National Daily

July 24, 2008

X-ray of election tribunals

With the admission by the Peoples Democratic Party-led Government that the 2007 general elections were conducted with imperfections, Elections Petitions Tribunals were inaugurated to exert justice for victims of poll malpractices. SUNDAY ODIBASHI in this report examines the extent to which the tribunals have delivered satisfactory and timely judgements, or submitted to unnecessary delay and denial of justice

QUESTIONS on fundamental issues of national interest have been generated from the proceedings at the various elections petitions tribunals across the country. The administration of justice by the tribunals has shown variations in the judgements, even on similar cases, that have raised concerns about the integrity and independence of the tribunals; as well as the inadequacy of the Electoral Act.

There is wide belief that in spite of the perceived shortcomings, the status quo ante has shifted. Perpetrators of electoral frauds are conceived to have learnt the lesson of the emerging sunset that could expose them to public ridicule and opprobrium; and if things are done right, could displace them from office.

There is a consensus that Landmark judgments were delivered in Anambra, Rivers, Sokoto, Cross River, Edo, Kogi, Enugu and Adamawa States. In States like Kebbi, Oyo, Osun, Imo, Abia, among others, the judgements were believed to have betrayed public expectations and confidence. Moreover, there are rising apprehensions over the delay of judgment in some states, including the appeal cases in Edo and Abia.

Evaluating the dispensation of electoral justice by the tribunals, the Executive Director of Access to Justice, Mr. Joseph Otteh, told National Daily that it is worthy to mention that the 2007 Election Tribunals are different, in many respects, from what Nigerians had in previous times. He stated that “following the 1999 elections, the transition to democratic governance and then the 2003 elections, it became copiously clear that there were many faults and cracks in the system of electoral justice administration in Nigeria”. It was articulated that the election tribunals, particularly in 2003, posted very embarrassing results and were characterized by inordinate delays, needless technicalities, including judicial capacity, integrity and independence suspicions.

Otteh contended that the challenges and shortcomings of the 1999 and 2003 Election Tribunals provided valuable lessons that inspired reform efforts towards preparing for an effective electoral justice structure in 2007. He cited the examples that the Electoral Act was revised twice (2004 and 2006), training programmes were organized for judicial officers that would oversee the tribunals and a Practice Direction was issued - for the first time - to ensure that petitions were heard expeditiously and on the merits. The Access to Justice Executive Director asserted that these efforts have paid off in some ways. “Elections petitions were quickly taken, some were upheld, some annulled, and others appealed against. Some of these appeals have been determined already, and fresh elections or retrials ordered in some cases. This is a clear improvement from what we had in 2003 where it took almost three years to determine a gubernatorial petition in Anambra state”, he declared.

It was however emphasized that the system is not perfect yet. Otteh highlighted that “The Electoral Act is still grossly deficient, some Tribunals are still inclined towards technicalities and there are still a few delays here and there. But in all, it is apparent that there has been considerable progress in the system of electoral justice administration”. He submitted that it would be safe to emphasize that the 2007 Election Tribunals have performed well.

It was further said that the independence and integrity of the judiciary have always been burning issues in Nigeria's judicial estate and that the situation is not different with the Elections Tribunals. Otteh recalled that Sometime in March, the Chairman of the House of Representatives Committee on Justice wrote to Honourable Justice Umaru Abdullahi, President, Court of Appeal, who has constitutional oversight of the Elections Tribunals, requesting for copies of the decisions of all the Tribunals because the Committee had received several petitions alleging biases against some judicial officers. The petitions were said to also alleged interference by a former Chief Justice of Nigeria with the Tribunal's handling of electoral disputes in one of the South-South states. It was also indicated that there were unproven and unsubstantiated allegations that bribes were given to the tune of N2.1 billion.

Emphasis was made that these allegations, though unproven, are nonetheless worrisome. Otteh observed that “after the flawed 2007 general elections; all eyes were turned to the judiciary to salvage what was left of our democratic experiment. The politicians that went to court, instead of resorting to self help, demanded electoral justice, and so did the rest of the populace.” He said that though the Tribunals seem to have maintained a decent and commendable level of integrity and independence over and above what was obtainable in the past, the judiciary still has a lot to do to strengthen its independence and integrity and insulate itself from interference, whether external or internal, in the discharge of its functions. He advocated that there is a marked improvement but the National Judicial Council (NJC) still needs to consolidate the faith vested in the judicial arm of government by investigating all pending petitions; stating that this would reassure all stakeholders of the steadfast independence and integrity of the judiciary.

The Access to Justice Boss contended that “Electoral justice requires judicial autonomy, thus, it is a tragedy that our judiciary should at any level be accused of bribery and corruption. Allegations of impropriety, compromise or corruption are damaging to the image of the judiciary and undermine public confidence in the judicial institution. The image of the Judiciary is too important to our democratic society to allow it to be tarnished in any way”.

