Aftermath of Kogi verdict: Can judiciary salvage Nigeria? – BOLADE OMONIJO

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Aftermath of Kogi verdict: Can judiciary salvage Nigeria?

BOLADE OMONIJO Deputy Political Editor

Posted to the Web: Sunday, October 14, 2007

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REVIEWING development in Nigeria since independence, it is common for political analysts and scholars to identify missed opportunities, outright failure of successive governments and lapses in administration. In summary, the verdict is that it has thus taken divine intervention to keep Nigeria going. In making such a submission, no branch or sector of government is excluded.

The executive arm is usually identified as the worst culprit, whether civilian or military, it has been tales of woes- ineptitude, corruption, abuse of office, gross misconduct and man’s inhumanity to man. The legislature has hardly fared better. Those who are elected to represent their people soon become lapdogs of the executive lords. Rather than check arbitrariness, the legislators are more seen with portfolios along the corridors of ministries they are supposed to perform the oversight function over.

The judiciary, sadly, has fared no better. There have been cases delivered at night. As the Justice Kayode Esho Panel that looked into allegations of misconduct against judicial officers discovered, many of the judges had sold judgments to litigants. The retired Supreme Court judge recommended 49 to be shown the way out. Their judgments declared that such should not be held up as precedents. Some had alluded to their hands being tied, while others hid behind technicalities and using ex parte orders sought to favour one party or the other in cases before them.

In no respect was this more obvious than on the political turf where the hope for justice had been dashed by the judicial lords to the exasperation of the ordinary voters. Nigerians had lost hope in the ballot box and the justice system, and it was becoming quite obvious that, with no one to adjudicate in conflicts against the high and mighty, the bubble would soon burst. All are deemed to have failed the most populous and most promising black nation in the world.

However, the third arm of government appears determined to redeem itself. Under the leadership of Justices Mohammed Uwais, Alfa Belgore and Idris Kutigi as chief justice of Nigeria, the National Judicial Council provided for in the 1999 Constitution, has risen up to the task of sanitising the sector.

Coming soon after the superior courts and the NJC stepped in to restore the dignity of the judiciary during the giddy days of Chief Judges and judges being made to act in accordance with dictates of the ruling party, most times at the instance of the Economic and Financial crimes Commission, the recent decision by the Governorship Elections Petition Tribunal in Kogi State nullifying the election of Governor Ibrahim Idris is a sign that all hope is not lost.

The Kogi example: Alhaji Ibrahim Idris, first elected as governor of the North Central state in 2003 is a gentleman. Against all calculations, he floored former  Governor Abubakar Audu at the polls in that year’s election. He repeated the feat when the Independent National Electoral Commission, INEC, declared him winner of the 2007 gubernatorial election conducted on April 14.

But Audu, who was again his opponent having obtained the ticket of the All Nigeria Peoples Party, ANPP, headed for the tribunal seeking the nullification of the INEC verdict on the basis of an unlawful exclusion from the process, based on section 145 of the Constitution. According to the five man panel under the chairmanship of Justice Ibrahim Bako who had the petition filed by Prince Audu of the ANPP,  INEC breached the 1999 Constitution and the 2006 Electoral Act when it excluded Audu’s name from the election after he had been certified by the same commission to have met all the requirements to run.

All the 13 prayers of Prince Audu were granted by the tribunal which ordered a re-run of the election. In Justice Bako’s words: “The exclusion of the ANPP governorship contender is unlawful, ultra vires, null and void and cannot stand. The return of the first and second respondents is, hereby, nullified, in accordance with the provisions of Section 147 (1) of the Electoral Act 2006.” It would be recalled that INEC had, on the eve of the governorship election excluded Audu from the polls on the ground that he had been indicted by a federal panel of inquiry. Audu, on realising that he could be so treated, had gone to court to obtain an injunction restraining the electoral commission from so acting.

