A global rights and anti-poverty agency, ActionAid, has advocated judicial reforms in the country following the role the judiciary has played so far in ensuring that justice is served to deserving individuals or political parties.
The group, in a paper presented during a recent programme by the Nigerian Guild of Editors observed that despite Nigeria’s resources, the country faces political and socio-economic challenges, including issues bothering on judicial accountability in pre and post election justice. It noted that it has become more and more apparent that the court has the power to disenfranchise Nigerians by a single judgement, therefore the country cannot eradicate poverty if the courts are enabling it, making the judiciary a focal point of advocacy for Nigerian Citizens.
Affirming election to be the most preferred process of leadership recruitment in most democracies, including Nigeria, ActionAid examined elections held in the country since the return to democracy and wondered if the pronouncements by the judiciary in recent times have been in the interest of Nigeria’s democracy. It then took a look at the most notorious set of contradicting judgments that emanated from the courts to determine whether we have a democracy in Nigeria.
Conflicting judgments
First, is the Election Petition Tribunal Judgments from Plateau State. “Here, while some panels in the state sacked some elected members of the House of Assembly and National Assembly on the ground that the PDP to which they belonged did not hold a valid primary election, some other panels disregarded that point and held that the issue concerning primaries of a political party was a pre-election matter and could not be raised to challenge the declared winner at an election petition tribunal (which has always been the legal position). When the matter went on appeal, the Court of Appeal surprisingly disregarded the settled principle of law that a pre-election matter cannot be raised at the post-election stage and affirmed the decisions of the tribunal which nullified the return of several PDP members on the ground that there were no validly conducted PDP primaries leading up to the general election, and while setting aside the decision of the panel that applied the known position.
The decision of the court of appeal affected the current governor. Luckily for the Governor, he had a right of appeal to the Supreme Court, which he exercised and got the Supreme Court to restate the position of the law, set aside the decision of the Court of Appeal and restored his mandate. Unfortunately for the members of the House of Reps from the state and members of the State House of Assembly who were elected under the umbrella of PDP, they lost their mandate since the Court of Appeal is their final level of appeal.”
Bashir Machina vs Ahmed Lawan
Another case was that of the Supreme Court judgment in Bashir Sheriff Machina vs Ahmed Ibrahim Lawan (Then Senate President). According to ActionAid, “It would be recalled that the then senate president did not participate in the Primaries for the National Assembly election for Yobe North senatorial district and Machina was returned unopposed. Shockingly, when Lawan lost out on the presidential primaries, his name was submitted by his party to INEC as the candidate for the Yobe North senatorial election. This led to the case instituted by Machina at the Federal High Court in line with the Electoral Act. He won both at the Federal High Court and at the Court of Appeal. When the matter got to the Supreme Court by an appeal by Lawan, the Supreme Court took a different turn by holding that the process used by Machina to commence the case at the Federal High Court was wrong. The apex court said rather than commencing his case by use of Originating summons, he ought to have used a writ of summons in light of the criminal allegations contained in the affidavit. This saw Machina losing out and Lawan being adopted as the party’s candidate since his name had already been submitted to INEC. In giving this judgment the Supreme Court disregarded its earlier judgments where it clearly held that only a party who took part in the primaries can contest the result of the primaries. The decision of the court sounds strange as the court abandoned the substance of the case despite the ample evidence that Lawan never contested the Primaries for Yobe North, which should have disqualified him, but relied on undue technicalities on the mode of commencing the action at the Federal High Court.”
2023 presidential election
And the mother of them all- the 2023 Presidential Election Petition Tribunal. “The presidential election petitions filed against APC and President Tinubu by Abubakar Atiku and Peter Obi presents a case filed with several issues which left citizens more confused than convinced that the tribunal was unbiased in its decision. A few of the grey areas were; the allegation of double nomination against Vice-President Kashim Shettima. It was argued that Shettima’s nomination as the running mate to Tinubu was in breach of the provisions of Sections 29(1), 33, 35 and 84{1)}(2)} of the Electoral Act, 2022 (as amended), claiming that Shettima had double nominations. Having been nominated as a vice presidential candidate, he had not withdrawn his nomination as candidate for the Borno Central Senatorial poll. Despite the decision of the court refusing the argument, the general feeling has been that Section 35 of the Electoral Act was violated by the double nomination of Shettima.
