Administration of Justice Archives - Centre for Social Justice

Determining the province of electoral dispute adjudication

Center for Social Justice — Mon, 13 Feb 2023 06:58:25 +0000

Recent decisions of the Supreme Court in pre-election matters have raised a lot of dust and controversies. The decisions have attracted a lot of comments from Nigerians- members and non-members of the legal profession. The central concern has been about decisions that resolved electoral disputes on the fulcrum of water-tight technicalities of the law.

This is not the first time that election disputes have been resolved on the crucible of technical rules of procedural or adjectival law which have not been in accord with the demands of substantial justice and the perception of the ordinary Nigerian on the justice of the case.

This discourse proceeds from a poser which seeks to determine the province, the overriding goal and principles of electoral dispute adjudication as a basis for propounding a way forward for the judicial resolution of electoral disputes.

The discourse narrows down to the quality of justice delivered by the election petition tribunals and the appellate courts. By dispassionately analysing the judgements and the core issues arising from the decided cases, it seeks an inquiry into the objective ultimate end(s) of electoral dispute adjudication and whether the courts through their decisions have been meeting this ultimate goal.
Like the categorical syllogism constructed from the premises, up the middle term and the conclusion, the poser is raised; what should the courts seek to do in electoral dispute adjudication? By establishing what the courts should do, an objective crucible to determine whether the judgements met the mark would have been erected. It is posited that electoral adjudication is part of a chain of events that starts with the registration of voters, voting, announcement of results and the challenge to the results based on a claim of the announced winner not being qualified, corruption or non-compliance with provisions of law or the respondent not duly elected by majority of the lawful votes.

Electoral dispute adjudication is part of the last value point in the electoral chain. A chain is as strong as its weakest point. It is posited that the goal of the electoral value chain is to make the vote count, to strengthen democracy so that the wish of the electorate is reflected in the occupancy of elective positions. Thus, the process from the registration of voters up to the legal challenge before the tribunals is geared to make the votes count.

All the laws, policies, rules, guides and forms that regulate electioneering and the work of the tribunals and courts are all procedures and processes meant to facilitate the achievement of the ultimate end.
This seems to be the mind of the Supreme Court when it held in Ikpeazu v Otti ([2016] 8 NWLR 39 at page 55)that: “Courts are enjoined to do substantial justice and to refrain from undue technicality. Nowhere else is the need to do substantial justice greater than in election petition, for the court is not only concerned with the rights of the parties interest but the wider interest and rights of the constituents who have exercised their franchise at the polls.”

But the same judgement above quickly qualified the statement with a position that an election petition is statutory and is unlike any other civil claim, where there is much latitude; “..no other process distinct from what has been specifically allowed can have any consequence.

This is because election petitions have certain peculiar features which make them sui generis. They stand on their own and bound by rules under the law prescribed thereto. Defects or irregularities which in other proceedings are not sufficient to effect the validity of a claim are not so in election petitions.
A slight defect in compliance with a procedural step would result in fatal consequences for the petition.”Thus, the Supreme Court states that the elbow room for manoeuvre to do substantial justice is limited.

The foregoing raises another poser; how can the courts resolve disputes based on the paradigm of substantial justice that reflects the wish of the electorate while mainstreaming technicalities that have nothing to do with the substance of the case? This is a practical impossibility. Essentially, the central challenge for electoral adjudication is the jurisprudential mindset of the courts which fixates on the sui generis concept as the reason to support the proposition that defects and irregularities which in other proceedings are not sufficient to affect the validity of a claim will prove fatal in an election petition. There is nothing in the 2022 Electoral Act or Constitution in support of this undue fatality view.

A retracing of this evidently misplaced position starting from the jurisprudence of the highest court in the land is the way to redirect the courts back to the ultimate end of electoral adjudication.

If the courts, from the election tribunals up to the Supreme Court had asked and answered the fundamental question about the goal of their adjudication exercise and correctly answered it in the province of ensuring that the votes count, then most of the decisions would have been different from the current stream of decisions.
Deciding cases where the central question is focused on who actually won a primary or an election on technical provisions of procedural law and re-couching the question(s) for determination to focus on other issues seem to be an exercise likened to where a student refused to answer the questions set by the legal and legitimate examiners and then goes ahead to set fresh questions for himself, answers his own set questions and claims he had passed the examination.

Why should the judiciary review its underlying electoral dispute adjudication philosophy? The answer to the poser is clear; technicalities have defeated the wishes of the electorate.

Persons who did not secure the majority of lawful votes or were generally unqualified have found their way through court decisions into elective positions. This cannot be the way to strengthen democracy. Judges are public servants like the members of the executive and legislature. They are therefore accountable to the populace they serve.

We may not demand accountability from them in the strict sense of the way we demand accountability from the executive and legislature. But the judiciary has a duty to reflect the demands of society – that persons who did not win primaries and elections are not allowed to occupy elective offices.

The judgement in an election dispute should not be a display of the abstruse technical intellectualism founded on mere atavism that adds nothing to the quality of life of the average Nigerian.

A judicial decision resolving an electoral dispute must restore the hope of the common person, and the persons who have been robbed by the high and mighty, who look up to their Lordships for reprieve. Anything less questions the basis for entrusting power to the judiciary for dispute resolution.