But INEC discountenanced the order of the court granting Audu’s an interim injunction forbidding the commission from blotting his name from the ballot paper. The Bako-led Tribunal held, in consonance with a ruling of the Supreme Court in a similar case brought by former Vice President Atiku Abubakar that only a court of law could lawfully disqualify a candidate duly sponsored by a political party from partaking in an election.

Justice Bako ruled: “We therefore hold that the unilateral decision of the 1st-23rd respondent to exclude the 2nd petitioner from contesting the April 14th governorship election in Kogi State cannot stand. To that extent, judgment is entered in favour of the 1st petitioner and as a consequence, we hold that:

•the election held on the 14th of April 2007 to the office of the governor of Kogi State and the return of Alhaji Ibrahim Idris the 4th respondent as the winner by the 1st and 2nd respondents is nullified in accordance with the provision of section 144(7′) of Electoral Act of 2006.

•it is hereby ordered that the first-23rd respondent (INEC) conduct fresh election for governorship seat of Kogi including the second petitioner as duly sponsored and nominated candidate of the first petitioner in accordance with the provision of paragraph 27 subsection second of the fourth schedule to the Electoral Act 2006.

However, the Attorney general of the Federation, Mr. Michael Aondoakaa, has said the governor has the right to remain in office for 21 days in the first instance during which he could decide to challenge the decision at the Court of Appeal. Thereafter, he would remain in office until the Appellate Court rules on the grounds of appeal. Lawyers representing Governor Idris in the case, led by Chief Chris Uche, SAN, have already said they were ready to challenge the ruling at the Court of Appeal. Until then, nothing is certain.

In earlier rulings, the seats of one AC member of the House of Assembly, and a PDP member had been declared vacant on similar grounds. Justice Godfrey Botei declared the election of Hon. Ibrahim Bababulon invalid on the petition of Mr. Zacchaeus Jonathan of the African Democratic Congress who claimed he had been wrongfully disqualified by INEC. Justice Bolaji Yusuf, too, held that the disqualification of Alhaji Abdullahi Bello from running in the House of Assembly election had inflicted injury on the electoral process that brought Hon. Isah Ogirima to the state legislature. His election was thus annulled.

Adamawa, Delta waiting: Had the Supreme Court not ruled in June that Governor Peter Obi’s tenure had not expired and that the April 14 exercise in the state was null and void, Chief Chris Ngige who was candidate of the Action Congress, AC, and Chief Nicholas Ukachukwu of the ANPP would have looked forward to their cases being similarly treated. If the Anambra case had been truncated by the reinstatement of Governor Obi, the camp of Ibrahim Bapetel of Adamawa State is already celebrating. The particulars of Bapetel’s petition are akin to the reliefs sought by Prince Audu in Kogi.

Alhaji Bapetel had been fielded by the AC in Alhaji Atiku Abubakar’s home as governorship candidate in the April 14 election. When concerns were raised about attempts to disqualify him, he had approached INEC for clarification but was told, three days to the election that he was validly nominated and would therefore contest. It was only on poll date that he discovered that his name and his party’s logo were ommitted.

This is the kernel of his submission before the Tribunal in Yola which he is praying for cancellation of that election and the conduct of a fresh one. In a nine-page petition filed on Tuesday by his lawyers, Tayo Jegede & Co., Bapetel asked for four reliefs by the tribunal, namely:

— A “declaration that the exclusion of Bapetel and his deputy Pitton P. Power from the list of valid candidates for the governorship election of Saturday April 14, 2007 in Adamawa State was wrongful, unlawful and against the provisions of the 1999 Constitution and the Electoral Act 2006.”

— An order setting aside the unlawful and wrongful return of Admiral Murtala Nyako (Rtd), the PDP candidate as governor-elect in the said governorship election.

— An “order voiding the entire election and return of votes declared therein for all the candidates in the governorship election of Saturday April 14, 2007.”

