Presidential Election Tribunal: Gathering Clouds of Judicial Activism
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Having taken a
sabbatical of sorts from commentaries on the Nigerian political scene to the US
Presidential primaries, it would indeed, take a major event in Nigeria force me
to make a detour midstream that would, so to speak, bring me back to the beat.
Since I temporarily redeployed my analytical facility to the US presidential
election, however, I have not lost touch with happenings on the Nigerian
political front in which I, unarguably, have deep and abiding interest as a ‘son
of the soil,’ hopefully as the reader too.
A lot of water has passed under the bridge in Nigeria since then that would
ordinarily have elicited some commentaries from me. What, with ex-Governor,
Chris Mba, (who was unceremoniously sent packing by our Almighty Supreme Court
after or before barely celebrating his 100 days in office), regaining his
gubernatorial stool in Anambra State, courtesy of the Court of Appeal; What,
with ex-Senate President, Ken Nnamani’s aborted coup de tat against OBJ over the
latter’s Chairmanship of PDP’s Board of Trustees (BOT); What, with local and
international uproar generated by President Yar’Adua’s ill-conceived,
ill-executed, and poorly managed re-nationalization of NITEL; there was much on
the plate to task my analytical prowess. But all that palled into insignificance
when juxtaposed with the epochal US presidential election featuring rock-starred
black senator from the state of Illinois, Barrack Obama, as the chief dramatis
personae.
With the Wisconsin and Hawaii primaries, and the debate in Austin, Texas, behind
us, however, the American political scene is bound to witness a lull between now
and March 4, 2008, when the electoral machine would rev up again and roar into
life in PA, Ohio, and Texas, where presidential contender, Hillary Clinton, is
destined to meet her political waterloo. If you watched her closing remarks in
the Austin Texas debate, it was more or less a valedictory speech, although she
has vigorously denied that, that was her intention. Who cares if it wasn’t,
anyway?
She was trying to recreate the New Hampshire episode when she acted out and
faked a nervous breakdown, weeping. It didn’t fly this time. On the contrary, it
showed her as bidding farewell to her bid for the nomination. Which is just as
well because yours truly had long advised her and her philandering hubby to step
aside for Obama and not stand in the way of history, otherwise, both would be
swept aside by the hurricane of history. My warning, issued more than a month
ago, seems to be playing out as predicted after Obama swept through 11 primaries
and caucuses like a hurricane knocking out Bill and Hill, now limping across the
country on political crutches.
The brief interregnum provided by the intervening lull in the American
presidential primaries could be profitably utilized to touch base with Nigeria
with a view to bringing to the forefront of political discourse certain critical
developments potentially having direct bearing on the last presidential
elections. It’s interesting to note in this regard that while the United States
is looking forward to a presidential election later this year, Nigeria, which
conducted her own presidential election last year, is looking backwards, not
forward, and second guessing herself as to whether her own election, conducted
last year, was in fact, a presidential “election” or presidential “selection.”
The arbiter that will deliver that verdict, however, is not the pesky Franklin
Otorofani but our highly revered Court of Appeal, which has statutorily
converted itself to a ‘Presidential Election Tribunal’ for the purpose of the
adjudication of presidential election petitions.
However, while President Yar’Adua is curiously, (some would say, suspiciously),
nominating the head of the Tribunal for the Supreme Court and urging the Senate
to expeditiously confirm the nomination, the Tribunal itself has fixed next
Tuesday as the ‘Day of Judgment’ that has pushed the alarm button in the
Presidency. Everyone’s job in the presidency is on the line—from the President
down to the least political appointee.
