INTRODUCTION
In our last outing in this series, we reviewed a number of case studies illuminating judicial aberrations in both Nigeria and other countries, beginning with Kenya. Today, we shall try to see if there is any hope for Nigeria and then take a look at Parties and the Court’s Jurisdiction over Pre-Election Matters. Pease read on.
Any hope in Nigeria?
The Judgment that Shook a Nation: Hope Uzodinma & APC v Emeka Ihedioha, PDP, & INEC
The Supreme Court’s decision in Hope Uzodinma & Anor v Emeka Ihedioha & 2 Ors (2020) LPELR-50260(SC), which arose from the contentious 2019 Imo State governorship election, became one of Nigeria’s most controversial electoral cases ever, drawing intense public scrutiny and outrage. It highlights the complexities of electoral jurisprudence and the challenges inherent in the Judiciary’s interpretation of Nigeria’s electoral laws. On March 8, 2019, the Imo State governorship election was conducted by the Independent National Electoral Commission (INEC), with 70 candidates vying for the position. Emeka Ihedioha, the candidate of the PDP, was declared the winner, having polled 273,404 votes (ibid). Hope Uzodinma, the APC candidate, was initially announced as the fourth-place finisher with 96,458 (ibid) votes. Dissatisfied with the outcome, Uzodinma filed an election petition, asserting that INEC had unlawfully excluded votes from 388 polling units, which would have significantly altered the final results. He claimed that adding these votes would give him a total of 310,153 votes (ibid), thereby securing the majority necessary to be declared the winner.
Uzodinma’s petition was initially dismissed by the Election Tribunal and later by the Court of Appeal. These courts held that the petition lacked merit, emphasizing procedural technicalities and questioning the admissibility of the evidence Uzodinma provided. Despite these setbacks, Uzodinma appealed to the Supreme Court, raising six key issues, including the validity of the excluded votes and the admissibility of evidence tendered by police officers stationed at the polling units. A significant legal debate emerged over whether a candidate who did not place second in the election could legally contest the results. The respondents argued that only the runner-up had the right to challenge the outcome, citing Section 179 of the Constitution of the Federal Republic of Nigeria. However, the Supreme Court disagreed, emphasizing that any candidate who participated in the election could file a petition under the Electoral Act of 2010. In the unanimous judgment of the seven-member panel, read by Justice Kudirat kekere-Ekun (now CJN), the Supreme Court held that results in 388 polling units had been unlawfully excluded during result collation. According to her, when the excluded results were added, it meant that Uzodinma polled a majority of the lawful votes cast and ought to have been declared the winner by the Independent National Electoral Commission (INEC). The Apex Court further invalidated Ihedioha’s Certificate of Return and directed INEC to issue a new certificate to Uzodinma, who was subsequently sworn in as the governor of Imo State.
The decision of a 4th placement becoming governor was met with widespread public outcry. Many Nigerians viewed the judgment as a manifestation of judicial corruption, labelling Uzodinma as a “Supreme Court Governor.” This writer was dissatisfied with the judgement. This perception was fuelled by scepticism over how a candidate initially ranked fourth could be declared the winner. Public protests erupted, particularly in Imo State, where many citizens believed that the judgment subverted the will of the electorate. Social media platforms became a space for Nigerians to voice their discontent, with several high-profile activists suggesting that the judgment was influenced by corruption. While public suspicion of corruption is understandable given Nigeria’s troubled history with judicial integrity, the Supreme Court’s reiterated that their decision was based on the admissibility and preponderance of evidence. They argued that the respondents failed to disprove the authenticity of Uzodinma’s evidence, particularly the claims that votes from 388 polling units were excluded. The Supreme Court found no evidence that the documents were forged, and in the absence of counterevidence from INEC or the other respondents, it concluded that Uzodinma’s claims were valid.
