In the words of Emmeline Pankhurst “Justice and judgment lie often a world apart.” The Presidential Election Petition Tribunal (PEPT) judgement of 6th September 2023 echoed that unfortunate truth.
Many thoughts ran through my mind as I stoically endured the 13-hour torturous judgement of the Presidential Election Petition Tribunal (PEPT). As I sat there diligently observing different aspects of the poor 13-hour drama and listening to monotonous faceless voices behind the judgment, the little voice in my head kept asking – where is justice? The Tribunal could not have been more equivocal in its answer – Do Not Come Here for Justice! The entire 13-hour judgment drama silently screamed to whoever cared to listen – Do Not Come Here for Justice! From this perspective, everything observed and heard in court during the judgment begins to make sense.
Some of my observations:
We saw a judiciary system still trapped in the colonial past devoid of authentic African jurisprudence content that focuses on substance and justice. We witnessed an obsolete alien judicial system steeped albeit slavishly in symbols and traditions that you will not find even in contemporary British courts. We saw a system that is arrogantly aloof, devoid of any meaningful connection with the people they serve.
The strange live TV transmission of the judgement proceedings was dominated by voices without a face. It is obvious why the Tribunal Judges did not want their heavily cloaked faces seen by Nigerians. The tribunal judges did not cover themselves in glory with their judgment. In retrospect, hiding their faces serves the unfortunate occasion well.
We endured a deliberate 13-hour-long obfuscating legal jargon and languages, designed to confuse and shut out most Nigerians. The Nigerian judicial system has created an alternate bubble for themselves, where they are simultaneously the actors and the audience. Ironically, in contrast, many of us non-lawyers can tune- in and perfectly follow and understand proceedings and judgements in British and American courts. The joke is on all of us.
The condescension of the ‘high and mighty’ haughty, angry Judges, some of whom found it difficult to read their portion of the judgement. It was an embarrassing performance. Some poor souls in the courtroom were bored to a stupor, with many asleep through the proceedings.
The Judges’ disposition was neither neutral nor their language measured. One could easily discern the glaring anger directed at the petitioners by the Judges. It was strange and unusual.
The sometimes forced “extra-mile” attempt by some portions of the judgment to complement the viewpoints of defense counsel was evident even to some of us who are not lawyers.
From the judgement, as delivered, it would be obvious to assume that the Electoral Reform Act of 2022 was useless as a reliable framework for conducting free and fair elections in Nigeria. It was as if the Electoral Reform Act of 2022 never exist.
One would think the Judges all came from the moon or another planet. It would seem that the Judges were not Nigerians who participated and observed for themselves what happened during the election. In my previous post, I noted that –
“The election tribunal is being asked to affirm what most Nigerians saw and experienced on the day of the election. What the election observers (local and international) have all recorded and reported. The judiciary is been called to tell the truth, to affirm the truth of what we all witnessed on the 25th of February. It is that simple.”
However, we witnessed a Tribunal that deliberately insulated itself from the reality of what happened. We saw a tribunal that chose to dwell in its comfort zone of legal loopholes, convoluted intricate legal technicalities and skewed constitutional interpretations and legal jargon. These are the areas where the corrupt Nigerian Justice system flourishes.
We observed a misplaced hope in an institution disconnected from the realities of Nigerians, their lives and prayers. The Tribunal orchestrated legal theatre that had little to do with the actual charade elections and sham results of the Presidential of 25th February as conducted and announced by INEC.
Although very disappointed with the dismal quality of our judicial system as shown with the live transmitted judgement, I was not surprised. Unfortunately, the conduct of the Tribunal reconfirmed the notion that our judicial system is completely alienated from the people and not designed to deliver justice to the people. In my previous post – Is our Hopes on the Courts Misplaced?, I admonished that
” It seems obvious that the court will likely bungle the election petitions before them because they have consistently done so in the past. They have always buckled under the pressure of the establishment and corrupt politicians. They have not demonstrated to be an independent branch of government. The Nigerian judiciary is yet to convince Nigerians that they are the true arbiter of justice – the last hope of the Common man in the land. “
We must stop expecting the law courts and election tribunals to fix our broken electoral system – that’s a fool’s errand.
Valuable Lessons:
- Current electoral laws and jurisprudence are inadequate to deliver free and fair elections in Nigeria or justice in cases of election disputes.
- We need a deeper and more expansive electoral reform in Nigeria. It will require appropriate constitutional amendments and the development of new Electoral Acts to guide our future elections.
