The recent judgement by a Federal High Court in Umuahia, the Abia State capital, on a section of the new Electoral Act has raised some dust as lawyers picked holes in the ruling, writes OLUWAFEMI MORGAN
Three months, ago, the Chief Judge of the Federal High Court, Justice John Tsoho, lamented the high number of cases pending before courts across the country. According to the judge, there were over 128,000 cases pending before the court across its divisions nationwide.
As at the time he spoke on December 7, 2021, the new Electoral Act which was later signed into law by the President, Maj. Gen. Muhammadu Buhari (retd.), a few weeks ago, had not been passed.
With about 75 judges currently on the bench of the Federal High Court, the Chief Judge’s explanation could mean each of the judges had on the average over 1,700 cases to handle. Tsoho, who spoke during the special court session to mark the commencement of the Federal High Court’s new 2021/2022 legal year in Abuja, acknowledged how judges had become busy since the COVID-19 pandemic was brought under control last year.
The Chief Judge had said, “The 2020/2021 legal year officially closed in July, 2021. Within that year, being September 2020 to June 2021, a total of 8,309 cases were filed. There were 40,822 civil cases; 30, 197 criminal cases; 35,563 motions and 20,258 fundamental rights enforcement applications pending at the end of the Legal Year.”
It was therefore a surprise to many when just 10 days after the National Assembly rejected the plea by the President to amend the contentious section of the Act, a division of the court delivered a judgment on it. The action was a surprise to lawyers and political pundits.
The judiciary did the almost unthinkable in the suit with No. FHC/UM/CS/26/2022. In the judgment by Justice Evelyn Anyadike of the Federal High Court in Umuahia, Abia State, the court directed the Attorney General of the Federation, Abubakar Malami, to expunge in its entirety Section 84 (12) from the amended Electoral Act recently signed by the President.
What came as an astonishment to many was that all the court processes were achieved within 10 days from the filing of the suit by a top chieftain of the Action Alliance, Nduka Edede, to the date of the judgement. Funnily enough, the National Assembly which passed the Bill was not joined in the contentious suit. In the judgment, Justice Evelyn Anyadike ruled that Section 84 (12) was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever.” She also directed the AGF to “forthwith delete the said sub-section 12 of Section 84 from the body of the Electoral Act 2022”. The judgement aligned with the protestation of the President when he signed into law the bill known as the Electoral Act Amendment Bill 2022 into law after a brief stalemate between the legislature and the executive on its content.
The sudden judgement acceded to the position of the defendant that Sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the constitution which states that “No person shall be qualified for election into the Senate or House of Reps if: (f) he is a person employed in the public service of the federation or of any state and has not resigned, withdrawn or retired from such employment 30 days before the date of election.” The judgement extended same treatment required of civil servants to public office holders.
Meanwhile, Section 84 (12) of the Electoral Act bars serving political office holders, including commissioners, ministers and special advisers, from participating as delegate of the primaries in their respective parties or as candidates for any election. It further prescribes a reprimand in Section 84 (13) as a consequence for the disobedience of the Act, thus, “Where a political party fails to comply with the provision of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
The contentious clause was included in the Electoral Act despite resistance by President Buhari. However, based on the assurances made by the leadership of the National Assembly to the President that lawmakers would revisit the clause as soon as the President signed the bill into law, the President appended his signature to the bill. Unfortunately for the President who had always been assured that both arms of the 9th National Assembly were under the sure footed control of both the ruling party and the Presidency, it was a shock to them when the two chambers of the National Assembly rejected the bill sent to them by the President to remove the section considered as belligerent by the President and his allies.
Recall that same legislators had hurriedly succumbed to the removal of the mandatory use of direct primaries by political parties in the electoral amendment bill instead of overriding the President’s veto.
