OPINION: Is There A Danger In Allowing The Judiciary  To Have The Final Say On Electoral Matters In Africa? – By Dr. Monday Ubani

This is a paper delivered by Dr Monday Ubani, the Chairman of
Election Reform Commission of Africa Bar Association (AFBA) at University of South Africa, Pretoria at the ongoing Annual Conference of AFBA in South Africa.

INTRODUCTION:

The various electoral laws in Africa have provisions that make the judiciary to have the final say on Electoral Issues, whether it concerns pre election or post election conflicts. No one should be in doubt as to the competence or capacity of the Judiciary in the continent to adjudicate on election issues whether it concerns pre election or post election dis-agreements. The only snag and if you like, call it alarm is that judges that preside over these cases are not God, the Almighty. They are humans and susceptible to manipulations and inducements by desperate politicians who seek for political powers in Africa.

Ascension to power in any African State comes with so much perks of office that it becomes a matter of life and death when opportunity for election presents itself. Only few countries in African can boast of free and fair electoral process, as a matter of fact they can easily be counted. The majority are in the negative.

When the political class lose election in the already flawed process, they all look towards the court for adjudication. The court is expected to make good what has been “damaged from the foundation”.

At this juncture, desperation sets in and the judiciary and judicial officers are “placed on high jump” to satisfy the ultimate desire of declaring parties as winners even when some of them know that they did not win. In such situation, anxiety sets in and there are allegations that monetary inducements becomes the order of the day. Some of the judges being human do succumb and alter the mandate of the electorate. It is not a general phenomenon but evidences abound here and there in the continent that such things do exist. There are also judges who remain upright and cannot succumb to any human pressure or inducements. The number of such upright and forthright judges remains a matter of conjecture.

The statistics of lower and appellate courts often departing from laid down judicial precedents on electoral matters often is frightening and alarming.

Litigating election disputes we all agree is contentious, complex, and excessively technical. The technicality of electoral dispute litigation is fueled by the strict requirements of the Electoral Act, coupled with judicial attitudes developed over the years. The complex and technical nature of election petitions is largely responsible for the failure of election tribunals and courts in Africa to address the grievances of litigants despite efforts at resolving such election disputes. Take for example a particular case of interest that was decided recently by the Supreme Court of Nigeria. It was a case involving Machina V Lawan, former Senate President. Ahmed Lawan ran for the office of the President under the primary election of All Progressive Congress(APC) in 2022. It was reported that he did not participate in the INEC supervised senatorial primary for his re-election as a Senator. As a result, one Bashir Machina who participated in the Yobe East Senatorial Primary Election was returned unopposed

When Ahmed Lawan lost his presidential bid, he ran back to pressurise Bashir Machina to surrender his primary win and Machina refused. Lawan mobilised the whole apparatus of his party in a bid to take the ticket from Machina.

The APC subsequently submitted Lawan’s name as its senatorial candidate even though he did not participate in the primary.

Machina went to court alleging fraud. He started his litigation against Lawan alleging fraud (a crime) by way of “Originating Summons” instead of “Writ of Summons”.

And for that error which we call TECHNICALITY, the Supreme Court of Nigeria ignored the evidence, facts and common sense and gave the senatorial ticket to the person who did not participate in the primary against the person who did and won by the votes of his people.

A newspaper columnist, Mr Castro Ginigeme a lawyer and former Adjunct Law Professor in the United States of America had this to say concerning that judgement. He said and I quote him ” Increasingly, Nigeria’s courts have become courts of technicality rather than courts of justice. Technical legal rules are supposed to be made a guide to justice not a tool to thwart justice”.

In all these let us remind ourselves of this everlasting truism stated by Associate Justice Robert H. Jackson of the US Supreme Court who was the US Special Prosecutor at Nuremberg in 1945 who uttered these words “We are not final because we are infallible, but we are infallible only because we are final”.
What this means is that decisions of Tribunals or courts are given by human beings with flesh and blood and they are susceptible to human errors as the judges are not God.

