Wednesday, 19 June 2013
Supreme Court Of Nigeria And Ss.285 (6)(7) Of The 1999 Constitution: New Booby Traps For Election Litigants?
This article is an attempt at a critical analysis of a recent Supreme Court of Nigeria’s (“SCN”) decision that may have profound implications on the behavior of litigants in cases involving electoral disputes and the adjudicators or judges who hear these cases. With the SCN’s ruling in the lawsuit brought by the PDP challenging the election of Kashim Shettima as the duly elected governor of Borno state, a new chapter has been opened in Nigeria’s rapidly growing, though often disjointed and irreconcilable jurisprudence on elections law. The decision in the PDP v. Kashim Shettima case (citation may not be official) was handed down on the same day as that in PDP v. Abdula’Aziz Yari Abubakar (citation may not be official) which also involved a challenge to the election of the governor of Zamfara state.
The SCN decided the Zamfara state case based on established legal principles that the petitioner bears the burden of establishing the evidentiary basis for the petition. I have not examined the facts of that case and therefore not in a position to decide whether the SCN decision reflected the facts. However, the principle from the case is consistent with established legal principles. The decision in the Borno state case is the one that should be giving candidates for political offices and elections lawyers in Nigeria sleepless nights. In that case the SCN decided in line with section 285(6) and (7) of the 1999 Constitution as amended that an electoral tribunal must render a decision in a case involving dispute over elections within 180 days from the filing of the petition. It also held that the Court of Appeal must render a decision within 60 days from the date the tribunal handed down its decision. I am in complete agreement with the court’s interpretation of this constitutional provision but very concerned about its implication for future cases. The Court of Appeal had set aside the decision of the tribunal upholding the election and ordered a new election. However, the Court of Appeal decision came down after 60 days, a violation of section 286(7) of the 1999 Constitution as amended.
While I had thought it will take a while for the full implications of this decision to become apparent, I was wrong. Just this afternoon, the electoral tribunal sitting in Awka, Anambra state followed the principles enunciated by the SCN in this Borno state case to dismiss Dora Akinyuli’s challenge to the election of Dr. Chris Ngige as the senator representing Anambra Central Zone. The tribunal held that it had been over 180 days since the petition was filed and given that a decision was yet to be made, any decision made will be a nullity in line with the principles of the Borno state decision. Once again, the overriding concern here is not the facts of the case, but the principle applied.
basic principles from the decision in the Borno state case are:
1. An electoral tribunal cannot adjudicate on a matter for more than 180 days from the date it is filed; and
2. The Court of Appeal cannot adjudicate on a matter involving a decision from an electoral tribunal 60 days after that decision was rendered.
My foremost concern with this decision is that it may have provided our nefarious politicians and their collaborators in the judiciary with the latest tool in elections rigging and the subsequent delays in getting decisions from the tribunals and the appellate courts. In the Borno state decision, the SCN did not explain what will happen in situations where a tribunal refuses or fails to render a decision within 180 days or 60 days as in the case of the Court of Appeal. What is a petitioner to do in such situations?
It would appear that these imperatives cannot be altered by any event, including the death of one or all of the members of the tribunal or court, a bomb explosion, earthquake, tsunami or a Boko Haram attack! Seriously, the provision appears to be ironclad and does not provide a basis for an excuse or relief from its provisions by even the SCN. But does this solve the problem of delayed justice that the provision was crafted to address? While the SCN’s decision provides clarity as to the meaning of the provision, does it provide a litigant with options if his/her right to a decision within 180 days or 60 days as the case maybe is violated?
The SCN is in a position to know “what’s up” in Nigeria’s political terrain. It took the apex court more than three years to render a decision in General Buhari and Gov. Obi’s challenges to Obasanjo and Dr. Ngige’s 2003 electoral victories or heist respectively. Had s.285(6)(7) been in place in at the time of the General Buhari and Gov. Obi cases, the SCN would have been prohibited from adjudicating these cases. This gives an insight into the grave implications of this provision and judgment unless an appropriate relief can be fashioned out for those litigants who are bound to become victims of tribunals and courts that will constitute themselves into “refuseniks” and not render decisions within the stipulated time frames.
The Borno state decision is the outcome of sound legal reasoning that does justice to the particular provision of the 1999 as amended. I do not have a problem with the decision itself but I do have a gargantuan concern about its implications for future cases involving disputes over elections. While I praise the SCN’s timely response to the call by lawyers like Barrister James Igariwey to revisit section 285 (6)(7) of the 1999 Constitution as amended and provide a definitive interpretation in his Vanguard article of December 11, 2011 (http://www.vanguardngr.com/2011/12/election-petitions-between-the-judici...), but with due respect the apex court fell short of disposing of the problem. It has now confirmed the interpretation of a constitutional right to a judgment within a certain timeframe without dealing with the relief that maybe available to anyone denied of this right. It maybe that this need is beyond the SCN’s jurisdiction. It is definitely not beyond that of the National Assembly. This is the time for Mohamadu Jega to sound the alarm and approach the National Assembly for solutions. It will be unpatriotic to wait until it becomes a bigger problem. Just ask sister Dora Akinyuli how she feels about becoming the first victim of this precedent in a case where it looks like her opponent may have deliberately refused to move the case along. Again, I do not know all the facts of that case and it is possible that the outcome of the case would have been negative if it had been made within the stipulated time frame.
Given the context in which elections are conducted in the Nigeria the shenanigans employed in the nomination, selection of candidates, and the actual conduct of the elections, the recent history of litigation surrounding elections in the country, the notoriety and susceptibility of adjudicators to financial and other inducements, is there anyone out there who is prepared to bet his/her hard earned or even stolen money that we are not about to start seeing cases of tribunals or courts not rendering decisions within the time frames stipulated by the Constitution? Are there measures in place to replace tribunal members or judges who become conveniently sick or kidnapped by Boko Haram, indisposed or die during the sitting? I guess the amendment or maybe butchering of the 1999 Constitution is about to go into a higher gear. According to Fela, “second beat jare”