BOOK SERIAL
By Chidi Anselm Odinkalu
The Senator Who Won an Election in Which He Was Not an Aspirant
The Supreme Court decision in Joy Emordi’s appeal against the belated award of her senatorial seat to Ubanese Alphonsus Igbeke was one of several inexplicably conflicting outcomes from that court in contests over elections which supposedly ended at the Court of Appeal. Several attempts by different candidates in elections inviting the Supreme Court to review decisions of the Court of Appeal met with conflicting outcomes. For instance, the Supreme Court decided in a contest over a Senate seat in Ebonyi State that it could intervene, but took a different view in another one going so far as to say that it would not entertain any such attempt “even if the decision is wrong.”
A judicial decision may be wrong without having been obtained by fraud or malfeasance. A court ought, however, to be able to set aside its own decision where that was obtained by fraud, but Nigerian judges appear to have chosen to disregard this in relation to the lucrative business of election dispute resolution on various excuses, the best known of which is that election dispute resolution is time-bound. That may indeed be so but a lingering fraud that is not lanced remains a continuing violation. When many of those occur over time, they corrode the credibility of the institutions which invent excuses for averting attention from them. Instead, the perception is now entrenched that the reason for this jurisprudence of ostensible despondency is that some judges may be involved in protecting judicial transactions with politicians.
Over three different cycles of elections, Ubanese Igbeke pioneered and then refined the art of winning elections not through the votes of the citizens but in the courts procured by the most implausible votes of marginal judicial majorities hawking curious jurisprudence. Around the same time that Ubanese Igbeke began his improbable experiment in relocating democratic legitimacy from the ballot box to the courtroom, the Uba Brothers in Anambra State also launched their gamble to turn their eldest sibling, Ugochukwu Uba, who was not even an aspirant, into the winner of an election in which he did not run for the seat to represent Anambra South in the Senate after the 2003 general elections. This gamble played out in the courts. Following the declaration of the result in favour of Nicholas Ukachukwu, who was the lawful candidate of the then ruling PDP, the Uba brothers got the INEC to exercise a power it lacked to administratively set aside the return. Then they had Ugochukwu Uba’s name substituted as the candidate of the party and the winner. In the Enugu Division of the Court of Appeal where the case was decided, they bought two of the three members of the panel with cash gifts and houses in Abuja, securing a majority decision of the panel, which sent Ugochukwu Uba to the Senate as the winner of an election in which he was not on the ballot. The decision of the Court of Appeal in the case concerning Ugochukwu Uba unleashed a scandal. In its aftermath, the President of the Court of Appeal, Umaru Abdullahi, transferred out of station all the Justices of Appeal who were then in Enugu, replacing them with a new panel. The National Judicial Council found as a fact that the decision by the two justices in the majority in the case had been procured through corrupt payments. Apparently forgetting the principle that a court has the inherent power to review a decision obtained by fraud, the Court of Appeal decided on an application for review that they could not revisit their decision “because we had already decided it.” This begged the question at best because it avoided the real issue, which was whether a judgment clearly obtained through corrupt payments to the judges could in fact be regarded as a judicial decision. In most jurisdictions, the answer to this would be obvious. In this case, however, the Court of Appeal chose to be credited with a decision which effectively determined it was lawful to buy and sell judgments in election petitions.
The Governor Installed from an Election in Which He Was Not on the Ballot
In October 2007, the Supreme Court effectively retrenched the distinction between pre and post-election disputes. The court determined in the case involving the governorship election in Rivers State that a person could be elected as governor even when his name was not on the ballot. In that case, the then ruling party had arbitrarily replaced the winner of its governorship primaries with a loser in the primaries, doing so in defiance of a court order. The facts of this case deserve some attention. Typically, election dispute resolution happens in two phases in any election cycle, before and after the voting. The pre-election phase is usually a dispute over determining the destination of the party ticket for the various positions to be contested. Under Nigeria’s Constitution, political parties enjoy a monopoly of the capacity to field candidates for elective office. Candidate selection has historically become a site of considerable dispute, however. The Supreme Court of Nigeria determined in 1983 in the case of Patrick Onuoha v. RBK Okafor & Ors that questions about party tickets were internal party matters beyond the purview of the courts. This jurisprudence created an internal market within parties which party managers used quite often to override the outcomes of contests for party tickets by substituting them with other persons who had not run in or emerged as winners in party primaries. Twenty-three years after the decision in Onuoha’s case, the Electoral Act 2006 required parties to provide “cogent and verifiable” reasons for such substitution.
In response, the Supreme Court determined that this new standard provided a basis for the courts to assert jurisdiction over candidate selection. The question of what the consequences of non-compliance with this new standard would be arose when the then ruling PDP decided unilaterally to substitute the candidate who emerged from its primaries for the governorship ticket in Rivers State ahead of the 2007 elections in favour of distant loser in the primaries. In the election that followed, the substituted candidate was declared the winner. The pre-election suit by the aggrieved aspirant ended up before the Supreme Court after the declared winner had been inaugurated. During the proceedings, it became evident that the party had no desire to comply with the statutory standard governing substitution of candidates. Notwithstanding the pending legal proceedings, it chose to take steps which clearly indicated that they desired to foreclose any inquiry into the subject matter and to present the court with a fait accompli. In its decision, the court ousted the substituted candidate and, going well beyond the reliefs sought by the ousted winner of the primaries, restored him not as a candidate but as the winner of the election in which he had been precluded from campaigning. In a poorly reasoned fit of judicial pique, the court went further to say that a person who was not on the ballot won the election.
To justify this, the court claimed, relying on section 221 of the Constitution, that it was political parties alone who ran for office in Nigeria and not candidates and that the aggrieved winner was always the presumed candidate of the party.” In so doing, the court established a dubious principle that candidates do not matter in Nigeria’s version of elective politics. This decision was hardly compatible with the right of the people to determine who governs them. Judicial electoralism was about to take off on a horse girdled with good intentions. This decision birthed “concerns among Nigerians about the potential repercussions of the judiciary taking on the role of determining political leadership by potentially supplanting the clectorate.
In 2003, the controversial circumstances of the outcomes in the cases of both Ubanese Igbeke and Ugochukwu Uba as well as the fact that the offices involved were in the legislature, arguably ensured that the underlying precedents did not necessarily catch the public imagination immediately nor did the implications for the right of participation and electoral democracy seem immediately obvious. However, the decision in Rotimi Amaechi’s case was too high profile in terms both of its political geography and of the office involved not to capture public imagination. In the years that followed, it would become evident that these cases had laid the foundations for a remarkable development in Nigerian politics: a judicial ouster of the people as the repository of electoral legitimacy.
TOMORROW…
Prof. Odinkalu looks at the specific methods the judiciary adopted to install itself as the ‘selectorate’.