The section provides that ‘Where a Candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void. The court was, however, more concerned with who raised the issue, holding that such issues have to come from APC and not any third party; Civil forfeiture sufficient to disqualify a candidate. There was a lot of noise about the American case against Bola Tinubu, where there was an order against him forfeiting a certain amount of money which was proceeds of crime. Citizens saw this issue as very germane due to an earlier decision of the Supreme court delivered on the 17th of January 2014 by the CJN Ariwoola (as he then was) in a case between Mohammed Abacha, the second child of Sani Abacha, a former head of state; and the Federal Republic of Nigeria. One of the seven men on the panel of justices was Walter Onnoghen, a former CJN also held that forfeiture means ‘the loss of a right, privilege or property because of a crime’. How come the presidential tribunal disregarded this known position in the case of Tinubu to find that this particular forfeiture was not one anticipated by the constitution?
This has become a normal parlance in Nigeria, without much thought to the implications, given the absence of infrastructures that enable justice,” It stated.
Still on some of the contradicting judgments by the Nigerian judiciary, ActionAid cited the recent Edo Governorship election. According to the group, “The recent Edo governorship election shows us that there is still so much work to be done by Citizen groups. If we cannot get it right at the polls, if we cannot trust INEC, should we still be apprehensive of the Judiciary? What is the hope of a Nigerian?”
The presentation also covered “The Political Economy Analysis of Judicial Accountability in Post-Election Justice in Nigeria”, where it examined the complex interplay between political, economic, and institutional factors that shape the functioning of the judiciary, particularly in handling election disputes which helps to understand the urgency for intervention by Social movements, CSOs etc, to hold the Judiciary accountable.
It then gave a breakdown of the key components and considerations fuelling post election litigations: “Political factors which looked at the electoral system; Political actors and Influence, which see the political elites, especially those in power, attempting to exert influence over the judiciary to secure favourable judgments; Judicial Independence- The Nigerian Constitution guarantees judicial independence, but we can see an obvious erosion of its independence. Political pressure, corruption, and executive are undermining the judiciary’s role; Electoral Tribunals which are specifically set up to handle election-related disputes. The functioning and integrity of these tribunals are key to post-election Justice; Economic factors which deal with resource allocation- Adequate funding is necessary for the judiciary to function effectively. Financial dependence on the executive is limiting judicial autonomy, making the courts vulnerable to manipulation; Judicial Corruption- Economic incentives, such as bribery, may influence judicial decisions, especially in high-stakes election disputes; Political economy of patronage- post-election periods in Nigeria are often characterized by political patronage systems, where those in power distribute economic resources to maintain loyalty.
The judiciary is pressured to align with this system; institutional factors which deal with the ‘Legal Framework’ – The Nigerian Constitution and the Electoral Act provide the legal basis for post-election dispute resolution. However, loopholes in the law and delays in the judicial process are hindering accountability; Judicial Oversight Bodies: Bodies like the NJC play a role in ensuring accountability within the judiciary by sanctioning corrupt judges. However, the effectiveness of these oversight bodies is in question;
Electoral Tribunals and Courts– The efficiency and transparency of electoral tribunals are central to post-election justice. Delays in the adjudication process, non-compliance with tribunal rulings, and conflicting judgments can undermine the integrity of these mechanisms; and Enforcement of Judgments: Even when courts make rulings in election disputes, the enforcement of these judgments is sometimes met with resistance from political actors, raising concerns about the judiciary’s ability to hold them accountable.”
The NGE
Describing NGE as a “Non-governmental organization, non-partisan, and non-profit making organization for the highest strata of working journalists who have attained the exalted position of editors in the journalism profession to help Nigerian media practitioners to uphold the tenet and ethics of journalism, it pointed out that “Engaging with the Nigerian Guild of Editors (NGE) can significantly enhance ActionAid Nigeria’s efforts in its judicial accountability programs.”
It stressed the importance of media influence on public awareness whereby editors play a crucial role in shaping public opinion, adding that,”Through their reach and influence, they can help bring attention to issues surrounding judicial accountability, ensuring these topics reach a broader audience. By partnering with the NGE, ActionAid can gain visibility and foster a greater public understanding of judicial reform needs,” it stated.
The group gives more insight into how NGE could contribute more to having a working system. “Editorial Expertise in Advocacy: Editors in the NGE are skilled at presenting complex information clearly and compellingly. They can help convey the nuances of judicial accountability, including technical details and case studies, in ways that resonate with the general public and policymakers alike, supporting ActionAid’s advocacy goals.
“Strengthened Narrative and Credibility: The backing of respected media outlets, spearheaded by editors, can add credibility to ActionAid’s initiatives. The NGE’s engagement can amplify ActionAid’s message, validating its calls for transparency and accountability within the judiciary.
“Catalyst for Policy Reform: With direct access to policymakers and influencers, editors are well-positioned to drive conversations that can lead to policy change. Their editorial support could generate pressure on decision-makers to act on judicial reforms, aligning with ActionAid’s objectives.”