Consequently, Bapetel asked the tribunal to order INEC to conduct a fresh election to fill the governorship seat of Adamawa State “within a period fixed by the tribunal with the petitioners allowed right of participation.” As the tribunal is still grappling with the legal niceties, seats of House of Assembly members are tumbling by the day. The seats of two PDP members had been declared vacant by the Justice Ayodele Akinwalere-led Tribunal. For the Yola North II constituency, the prayer of Jonathan Dinnang of Labour Party, LP, was granted against the election of Mohammed Hassan Turaki, while Aliyu Yusuf Shelleng succeeded in his petition against the election of Audu Ngate of the Shelleng constituency.

In Delta State, the Justice Ayobode Lokulo-Sodipe-led Tribunal had dismissed the petition by Chief Peter Okocha of the AC on ground that he was unlawfully precluded form participating in the governorship polls. The tribunal had, on September 11, ruled that, for not being a candidate in the election, Okocha lacked the locus standi to challenge the election of Governor Emmanuel Uduaghan.

The electoral Commission had averred that, going by provisions of s.144 (1) of the Electoral Act only candidates in an election could challenge the outcome. The tribunal upheld the submission. In the words of Justice Lokulo-Sodipe: “It is therefore the finding of the tribunal that the first petitioner was not a candidate in the governorship election of Delta State…he therefore lacks the locus standi to present the instant petition by virtue of the provision of s. 144 (1) of the Electoral Act. “The bottom line having regard to s.144 (1) of the Electoral Act however is that it is a candidate in an election and not a candidate that was nominated or a person that claimed to have had a right to contest the said election as the first petitioner has claimed himself to be.”

The decision of the Delta tribunal is at variance with the various decisions in respect of the governorship poll in Kogi and legislative seats in Kogi and Adamawa. Final decisions on the correct position of the law would be made by the Court of Appeal which is the final arbiter in electoral disputes from the state level. In an earlier interview with Sunday Vanguard, the secretary to the Delta State Government, Dr. Ifeanyi Okowa had said the government entertained no fears concerning the election petition against it. He said the polls had proved that the only party on the ground in the state is the PDP and if elections were conducted 10 times, it would continue to win.

Election petition in other states— South West
Petitions have been filed against the election of all the governors elected on April 14 and sworn into office in the six South west states of Lagos, Ogun, Ondo, Oyo, Ekiti and Osun on May 29. In Lagos, the election of Governor Babatunde Fashola elected on the platform of the AC was challenged by Mr. Jimi Agbaje of the Democratic Peoples Alliance, DPA and Senator Musiliu Obanikoro of the PDP. Agbaje’s petition has since been dismissed while Senator Obanikoro has been nominated as an ambassador in compensation for his failure at the polls. There is no heat in the state, except the normal challenges of governance.

In Ogun State, the election of Governor Gbenga Daniel on the platform of the PDP is being vigorously challenged by a determined Senator Ibikunle Amosun who flew the ANPP flag at the polls, former deputy governor Adegbenga Kaka of DPA and Otunba Dipo Dina of the AC. The petitioners alleged monumental fraud at the polls and have the onus to prove the allegations beyond reasonable doubt. They will have to convince the tribunal that the result declared did not substantially reflect the minimum requirement of the law and the wish of the people. By the result declared by INEC, if the votes recorded for the petitioners are put together, they would still trail Governor Daniel. All the House of Assembly seats were declared for the PDP.

In Oyo State where another ANPP candidate who also was a Senator is contesting the election of Governor Adebayo Alao-Akala, the prayers are similar. Senator Abiola Ajimobi contends that he was the actual winner of the governorship polls. However, contrary to the situation in Ogun, the figures declared for the two leading contestants were very close, with the Action Congress and the Labour Party also returning some reasonable votes. The challenge in Oyo State is thus fiercer especially with the composition of the House of Assembly which initially had 11 ANPP members to PDP’s 15, AC’s 4 and Labour Party’s 1.
 
