By EZE E. UKACHUKWU
While the Bench and the Bar may be utterly embarrassed by the critical opprobrium generated by the spate of unsettling orders on ex parte applications as well as conflicting judgments dished out by courts of coordinate jurisdiction, investigations have shown that the Independent National Electoral Commission, INEC, is worst hit and is therefore at the receiving end of each conflicting court order.
Each conflicting court order places the Independent National Electoral Commission in a state of despicable quandary as it not only places the commission on high jump, but pushes it in-between the devil and the deep blue sea. Professor Mahmood Yakubu, chairman of the commission admitted this much at a two-day conference by the court of appeal to review the 2015 election cases. Professor Yakubu expressed worry about the problem of conflicting court orders. He said “it sometimes creates confusion for the commission”.
And expectedly, after each brainstorming session and painstaking scrutiny of extant laws and rules, every decision INEC has taken in the troubling circumstance to resolve any logjams created by conflicting court orders has always been subjected to all manners of castigation and negative interpretations by either of the parties and sometimes both parties, depending on how much unfavourable they consider INEC’s position to their cause. Then you begin to hear insinuations, condemnations and outright allegations against the commission. And when politicians who dubiously feign grievance go to town shouting blue murder, describing INEC as partisan and biased, the likelihood of their followers and the gullible public toeing their line is a hundred percent assured. This condemnable arm-twisting tactic of politicians is unarguably eroding the reputation of the commission before the generality of Nigerians. It also diminishes the giant strides so far recorded to reposition the commission by the current chairman, Professor Yakubu. It is also a danger signal to the 2019 elections.
It is very clear that the very architects who design the processes that lead to conflicting court orders aim at covert subversion of the electoral laws, or at best, arm -twisting the election management body. And Nigerians have come to terms with the emerging insinuation that the politicians have willing tools in the judiciary.
This is one reason the National Judicial Council (NJC) must go beyond rhetoric and dig into the motive. It is the belief of every Nigerian that an honest investigation will unearth the linkages and establish the level of cooperation and culpability between the Bar and the Bench. The NJC must respond fast and come up with stringent measures to stem the tide as it was done in other climes. Conflicting court judgments are not new. What may be new may be the motive.
Conflicting court orders can be traced to the beginning of the 19th century when the court structure in England and Wales was in a total mess. The populace at that time was subjected to the jurisdiction of dual system of superior courts; the Court of Chancery on the one hand and the common law courts which consisted of “the Common Pleas”, “the Exchequer Pleas” and “the Queen’s Bench”. The three common law courts with substantially overlapping jurisdictions did in fact give different answers to the same questions. And there was no reliable method of ironing out those differences.
The situation was that bad that rules and judgments given in these common law courts (different answers to same facts in issue) were in some cases being denied or added to in the court of Chancery, notably not by way of appeal. Common law judgments were never formally set aside or reversed.
The Chancery, while leaving out the pronouncement of the common law courts, simply issued an order which was contradictory and inconsistent with that of the common law judges.
The solution to the confusion in the judicial system came with the Judicature Act of 1875 which amalgamated all the superior courts into a supreme court of Judicature to administer both the rules of equity and the rules of common law. The system was streamlined. It is noteworthy that there was never any trace of fraudulent or self-serving motives amongst practioners.
In 2014 a United States appeals court dealt a significant blow to the affordable care act when it threw out an IRS regulation that governs subsidies and before you could say Jack Robinson, another three-judge appeal court panel hearing a similar case issued a decision that was completely opposite. The United States Justice Department was swift in reacting to the messy situation when Emily Pierce, Justice Department’s spokesperson stated “the Obama administration will ask the case to be heard by the full 11 – Judge Panel. We believe that this decision is incorrect, inconsistent with congressional intent, different from previous rulings and at odds with the goal of the law, the government will therefore immediately seek further review of the court’s decision”.
In all the two instances, what is key is quick intervention. The National Judicial Council should take bold steps to save the Independent National Electoral Commission from unnecessary distractions occasioned by the antics of politicians whose ambitions continually fertilize treachery. The NJC must address the situation and urgently too to ensure that 2019 general elections will not be scuttled by conflicting court orders.
Ukachukwu is a final year law student at NOUN