The Supreme Court’s Poor Judgment

by E. Terfa Ula-Lisa Esq

Constitutional Safeguard

The Constitution of the Federal Republic of Nigeria as it is, makes provision for three equal arms of Government; the Executive, the Legislative and the Judiciary. The Legislative arm makes the laws, the Executive executes the said laws and in the event of a dispute, the Judiciary is the major arbiter. In the distribution of powers, the three arms are meant to be equal. The concept of ascertaining the extent of the distribution of powers and responsibilities is what makes for the Separation of Powers Doctrine in our democracy. This arrangement is meant to present checks and balances. Where there are excesses in the Executive Branch, if a litigant presents the case, the Judiciary is empowered to call the Executive, Legislative or person (natural or corporate) to order and ensure compliance with the laws of the land. It is so in private disputes as well as in Election petitions when issues of compliance with the Regulations, contest and declaration of winners in an electoral contest are at stake. I take the position that this is the duty of the Judiciary.

In taking this position, I must note the contribution of Sheyi Oriade, Esq. in this discourse who posits that –

“For those observers who regard such judicial interventions in electoral outcomes as beneficial and essential for the strengthening of the roots of democracy, they will have no doubt come to this conclusion, on the basis of the demonstrable ineptitude of electoral bodies in the discharge of their functions in conducting free and fair elections.”

I do not make my premise on the demonstrable ineptitude of INEC, but posit that it is the constitutional duty of the Supreme Court to adjudicate in times of any dispute which is the raison d’etre of the Judiciary as headed by the Supreme Court making our democracy a rule of law, where everyone and every institution is in compliance with and subject to the law.

Legal Issues at Stake

In 2007, a classic constitutional issue arose in the pursuit of power via electoral mandate. The Legal question could have been framed as follows: Did the Independent National Electoral Commission follow its mandate in accord with the constitution and the law to conduct the elections of 2007? Did the person they declared winner win the majority of the votes in substantial compliance with the electoral laws?

I must again take issue with Sheyi Oriade who erroneously submits that

“In choosing to retain the status quo, by keeping in office a president, albeit one devoid of the public acclaim of the Nigerian people, the Supreme Court appears to have settled upon the best possible outcome out of a number of ‘worse case’ scenarios. It settled upon a man largely viewed as lethargic, but one who is unlikely to ‘pick the lock’ of our national treasury and reduce the nation to penury in the manner of some of his predecessors.”

I hope by all that is good, that that was not the reasoning of the court. Secondly, I know that those were not the legal issues as framed by even the lawyers whom the Supreme Court lambasted for ineptitude; and thirdly, I hope Sheyi Oriade is not a lawyer because while ‘the public good’ to a little extent may influence a decision one way or the other, it could not have been the major tipping point in the determination of a suit seeking to nullify the elections, except if Sheyi Oriade knows something not in the public domain.

Justice Delayed

An initial reading of the reported excerpts of the ruling of the Supreme Court in regard to the elections petitions of the 2007 elections shows that the Supreme Court is either not aware of its importance and responsibilities in our democracy, or it is cowardly or is compromised and cannot dispense real justice in Nigeria. An election was held in May of 2007, a final appeal judgment in regard thereto given in December 2008. The time it took to make its judgment shows that it is not a court that handled the assignment at hand with the urgency it deserved. That it took one and a half years to come to its conclusion is enough evidence of levity. Besides the litigants, all the local and International observers agreed that the elections were not only flawed, but were deeply flawed. Even the acclaimed winner of the elections came to the same conclusion and set up a panel to remedy the anomaly, even while the legitimacy of his presidency was in doubt. The only issue of proof was the extent of the anomaly. Were the elections so flawed that they ought to be rendered null and void? This, to my mind, was the bone of contention in one of the cases. If counsel did not address this very important issue, then, why was the suit brought forth? The Supremes who trade in logic know how illogical it is to give a judgment regarding a four-year term one and a half years into the term. Justice delayed, is justice denied is a well worn legal cliché.

Substantial Justice

On to the substance; while one agrees with the Supremes that INEC did a shoddy job, not enough attention was given to its consequence in the reported judgment. Are Nigerians satisfied with the shoddy job they did? What flaws, if any, did the Supremes identify? One is amazed that the court chose to blame the lawyers for the lack of justice. The Court is, after all, a court of Justice besides being a court of law. While procedure is important in law, I make bold to submit that in a Presidential election petition, issues of substantial justice should triumph over procedural rules. In the event that the Justices needed further submissions on the effect of the non-serialization of ballot cards, all they needed do, as is the practice worldwide, is ask counsel for a submission on the subject or even ask for written briefs on the matter. To rule that the elections were flawed egregiously, but because counsel made a poor presentation of the matter is to let such a serious matter of national importance and substantial justice suffer because of a poor choice of counsel!

