Introduction
The last installment of this treatise, dwelt, among other things, with the role of the judiciary, particularly with regard to the resolution of electoral disputes, with a focus on the judicial powers of courts, electoral tribunals and the peculiar jurisdiction of the latter vis-à-vis the doctrine of the rule of law. This feature examines the extent of the independence of the judiciary in electoral matters and the consequences of its absence on the First and Second Republics. Thereafter, we shall focus on how the judiciary has coped with external pressure in resolving electoral disputes. We shall conclude with in-content analysis of the Electoral Act, 2011 and the number of witnesses required to secure electoral victory through litigation. Enjoy.
Independence of the Judiciary in Electoral Matters
To safeguard this autonomy, the processes of appointing, promoting, and removing judges are typically entrusted to an impartial body, such as the National Judicial Commission (NJC), whose members receive remuneration from a designated fund. The proficiency and ethical standards of the Judiciary are additional benchmarks reflecting the significance that society places on the judicial system. Judges must be skilled, knowledgeable, and possess high moral character to garner widespread respect and trust. Another consideration is the provision of adequate resources and staff, specifically whether there are enough judges and courts to address the needs and expectations of the public.
Consequences of Lack of Independence during the First and Second Republics
The Nigerian judiciary, prior to 1999, was beset by numerous challenges. A significant impediment was its lack of autonomy, stemming from its dependence on the Executive branch. The Executive maintained control through various mechanisms, including the judicial appointment process, promotions, and conditions of service. The Executive’s strategic utilization of compliant judges to advance unpopular agendas rendered the Judiciary largely a mere appendage of governmental influence.
Additionally, there was substantial evidence of widespread regional bias and corruption within the Judiciary. These deficiencies, among others, such as an insufficient number of judges and delays in delivering judgements, drove potential litigants to seek alternative, extra-constitutional methods for obtaining justice. For example, during the first (1960-1966) and second (1979-1983) republics, several election petitions and appeals submitted by aggrieved political candidates resulted in contentious rulings . Such outcomes contributed to political unrest and, ultimately, violent military coups. Within this framework, the Judiciary’s capacity to arbitrate disputes, particularly electoral conflicts, and thereby contribute to the preservation of democratic stability, was progressively weakened. It was tasked with a role to play in safeguarding the populace vote but its tenacity to ensure this democratic principle had be severly compromised. As various studies indicate, these issues were exacerbated by Nigeria’s prolonged period of military rule. In Mike Ozekhome v. IBB & AFRC, late Justice Idowu Agoro held on 29th December, 1987, that Ozekhome lacked the locus standi and competence to sue the Defendants who were immune from court action under military Decrees, amongst other reasons (See report of case in National Concorde newspaper of 30th December, 1987).
However, in Mike Ozekhome v. Ibrahim Babangida, Justice Segun also of the Lagos High Court accorded Mike Ozekhome locus standi to sue with respect to a similar issue (See Fundamental Human Rights Enforcement in Nigeria (2nd Edition); Femi Falana, SAN (2010). In addition to its diminished ability to mediate conflicts, the Judiciary’s neglect and it’s politicization resulted in several adverse transformations of this critical institution. One significant consequence was its evolution into an anti-democratic force. In other words, rather than supporting democratic processes, the Judiciary became an effective instrument for subverting democracy and facilitating authoritarian governance as it was the final arbiter in the selection of the country’s leadership. This development has been implicated in the eventual collapse of the second and third civilian republics.
During the Second Republic, for example, the courts and election tribunals were inundated with petitions arising from the two general elections conducted during that era. However, instead of delivering impartial judgments on these petitions, the Judiciary seemed determined to uphold the existing political arrangement and avoid disrupting the distribution of power among competing parties. Disillusioned by the actions of the Judiciary, numerous politicians began advocating for military intervention.
This appeal was ultimately answered on the night of December 31, 1983, when the Army seized power, thereby ending Nigeria’s second civilian administration. The nullification of the June 12, 1993, presidential election, which was intended to finalize Nigeria’s transition to the Third Republic, was enabled by the controversial involvement of the Judiciary. The episode began when on June 10, 1993, Justice Bassey Ikpeme of the Abuja High Court in the dead of the night issued an interim injunction halting the conduct of the presidential election undertaken by then National Electoral Commission (NEC). This directive was made just two days before the scheduled election, despite the existence of Decree No 13 of 1993 that prohibited any court of law from stopping or hearing cases related to elections. Notably, the Judge read the judgement even when NEPA had taken light with no generator on.
The unusual injunction later derisively termed “mid-night injunction” was issued in response to a suit filed by the Association for a Better Nigeria (ABN), led by the controversial politician, late Senator Arthur Nzeribe, a known proponent of military governance. Although the then National Electoral Commission (NEC) defied the clear prohibition, citing Section 37 of the Transition to Civil Rule Decree, which had precluded any court from intervening in electoral proceedings. The Judiciary’s colluding actions provided the then-military ruler, General Ibrahim Babangida, with sufficient justification to nullify the freest and most transparent election ever in Nigeria.
