Tuesday, November 05, 2019 /06:47 AM /OpEd By Reuben Abati / Header Image Credit: pulse.ng
Last week, The Supreme Court of Nigeria announced its verdict in the
matter between Alhaji Atiku Abubakar and President Muhammadu Buhari, the
Peoples Democratic Party (PDP), the ruling All Progressives Congress (APC) and
the Independent National Electoral Commission (INEC). After the February 23
Presidential election and the declaration by INEC, of incumbent President
Muhammadu Buhari as winner of that election, the PDP and its Presidential candidate,
Alhaji Atiku Abubakar went straight to the Presidential Election Petition
Tribunal to challenge the result. INEC not only declared Buhari winner of that
election. The Presidential Election Petition Tribunal further upheld the
declaration in September 2019, delivering a marathon judgment that kept the
entire nation glued to television for close to nine hours. Alhaji Atiku
Abubakar and his party, the PDP, felt that they had been denied justice. So,
they took their case all the way to the Supreme Court. But if Atiku and his
supporters had hoped that they will secure victory at the Supreme Court, they
were grossly disappointed. In just a sentence, the Supreme Court
dismissed their appeal on October 30. The Chairman of the panel, the Chief
Justice of Nigeria, Tanko Ibrahim Mohammed simply said: "We have
examined all the briefs of argument and the exhibits for over two weeks and we
have all agreed that there is no merit in this appeal." Their
Lordships promised to provide their reasons later. The entire appeal didn't
last for too long. It was a brisk, hasty procedure.
And this is where the problem lies. In the absence of a reasoned,
written down and properly articulated judgment, it is difficult to take on
their Lordships on the merit of their own submissions. When their reasons are
finally available, it would be time to do a proper, extensive, judicial review.
But what can be legitimately said at this point, is that the Supreme Court has
created in this case, a problem of perception. Does the ordinary Nigerian think
that justice has been done? For, it is a trite principle that justice must not
only be done, it must be seen to have been done. Does the ordinary, reasonable
man believe that given the approach adopted by the Supreme Court, there is
fairness in the handling of the matter at the apex court? Professor Ben
Nwabueze, SAN, in a widely circulated response has argued that the Supreme
Court's treatment of the Atiku case raises issues of fairness and fair hearing.
He insists that the Supreme Court's dismissal of the appeal is "inconsistent
with Section 36 of the Constitution (and) it is, by the self-executing
declaration in Section 1(3), null and void." Section 1 (3) of the 1999
Constitution talks about the supremacy of the Constitution as basic law. Section
36 is on the inviolability of fair hearing as a pillar of the justice
administration process. Nwabueze's contention is that the apex court erred in
the eyes of the law by holding an examination of the appeal before it, "in
secret", as declared and admitted, without regard to Section 36 (3) of the
Nigerian Constitution.
He asks further: "... to whom does the word "We" in the CJN's statement
refer? Can the "We" be a reference to the Supreme Court? Can the Supreme Court
function, as regards the hearing of the appeal, before the seven-man panel to
hear the appeal was appointed, and the names of the members announced to the
public? When exactly was the appointment of members made?" Nwabueze is a
prodigious and productive analyst of the Nigerian legal system and perhaps one
of the most percipient and most durable. His sympathy for the Atiku camp
notwithstanding, he has raised fine points of jurisprudence which I hope the
Supreme Court will address when it eventually provides the reasons for both its
approach and decision in the Atiku Presidential Election Petition
2019. When their Lordships provide those reasons, how they frame
their ratio decidendi or obiter dicta, in relation to the naked facts of the
case or to use the CJN's words, briefs and exhibits, and the issues for
determination, will be of great interest. When they say the Atiku case lacks
merit, for example, do they mean that it is incurably bad and if so, on what
grounds?
And why did they have to sit "in secret", more than two weeks earlier
only to come out in the open to deliver judgment? Without any effort to listen
at length to counsel on both sides, not to re-open arguments of course, a case
before the Supreme Court not being the inception of a new action, but to defend
their claims, the Justices rested their decision on the fact that they had
examined the briefs and exhibits. The conduct of their one-day process was also
so brisk, if not anti-climactic and peremptory, as if the matter before them
had already been pre-determined. The Supreme Court, being a policy court and a
court of last resort has a duty to worry about its brand and image. The
treatment of the Atiku case, that is the 2019 Presidential Election Petition
wrongly or rightly has fuelled all the suspicions that the ordinary Nigerian
has expressed about the independence of the judiciary. It is hence
not surprising that many Nigerians have expressed the view that they were not
disappointed because they did not expect a different outcome, even without
having any knowledge of briefs of argument or exhibits, but supremely confident
all the same about their knowledge of the history of power and Presidential
election petitions in Nigeria.
Why was the Supreme Court in such unusual haste? In the past, there was
usually so much anxiety, drama and argumentation each time a Presidential
election petition made it to the Supreme Court. The most dramatic incident in
recent memory being the 1979 Presidential election which turned virtually every
Nigerian into a mathematician, struggling to determine the meaning and exact
calculation of two-thirds of 19 states. In 2019, the moving spirits
of the Nigerian Supreme Court treated the Presidential election matter as if it
was an irritating piece of distraction. I have tried to attempt two explanations.
