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.