Based on the aforementioned analysis, it is evident that the Nigerian Judiciary prior to 1999 did not exhibit a consistent trajectory as an institution dedicated to democratic principles. Instead, it frequently vacillated between competing imperatives, characterized by practical susceptibility and theoretical autonomy. As Omotola (2007) posits, these circumstances may be attributed to the patronage-based character of the Nigerian state, the prolonged period of military rule, and the consequent underdevelopment of democratic political institutions and culture. One judge was reputed to have called a military Decree “Kabiyesi” (King), while another reading the judgement of the Court of Appeal advised courts to “blow muted trumpets”. However, in some flashes, the apex court showed courage, such as in the case of Ojukwu V. Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39.
Shortly after Nigeria transitioned from military to civilian democratic governance on May 29,1999, its Judiciary became embroiled in a massive corruption scandal, leading to the dismissal of numerous high-ranking judges. Between 1999 and 2004 alone, at least five senior judges were removed for corruption and misuse of authority following investigations by the supervising National Judicial Council (NJC). The growing corruption among Nigerian judges, including those in higher courts who were previously thought to be less susceptible to bribery, quickly became a significant national issue. However, these incidents did not overshadow the improving independence and integrity of Nigerian courts and judges, which had been severely compromised under the country’s prior military juntas (see Otteh, C J. 2004. ‘Restoring the Nigerian Judiciary to Its Pride of Place’. The Guardian,).
In fact, it could be argued that many of the disciplinary actions (suspensions and dismissals) taken against corrupt judges since 1999 were the outcome of targeted reform efforts that helped elevate the Judiciary from relative political obscurity in early 1999 to national prominence by the end of 2009. Confidence in the judiciary was being gradually restored, with the institution increasingly perceived as relatively independent. Consequently, individuals seeking resolution of electoral disputes were now more inclined to rely on its Adjudication.
Judiciary Under Pressure: Overcoming Challenges in Nigeria’s Electoral Adjudication
The difficulties of adjudication in the electoral process refer to the limitations and issues affecting tribunals and courts when handling pre-election and post-election disputes.
The Evidence Act, 2011
The Evidence Act direct the rules of evidence guiding election petitions. Election petitions, being sui generis, should ideally have distinct rules of evidence tailored to them. As stated by Hon. Justice B.A. Adejumo, OFR, former President of the National Industrial Court of Nigeria (NICN) in a paper presented at the University of Abuja in 2011, “The Evidence Act which was enacted nearly seven decades ago has never been comprehensively reviewed”. However there have been some notable amendments such as the The Evidence (Amendment) Act 2023, which is a Nigerian statute enacted on June 12, 2023, by President Bola Ahmed Tinubu. This Act revises the Evidence Act of 2011 to incorporate advancements in technology for evidence collection and enhance the effectiveness of the Nigerian judicial system in adjudicating Electoral outcomes especially with the BVAS voter accredition system. Key modifications in the Act include the broadening of the types of electronic records admissible as evidence, such as data, images, and audio stored in electronic formats or on microfilm. It also permits the use of digital signatures to verify electronic records and introduces the practice of electronic oath-taking. The primary aim of the Act is to improve the efficiency of the Nigerian court system and reduce bureaucratic hurdles which would encumber courts in election matters. However, these ammendments are not suffficient to curb some pre-existing isues within the evidence act.
How Many Witnesses To Win A Case?
Under the prevailing evidentiary rules in Nigeria, there are no stringent limitations on the quantity of witnesses a litigant may summon to substantiate his claim. This affords parties the latitude to present as many witnesses as they deem necessary to bolster their arguments. While this liberty to adduce a plethora of testimony can be advantageous for ensuring a comprehensive presentation of facts, it does not inherently guarantee the success of a case. The quality and pertinence of the testimony are more salient than the sheer number of witnesses.
However, this principle has been exploited, especially in election petition cases. Respondents, often incumbent officeholders whose positions are being contested, have strategically summoned an excessive number of witnesses with minimal relevance to the core issues under contention. This anhorrent tactic serves to prolong the legal process and delay the final adjudication. Such deliberate prolongation benefits respondents, as during the extended duration of the case, they retain the rights and privileges associated with incumbency, such as exercising political power and accessing resources tied to their position. This exploitation of procedural rules often places a heavy burden on the judicial system, contributing to a frightening backlog of cases and slower resolution of electoral disputes. (To be continued).
Thought for the week
“I believe that an independent judiciary is the crown jewel of our constitutional republic.”
(Brett Kavanaugh)