Beyond Atiku’s Voyage… a Postmortem

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

As expected, I had some backlash from my piece of last week, ‘Behind Atiku’s Voyage of Discovery’, which did not go down too well with those did/do not support President Bola Tinubu, and had their own preferred candidates. At the same time, others contacted me to thank me for educating them on the position of the law, and expressed their concern and dismay at why it has become the norm for Lawyers to bring the Judiciary into disrepute, knowing that their cases are, at best, watery in the eyes of the law. Nonetheless, Sections 39(1)  & 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) guarantee our right to freedom of thought, expression and association, and I therefore, respect the fact that not everyone would agree with my submissions in the above-mentioned piece. Again, even though the aforementioned fundamental rights are not necessarily absolute (see Section 45 of the Constitution) and can be limited in certain circumstances, for example, freedom of expression is limited when the line of libel and/or defamation of character is crossed, because in Nigeria, Lawyers are almost free to conduct their cases however they deem fit, abuse of court process or not, they pretty much get away with anything.

Dissenting Opinions on ‘Behind Atiku’s Voyage of Discovery’

Three things that the ‘Dissenters’ harped upon were: 1) that the issues of qualification and disqualification for office to the election of President are a constitutional matter provided for by Sections 131 & 137 of the Constitution, and so, should be able to be considered in an election petition, contrary to the provisions of Section 29(5) of the Electoral Act 2022 (EA) and Section 285 of the Constitution; 2) the issue of morality (which I won’t bother to discuss again); and 3) that election petitions, at least for the office of President, should be concluded before the swearing in ceremony, as it is done in Kenya, and someone’s suggestion as to how to make sure this happens, is by letting only the Supreme Court hear Presidential election petitions. 

Qualification and Disqualification 

Important Role of the Legislature: The Constitution Isn’t Self-Executing 

The responses of the Dissenters evinced one important fact – that the Legislature has a huge part to play in all this, but we do not seem to be averting our minds to that fact at all. Instead, our main focus is on the Judiciary, forgetting that it’s decisions must be handed down in accordance with the provisions of the law and the evidence placed before it. Sections 4,5, & 6 of the Constitution provide for the functions of the three arms of Government, the Legislature, Executive and Judiciary respectively. The Legislature’s principal role is to make laws for the peace, order and good governance of Nigeria; the Executive, is to run the government and execute the laws, both in accordance to the rule of law, while the Judiciary adjudicates on all matters, as well as interprets statutes, with the Supreme Court making policy when called upon to do so. In Buhari v INEC (2008) LPELR-814 (SC) per Niki Tobi, JSC, the Supreme Court held inter alia that it is the Constitution and Statute that vest jurisdiction on the courts – the Constitution does not give the courts any power to make laws. See Sections 6(6)(b), 232 zand 233 of the Constitution. 

Examples of Legislative Intervention

1) The Constitution in many areas, is not a self-executing document, and it is the laws enacted by the Legislature that are then used to execute the provisions of the Constitution. So, for instance, while Sections 214-216 of the Constitution provide inter alia for the establishment of the Nigeria Police Force, the office of the Inspector General of Police, it is the Police Act 1943, now 2020 (PA) – the establishment statute of the Police, that provides for the details of the duties of the Police, tenure of the office of the IG and other matters relating to the day-to-day activities of the Police. Other legislation like the Administration of Criminal Justice Act 2015 (ACJA) and so on, also have provisions that touch on the activities of the Police. 

2) Similarly, even though Section 153(f) of the Constitution provides for the establishment of the Independent National Electoral Commission (INEC) and other provisions like Sections 78 & 118 also mandate INEC to register voters and conduct elections, in the case of the actual electoral process, it is the EA that is the executory document, that is, the establishment statute of INEC under which it operates, and its  road-map from the appointment of INEC Staff, INEC’s functions, to how elections in Nigeria should be conducted, from voters registration to primaries, to voting, to how the results are recorded, collated, submitted, announced, and to how to present election-related cases concerning different aspects of electoral process to the courts for adjudication. There are also the INEC Guidelines.

Take for example, Section 131(a) of the Constitution, which provides that a Presidential candidate has to be a Nigerian citizen by birth. It is undeniable, that this is a matter of constitutional qualification. How can a Ghanaian who does not meet the qualification set out in Section 131(a), run as a Presidential candidate in Nigeria? Surprisingly, the EA doesn’t seem to give even INEC the power to refuse the nomination of such a non- Nigerian candidate, and Section 29(5) of the EA has not only categorised such a matter as a pre-election matter, it also provides for how any complaint against such Presidential candidate under Section 131(a) of the Constitution must be instituted, and who can bring the action. In this scenario, there is the argument by the Dissenters against Section 29(5) of the EA, that it is restrictive in its choice of who has locus standi to bring an action concerning the failure to meet the qualification in Section 131(a), qualifications generally or those of disqualification. They go on to argue that any Petitioner, in the determination of his/her rights is entitled to a fair hearing by virtue of Section 36(1) of the Constitution, and denying them the opportunity to touch on matters of qualification or disqualification in the election petition (or otherwise), is unconstitutional, since they are also denied the opportunity to ventilate these grievances at the Federal High Court as pre-election matters. It is noteworthy to mention that the right to fair hearing is absolute, as it is not one of the rights mentioned in Section 45 of the Constitution, that can be restricted or derogated from.