It is true that counsel, and especially, Senior Advocates of Nigeria, ought to be learned in the law and know the subject in contest, but as Supreme Court Judges and joint officers at the temple of Justice, it was the duty of the Supremes, in the interest of substantial justice, to direct or re-direct the identified inadequacies of the said Learned Advocates. Further, because it was a national assignment such as only a few have the opportunity or privilege to partake in their lifetime, Justice demands that they ought to have strengthened the law with substantial justice by inquiring through probing questions, the effect, if any, of non-serialization of election ballots papers or seek further evidence of non-compliance with the law on the record, even as an appellate court. The Supremes could have called in vetted academic Scholars to present an Amicus Brief on the issue. To make such a declaration that the lawyers failed their clients is to abdicate responsibility for performing their constitutional duties in adjudicating and rendering substantial justice for citizens, litigants and between the arms of Government.

Judges and Accountability

The last I wrote criticizing the ruling of the Court of Appeal Justices, some persons without basis went to attack my person instead of the arguments I proffered. Most were displeased that I sought to contradict their learned wisdom; while the ignorant felt I was disrespectful. Judges and Justices are accountable or should be accountable to the law and people in a democracy. That is why in the US, besides meeting the legal qualification, in some states, they are voted into office to be judges in a democratic way, so when a judge becomes elitist, overbearing or corrupt, the popular vote can show him or her the exit. In Nigeria, Judges and Justices of the High Court, Court of Appeal and of the Supreme Court sit in judgment over the people, but the people too are judging them.

Right, wrong or indifferent, persons are making their opinions known regarding the judgment of the Apex Court. Wilson Anosike did not hold back when he wrote:

Instead of being faithful to justice, our four learned judges choose to play the game of favouritism. “The Aso rock big man should not lose the game! instead let the smaller seats be ceded to pacify some” When such rumors flew in the air many dismissed it as sheer conspiracy but the judgement finally affirmed that the majority of our judges are mere politicians—the Umezeokean type. In an earlier article “Between long-term gains and political expediency” published in www. shortly after the election, I affirmed that Umezeoke’s action points to a politician of the realist cadre. The Supreme court only proved him right that they too are politicians of the same kind. They only teach us that expediency pays more than value. Pecuniary gains worth more than justice.”

The people know the Justices, their earnings, their families and their lifestyles. If there are rumors that certain Judges after elections were looking for properties to buy with cash abroad, this becomes disturbing. Even if the rumors are unfounded, a plethora of Nigerians feel there was no justice done in the case in question. Okey Ndibe makes the case for the rest of us:

If there was ever a presidential election that deserved to be quickly and decisively invalidated, Yar’Adua’s was it. Yet, Justice James Ogebe headed an appeal court panel that gleefully reached the strange conclusion that Yar’Adua’s “election” complied with the law. In a twist that reeked of inducement, Yar’Adua nominated Ogebe for a spot on the Supreme Court days before the verdict. Neither Yar’Adua nor Ogebe had the moral sensibility to recognize that the timing of the nomination, if not the nomination itself, was abominable. Responding to the panel’s (predictable) verdict, I wrote: “On February 26, Ogebe and four other members of the Presidential Election Tribunal wrote their name into judicial infamy by returning an inept verdict in a petition filed by Muhammadu Buhari and Abubakar Atiku challenging the ‘election’ of Umar Yar’Adua as Nigeria’s President. In upholding the legitimacy of the latter’s ‘mandate,’ Ogebe and his colleagues proved that the law could be manipulated to uphold illogicality. Their judgment was nothing short of disastrous and shameful.”

The Judiciary as headed by the Supreme Court ought to have nullified or cancelled the elections of 2007, which everyone but everyone had termed patently flawed for non-compliance with the Electoral Laws. The Supreme Court had an opportunity to set the country on a path to the true Rule of Law by ordering a government of National Unity in the interim dominated by Outstanding persons not interested in elective positions to recalibrate and bring sanity to the electoral process, they failed. The Rule of Law and a True Democratic government elected by the people in substantial conformity to the Electoral Laws of the land under the Constitution of the Federal Republic of Nigeria could have had a chance. They failed the people and the Constitution, what a shame.

I rest my case.

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