Already, five cases involving legislative seats have been decided in the state. Three were decided against those declared winners in the April 14 polls and fresh elections ordered. Two of the lost cases involved the AC and one, the PDP. Unlike Kogi State where the contention was exclusion of candidates from the process, the petitioner in Oyo must produce enough evidence to prove that there were irregularities sufficient to nullify the election. The Ekiti, Osun and Ondo cases are similar to Oyo’s. The contention by Dr. Kayode Fayemi of AC in Ekiti is that he won lawful majority votes and ought to have been declared the governor in place of Dr. Segun Oni of the PDP.

The case is on-going and forensic experts are being called to examine the ballot papers allegedly mass thumb-printed for the PDP. In Ondo, the major petitioner is the Labour Party’s Dr Segun Mimiko. He is also contending that there were massive irregularities and, when those unlawful votes are excluded, he ought to have been declared winner of the election, not PDP’s Dr. Olusegun Agagu.

In Osun State, it is a grim battle between the forces of incumbent Governor Olagunsoye Oyinlola of PDP and Alhaji Rauf Aregbesola of AC. Aregbesola’s party had the upper hand in most of the urban centres in the state, including Osogbo and Ilesa while PDP was said to have won in the rural areas. There are contentions that INEC conspired with PDP to rig the polls in states rural parts of the state.

These are matters being argued at the tribunal. The close race run in the three states indicate that there are hopes that the decisions could go either way. It is even more delicate in Ekiti where both AC and PDP have even presence in the legislature. Should either win more seats in the Assembly, that alter the political equation in the state.

South East: The region provides the most interesting scenario. Unlike the picture in 1999 when the PDP had a commanding control of the political structure in the zone and 2003 when only Anambra went to the opposition All Progressive Grand Alliance, APGA, the PDP now controls only Enugu and Ebonyi States. It has been contended that the PDP would have easily won the governorship of Imo State which eventually went to PPA but for the feud within the then ruling party which cleared the legislative seats in both the federal and state assemblies but conceded the governorship post to PPA. The PPA, owing to the savvy of former Governor Orji Kalu, the moving spirit behind the party also won the polls in Abia State.

In Anambra, Governor Peter Obi holds on to his seat till 2010 owing to Supreme court intervention. In Imo, APGA is contesting the result declared by INEC while the real fireworks are in Abia where Chief Onyema Ugochukwu, flag bearer of the PDP is not relenting in his efforts to get the results declared nullified. The electoral body had credited Governor Theodore Orji of PPA with 265,389 votes to Ugochukwu’s 136,858 and ANPP’s Ikechi Emenike’s 36,374. There are 28 petitions in all for governorship and legislative elections before the Justice Abdullahi Ysuf Tribunal. Already, Emenike who had pinned his hopes on the indictment allegedly hanging on both Ugochukwu and Orji, has been told to lay off and await another opportunity in 2011.

South South: The elections of governors Celestine Omehia of Rivers, Bayelsa’s governor, Sylvia, Lyel Imoke of Cross River,  Godswill Akpabio of Akwa Ibom and Oserheimen Osunbor of Edo State are still being challenged. In Edo State where vastly popular Comrade Adams Oshiomhole was flag bearer of AC, the legal battle before Justice Olabanji Orilonise is very hot. Oshiomhole contends that he won the battle, but Osunbor, a former Senator and a Professor of Law has been sworn in. It is left to the lawyers of both men to prove the case.

 North central: With the dismissal of the case of the AC candidate in Plateau State and the verdict in the Kogi polls, the other major challenge in the petition by Chief Solomon Ewuga of the ANPP against the victory of Governor Aliyu Akwe Doma. Ewuga is claiming that the polls were rigged for Akwe Doma who was elected on the PDP platform. It would be recalled that Akwe Doma used to be the leader of ANPP in the state before Ewuga left the PDP for the ANPP in 2003. The battle is still on.

