ACCENTUATING THE CARDINAL CONSTITUTIONAL ROLE OF THE JUDICIARY IN SETTLEMENT OF PRE -ELECTION MATTERS AND ELECTION PETITIONS!

Following recent final court decisions in some pre-election matters and or Election Petition Appeals, candidates and their supporters who lost out in some of the cases decided on a final appeal either in the Court of Appeal (for State and National Assembly Elections) or in the Supreme Court (in the Governorship and Presidential elections or in Pre-election matters) have been crying blue murder either in the mistaken impression or deliberate mischievious hue that the courts are not part and parcel of the electoral process in Nigeria.

Massively deploying the services of spin doctors and hack writers including ignorant commentators, these somewhat “sore losers” are busy selling the ignoble narrative that it is the courts that now impose winners on the electorate as opposed to winners emerging via the ballot box.

For the undiscerning this warped logic looks dangerously attractive and pitches the masses against the sacred institution of the judiciary.

However, this does not represent the true state of facts because the law in Nigeria does not oust the jurisdiction of the courts in such high profile political cases.

It has therefore become imperative for it to be reiterated and emphatically too that the judicial powers donated to the Courts in section 6 of the 1999 Constitution as amended also extend to settlement of disputes emanating from intra party political contests and general elections.

As a first principle, our law frowns at resort to self help remedy as aggrieved persons are afforded ample opportunity to ventilate their grievances in civilzed forms.

This is couched in the ambitious Latin maxim “ubi jus ibi remedium” (meaning for every wrong, the law provides a remedy).

Access to courts for justice by an aggrieved person is one of the key manifestations of the concept of rule of law.

Consistent with this hallowed principle of rule of law, our law made robust provisions for redress of wrongs and injustices that may arise or be occasioned during contestations for power either within the political party itself during party primaries or when political parties compete against themselves during general elections conducted by INEC.

By a community reading of the provisions of the 1999 Constitution of Nigeria as amended and the Electoral Act, 2010 as amended, the role of the judiciary as the final arbiter in determining issues that arise from intra party and inter party elections are clearly defined and recognized.

Practically, the three recognized logical steps to attaining elective political office in Nigeria begin firstly with successful nomination as a candidate by a political party via primaries in intra party politics.

Only political parties can sponsor candidates in an election and based on the hallowed principle of party supremacy, the courts seldom interfere with the internal affairs of political parties.

However, under the Electoral Act, a small window for judicial intervention in party primaries is left open to aggrieved aspirants only and it is a pre-election matter.

The next and second key stage is the general election or inter party election involving sponsored candidates of the different political parties slugging it out for votes of the registered voters.

After the general election, INEC declares the result by announcing the winning political party and their candidate.

Thereafter, aggrieved political parties and or their candidates may decide to present election petitions within the stipulated time to an Election Petition Tribunal for adjudication.

This leads to litigation which is the third and last critical stage in the journey of political power that started from nomination and election.

Litigation by way of election petitions duly filed by aggrieved political parties and or their candidates are to be decided by the judiciary and this is where the Courts come in strongly.

Unless and until the status or eligibility of a sponsored party candidate to participate in the election or the mandate purportedly given to any political party in an election survives the critical judicial scrutiny in the Pre-election Courts or Election Petition Tribunals respectively, the fates of such candidate or mandate are still hanging in the balance.

Therefore, any vote cast for an unqualified candidate of a political party who was not supposed to stand for the election ab initio and subsequently sacked by the court in a pre-election suit is wasted vote or mandate.

Again, votes cast for a candidate of a political party that is removed from office by the Court following from an Election Petition on any of the grounds recognised under the Constitution and Electoral Act are wasted votes.

By law, elections are won by duly qualified candidates of political parties who garnered majority of valid and lawful votes cast (add spread only in Governorship and Presidential elections).

In a pre-election matter, it is the unshakable legal duty of the Court to stop unqualified candidates from taking part in the election and this will be given effect even if they go ahead to participate and win before the matter is concluded.

In an election petition, it is the unshirkable legal duty of the Court among other things to ensure that the election was conducted in substantial compliance with the electoral laws and that usurpers do not occupy positions they did not lawfully win.

Against the foregoing, it is therefore untrue and deceptive to make it come across that the courts do no allow the votes of the electorate to count when they eventually sack usurpers who were wrongfully declared winners or when they disqualify those who did not satisfy the irreducible minimum qualifications for holding public office ab initio.

This power of the courts to sack or remove usurpers from the offices they are unlawfully occupying is consistent with the constitutional power of adjudication bestowed on the judiciary and does not amount to supplanting the democratic will of the voters.

Conclusively therefore, any candidate participating in an election or any political party sponsoring candidates in an election ought reasonably to know that the Courts are not meddlesome interloppers but necessary gatekeepers in the elective position power calcus.

Thus, no election victory is “home and dry” until it survives judicial scrutiny.

That is our law and a good one at that.

No matter how desperation for power leads our political class to call out the judiciary, even for the wrong reasons, the judiciary remains the bulwark of democracy and the last hope of the common and uncommon man.

To pretend otherwise is laughable as it amounts to living in self denial.

A new normal is possible!

🖋
*Prof Obiaraeri, N.O., Ph.D (Law), B.L., FHRI, etc.*