Legal Experts Insist: It’s Unconstitutional to Challenge Sitting Governors, President – Part 3

I find it incomprehensible that the vast majority of the respondents’ attorneys in the deluge of petitions that followed the 2007 general elections, for instance, approached the Election Tribunals believing that the petitioners or plaintiffs needed to establish their claims beyond a reasonable doubt. Unfortunately, most tribunals had supporters among them, which is why the processes were drawn out and never ended. The message is clear to the politicians: go ahead and work with INEC and law enforcement to rig the system so that the opposition is exempt from having to prove its case beyond a reasonable doubt!

What is the rationale behind an Election Tribunal operating similarly to a Crime Tribunal? Section 144 of the Electoral Act, 2022 [which is equivalent to Section 157 of the Electoral Act, 2006] states that “The Commission (INEC) shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition.” This is the most that a tribunal can do on any issue pertaining to an established crime in an election suit.

It is obvious that the Supreme Court’s decision in Unongo v. Aper Aku has committed and sustained injustice in Nigeria by establishing the loophole that permits election petitions to run, effectively, forever! Election power has been transferred from the electorate to the judiciary. Political fraud, bribery, corruption, and election malpractice have all been fostered by it. Politics of “rig first, win, let the other party go to court” has been promoted. If we are elected, we will fight from the mountain, while the other party will fight from the valley, no matter how long it takes! What more is there to hope for in an extra-constitutional ruling?

The Nigerian courts are not empowered to permit electoral actions against the president or a serving governor, I reiterate. Before the candidate declared elected by the Electoral Commission is sworn in as president or governor, the courts have jurisdiction over the election suit. For this reason, only four circumstances are listed in the Nigerian Constitution of 1979 or 1999 that can result in the election of a new president or governor: (i) death, (ii) resignation, (iii) incapacitation, or (iv) impeachment.

To clear up any confusion, the following is s.146 (1)(2) of the 1999 Constitution, which is basically the same as s.134 (1)(2) of the 1979 Constitution: 146. (1) In the event that the President is removed from office for any cause under section 143 or 144 of this Constitution, including death, resignation, impeachment, permanent incapacity, or anything else, the Vice-President will assume the President’s duties. (2) In the event of a vacancy in the circumstances listed in this section’s subsection (1) during a time when the vice president’s office is also vacant, the Senate President will serve as President for a maximum of three months, during which time a new President will be elected to serve the remaining term of the previous occupant. [Section 144 addresses permanent disability, while Section 143 addresses impeachment. The focus is on impeachment and permanent incapacity since these are lengthy procedures, unlike death or resignation. The writers of the Nigerian constitution never considered removing the president or a serving governor because the courts declared the election to be invalid.

As I mentioned in the first section of this speech, “a governor or the president, by virtue of s.308 of the constitution, is not a compellable witness; he cannot be subpoenaed by any court in the land.” However, any candidate, including the president-elect or the governor-elect, may be forced to appear in court. Along with this, I noted that “subsections 5 to 8 inserted into s.285 of the 1999 Constitution after the 2010 constitutional amendment exercise are in utter conflict with s.191, s.146, and s.308(1a) and run contrary to the intention of the framers of the constitution.” Election petition procedures shall not prolong a state governor’s or president’s term. Subsections 5 to 8 of s.285 should therefore be overturned by the courts since they are against natural justice, common sense, and the framers’ intent.

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The Supreme Court must go backward. Since Unongo v. Aper Aku (1983) involved an action that was not permitted by the constitution, we cannot even claim that the court committed a legal error. However, even if we accept that the highest court just made mistakes in the law, we need now pay attention to what the Lord Chancellor said when the British House of Lords voted to do away with the absolute binding effect of their own decisions on legal matters in 1966.

In order to determine the law and how it applies to specific situations, Their Lordships view precedent as an essential basis. It gives people at least a minimum level of assurance that they can rely on while managing their affairs and serves as a foundation for the systematic creation of laws. Their Lordships do acknowledge, however, that a too rigorous regard to precedent can potentially impede the proper evolution of the law and result in unfairness in a given case. Therefore, they intend to change their current procedure and, while maintaining the binding nature of earlier House decisions, deviate from them when it is appropriate to do so. The purpose of this announcement is not to change precedent-setting outside of this House.

The Nigerian Supreme Court must now take advantage of the first chance it has to overturn its own decision within the court.

How can we get out? In accordance with Section 233(5) of the 1999 Constitution, any Nigerian citizen or fellow countryman with an interest in this issue may request permission from the Supreme Court to join any election petition involving the president or any governor, should the case reach the highest court. For lack of jurisdiction, the applicant will ask the Supreme Court to halt, dismiss, or put on hold actions taken against the president or a governor.

The renowned Lord Denning, the late Master of the Rolls, said in The Discipline of Law: “The court will not listen to a busybody who is interfering in things which do not concern him, but it will listen to an ordinary citizen who comes asking that the law should be declared and enforced, even though he is only one of a hundred, one of a thousand, or one of a million who are affected by it.” This statement provides guidance on the issue of locus standi, which will inevitably arise upon such an application by any concerned citizen or other person with an interest in the matter. Because of the new process, I hope we have an actio popularis in England where a regular citizen may enforce the law for everyone’s good.

To put it another way, we have an actio popularis in Nigeria. The Nigerian Supreme Court shouldn’t keep making mistakes. The late Justice Chukwudifu Oputa once said, “We are final not because we are infallible; rather we are infallible because we are final,” in Adegoke Motors vs. Adesanya, [1989] 13 NWLR, pt.109, 250, page 275. The justices of this court are fallible human beings. It would be shortsighted hubris to ignore this evident fact. Furthermore, it is true that this Court’s prudent rulings have the potential to accomplish immeasurable good. In the same way, the Court’s errors might cause irreversible injury. Therefore, experienced counsel should have the guts and bravery to request that a decision be overturned when it seems to them that it was rendered per incuriam. Since it firmly believes that it is preferable to acknowledge mistakes than to continue making mistakes, this Court has the authority to overturn itself and has done so in the past.

Given that the 1979 election dispute was resolved in less than two months, how much more leeway do the 1999 Constitution’s modified s.178(2) and s.132(2), which allow for a governorship or presidential election to be held 150 days prior to the swearing-in date, grant?