And the scare goes beyond the Presidency—the jobs of the service chiefs, heads
of departments, diplomats, EFCC acting Chairman, and everyone else in between,
are on the line. Oh yes, folks: a single judicial pronouncement is all it takes
on Tuesday, to summarily throw all these high flying public functionaries out of
their desks and right into the jobless market to join our teeming jobless
graduates. Tell me about it! How about that for change, uh? Don’t you think
these chubby faced functionaries who are feeding fat on our collective miseries
deserve to be shoved aside for a while and made to taste the bitter pill of
unemployment, even for a day? Drop me a line folks, and let me know what you
think: mudiagaone@yahoo.com
Understandably, a flurry of political activities has hit the Nigerian political
scene witnessing both major and minor adjustments of partisan political
boundaries, without necessarily involving the National Boundary Adjustment
Commission! Trust our political gladiators; they don’t need the services of that
commission to carryout the adjustments as and when needed. They will carryout
the adjustments based not on what is good for Nigeria but on where their bread
would be buttered the most rather than on ideologies or principles. And in their
purely selfish maneuvers don’t be surprised to find strange bedfellows wallowing
in unsanctified and unblessed marriages of convenience contracted overnight to
wrestle power from the ruling party.
Already, arch rivals—candidates Abubakar Atiku and Muhammadu Buhari, who could
not agree to form a common front to confront the PDP in the presidential
election are reportedly holding nocturnal meetings to join forces obviously in
anticipation of a favorable verdict that could lead to a re-run of the election.
It’s not in my place to question their optimism for a re-run. They have fought
hard and long and the question as to whether or not their judicial pugilism has
produced a preponderance of evidence to tilt the scale of justice in their favor
is left for the Honorable Tribunal to answer, not me.
Without sounding sub-judicial, however, this writer opines that the Tribunal has
only one of three possible choices to make in this case, to-wit; (1) dismissal
of the petition with upturns of the results in one or more states or parts
thereof; (2) an out and out dismissal of the petition as being completely
unmeritorious in all materials particular; or (3) upholding the petition with a
consequential orders for a re-run.
This last scenario is what the petitioners are banking on and that’s what is
currently fueling and energizing the realignment of political forces in the
country. While the first two scenarios would leave the Yar’Adua presidency
unscathed, the last one would be profoundly destabilizing, not only to the
Yar’Adua government but for the nation at large. This writer is of the opinion
that an outright nullification of the presidential election, which cannot be
ruled out given recent judicial antecedents spawned by our newfound activist
judicature, is an ill-wind that will blow nobody any good. With Africa yet to
recover from the ongoing mass slaughter in Kenyan, which itself was preceded by
the Hutsi/Tutsi genocide, which itself was preceded by the Liberian,
Sierra-Leonean and Sudanese ethnic bloodbaths, Nigeria should be the last
country on the continent to be foisted upon by judicial fiat, an orgy of
bloodshed and mayhem on account of some electoral improprieties, no matter how
widespread and serious they might be.
There is a limit to judicial activism or rather judicial populism that could
threaten our unity and stability. The unity, peace, and stability of the nation
should not and must not be compromised in anyway, shape, or form by any judicial
attempt to correct the irregularities of previous elections even if judicially
established. This is because the unity, stability, and peace of the nation is by
far greater and therefore more important than the strict enforcement of
electoral laws governing the presidential election. Law is made for man and not
man for law. The law should be the servant of man and not the other way around.
A slavish adherence to undue legalism in the face of threat to the unity, peace
and stability of the nation is, to say the least, treasonable. I dare say that
any Judge who delights in setting the country on fire with activist judicial
pronouncements designed to please some sections of the political class deserves
to be arrested and prosecuted for treasonable felony for launching our dear
country on a perilous path to self-destruction. This should not in any way or
shape be viewed as an attempt to intimidate or unduly influence the outcome of
the Presidential Election Petition but as a general warning to our activist
judiciary that seems to have derailed from the path of caution, sobriety, and
judicial rectitude in recent times, even as I would readily acknowledge the
salutary effects of some of the rulings on the polity.
Our judiciary must, therefore, understand that while it is all well and good to
return a verdict of a flawed election it might not be all well and good to
pronounce a consequential order that would set the nation ablaze. Nigerians will
hold the judiciary responsible for any overzealous and overreaching judicial
pronouncements, such as happened in the River State gubernatorial election,
which returned to power a complete stranger to the gubernatorial election in the
state. Such judicial travesty must not be allowed to be replicated at the
presidential level just because someone wants to be seen and applauded as being
fearless and courageous. The destiny our country is too important to be toyed
with some un-elected exuberant judge totally divorced from the potential
consequences of his/her pronouncements.