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The NDDC Cesspool

Eze Onyekpere — Mon, 20 Jul 2020 15:43:17 +0000

The current mind-boggling revelations in the ongoing legislative probe of the Niger Delta Development Commission throws a direct challenge to President Muhammadu Buhari’s promise to fight corruption. Will the administration live up to expectation in the fight against corruption by taking drastic but lawful steps against the perpetrators of the heist? This discourse reviews the key issues arising from the looting of public resources in the NDDC.

Running a government is serious business which should be based on law, policies and ethics. It demands a certain level of consistency in terms of application and implementation of laws. It is about securing life, property and the public welfare. Governance demands a certain measure of competence, skills, fellow feeling and compassion as well as ability consistency between statements and action. There should be resonance between the anti-corruption mantra and the practice in real life. The federal government claims to be fighting corruption but the more the official noise about the struggle, the more corruption intensifies. This can be traced to lack of consistency in policy and law application and the lack of principles among principal members of the federal administration.

The most recent issue is about the management of the resources of the NDDC. From the establishment of the Commission during the Olusegun Obasanjo presidency to date, the NDDC has been a cesspool of corruption where public officers get away with fiscal murder and corruption. All the details of the illegal and inappropriate expenditure coming out of the probes in the National Assembly only reveal one thing; that impunity for mismanagement of public resources reigns writ large and virtually no one has been held accountable for it in the past. And the way the whole episode has been reduced to a joke and charade between the Minister of Niger Delta Affairs, Godswill Akpabio and the former managing director of the NDDC further ridicules the anti-corruption campaign.

From the beginning, NDDC has never published its draft budgets in hard or soft copy or even uploaded the draft to its website. The consideration of the budget estimates in the National Assembly is a closed shop with citizens unable to participate or even know the details of the process. After the budget has been approved, neither NDDC, the National Assembly nor the Budget Office of the Federation publishes the details of the NDDC budget. All we see is a single line item of a lump sum of money included in the statutory transfers. Why would NDDC hide its budget from the public especially the people of the Niger Delta who are the beneficiaries of its activities? It seems that most of the projects in the budget are duplicated when they are pitched with the budgets of states and local governments in the region or even the projects of the Ministry of Niger Della. The Ministry is notorious for proposing and getting legislative approval for projects without a geographical site and with extremely nebulous descriptions which makes them amenable to monitoring only by the proposers of the projects.

It seems that part of the excuse for not publishing the NDDC budget is that under an unwritten policy position which is not motivated by the public good, the Budget Office of the Federation, the Ministry of Finance and the benefiting agencies have consistently failed, refused and neglected to publish the details of statutory transfers. From the votes going to the National Judicial Council, Universal Basic Education Commission, Independent National Electoral Commission, National Human Rights Commission, National Assembly, etc. the details of the votes are hidden from the public. It is worth reiterating that there is no legal basis supporting this opaque practice. Rather, the Center for Social Justice, a Nigerian knowledge Institution had litigated this issue and the Federal High Court had declared this practice illegal. But the fiscal powers insist on continuing the illegality.

For procurement of goods and services, the emerging and established evidence is that NDDC ignores and treats the Public Procurement Act of 2007 with great contempt. There is even no pretence about following due process and preparing documentation which tries to cover misdeeds. Simply put, there are no approved procurement plans, projects are not advertised for bidders to take part in government commerce; evaluation and selection of winners is not based on the competence of the bidders and how responsive their bid is to the solicitation. It is simply a brazen act of looting which cannot be hidden. Furthermore, NDDC neither prepares nor publishes quarterly, half yearly or yearly budget implementation reports. Thus, in the whole budget preparation, approval and implementation exercise, the citizen who is the owner of the resources is shut out. So, why should any reasonable person be surprised about current revelations?

In all of these, there is and there had been National Assembly committees exercising oversight over the allocation and management of public resources available to the NDDC for the public good. Pray, what is the definition of oversight? Is oversight done in the public interest for which the legislators are elected and handsomely paid? Has oversight been done in the private interest of the legislators? It appears that oversight over the years became coterminous with discovering fraud and corruption and instead of ensuring that the culprits are brought to book and the treasury recovers the money, the oversight committee simply asks for a part of the loot and covers it up thereby compounding the felony.

Did the Economic and Financial Crimes Commission and the Independent Corrupt Practices and Other Related Offences Commission and the financial intelligence agency go to sleep over this heist that has endured in the NDDC? All the billions going into private pockets for services not rendered or going into the pockets of public officers should have set up a red flag, which if duly followed would have discovered the extent of the mismanagement. The law allows the Auditor-General for the Federation to look into the financial accounts and audits of agencies such as NDDC. How did this escape the censure of the Auditor-General in terms of comments on their reports?

In moving forward, part of the reforms in the NDDC should include a reform of its budget and procurement process. The draft budget should be available in the public domain and the legislative approval should be open, advertised and Nigerians allowed to be part of the process. This will restrain wholesale corruption in the packaging of the budget. The NDDC must publish quarterly, half yearly and full year budget implementation reports. The procurement process must follow the Public Procurement Act to the letter in terms of procurement planning, bid solicitation, bid opening, evaluation and selection of winners. Utmost transparency must be introduced into the procurement process because this is where the looting takes place.

Nigerians must not drop the ball in demanding for heads to roll, thieves sent to jail and looted money recovered. The romance, sexual indecency and salacious angle introduced between Akpabio and the former managing director of NDDC is a needless distraction. We must focus on the real issues. For the forensic audit to be successful, all persons including the Minister of Niger Delta who have been implicated in one way or the other must step aside either voluntarily or be asked to do so and an independent team of auditors recruited to do the job.

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