Last Sunday, in my Twitter publication, I ventured to discuss the just concluded elections not by way of analysing the events that characterized the elections nor the probe into who actually was the winner or loser of which particular election. Tensions in the land are so high that I do not think I can help the polity by adding more. While winners are celebrating and popping champagne, the losers are already taking the most civilized options of approaching the tribunals set up under the Constitution and the Electoral Act to seek redress. A criticism was lodged at the doorstep of the judiciary as regards its role in determining the winner outside the polling units. This led me into discussing the courts and the growth of the country vis-a-vis the just concluded elections. Just as I was preparing that text for publication on Sunday, I stumbled on a writeup by the highly cerebral Professor Chidi Odinkalu, whose pen does not seem to have left the paper for a minute to rest.
I am still fascinated by the title, “As Nigeria’s Judges Begin to Vote”. A cursory interpretation of the title would suggest that the judges are yet to vote and will just commence their voting separately. This certainly cannot be the intendment of the piece, even without reading it. Certainly, the judges vote along with other Nigerians. The import must be that the various electoral battles will now shift to the courts and, by extension, the judges. Now, with several petitions having been filed across the land running into thousands, the battlegrounds have left the polling units or collation centres for the courtrooms across Nigeria. There is no state that does not have election tribunals already in place. Save for states where we have staggered governorship elections, which are not more than five, all the remaining 31 states held the governorship elections last Saturday, the 18th day of March, 2023, while we also elected about 991 House of Assembly members for all the states of the federation. That was sequel to the presidential and National Assembly elections, which held on the 25th day of February, 2023. In all, we had nothing less than 109 senatorial elections and 360 House of Representatives elections.
Most results have been made subjects of controversies and electoral disputes in all the states. This is definitely the time for our judges to help sustain the rule of law by ensuring that justice is done in accordance with the law so that the conscience of the public can align with the cliché that the judiciary as the last hope of the common man. In other words, it is the judges who will now eventually validate the success or otherwise of any of the victorious parties. In the recent past, we have witnessed the courts ‘dethroning’ purportedly elected candidates in several instances. That was what my friend meant by saying now the judges are to vote. In the process of determining the cases placed before them, the appellate courts, which ultimately decide the cases, will equally be voting among themselves on positions or tendencies.
At times, it will be unanimous decisions while, in some others, majority decisions. Whichever of the two, the courts and, by implication, the judges determine who actually won any election so as to occupy the contested office. This, in a sense, eventually constitutes the courts and the judges into the ultimate electorate. This power of the judges has been queried by a school of thought as a usurpation of the electoral process, premised on the fact that a few people cannot be determining the will of the majority of the electorate as expressed on the field. As seemingly sensible as this reasoning is, the question is, what is the alternative? Are we going to allow electoral malpractices or misconducts to prevail with impunity, so that politicians can continue killing one another and other innocent Nigerians in order to secure electoral victory in the field, once such is not reviewable by any other institution? I am not too sure that this will be proper in any sane polity. Thus, the activities of the judges serve as a check on the excesses of the politicians and their co-conspirators. In my view, I believe that judges must still be allowed to continue the sanitization of the process until we are able to perfect our electoral system.
This, however, is not my destination. My concern is about the time consumed by the various electoral cases in courts. It is now firmly established that right from the Federal High Court, through the Court of Appeal to the Supreme Court, an average of two years is minimally spent by those courts on election petitions, pre- and post-election disputes. Since the primaries of the political parties held in May 2022, the courts, particularly the federal high courts, became the theatre of settling pre-electoral disputes of who actually was supposed to be fielded as the candidate of which party for which particular election. In some cases, it was a dispute by a political party challenging whether another political party actually conducted a primary at all or properly conducted one. This was an area in which the court did not have jurisdiction in the past but with the amendments of the Electoral Act, 2010, and a fortiori, 2022 and the Constitution enabling a political party to challenge the conduct of the Independent National Electoral Commission on the primary of another party, the number of cases arising from this area pullulated.
The next 11 months saddled the courts from the Federal High Court to the Supreme Court with the responsibility of determining these cases. All other cases were adjourned practically sine die by many judges. At a point, the Federal High Court had to constitute a special panel to hear such cases as many of them were getting close to expiring without the court determining the substance between the parties. Now that the elections have held with various tribunals constituted for all states and the Federal Capital Territory, Abuja, our courts have all become electoral courts by way of the deployment of the judges to the tribunal and eventually appellate courts and the next 11 months will be dedicated to determining the winners of elections. The implication of this is that in every electoral cycle, two years are devoted to the determination of cases bordering on elections. This implies that all other cases, particularly commercial cases, are subordinated. Status of parties in marital disputes are suspended from being determined. Whoever is entitled to the custody of a child may have to await the determination of elections at the expense of the child. Parties to land disputes may have resorted to settling their disputes by unlawful means while the nation awaits the end of courts’ recesses into elections. This is happening in a country where, on a normal day, the congestion in our courts is unenviable. A case emanating from the southern part of the country from the High Court to the Supreme Court takes a minimum of 40 years to conclude.
Now we are confronted with a most disheartening situation where cases have to be adjourned until their lordships have returned from this national assignment. In the midst of this abandonment of regular cases, how does a country grow? There is no country where this happens that you expect foreign investments, even domestic investments, to flow. How do you intend to create jobs and enhance security in the circumstances? No industrialization can take place where securing justice is a near impossibility. This is my worry for the country. Except something radical happens, no human being will have confidence in our adjudicatory process. The implication is the stultification of the development of the nation. Not that I have a solution to this but it is a source of worry that the National Judicial Council and the National Assembly really need to think about.
I think the leadership of the country must pay attention to this urgently. While we have succeeded in reducing the time spent on an election petition to a maximum of 180 days at the Federal High Court or Election Tribunal, depending on whether it is a pre-election or post-election dispute, and 60 days at each of the two appellate courts, it is certain that the time we devote to settling electoral disputes at the expense of other cases is not justifiable. Agreed that our democratic process needs to be perfected, we cannot afford to lose track with respect to other aspects of life and human existence.
It may then be necessary that we consider such electoral matters to be handled by retired Judges and Justices. Many of them are still active and agile while in retirement and they are assets that are wasting away.
The alternative is to consider the adoption of jury systems which will greatly reduce the number of judges we devote to settling election disputes. I have once advocated this elsewhere in view of the fact that the electoral justice should not be made amenable to technicalities. We can as well consider a hybrid system in which a retired judge sits with a jury made of lawyers and non-lawyers. This will assist the courts to focus on regular cases which are suffering and putting the economy into danger.
A jury system that will be adopted will have men and women of integrity selected from the public and who shall not sit in their States of origin. This will assist in ensuring some measure of impartiality at the end of which our jurisprudence will develop not in line with mere legalistic or technical justice but substantial justice. A client of mine who flew in from Canada to testify in a commercial case was so disappointed when the Judge hearing his case apologized profusely for his inability to hear the case on that day as a result of huge number of concluded cases in respect of which he had to write judgments and were about to expire. Explaining to clients this kind of predicament is no longer an easy task and the lifeline of lawyers is being put into jeopardy.
That our judiciary is being wrongly labelled as a slow or inefficient judiciary is not a complement to any nation pretending to be civilized. We need to consider this and urgently remedy the anomaly, otherwise the wheel of justice would soon ground to halt. May Nigeria survive.