The unanimous refusal of both chambers to remove the clause after it had been passed did not only bruise the ego of the presidency, it also had far-reaching implications for the AGF, who was rumoured to have interest in becoming the governorship candidate of the ruling party in Kebbi State. Other ministers and commissioners, who also have stakes within the ruling party, realised it could be a move by the lawmakers to disempower them ahead of the 2023 generation elections.
In fact, the President expressed concerns in his letter to the National Assembly that the clause in the Electoral Act would disenfranchise serving political officers. The President suggested that a 30-day grace be given for political office holders interested in contesting or participating in politics to relinquish their offices.
However, both the Senate and the House of Representatives have decided to appeal the judgement of Justice Anyadike. The Speaker of the House, Femi Gbajamiabila, after listening to lawmakers, who stressed that the judiciary usurped their powers and ridiculed them with the judgment, noted that he would not allow the alleged mistake by the judge to stand.
In a similar vein, the Senate queried the suit filed in a distant state outside the location of all the interested parties. As an interested party to the issue, the senators also vowed to appeal the said judgment.
For the legislature, the unanimous crafting of the Electoral Act and the contentious section represent the aspirations of majority of the citizens and the constituents they represent in the country. They, therefore, considered it mischievous for the judiciary to order that the section of the law which they also argued was not in contrast to the provision of the constitution, be expunged by the ACF.
Some lawyers are also angry with the pronouncement of the court on the issue. To legal experts like Femi Falana and Samson Osagie, the judgement was suspicious. They were together in saying the process that led to the delivery of the judgment was unacceptable.
These two lawyers and others asserted that the provision in the Electoral Act did not contradict the constitution as alleged by the litigant, Edede. They declared that Edede’s counsel, Emeka Ozoani’s position “which stipulates constitutional conditions for public servants (civil servants) to participate in partisan politics or contest elections is not the same with the provisions made available by the Electoral Act for public appointees (political office holders).” The hurried manner the case was heard and judgment delivered is further compounded by the immediate response by the AGF that the judgment be taken serious.
Osagie said, “First, the speed with which the case was heard within 11 days (10 days), thus making history as the quickest suit to be heard and determined in Nigeria’s judicial history is suspect.” Osagie also noted that the case could not stand legal scrutiny. “The judgement confused the persons who are political appointees as used in Section 84 (12) of the New Electoral Act and persons who are employed in the public service of the federation or of any state as used in Section 66 (1) f, 107 (1)9, and 182 (1)g. If the judge had painstakingly studied the plethora of cases that had been decided which clearly distinguished between public officers or persons employed in the public service of the federation or any state from political appointees who does not enjoy some permanency in their jobs or appointment, she would have arrived at a different verdict”.
In addition, human rights lawyer and University of Tufts scholar, Prof Chidi Odinkalu, in an article, ‘When courts of law become political sex work’, wondered how political court cases such as the Bukola Saraki case, the Dave Umahi case could be adjudged within five or four months from the day the case was instituted at a lower court to the appellate courts, while cases involving ordinary citizens could remain in court for more than a decade, or in perpetuity.
Odinkalu, who also spoke on Arise Television, described the judgement as “manifest crookery”, which he alleged was capable of bringing the judiciary into manifest disrepute.
Recall that the main opposition party, the Peoples Democratic Party, had instituted an ex parte application at the Federal High Court in Abuja, two weeks to the judgement of Justice Anyadike in Umuahia. Justice Inyang Ekwo earlier restrained the President, the AGF, and the National Assembly from tampering with the Electoral Act 2022 or acceding to the President’s request. However, the judge later decided that since the Electoral Act was a valid law, it could not be altered.
In an unfamiliar twist, a court of the same jurisdiction heard the case without the knowledge of the makers of the law and gave a judgment as well. Many stakeholders noted that while the court had the legal powers to examine, engage and pass judgement on laws made by the parliament in order to create checks against parliamentary damage, it must thoroughly be able to discover the alleged mischief, be willing to stretch it to discover what it means for the generality of the people. Also it must exercise caution in discarding laws without being conscientiously convinced that they do not serve selfish purposes.
