on the side of reason and common sense. Beyond that, as the 2019 general election approaches, it is not only worrisome that most of the conflicting judgements nationwide relate to political cases, something has to be done to stem the looming judicial anarchy that may imperil the conduct of elections by INEC.

This is therefore the time for the National Judicial Council (NJC) to step in to restore sanity to the bench. It cannot just wait until a petition is filed before investigating and dealing with blatant deviant behaviour that brings the judiciary to ridicule and threatens our democracy.

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