One of Nigeria's distinguished jurists was cited to have aptly said: “judicial officers should, like Caesar's wife, be above suspicion …any allegation of bribery and corruption against the Bench seriously corrodes public confidence in the judiciary and justice herself denigrates into a fraud or at best a mockery if the public has no confidence in its judiciary”.

The Executive Director further said that question of whether justice was done or not in any given case depends on the peculiar circumstances of that case, the claim(s) of the parties, the relief sought and finally the quantum of evidence adduced in support of those claims. He emphasized that the Courts/Tribunals, on their part, have certain duties whenever a matter is brought before them. These duties were said to include inter alia, to do justice between the litigants; avoid undue technicality; act on the facts placed before it; properly evaluate evidence of parties; and decide only crucial issues in contention between litigants. Otteh pointed out that the Courts also have a duty not to go on a voyage of discovery, to avoid speculation and confine itself to issues clearly established in the case.

Otteh argued: “The fact that there were annulments of elections, yet no punishments per se, does not imply that justice was not done. The Election Tribunals were established to do electoral justice and not necessarily to punish criminal behaviours. Annulling an election and removing a seating governor or public office holder, who rigged the elections, is enough punishment in the context of the mandate of the Election Tribunals”. He insisted that although Nigerians did not see people “punished” in terms of imprisonment or fines, it can still be said that the Election Tribunals did justice by upholding the wishes of the people, defending democracy and restoring stolen mandates to the rightful persons.

The election of the Governor of Osun State, Olagunsoye Oyinlola, was last week, upheld by the Election Petitions Tribunal sitting in Oshogbo, while that of the Governor of Cross River State, Liyel Imoke, earlier upheld by the Tribunal was annulled by the Court of Appeal; and the election of the Governor of Enugu State, Sullivan Chime earlier annulled by the Elections Petitions Tribunal sitting in Enugu was upheld by the Appeal Court. While several stakeholders in the Nigerian project consider some of the judgments acceptable, the pronouncement of Justice Thomas Naron during the tribunal's ruling in Oshogbo last Tuesday has continued to generate suspicions and criticisms.

Speaking to National Daily, the Director-General of the Civilian Institute of Democratic Administration, (CIDA), Dr. Charles Marcus, said that the Osun State Tribunal's judgment on the governorship petition by the Action Congress candidate, Rauf Aregbesola, portends serious danger for Nigeria's developmental democracy. He noted that Nigerians were expecting transparent judgement, a pronouncement from the tribunal that will give evidence that democracy is on ground; that was said to be lacking.

It was observed that the judges must have made their findings with quite a number of cases to support the judgment delivered. Marcus pointed out however that it can not be underscored that the petitioner had sufficient facts with which he proved his case to the knowledge of people who listened to the various tendered evident as pronounced by Justice Naron in the course of the judgment. He argued that no one goes to the court with zero evident to prove his case. The CIDA Boss lamented that from the judgment, people were meant to believe that of all the evident submitted by the petitioner at the tribunal, none was convincing or stand the test of time considering the preferences of the tribunal judges.

Marcus contended that “if you listened to the judge, it was as if there was a strong reason to believe that partisanship was playing out in the judgment”. He stated that the rejection of the evident of the Supervisors who participated and practically observed proceedings at the polls by the tribunal judges is arguably condemnable. “Demanding that the voters have been brought to come and testify at the tribunal was a demand too much on the petitioner”, Marcus declared. He stated that “in rejecting the evident of the supervisors in an election which the favoured candidate in the case is the principal beneficiary, the judges had defeated the purpose of supervising the gubernatorial and other election in the country.

It was reiterated that the Osun State Tribunal Judges were skewed in favour of the party in power and the incumbent Governor, Oyinlola. Marcus expressed that such judgment has not given Nigerians the best they expected of democracy.

The advocacy was made that the judiciary should reflect a symbol of democracy and maintain the rule of law in the administration of justice. Marcus asserted that the rule of law demands that justice is done to all stakeholders; arguing that the Osun State judgment did not show that justice had been done.

Marcus articulated that there seems to be party pressure on the tribunals going on unseen. He expressed that this invisible party pressure has a lot to do with the tribunals' judges. It was insinuated that “in some cases, the judges compromise; in some others the courts also compromise and that is why there are variations in the judgments being delivered by the tribunals”. The variations, according to Marcus, mainly occur when cases are delayed. It was argued that “when cases are allowed too long a time, party pressure comes in and there will be dangerous maneuverings intended to make the judgment be skewed in favour of the stakeholder that consults”. Marcus articulated that though there are no visible evident of trade off before the judgment was delivered, but it could be conjectured that the judgment in Osun State was twisted and justice was denied. 3