A lawyer, Festus Ogun, told Saturday PUNCH that it was impossible to file a case and get a judgment on it with 10 days. According to him, “From the information at my disposal, the case was filed on the 8th of March and the judgement was delivered on the 18th of the same month. “For me, it looks procedurally impossible, because ordinarily, it should take more than that. When you file a case in court, you get a date, usually not on the day you file that matter. In Lagos, it should take about two weeks to get the date. When you file an action, the defendant has about 30 days to reply. Thereafter, you have about 14 days to file a response, and then a date would be set, not even for hearing this time, but for mention, where you get to know whether the parties are ready to move their application. After the date is set for mention, the matter will be adjourned for hearing. On the date of the hearing, the matter would then be adjourned for judgement.
He insisted that the accelerated judgement of Justice Anyadike was suspicious. “So, it begs the question, how was it possible for the matter to be concluded in about 10 days,” Ogun queried. It shows to me that there is something suspicious about the whole process. I am deeply worried as a lawyer about the circumstances and the accelerated nature that judgement got through. To me, it is suspicious and must be thoroughly investigated by the authorities. I think Nigerians have reasons to be curious or suspicious. More so, the decision of the court is subject to doubt, the decision of the court is absolutely with profound respect ris per incuriam (reached in error).”
Another lawyer, Tade Ipadeola, said, “This is my 30th year as a practitioner in Nigeria. I am not aware of a single case that was commenced via originating summons that was resolved within 10 days. That is not a good sign because it points to irregularity. My thinking as a lawyer is, you are not even supposed to commence any action that is likely to be contentious via originating summons. Even if the lawyer commenced it via originating summons, the court ought to allude to the fact that it is a contentious case. Nobody in Nigeria can pretend not to know that this is a contentious one. Right from the moment the President mentioned it while signing the draft bill into law, we knew that it was something that the executive arm of government was not pleased with, but the judge did not avert her mind to all these things and simply decided this matter in record 10 days. There are palpable irregularities.”
Ipadeola lamented the spate of hasty judgements and called on the Nigerian Bar Association and the leadership of the Bar to show concern before it would lose the trust reposed in it by the people. He said with the 2023 elections around the corner, the courts should not be seen as a place where anyone could go and obtain favourable judgements without ample scrutiny. That may lead to chaos in the country. He added, “If we go to our history, we will look at how the judgement that allowed General (Ibrahim) Babangida (retd.), to overturn the June 12 election, which is another judgement that was obtained in a similar circumstance like what we are seeing now.
“Those things are precursors to national chaos and the unsettling the polity. The reason is that we are now seeing a situation in which a court of coordinate jurisdiction presumes to overturn a judgement by another court. So, when you can no longer say, this is the law, then you are actually precipitating crisis against the polity. By the time it becomes a lawless situation nationwide, because nobody can say this is what the law is, then you are writing a letter inviting self-help. We all know self-help cannot work in a plural society such as we have, it is too dangerous.”
Falana, a Senior Advocate of Nigeria, argued that “the learned trial judge fell into a great error,” because she did not clarify the difference between the conditions and laws guiding public service, which excludes political appointees. Therefore, bringing to fore, a judgement on “faulty ground.”
As debate rages over the judgment that came to Nigerians like the Biblical ‘thief in the night’, the President of the Nigerian Bar Association, Mr Olumide Akpata, has cautioned citizens, including legal practitioners, to restrain themselves from making what he described as indecorous statements that could undermine the integrity of the judges and the judiciary. He further stated that lawyers should obey the rules of the profession by employing the appropriate avenues to address unfavourable judgements. Akpata assured the public that the Umuahia judgement would be examined by the NBA.
Beyond that, the PDP, and the National Assembly have also vowed to report both the judge and Malami to appropriate authorities on the matter. Before then, debates on the judgment continue in the court of public opinion.
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