However two countries in AFRICA have ignited the light of departure and stubbornly stuck to addressing the grievances of the petitioner without paying attention to excessive technicality, fear of the incumbent or undue consideration of political consequences of nullifying an improperly organised electoral process. The first country was Kenya followed subsequently and swiftly by Malawi. Kudos to African Bar Association as we have held our Annual Conferences in these two great countries, the last conference was in Malawi last year.

THE STORY OF KENYA AND COURT”S INTERVENTION

In August 2017, a highly contested election was held in Kenya: The incumbent president Uhuru Kenyatta won by a narrow majority against his opponent Raila Odinga. However, Odinga did not accept his loss and filed the presidential petition, which later became the first one to ever be successful on the entire continent and resulted in the nullification of the election. He was referring to the failure of the electoral commission (IEBC) to comply with the electoral law, as well as the quantity of discovered irregularities, such as missing security features on the ballot papers including serial numbers, official stamps and signatures.

Even though the Kenyan Court has been confronted with alleged ballot rigging cases before, this was the first time it ruled in favor of the petitioner in this historic judgement. The Supreme Court judges conclude the ruling with the following words “the illegalities and irregularities committed were of such a substantial nature that no Court properly applying its mind to the evidence and the law as well as the administrative arrangements put in place by IEBC can, in good conscience, declare that they do not matter, and that the will of the people was expressed nonetheless”

THE STORY OF MALAWI AND THE INTERVENTION OF THE JUDICIARY

Two years later, in May 2019, Peter Mutharika was re-elected president of the Republic of Malawi. Afterwards his opponents Lazarus Chakwera and Saulos Chilima failed to get a ballot recount and consequently filed a petition to challenge the election result. In February 2020, the High Court ruled in favor of the petitioners, thereby being only the second court after Kenya, and annulled the election. They concluded their historic ruling by stating that ” the irregularities and anomalies have been so widespread, systematic and grave such that the integrity of the results has been seriously compromised. The results cannot be trusted as a true reflection of the will of the voters as expressed through their votes.” Irregularities in Malawi included people voting more than once as well as erased and manually amended ballot papers.

The beauty of these two decisions from the continent of Africa where some people think or say we cannot get good things is that the judgement was very much interested in probing whether the mandate of the majority was thwarted warranting the nullification of the process and de-creeing a re-run in both countries.
For allowing the courts to intervene in an electoral process means that there is a purpose for the said intervention. It is to ensure that the process is free, fair and credible. It is not for the courts to substitute the will of the majority with that of the minority which the courts represent.
Most times the court has created chaos, caused more damage than what the extant laws provide for them to achieve. Again let us go back to Nigeria, the giant of Africa.
In 1993 what you may consider a bizarre event occurred in the continent of Africa and location was Nigeria. General Ibrahim Badamosi Babaginda was President and Commander in Chief under whose watch the heinous act against Nigerians was committed. The foundation for the annulment of the June 12 presidential election of 1993 was laid less than 36 hours earlier. However the building block was assembled over several months by one Association known as Association for Better Nigeria(ABN) led by the late Francis Arthur Nzeribe and one Abimbola Davis. You will judge whether the Association deserve that name they gave to themselves.
On Thursday, June 10, 1993 one Justice Bassey Ikpeme chose an ungodly hour of 9.35pm to launch her voyage into infamy. Though it was an interlocutory application filed by the ABN, apparently over mobilized and over induced, she made a final pronouncement on an interlocutory application. She decreed that the election be stopped and this is contrary to the provisions of Section 19(1) of Decree 13 of 1993 that ousts the jurisdiction of the courts over the election matter.
National Electoral Commission(NEC) promptly issued a statement disregarding the notorious court order, stating that the election would go on as scheduled. Despite all the shenanigans by the conspirators involving the Aso Rock cabal(The military leaders, the Ministry of Justice led by then Attorney General Chief Clement Akpamgbo SAN, the Judiciary led by Late Justice Ikpeme and ABN ably led by Late Arthur Nzeribe and against all expectations, the Election was held . There was no rain, there was no reports of violence or rigging as we have at every elections in Nigeria. It was generally peaceful, free and fair as Nigerians were ready to endure anything just to exit the military from power in Nigeria.