The Supreme Court provided a legal analysis of Section 179 of the 1999 Constitution and the Electoral Act of 2010 which radically departed from the precedence concluded in previous causes and in the tribunal and appellate court. It surprisingly concluded that the law does not restrict election petitions to the runner-up alone. Instead, any candidate who participated in the election or any political party involved in the process has the legal standing to challenge the results if they believe the election was not conducted in accordance with the law. However, The apex court’s judgment appeared to diverge from its established jurisprudence, particularly as exemplified in Atiku Abubakar & 1 Or v INEC & Ors (2019) (2019) JELR 91596 (SC). In that case as in others, the Supreme Court had consistently held that to substantiate claims of voter exclusion or over-voting, the petitioner must present evidence from each implicated polling unit, supported by testimony from witnesses representing those units. In the aforementioned case, the Supreme Court unequivocally stated that to prevail in an electoral dispute alleging violations of the Electoral Act, especially those related to irregularities or wrongful voter exclusion, the petitioner must provide witness testimony from each affected polling unit. In the present case, a Deputy Commissioner of Police, one Rabiu Huseini, who was not even present at the polling units on election day, was summoned to testify before the tribunal with dumped documents. His testimony became a pivotal factor in the Supreme Court’s decision and despite the petitioner presenting only one witness, the apex court relied heavily on this sole testimony. The Supreme Court did not subject the police officer’s evidence to rigorous interrogation or cross-examination. Instead, it accepted the veracity of his testimony merely because he was subpoenaed. A critical question that the Supreme Court overlooked is the provenance of the EC 8A forms, which were not formally tendered by INEC but were merely introduced through a police officer. Given the presence of presiding officers and party agents at the polling units, it is perplexing why a witness who was absent from these locations was called to testify on such a crucial matter.
A more confounding aspect of this case is INEC’s provision of a schedule, clearly detailing the reasons for the absence of results from 388 polling units as they stated that in many instances, elections were not conducted due to factors such as violence, rendering the production of results impossible indicating that these results were not just merely invalidated or annulled by INEC. Till date, apart from the APC, no candidate or legal representative has been privy to the specific vote tallies from these polling units. The Tribunal and Court of Appeal did not reference or allocate any figures from these units to any political party in their respective judgments.
Even during cross-examination, Senator Hope Uzodinma, the then APC candidate, was unable to decipher the figures presented in the results tendered by his counsel, citing the illegibility of the figures. Consequently, it remains enigmatic how the Supreme Court arrived at the specific figures used to declare the victory of Uzodinma/APC when established legal precedent, as outlined in Buhari v INEC (2008) 19 NWLR (PT.1120) 246, dictates that minimal weight should be accorded to documents introduced by witnesses who cannot or are unable to substantiate their contents. This principle particularly applies to documents not authored by the witness, who is deemed legally ignorant of their content.
Justice Centus Nweze, JSC, in his dissenting judgment, lamented the Supreme Court’s decision in Ihedioha’s case, foreseeing its enduring negative impact on Nigeria’s electoral jurisprudence as highlighted in his famous quote “the decision of the Supreme Court in the instant matter will continue to haunt our electoral jurisprudence for a long time to come”. The decision of the Apex court suggests that INEC must take greater care in collating and preserving election results to prevent future disputes of this nature. Uzodinma v Ihedioha case serves as a significant precedent in Nigeria’s electoral jurisprudence, highlighting the distaste of legal technicalities, the role of evidence in electoral disputes, and the ongoing challenges in maintaining public confidence in the judiciary. The case underscores the need for further electoral reforms to ensure transparency, fairness, and the integrity of Nigeria’s democratic processes. Emeka Ihedioha wanted the Supreme Court to affirm its earlier judgement in Nwosu v APP & Ors (2020) 16 NWLR (PT. 1749) 28, which significantly altered its main judgement if upheld. He did not even ask for a variation of the judgement. For daring to refuse withdrawing the application after sustained pressure on him to do so, Prof Mike Ozekhome, SAN (this writer and Counsel to Ihedioha) was shockingly fined N40 Million (N10 Million each in favour of the Respondents respectively). No attempt to look into the merit of the case was even undertaken by the apex court.
Parties and the court’s jurisdiction over pre-election matters
Under Section 29(5) of the Electoral Act, 2022, it is provided that:
“Any aspirant who participated in the primaries of his political party and who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may file a suit at the Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.” (Emphasis added)
Similarly, under Section 85 of the Electoral Act, 2022, it is provided that:
“An aspirant who complains that any of the provisions of this Act and the Guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”.
From the provisions of the Electoral Act cited above, only the Federal High Court has the jurisdiction to entertain pre-election matters as a court of first instance. And only an aspirant, who participated in the primary election of the political party in question, has the locus standi to challenge the outcome of such an election in the Federal High Court. Under Section 285(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
(To be continued).
Thought for the week
“Every institution, including the judiciary has its share of black sheep and corrupt judges”.
(Prashant Bhushan).