In Danladi v Dangiri &  Ors (2014) LPELR-24020(SC)  per Kudirat Motonmori Olatokunbo Kekere-Ekun,  JSC, the Supreme Court held inter alia that fair hearing is a rule of natural justice. Also see the cases of Orugbo v UNA (2002)  LPELR-2778  (SC) per Niki Tobi, JSC; Segun v State (2021) LPELR-56603 (SC) per Ejembi Eko,  JSC. 

The purport of Section 29(5), the Dissenters argue, is that we could indeed,  end up with a Ghanaian President if no co-aspirant raises the issue of non-citizenship  timeously, and any other opponent or person  is precluded from raising it at all, and this should not be so. This argument, cannot be said to lack merit. A pertinent question to ask may be, what is the rationale behind restricting the complainants on constitutional qualifications or disqualifications, to fellow aspirants in the same party? Should  it remain as a pre-election matter for them, and an election petition matter for candidates from opposing parties? My dear colleagues, kindly, share your thoughts on this.

However, expanding the category of those who have locus standi to bring such qualification or disqualification matters to court, whether as pre-election matters or to the tribunal as part of election petitions, is a job for the Legislature and not the Supreme Court (or any other court) to do, by amending Section 29(5) of the EA. For now, matters of qualification and disqualification remain pre-election matters, which members of opposing parties considered to be ‘meddlesome interlopers’ cannot bring to court or the tribunal. See the cases of Akinlade & Anor v INEC & Ors (2019) LPELR-55090(SC) per Ejembi Eko, JSC; Atiku Abubakar v INEC 2020 12 N.W.L.R. Part 1737 Page 37.

Even if the courts are called upon (possibly by way of Judicial  Review or Originating Summons)  to examine the constitutionality of Section 29(5) of the EA vis-à-vis Section 36(1) of the Constitution, assuming that Section 29(5) was declared unconstitutional to the extent of its inconsistency with Section 36(1) on the ground that it is repugnant to natural justice, equity and good conscience, the court cannot be the one to expand the locus standi of who can bring qualification matters, by including new categories of litigants, or change the venue or process for adjudication. In  Government of Gongola State v Tukur 1989 4 N.W.L.R. Part 117 Page 592 per Chukwudifu Oputa, JSC, the Supreme Court held thus: “A declaratory  judgement is a binding adjudication that establishes the rights and other relations of the parties, without providing for an ordering enforcement”. 

The Apex Court likened a declaratory judgement to “a toothless bulldog which  can only bark…. but it cannot bite to vindicate its overt anger and  aggression”. Also see the case of Iragbiji v Oyewinle 2013 13 N.W.L.R. Part 1372  Page 566 at 580 per Olabode Rhodes-Vivour, JSC where the Apex Court held inter alia, that a declaratory judgement does not order anyone to do anything.

Supreme Court Sitting as Presidential Election Petition Tribunal

One of the Dissenters also suggested that in order for the Presidential election petition to be concluded swiftly before the swearing in of a new President, only the Supreme Court should hear it, as it would make the adjudication process shorter. Presently, by virtue of the provisions of Section 285 of the Constitution, it is impossible for a Presidential election petition to be concluded before swearing in. It takes about nine months or so to complete, six of the nine months running after the May 29 swearing in. Correction of the present state of affairs, however, will require a constitutional amendment in accordance to Section 9(2) of the Constitution, since Section 232(1) thereof only gives the Supreme Court original jurisdiction in disputes between the Federation and a State, or between States, and definitely not in election petition matters. 

Conclusion 

In a country like the UK from which we have borrowed some of our legal process, the Courts cannot shoot down a statute. It is strictly a parliamentary function. However, in Nigeria, while the courts can interpret a law and declare it unconstitutional, they do not have the power to amend laws and include new elements into them. Now that a weakness in Section 29(5) of the EA may have been identified – after all, the 2023 general elections was the first time the new EA was fully tested, it is for the Legislature to take action to correct it. This, the Legislature is empowered to do, even without the intervention of any court.

Blaming the Judiciary and pouring invectives on them for the failings of a law which they did not enact, or insisting that they act ultra vires their powers by either amending a law and handing down a decision having exceeded their powers by amending same, as the Dissenters seem to desire, is unusual, unfair to the Judiciary and bizarre. It would be more sensible for the Dissenters to face the Legislature, and lobby them to amend Section 29(5) of the Electoral Act.