Interim results on Sunday June 14 showed that one Chief Moshood Abiola was leading with an overwhelming majority in 19 States while his rival, one Chief Tofa had a clear majority in 11 States. Suddenly, the unexpected happened . Another Court from Abuja has agreed with ABN that NEC the electoral umpire should be restrained from announcing any results from the States in the Federation. Nigerians felt that this was a joke taken too far. After some of them recollected themselves, the courts became the centre of attraction. Following popular demands for the release of the results , two orders came in a row for the reversal of the order of Abuja Court. Lagos high court Judge Hon Justice Moshood Olugbani ordered NEC to release the results within 24 hours. Dr Beko Ransome-Kuti, the Chairman of Campaign for Democracy issued an ultimatum to NEC to release the results within 24 hours or the CD would do so.
Events took a more bizarre turn as one Justice Dahiru Saleh, Chief Judge of the Federal High Court Abuja declared the election null and void allegedly because the NEC had ignored the late night injunction of Justice Bassey Ikpeme to conduct the election. What gave the government of the day away as the ones behind this strange events was the Attorney General of the Federation, Chief Clement Akpamgbo was the one that served the judgement of Hon Justice Saleh on Professor Humphrey Nwosu the then NEC Chairman and he warned Nwosu that if he disobeyed, he will be on his own.

NEC’s Director of Legal Services, Bukhari Bello, bold and strong willed- man immediately appealed against the judgement. When he was about getting a judgement, the elephant in the room behind all these shenanigans came out from where he was hiding all this while directing the drama. President Babaginda brought his chest out and flagrantly annulled the results and announced the suspension of NEC as an umpire. At that point both NEC and courts that initiated the drama were incapacitated to act.

JUDICIARY AS THE LAST HOPE IN ELECTORAL DISPUTES?

Recruitment of leadership is a very grave responsibility in any democracy and as such it must be handled with every circumspection to ensure that the will of the majority is upheld and respected. Where there is failure of orderliness and fairness at the polling units and Collation Centres, the extant laws in every democracy whether here Africa or elsewhere usually invest the courts with onerous responsibility of ensuring that the anomalies noticed at the Polling Units and grievances at the Collation Centres are addressed.and redressed. The courts must carry out this onerous responsibility with a view to respecting the will of the majority. Never should they allow the will of the majority to be subverted with enthronment of technicality over substantial justice.

In Lawan”s case in Nigeria which I had earlier on referenced, there were uncontroverted evidence that his party APC did not cancel the earlier Primary Election held on the 28th of May, 2022 before holding another one on June 9th of the same year in clear breach of S84(5) of the Electoral Act. The minority justices in that case also found out that the APC did not give INEC 21 days’ mandatory notice before going ahead to conduct another primary election on June 9th, meaning that INEC did not monitor the June 9th Primary Election as required by law. The minority justices were of their convinced opinion that as long as APC has not contradicted those findings of fact and stated that they are perverse or unreasonable, that that defeats their entire appeal. But the majority opinion differed and dwelt on technicality. Justice Centus Nwaeze who read the apex Court’s majority judgement held that Machina, Lawan’s main challenger was wrong to have commenced the suit at the trial court through Originating Summons in view of his allegations that the APC acted fraudulently in submitting Lawan’s name to INEC as their candidate. He said and I quote ” The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants. The 1st Respondent accused the APC of fraudulently substituting his name with that of Lawan. Where there is an allegation of fraud, it should not be commenced by an Originating Summons. There was a need to call witnesses to prove allegations of fraud”.

Does the above majority decision satisfy the true meaning of Justice in the real sense of that word? Has justice being served here? Personally I don’t think so, the choice of the people have been thwarted there using undue technicality.
There are atimes OUR COURTS IN THE LAND have engaged in self realization and refused to be bogged down by technicality over substance. Kenyan and Malawi Supreme Courts in the two cases referenced above were vociferous in their majority decisions in upholding substantial justice over technical justice. Even the Supreme Court of Nigeria as far back as in 2007 in an unprecedented judicial audacity in the case of Rotimi Amaechi Vs Celestine Omehia sacked Omehia, affirming Rotimi Amaechi as the winner of an election in which he did not campaign. In reasons issued in January, 2008, Hon Justice Adesola Oguntade retired, who read the lead judgement to which other 6 justices concurred had this to say: “The sum of the recent decisions of this court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the court”. Hon Justice Olayiwola Aderemi added his authoritative voice to this issue. He said “This court has a standing and rigid invitation to do substantial justice to all matters brought before it. Justice to be dispensed by this court must not be allowed to be inhibited by any paraphernalia of technicalities”. While at the Court of Appeal our respected Justice John Okoro now at the Supreme Court had this to say concerning technicality over substance. In the case of Balogun V E.O.C.B Nigeria Limited, he was said to have said ” Good law in my opinion must have a human face; good law should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all”.