- We need to comprehensively revisit Chief Justice Uwais’s Electoral Reform Report, 2008. The failure to adopt and implement the recommendations of the report was a great disservice. That report advocated for a comprehensive reform of our electoral system and contained many insightful recommendations. The committee even provided a draft bill for 0the amendment of relevant portions of the 1999 constitution and the 2006 Electoral Act to enable easy hitch-free adoption. It was shameful that the then President – Goodluck Jonathan did not have the political will to push through that needed reform. Worse still were our lawmakers (Senators and House of Representatives Members) who did not even care to at least read the document. There were so many brilliant ideas in that report. For instance, section 7.6.1a recommended that – “The adjudication of presidential and gubernatorial election disputes should be concluded expeditiously, before swearing-in of winners of the elections.This will require the amendment of section 132(2) and section 178(2) of the 1999 Constitution and section 149 of the Electoral Act 2006.”
Section 7.6.1c recommended that “The Rules of Procedure in the First Schedule to the 1999 Constitutions and the Practice Directions 2007 are inadequate for quick and effective disposal of election petitions. A new exhaustive body of Rules is required to address shortcomings.
Section 7.6.1d recommended that “The legal burden of Proof to show that election was not mismanaged should always be on INEC. The petitioner only needs to introduce evidence of mismanagement to shift the burden” p.245.
Section 7.6.1h recommended that “A special prosecutorial body to be known as Electoral Offenses Commission should be established to work independently in the arraignment and prosecution of electoral offenders. This will include offences arising from failings of INEC before, during and after voting day.”
These are very few of the recommendations of that laudable and comprehensive report. It was almost criminal not to have adopted and implemented the report. It remains sad that our politicians have deliberately sabotaged our progress on the altar of selfish political interests over the years.
- The collation of election results must be made very transparent. We must stop the deeply corrupt manual collation of results and join the rest of the world in instituting robust electronic collection of election results.One of the shames of our February election was that INEC deliberately sabotaged the use of BIVAS to transmit election results, claiming a ‘technical glitch.’ Proper use of BIVAS to transmit election results would have saved the country from the agonies of that sham manually collated election results experience. The February 25th Presidential Election has taught us that we must go beyond the use of BIVAS, to put in place a more transparent, comprehensive and robust electronic collation system to tally election day results from the pooling booths to final collation.
- As a society, we seem to have unfortunately accepted the notion of INEC disenfranchising significant portions of the electorate on election day by simply not showing up on time or not even conducting elections. These have increasingly gotten worse over the years.It is increasingly evident that it is a ploy used by influential interests to discourage and disenfranchise particular types of voters in specific locations. This must stop. Our electoral system must make it easy for every eligible voter to vote on election day without regard to who they are and where they live.
- Furthermore, we must stop tolerating electoral offences by electoral officials and the use of violence by political actors to intimidate voters. We must begin to enforce our laws and regulations on election crimes and offences.
- We must stop the increasing penchant for relying on the law courts to decide our elections. Elections must be appropriately decided on the ballot box, not in the law courts. Therefore, we must begin to insist on having credible elections in Nigeria. Ordinarily, courts are not supposed to decide elections. Worse still, the Nigerian court system is not designed to deliver justice.
Conclusion
What we unfortunately witnessed on the 6th of September is ‘judgement without justice.’
In retrospect, it is at least good for the aggrieved parties in our “stolen mandate” election of 25th February 2023 to have acceded to the all too familiar mischievous counsel of “go to court” against their better judgment. It has been good to have gone to court if only to convince oneself (once again) that the courts are not the answer to our corrupted electoral system. A corrupt judicial system cannot salvage a corrupt electoral system. Rather, they incestuously reinforce each other to expose the nature of the monstrous system we must confront.
One of the central lessons of the Presidential Election Tribunal through their inglorious judgement on the 6th of September was that the National Electoral Reform Act of 2022 is a grossly inadequate tool towards ensuring free and fair elections in Nigeria.
To this end, implementing a more comprehensive constitutional and electoral reform is the only way forward. It outlines the immense challenges confronting Nigerian civil societies and all well-meaning Nigerians in pushing through adequate electoral reforms to guarantee a free and fair democratic election culture in Nigeria. We must figure out how to push through comprehensive constitutional and electoral reforms with the existing corrupt executive, legislative and judicial branches of government currently in place in Nigeria. What a Herculean task!
The fight for the soul of our country – Nigeria continues.
Written by
Dr. Okey Ndubueze