North west: The North west is regarded as about the most important politically in Nigeria. It is the only zone that has seven states. Incidentally, there are feeble contests in Katsina, the home state of President Umaru Yar’Adua and his main opponent in the last presidential election, General Muhammadu Buhari. There is not much challenge to the PDP in Jigawa and the ANPP in Kano, either. Governor Aliyu Shinkafi’s election was not challenged at all.

However, in Kebbi, Sokoto and Kaduna State, the opposition is leaving no stones unturned in their attempt to get the elections of the governors nullified. In Kebbi, the election of Alhaji Saidu Usman Dakin Gari, is being challenged by both the ANPP and the DPP gubernatorial candidates. In Sokoto, the Democratic Peoples Party (DPP) is challenging the election of Alhaji Aliyu Magatakarda Wamakko as governor on the platform of the PDP. Their contention is that  he was not qualified to contest the April 14, 2007 gubernatorial election. APGA’s position is that the election was marred by serious.

In the petitions by the DPP in Sokoto and Kebbi States, Wamakko and Dakin Gari, were said to have been, as at April 14, 2007, duly nominated by the All Nigeria Peoples Party (ANPP) and since they did not withdraw the said nominations before the elections, they could not have been members of the PDP which won the gubernatorial election in the two states. The ANPP candidate, Senator Farouk Bunza’s petition faulted the participation of Governor Dakin Gari on the grounds of alleged corrupt practices and non-compliance with provisions of the Electoral Act 2006.

Senator Bunza claimed that the governor could not have been returned by majority of lawful votes as stipulated in the Act since there were no electoral registers in four local government areas, Bagudo, Birnin Kebbi, Bunza and Shanga. The DPP candidate, Alhaji Abubakar Gari Malam, presented a 34-page petition challenging the election of Dakin Gari . He contended that the election of Dakin Gari under the PDP was illegal. In Kaduna State, the election of Governor Namadi sambo is being challenged by the ANPP candidate, Senator Mukhtar aruwa on grounds of alleged non-compliance with provisions of the Electoral Act.

Hopes lost or rekindled: When the tribunals were constituted, Chief Gani Fawehinmi, a legal luminary challenged them thus: “The various tribunals have been set up pursuant to Section 285 of the Constitution of the Federal Republic of Nigeria, 1999, to deal with grievances arising from the Governorship, National Assembly and State Assembly Elections. Appeals from these Tribunals go to the Court of Appeal, which is the final court in those elections i.e. Governorship, National Assembly and State Assembly.

“Brazing and bizarre corruption by highly placed public officers at the Federal and in the States caused the unprecedented Electoral robbery in the April 2007 Elections. Our failure as a nation to punish corruption and corrupt practices clearly manifested itself in the April 2007 Elections. The unfathomable scale of the electoral robbery was a measure of the large-scale corruption in our society.

Downright dishonesty

“Unfortunately, the downright dishonesty of some of the Judges who were involved in 2003 Election Tribunals gave the Nigerian people much worry. I will refer to two instances: The first was the Anambra South Senatorial Election Tribunal, which looked into the grievances of a contestant Prince Nicholas Ukachukwu against the election of Dr. Ugochukwu Uba. The Tribunal found for Prince Nicholas Ukachukwu against Dr. Ugochukwu Uba. Dr. Uba appealed to the Court of Appeal.

Meanwhile, he had been sworn in as a Senator. The matter came before the Court of Appeal and the Court of Appeal of three Justices, Hon. Justice Okwuchukwu Opene, Hon. Justice David Adedoyin Adeniji and Hon. Justice Kumai Bayang Akaahs disagreed among themselves.

