It’s been weeks since the Nigerian apex court affirmed without dissension the unanimous decision of the court below sitting as the presidential election tribunal. I succeeded in not making any comment up until now because I expected nothing more or less from the two courts. My reasons had nothing to do with neither validity nor impeccability of the conduct of the presidential election or any of the elections conducted during the 2023 general election season for that matter.
From my early years I was influenced to believe that nothing is nobler than being a minister in the temple of justice and a member of the noble profession. The administration of justice system and indeed the court system was for me not just the last hope of the common man; but the only hope of the common man. It was not hard for me to come to this conclusion as I strongly believe that the only legitimate institution specifically developed by man to address injustice is the court system.
Electoral umpires are meant to be neutral and unbiased in conducting elections. In a situation whereby the vast majority of the electorate alleged that neutrality was absent in the conduct of an election, the outcome of that process cannot be validly accepted as credible.
This is where the court comes in by looking into the conduct of elections to see if there is anything capable of impugning on the credibility of the outcome. After all, democracy is a game of numbers and a game played according to rules. That is why the rule of law is sacrosanct in a democracy.
It is trite that the jurisdiction of court is activated by parties in accordance with the law. If election cases are indeed peculiar, one would expect peculiarity that would favour summary and flexible jurisdiction capable of occasioning collective justice as against strict interpretation that favours selective justice.
The judiciary cannot in my view be proud of itself if all it is good at doing during election matters is looking for the man to take the fall for its inability to rise to the occasion in favour of the common man under the guise of technicality.
This perhaps is why I overheard two intuitive young lawyers commenting on the apex court decision delivered a day earlier with the vocal of the two screamed ‘sui generis my foot’.
I have since discovered that the judicial test for determining the credibility of Nigerian electoral process is one purely between aggrieved contestants versus the Nigerian electoral system. Other interests such as democracy, political parties, the electorate, and the need for building a strong electoral institution a
It could also be argued that it is a tussle between the ruling party and the opposition. I often struggle to see a strong desire from the courts to advance the true electoral wishes of the people by the declared outcome of the electoral umpire.
When an umpire deviate from its own rules, circumvent its own guidelines, supervise election in which a number of the electorate were harassed, intimidated and disenfranchised in a process that cost several billions to organise; Where an electoral umpire is more interested in defending the declared winner in a controversial election as against fighting for the sanctity of the process, and most importantly where the international community election observers could not find better words to convey its findings in the conduct of election than ‘frosted in widespread irregularities’, an election tribunal ordinarily ought to be thankful that half of its work is already settled.
The situation became so ridiculous that both the umpire and declared winner sang in unison, the duet “Go to court” to the embarrassment and confusion of the generality of the voting public and the defeated candidates. The embarrassment was obvious in the sloppiness and sluggishness in gathering of relevant weapons of war; and the confusion so apparent in the sluggish momentum that preceded going to go the village square (the court) to fight it out like men. Many including the voting public in the days before the two decisions engaged in audible-silence the fear that there could be a prearranged surprise waiting in the court.
Another factor that informed my initial reluctance to comment on the presidential election tribunal decision is that previous judgments all ended with the same outcome. The court appears unwilling to rock the boat in other direction even where there are obvious grounds to do so.
The only exception was the 2015 presidential election which saw president Goodluck Jonathan saved the judiciary the agony of making pronouncements that could potentially affirm the victory of opposition party against a ruling party or overrule INEC result in a presidential election for the very first time.
It is trite that there is expectedly a timeframe reserved for filing election petitions. This and other onuses placed on the petitioner are often very challenging to surmount. The laws appear to be skewed in a way that makes INEC look like an undisclosed agent of the declared winner. Petitioners now resort to going after low hanging fruits of technical irregularities inherent in the process as against proving substantial irregularities per se.
I initially chose silence because I was certain that the court will easily find enough justification to go in the direction it went based on technicality. Wonder for how long the judiciary can afford to turn blind eye to issues of substantial justice in election matters.Will it be for as long as our election petition law and procedure remain clothed in sui generis?
Interestingly, the recent International Institute of Democracy Assistance (IDEA) democracy report clearly reveals an unprecedented six consecutive years decline in global democracy ratings due largely to absence of electoral transparency, judicial independence and the attack on freedom of expression.
What next after court? The question now is where do we go from here? will it be business as usual,will 2027 be another case of go to court, will the political parties especially the opposition simply sit back and watch as we make mockery of democracy in Nigeria?
Will the people remain gullible by leaving their destiny solely in the hands of the judiciary again without calling for a reform of the electoral process, will the judiciary appreciate that its duty is to do justice that will be manifestly seen to have been done whether or not the election petition maters are clothed in a wrapper so peculiar but not odd enough to escape the wheel of justice?
We often see inconsistencies in the outcome of election petitions by various tribunals. One expects the appellate court to filter all such inconsistencies but it sometimes throws more confusion into the situation which leaves one to conclude that our electoral culture is indeed sui generis.
The law is the law; the courts hands are tied so says a judge not long ago. Regardless interest of justice sometimes requires the application of the maxim Sou motu in doing substantial justice as against the technical justice of sui generis.
Olusoga Fayemi Esq. writes from Lagos. (firstname.lastname@example.org).