The first is that their Lordships felt that given the pressure of time, they
were duty bound to determine the matter within the time frame provided by law.
Section 285 of the 1999 Constitution and Section 134 of the Electoral Act
provide strict time limits for the hearing of election petitions and this has
been severally upheld by the Supreme Court (re: Ikpeazu v. Otti &
ors., Felix Amadi and Anor. vs. INEC & Ors.; and ANPP vs Goni). In the
Atiku case, the Supreme Court was definitely not out of time in the light of
Section 285 (7) of the 1999 Constitution and the fact that Atiku and PDP
appealed the decision of the Election Tribunal by September 23. Questions have
therefore been legitimately raised about approach and procedure.
My second explanation is that the law is a social modulator, and may be
that is what we have here. The judex are human beings and members of
society. Sometimes, the judex gauge the mood of society and try to
provide the necessary balance, especially in the face of potential
threat. When the apex court goes that route though, it is travelling
on the path of politics and social science rather than law. It is not
impossible that the Supreme Court of Nigeria in the Atiku case took a firm
decision to protect the country from any outbreak of violence or hostilities.
Buba Galadima, a Buhari ally turned adversary, has said that Buhari's
declaration as winner did not result in any jubilation on the streets. He did
not raise the flip question: would the declaration of Atiku as winner or
anything close to that have resulted in the jubilation he seeks? Maybe not
either. Galadima is obviously biased. But the plain truth is that the Nigerian
voter is so alienated, cynical and so disconnected, he or she is right now
largely indifferent and that is part of the problem with Nigerian democracy.
The Nigerian electorate must rediscover their voice. Still, the judex must not
descend into the arena of politics. The law must be applied in its purest form.
The ruling of the Supreme Court when it eventually becomes available should
address all the jurisprudential issues that have been raised on all sides for
our collective education.
Nonetheless, whatever concerns anyone may have in this matter, the case
is now closed. The Supreme Court is the apex court. There is no further appeal
beyond it, especially in election matters, which are by the way sui
generis. The principal petitioner, Alhaji Atiku Abubakar has already
issued a statement dismissing the ruling of the Court. Both his statement and
the eventual reasons of the Court would form useful historical documents. For
now, we have Atiku's statement before us. I think it drips with too much
bitterness, innuendoes and cynicism. Atiku writes that: "Today, the nail has
been put on the coffin and the gains we collectively made since 1999 are
evaporating, and a requiem is at hand… In a democracy, you need a strong
judiciary, a free press, and an impartial electoral umpire. Nigeria has none of
those three elements as at today..." But even more telling is the opening
paragraph of his statement and here it is: "It is said that the Supreme Court
is not final because it is infallible, but that it is infallible because it is
final."
This statement is a direct paraphrase of Justice Robert H. Jackson's
declaration in Brown v. Allen, 344 US 443 (1953). Jackson
(1892 - 1954) was an Associate Justice of the United States Supreme Court and a
former United States Attorney-General. He said: "We are not final because we
are infallible but we are infallible only because we are final." Chukwudifu
Oputa, JSC (as he then was), famously known as the Socrates of the Nigerian
Supreme Court of his time, improved on this when he tried to address the
question of whether there had been a conflict between the Supreme Court decisions
in two cases: Skenconsult v. Ukey and Ezomo v.
Oyakhire as follows: "My simple answer", he said, "is that it is not
part of the jurisdiction or duties of this Court to go on looking for imaginary
conflicts. We are final not because we are infallible rather we are infallible
because we are final. Justices of this Court are human beings, capable of
erring. It will certainly be short-sighted arrogance not to accept this obvious
truth. It is also true that this Court can do inestimable good
through its wise decisions. Similarly, the Court can do incalculable
damage through its mistakes." (per Oputa, JSC, Adegoke Motors Ltd. v.
Dr Babatunde Adesanya & Anor). Where the catch lies is that even when
the Supreme Court arrives at a decision per incuriam, it is the only
Court that has the power to overrule itself. But will Atiku's counsel ask the
Supreme Court to overrule itself? I don't see that happening, especially as the
party, the PDP has handed over the case to God, and with Atiku himself
declaring that the matter "has come to a conclusion."
Nonetheless, Atiku's lawyers have called for a reform of Nigeria's
electoral jurisprudence. They have a point in that regard. There are too many
knotty, controversial and unresolved issues to be dealt with, including access
to vital materials by election petitioners, time limits for election petitions,
administrative bottle-necks, and the use of technology. Atiku is obviously not
convinced that he lost the 2019 Presidential election. This is the overall
indication of his statement. He has also pointedly refused to congratulate the
APC candidate and incumbent President, Muhammadu Buhari. Every student of
Nigerian politics should be interested in what this means, and the implications
for Nigeria's future politics. Whatever that is, Alhaji Atiku Abubakar has two
options before him: to start preparing for the 2023 Presidential election if
his party's zoning formula favours him or to retire to the position of a
statesman and help defend Nigeria's democracy. However, beyond elections, the
biggest challenge facing Nigeria is that of sustainable development and
economic growth. It is the task that all stakeholders must now address, going
forward, in order to correct the many anomalies that hold the country down and
behind. It is commendable that all parties involved in the Presidential
Election Petition case, before and after, have resisted the temptation to
resort to self-help.
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by Dr. Reuben Abati
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