“Two of the Justices Hon. Justice Okwuchukwu Opene and Hon. Justice David Adedoyin Adeniji gave judgment to Dr. Ugochukwu Uba and the third Justice, Hon. Justice Kumai Bayang Akaahs, the youngest of them disagreed and dissented and gave judgment to Prince Nicholas Ukachukwu. After the appeal, the National Judicial Council (NJC) received petitions that two of the three Justices took bribe. The National Judicial Council established under Section 153 of the Constitution of the Federal Republic of Nigeria, 1999 set up a committee headed by late Justice Kolawole, a retired Justice of the Court of Appeal.

After a thorough investigation by the Committee it was found that Justice Okwuchukwu Opene who presided at the Court of Appeal took a bribe of N15,000,000.00 (Fifteen million Naira) and Justice David Adedoyin Adeniji took a bribe of N12,000,000.00 (Twelve million Naira) and three unascertained Ghana-must-Go bags and that Justice Kumai Bayang Akaahs the youngest of them refused to take bribe. He rejected corruption and did the Judiciary proud.

Consequently, the National Judicial Council (NJC) recommended to the President of the Federal Republic of Nigeria that these two justices, Hon. Justice Okwuchukwu Opene and Hon. Justice David Adedoyin Adeniji were guilty of corruption and abuse of office and that they should be sacked as Justices of the Court of Appeal. On the 3rd of May, 2005, the President acting under Section 292 of the Constitution of the Federal Republic of Nigeria, 1999, dismissed those two Justices from the Judicial Bench of Nigeria.

The second instance was the Akwa Ibom State Governorship Election Tribunal set up after the 2003 governorship election. There were five members of the tribunal. Whilst the proceedings were still pending in the Tribunal, on the 10th July, 2003 the petitioner petitioned the Chief Justice of Nigeria who is the chairman of the National Judicial Council (NJC) complaining that four of the five members of the tribunal i.e. the chairman, Hon. Justice M. M. Adamu (a lady), Hon. Justice D. T. Ahura, Hon. Justice A. M. Elelegwa and Chief Magistrate O. J. Isede had been compromised.

The National Judicial Council (NJC) investigated the complaints through a committee set up for that purpose and found that the allegations were true and that the Chairman of the Election Tribunal and three other members received bribes during the sitting. They were accordingly dismissed from the judicial Bench. One judge who was not a member of the Tribunal, Hon. Justice C.P.N. Senlong of the Federal High Court was also dismissed for corruption and abuse of office because he was found to have associated with one of the contestants in a corrupt manner. (His dismissal has since been upturned in court and he has been reinstated). These two examples of judicial corruption must not be allowed to happen or re-occur in the new tribunals for the 2007 Elections.

The tribunals should also bear in mind that there are two sets of people who were unconstitutionally injured during the electoral robbery. First, the voters. By Article 13 of the African Charter on Human and Peoples Rights Cap. A9, Laws of the Federation of Nigeria, 2004 which became part of our laws on 17th March, 1983 and which was confirmed by the Supreme Court as part of our laws in the case of Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228 which provides that: “13(1) Every citizen shall have the right to participate in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law”.

The voters have a fundamental right. The voters whose votes were not made to determine who should govern them either at the centre or in the states have no locus standi to petition the tribunals. The second set of injured Nigerians are those who contested but were robbed of victory. They have a right of access to the Tribunals to ventilate their grievances under the appropriate provision of the Constitution of the Federal Republic of Nigeria, 1999. They obviously have locus to lay their grievances before the respective Tribunals. Let it go down in history that the Nigerian Judiciary through its tribunals in 2007 must courageously and honestly right the wrongs inflicted on the electorate of Nigeria during the most fraudulent polls in the nation’s history.

May we also remind lawyers who will appear before these tribunals of the role and responsibility placed on them by the first indigenous Nigerian lawyer, Christopher Sapara Williams, born on July 19, 1855, enrolled in Nigeria on 30th January, 1888 and died on March 15, 1915 that: “The legal practitioner lives for the direction of his people and the advancement of the cause of his country.” The fate of Nigeria is in the hands of the judiciary.

 

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