A Case for Filling Court Vacancies

Excessive Number of Election Petitions

I was just wondering to myself whether there’s any other country in the world like Nigeria, where they have as many election-related matters and petitions as we do, and the court system more or less grinds to a halt in order to accommodate them only during election season! After the 2019 general elections, the former President of the Court of Appeal, Honourable Justice Zainab Bulkachuwa (Rtd), stated that there were over 800 election petitions (I do not think this figure included pre-election matters). Is this an indication that there’s something wrong with our electoral process, which thankfully, is being reformed – the outcome of the reformation which we will see after the 2023 elections? Or perhaps, is there something wrong with majority of our Nigerian politicians, including not having game spirit and being sore losers, since it’s almost automatic for most election primaries or actual election losers to rush to court or the tribunal to try to win elections via the courts, having lost sometimes fair and square through the actual electoral process? Either way, with a court system whose wheels already move ever so slowly, the general public whose matters are set aside pending the resolution of election-related matters suffer the brunt of the delays occasioned by these election matters. As the saying goes, “Justice delayed, is Justice denied”. 

Constitutional Provisions

Granted, Section 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) sets some time lines for the completion of pre-election matters – about 342 days from start to finish (Section 285 (9)-(12)) and about 321 days from start to finish for election petitions (Section 285 (5)-(7)). So, for instance, High Court Judges who are seconded to Election Tribunals will be away from their stations for six months, while those who hear pre-election matters in their courts must also conclude in the same six months. 

But, the truth of the matter is that it is not only election matters that have time lines for processing and completion. For instance, Section 35(3), (4)(a) & (5) sets time limits for an accused person who is arrested to be brought before a court of law and tried, or be released unconditionally or on bail. Meanwhile, most of those in custody have been awaiting trial for years, some have not even been informed of their offence. Criminal matters like this are set aside, in favour of political cases, even when they involve the fundamental rights of persons, including their right to personal liberty guaranteed by Section 35 of the Constitution! Does this mean that, election matters are more important than the enforcement of the fundamental rights of Nigerians? 

For example, Section 35(5)(a) of the Constitution provides inter alia that, if an accused person is arrested or detained in any place where there is a court of competent jurisdiction within a radius of 40km, maybe in Ikeja, Lagos, he/she ‘shall’ be brought before a court of law within one day (see the case of Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 at 441-442 per Niki Tobi JSC on the term ‘shall’ being mandatory/a command in a statute) and tried within two or three months from the date of arrest (depending on if the accused is in custody or not entitled to bail, or has been released on bail). This means that the trial of a Defendant arrested in Ikeja or within Enugu or Kano metropolis, if he/she isn’t entitled to bail, should be commenced within two months from the date of his/her arrest or remand in custody. If such arrests take place and cases have already been assigned to courts in which Judges have gone on Electoral Tribunal Duty, maybe their pleas have already been taken, such unfortunate Defendants will probably have to wait until the courts resume sitting. This constitutional provision is observed mostly in its breach, with prisons all over the country being predominantly over-populated with accused persons either awaiting trial trial, or with part-heard matters. 

But, once Judges hearing these matters are appointed as Election Tribunal Judges, these criminal matters which also have time limits are put on hold for months on end, while the Judges are doing Election Tribunal service! Section 315 of the Administration of Criminal Justice Act 2015 (ACJA) even provides inter alia that where a Magistrate or Judge is unavoidably absent, in the case of Judge, this could be when such judicial officer is serving on an Election Tribunal, if the judgement in a criminal matter has already been reduced into writing by the said Judge, another Judge may read the judgement in open court. Is this ever done? 

Section 396(3) of ACJA provides that once a Defendant has been arraigned, a trial shall proceed daily until it is concluded; and where a day-to-day trial isn’t practicable, no party shall be granted more than five adjournments from arraignment to judgement with no more than a 14 day interval between each adjournment. This means that if there’s one Defendant in a criminal trial and both the Defendant and Prosecutor exercise their rights to five adjournments each, the whole trial shouldn’t last more than about seven months in total, 90 days given to deliver judgement after cases have been closed and final addresses adopted (at least less than one year). 

