By Raymond Nkannebe
Like many Nigerians, I sat glued to my seat on Wednesday to listen to the verdict of the Justice Mohammed Garba-led presidential election Petition Court. In an excruciating exercise that lasted for some 10 hours, the justices took turns to dismiss the Petition for “lacking in merit” as according to them, the petitioners failed to call enough evidence to vindicate the serious allegations made in the Petition.
On the very controversial issue of Muhammadu Buhari’s qualification to contest for the office of the president having not submitted his WAEC result, the Court took the view that the president who was named the second Respondent in the Petition was not “only qualified to run for the office, but eminently qualified”. Those words were the proverbial last straw that broke the back of the Petition, the petitioners and many supporters of the PDP as well, having considered that ground of the petition, the strongest.
I have my reservations for elements of the verdict which I consider not progressive enough for the times. While judges do not make laws, but merely interpret same, it has often been argued that within the interpretative powers of the court, lies it’s power to “make laws”. It follows that judges in the exercise of their judicial powers, must seek the interpretation of the statute that evinces the intention of the draftsman. This canon of interpretation is well received in legal parlance as the purposive rule of interpretation and encapsulated in a fine latinism: ut res magis valeat quam pereat.
But much of what we saw the other day,was not reflective of this Judicial convention. Take for instance the position of their Lordships that a person seeking an elective office is not mandated to submit his credentials along with the statutory Form CF001, but only expected to state the fact of his having those credentials. It raises the question, what could have been the intention of the draftsman for making educational qualification of some level, a condition precedent for seeking elective office? If all a candidate needs do, is state the fact, how can the truth of it be known without such credentials being exhibited, and if lost, an appropriate affidavit to explain it away?
But that is not all. The position taken by their Lordships of the Court of Appeal with respect, on the place of the Card Reader machine vis-a-vis the accreditation process leading to actual voting, is anything but progressive. In the face of the amendment to the 2010 Electoral Act in 2015 as relates to the procedure of voting, which expunged section 52(2) that prohibited electronic voting and introduced a new subsection that expressly provides, “voting shall be in accordance to the procedure laid down by INEC”, one would have thought that the Court of Appeal would interpret section 49(2) of the 2010 Amendment to the Electoral Act, in line with the mischief which the 2015 amendment sought to cure. But all of that was not seen. To the contrary, we saw a panel that elevated “Judicial conservatism”, to the point of worry by sticking to the rather old and moribund positions that have proven to be a clog in wheel of our electoral jurisprudence.
It was an opportune moment for that Court to take a cue from the admonition of the late Justice Chukwudifu Akunne Oputa-one of the finest jurist to have bestrode our Judicial firmament. He once said, “our supreme court must be alive to the idea that as society is organic, so too is law. Anything organic is subject to the law of life, which is either growth or death. We are either ascending the throes of life, or descending into the precipice of death. For this reason, our supreme court cannot afford to be conservative. For in a society labouring under the shackles of hunger, poverty, indigence and want, there is hardly any reason to be conservative. The only option open to the Supreme Court, is a level headed progressives”.While those words were reserved for the apex Court, there is nothing suggesting that any other court in the rungs of our judicial ladder cannot be influenced by it. Hence why the failure of the presidential election Petition Court to reflect such judicial disposition in their verdict last Wednesday, leaves much to be desired with respect to the eminent justices of that Court.
It is not surprising therefore, that Atiku Abubakar and his political party-PDP, have expressed their displeasure to the decision and are currently in the process of taking an appeal to the supreme court. That is the right thing to do. The Federal Government’s position as conveyed by information minister, Lai Mohammed that the petitioners apologize to Nigerians instead of embarking on an appeal to the supreme court, is a mute point and I want to say, a rather unfortunate statement coming from a senior minister of government. It is on record, that in all the instances he challenged the return of his opponents at the polls, incumbent president Muhammadu Buhari took his cause as far as the supreme court. What is good for the goose should be good for the gander.
If anything, we must commend Alhaji Atiku Abubakar, for his comportment throughout the duration of this Petition. By electing to explore the option of constitutionalism in the ventilation of his grievances, he has proven to be a complete democrat and history will certainly be kind to him, for offering us an opportunity to expand the frontiers of our electoral jurisprudence through his well considered Petition. Where others would have stoked violence, he has sued for calm believing in the institution of the judiciary as the ultimate last hope of the common man.
Barring whatever may be the sentiments of the supreme court on the matter, we must not miss the harsh truth that have emerged from this Petition, namely, the need to optimize our electoral process. As I argued at the studios of Plus TV Africa earlier in the week, having seen the near impossibility of upturning an election at the tribunal, our only option of ensuring that the ballot produces the preferred leader, is to make sure the entire electoral process is devoid of compromise and manipulation.
The National Assembly as soon as it resumes from its recess must commence the process of re-sending the 2018 Amendment to the Electoral Act to the presidency with tweaks here and there, to incorporate the lessons from the 2019 elections as the nation prepare for the 2023 general elections.
For the avoidance of doubt, an enactment that cannot be negotiated is the place of the Card Reader machine and the means of transmission of results from the polling units. The Card Reader machine must be written into our laws and given an unequivocal position as the sole index of verification and accreditation of voters as well as electronic transmission of results. Having seen the extent of sham that can be perpetuated with the voters register in the accreditation process, and manual transmission of results, we cannot afford to continue with it, having shown time and time again to be an instrument of fraud.
While it is conceded that INEC may not have the time to launch these innovations in the forthcoming Kogi and Bayelsa polls given the absence of legislative framework, it nonetheless must improve its processes to avoid a repeat of the ugly outcome of the 2019 general elections.
In the meantime, as all eyes turn to the Supreme Court, it is expected that absolute Justice prevails. And the least expected of that appellate supervisory exercise, is a pointed pronouncement on some, if not all the hard issues of law and fact, within which lay the directions for subsequent electoral adjudications.
–Nkannebe, a legal practitioner writes from Lagos