THE REAL REASONS FOR JUDICIAL INTERVENTION

The real essence of the Court’s intervention in election matters is to promote democratic culture and strenghten the confidence of the people in the democratic process. But if we reduce our courts to the role of counting votes of the electorates or voting for the candidates that should lead, we are destroying the judiciary and at the same destroying democracy. If we create crisis of confidence on the judiciary in their role of intervening in electoral issues, then we are very serious danger. Already the politicians are taking undue advantage of some judicial lapses to wreck havoc in the system. They are ready to manipulate, rig, create chaos and “win” by fowl means and challenge the “loser” to go to court having known that the judiciary as an institution in the continent suffers some institutional lapses. Institutions generally are not strong in the continent. It leads to loss of confidence and creates very big problem in the long run.

Take for instance the Kenyan Election of 2007. Incumbent Mwai Kibaki was declared winner in that election. However Raila Odinga also claimed victory. Due to his loss of confidence on then judiciary, he prefered other options than recourse to the courts. The consequence was civil unrest breaking out resulting in the deaths of several hundred people and the displacement of up to 600,000 persons. The election was regarded as generally flawed and led to deepening of ethnic divisions and serious post-election violence lasting into 2008. The same thing in Nigeria in 2007. The general elections of April, 2007 supervised by one Professor Maurice Iwu was adjudged by most observers to fall a long wayvshort of the standards for credible, free and fair elections and to be the worst in Nigeria’s post independence history. The election was so flawed that the apparent winner His Excellency late Umaru Yar’adua considered the said election as deeply flawed. He quickly set up Electoral Reform Committee headed by former CJN of the country to midwife a new Electoral law and system. The Commitee headed by Hon Justice Uwais did a good job by recommending very comprehensive electoral reforms which if followed would have made us take some electoral progressive steps but alas the report was thrown into the dustbin till date.
The hope that the judiciary would strenghten democracy by upturning the electoral results that was agreed by local and international observers including the alleged winner as flawed was dashed as the highly manipulated electoral process was upheld as valid by the Supreme Court of Nigeria. The Supreme Court upheld the findings of lower courts that the lawyers of the Petitioners had not provided strong evidence to overturn the official result. However Hon Justice Niki Tobi of the Supreme Court had this to say : We’re not saying that all went well in the conduct of the election” Laying the blame on the country’s political elite, he said “The way politics is played frightens me. It is a fight to the finish.”
That the courts upheld that election still sent shockwaves to peoples’ marrows till today. This was an election that witnessed widespread electoral malpractices throughout all the stages of the elections. There were failures in the late delivery of voting materials, late commencement of polls in most of the States, ballot box stuffing, allocation of votes where voting did not take place, falsification of votes, deliberate denial of election materials to polling units especially where opponents have strong supporters etc. Despite all these, the Nigerian Courts in 2008 held that the election was free, fair and credible. INCREDULOUS

Having fought and lost elections in 2003, 2007 and 2011, former President Buhari who fought the losses in court wherein he also lost had to issue a physical threat: “if what happened in 2011(alleged rigging) should happen again in 2015, by the grace of God, the dog and the baboon would all be soaked in the blood.” Recall that in 2011 general election where he lost the presidential election to Former President Ebele Jonathan, several innocent lives were cut short, especially in Kaduna and Bauchi and thousands of people were displaced to date across Northern Nigeria. So his threat for 2015 general election which was yet to take place then was not unusual. He was finally quoted to have threatened that he will not go to court anymore if he loses the forthcoming election of the then 2015 general election.
Thank God he won the election and naturally did not have any reason to go to court and there were minimal skirmishes and chaos in the land post election. It was surprising that the loser of that Election, Former President Ebele Jonathan also shunned the court. He accepted the election outcome and congratulated the winner, President Muhammadu Buhari and that earned him several accolades till date.