Unfortunately, while these time lines in criminal matters which involve matters of liberty etc are mostly never met, let alone those in civil matters, election-related matters are given priority over them. Normal cases can take up to 20 years to be finally determined at the Supreme Court; meanwhile, election matters are in and out of all the courts in about a year or less! 

Court of Appeal Recruitment Process

Last week, I discussed weak institutions and used two recruitment processes for the Court of Appeal as an example – that in the 2020/2021 recruitment process, the former NBA President, Olumide Akpata had revealed that some of the shortlisted candidates did not know basic legal concepts like ‘Lis Pendens’ and were expected to learn on the job, as if a court as important and crucial as the Intermediate Court, Court of Appeal, some of whose Justices would eventually constitute the Supreme Court, is a Law Faculty or the Nigerian Law School, while in the present recruitment exercise, the Computer Based Test (CBT) was cancelled because some candidates for position of Court of Appeal Justice are not computer literate. 

I laughed when I read the case of Federal Republic of Nigeria v Abdul 2007 5 EFCLR Page 204 at 228 in which the Defendant was arrested by the EFCC and arraigned on a two-count charge of being in possession of documents containing false pretences contrary to Section 6(8)(b) and 1(3) of the Advanced Fee Fraud and Other Related Offences Act (scam emails which he had used to defraud innocent victims). The trial Judge, who obviously couldn’t have been computer literate, likened the sending of an email to the physical posting of a letter at the post office, and held inter alia that, the Accused cannot be guilty of being in possession of a letter that he has written and posted. Obviously, the Judge was not aware that in the Email regime, there’s the Inbox, Drafts, Outbox, Sent, Junk and Bin! Neither was he aware that when an email is dispatched, it goes to the Sent Box of the Sender, and the Inbox or even Junk Mail of the Receiver; and so, unlike a physical letter that is dispatched at the post office and is no longer in the possession of the Sender, in the case of an email, the Sender still has possession of an email that has been sent, as it will remain in the Sent Box until it is deleted. It is when an email goes into the Sent Box of the Sender, that one is aware that an email has been successfully sent. In this day and age, it is imperative that judicial officers are not only computer literate, but are at least able to understand the rudiments of the digital age which we are in. 

One would imagine that with the elections being upon us, and with the foreknowledge that many Judges and Justices will be involved in election matters, thereby more or less grinding our court system to a halt, there would be a rush to fill the 20 vacancies in the Court of Appeal forthwith (and vacancies in all other courts), so that, at least, the Court of Appeal is complete before the February 2023 elections, and maybe there will be a few of them left to hear non-election-related appeals. We therefore, call upon the National Judicial Council (NJC) to use this holiday season to hasten the recruitment of the Court of Appeal Justices and complete the process now in the interest of justice for Nigerians, so that by February 2023, the new JCAs will already be in their positions.

Conclusion 

Just as there’s a clamour for an Election Offences Commission, there is also another demand for a dedicated Election Petition Tribunal. Some have also suggested that retired Judges be co-opted into the Election Tribunal regime, so that sitting Judges will be able to face their own dockets squarely. A constitutional amendment may however, be required for retired judicial officers to be able to participate. My dear colleagues, kindly, share your opinion on this issue. Given the fact that election-matters should be time bound, so as not to make a court decision not just an empty, academic one if it stays for the usual long number of years in the court system, with judgement coming after the term of office has been completed and maybe the rightful occupant of the position never occupying the said position because of the delay in getting judgement, how can we surmount this problem of rising number of election-related matters, and giving them priority in the court system to the detriment of all other cases, especially as this practice raises issues of unconstitutionality and illegality in relation to the neglected matters?