Countries like Garbon, Liberia, Madagascar, Sierra Leone, Zimbabwe etc are all billed to have held or holding their presidential elections this 2023. President Julius Maada Bio has won re-election in Sierra Leone’s tense presidential vote. The election commission confirmed his victory recently but his main challenger Samura Kamara was quick to reject the results. He however promised not to go court to dispute the election results because he does not have faith in the nation’s judiciary. This is second time of losing to the incumbent President Maada Bio of Sierra Leone People’s Party(SLPP). He went to court after the first loss and lost woefully and having the feeling that the judiciary will not be different from the first experience he chose to shun the court for redress in the last election. Very sad isn’t it?

But that is not the case in Nigeria. Despite the fact that the Nigerian Courts have never upturned Presidential results from 1960 till date, the number of electoral cases both pre and post elections in Nigeria are frightening. The three major presidential candidates are all in court, with two from different parties, Labour Party and People’ Democratic Party challenging the electoral victory declared by the Electoral umpire on the current President Ahmed Bola Tinubu GCFR of All Progressive Congress(APC). They have all closed their cases, with written briefs filed and exchanged. We await adoptions and possible dates for Judgement. We all wish parties and the country well in coming weeks and months.

We also all await the general elections of other countries in African Continent like Madagascar, Garbon, Liberia and Zimbabwe. We all wish them free, fair and credible elections with no acrimony and crisis in the coming months before the end of the year.

CONCLUSIONS

The choosing of leaders whose objectives is for service by the electorates should be without acrimony and the attendant blood and deaths that accompany it in the continent.
The continent must insist that nations under them must strenghten the independence and integrity of both the election management bodies to guarantee free, fair and credible polls for their countries and the Judiciary which where irregularities that are sufficient enough to affect the credibility are noticed, should step in to effect immediate redress either by nullification or proclaiming the right winner in the contest. This they should do without fear or favour.

The choice of leadership is such an important responsibility that should not be toyed with or handled with kid gloves in the continent. We have seen what effective and good leadership have done to developed economies and we as a continent cannot afford not to brave up to ensure that we strike a golden cord in mapping out proper strategy and mechanisms that will throw up effective leadership that will take the continent back to its glory. Civilization started in Africa, but the continent has been manned by inept and corrupt leadership not necessarily chosen by the people but imposed by fowl means, and unfortunately, they have continued to keep the countries in the continent retarded and unprogressive.

Whatever ideas we can generate let us generate it as a continent and prescribe it to the countries to follow in enabling very credible electoral process that will throw in leaders that will awaken the sleeping continent. In Malawi, I presented a paper in which i advised that the deployment of technology in our electoral process will reduce the spate of irregularities in the system. The reason is that too much human involvement in the process create several loopholes and rooms for manipulations. Digitalization of our elections with proper education and orientation will mitigate lots of rooms for irregularities.
Above all public office in the continent should be well defined and separated from the occupant. We have observed with shock that in the continent a public officer uses public money to pursue personal goal and interests thereby giving room for stupendous abuse with impunity. Contrast this with the President of America like Biden who cannot as a president put his hands on the public treasury to buy expensive wrist watch for himself or family or service his appetite for expensive chocolate. The day he does it and it is discovered, he will be on his way out as he will be called out by the press, the public and if care is not taken impeachment proceedings will be commenced against him. They have built a responsible system and enthrone responsible leadership that is accountable due to electoral system that guarantees that the majority makes the choice of their leaders with attendant oversight functions that will ensure the removal of such leader who has decided to be irresponsible in governance,
The truth is that we should cultivate such a system here in the continent if we want to advance the continent. Anything of such a system is wastage of precious time.

We must trust our judicial system to help strenghten democracy in Africa but the judiciary owes itself a very grave responsibility to first generate the confidence through their bold decisions and forthrightness in upholding rights, dispensing justice without fear, favour or ill-will.