In the event of nullification of the election, however, it would be interesting
to know how the Tribunal would couch its consequential orders. Everything is
tied to the consequential orders and not the findings of facts. An order of a
re-run would raise grave constitutional and ethical questions. For starters,
what would be the status of the Yar’Adua presidency? Would Yar’Adua suffer the
same fate as Chris Mba before now whose tenure was transformed overnight by some
judicial alchemy into a legal fiction? If so, what would happen to all the
presidential orders and actions of Yar’Adua and his ministers and advisers?
Would they become nullities as well? And how swift would Mr. Rule of Law enforce
the judgment of the Tribunal when his boss is at the receiving end? Would our
overzealous AG and the IGP rush to enforce the order and bundle Yar’Adua out of
the Presidential Villa the way they did to the governors? Or, would they seek to
subject the verdict to further interpretation even in the face of its clear
wording in order to buy Yar’Adua time to maneuver?
And more importantly, who would conduct a presidential election re-run—the
judicially deposed President or his clone? Would the National Assembly be made
to play any role in such an eventuality by providing some leadership and funding
for the re-run since that item is not captured by any vote in the just-passed
budget. Would there be a supplementary budget? If so, who will present it? Would
an illegitimate President be allowed to present a supplementary budget to the
National Assembly, or for that matter, remain in office to carry out
presidential duties in the interim? Or, would the Senate President, who is next
in the line of succession, assume interim powers to conduct a re-run of the
presidential election in the event of the ensuing vacancies in the Presidency
affecting the President and his Vice, by force of law? And who bears the cost?
The suffering Nigerian people, again?
This is clearly an uncharted territory that the Tribunal must think hard and
long about before rushing to make dangerous pronouncements that can throw the
nation into political turmoil and confusion, thereby turning the hand of the
clock backwards in the name of electoral justice. Dangers lie ahead and one can
only hope that reason and commonsense rather undue legalism will prevail in the
end. The issues here go beyond law and justice and touch on the very foundation
of our country as going concern. The Nigerian judiciary must not foist on the
nation a totally avoidable crisis of unimaginable catastrophic proportions, just
to please Buhari and Atiku. No, we don’t deserve and we don’t need it. The
nation must be spared the political convulsion that is bound to engulf her if we
allow judicial activism and some quaint notions of justice to undermine the
unity, peace, and stability of the nation.
All said and done, and in any case, it will be an uphill task for Buhari and
Atiku to successfully overturn Yar’Adua’s victory at the Tribunal. This optimism
is premised on the fact that while there may have been irregularities, which
have yet to be established, the 2003 Electoral Act, (as amended) as indeed, all
other Electoral Acts before it, does require 100% compliance with the electoral
provisions because such a requirement is impracticable and impossible to
enforce. On the contrary, the Act provides for “substantial compliance” with its
provision. Substantial compliance means certain degrees of compliance, which
requires judicial calibration.
Therefore, what the Tribunal has been called upon to determine is whether or not
there was substantial compliance with the provisions of the Electoral Act and
not whether some of its provisions have been infringed upon. To hold, therefore,
that one or two provisions of the Act had not been complied with by INEC, the
candidates, or whoever, in any material particular, is not to say that the
Electoral Act has not been complied with as a whole. In other words,
non-compliance with parts of the Electoral Act is not tantamount to
non-compliance with the entire Act, upon which verdict alone an outright
nullification of the presidential election could be judicially and judiciously
founded.
So, as Buhari and Atiku prime their political forces for another presidential
duel, they should keep in mind that a finding of electoral irregularities may
not necessarily translate into a victory for them that could produce a re-rerun
of the presidential election. As Buhari knows too well, nullification of the
results in Ogun or any other state (s) for that matter, based on electoral
irregularities, might make him and Atiku feel good and massage their huge egos,
if feeling good is their goal, but it will not get them any nearer to Yar’Adua’s
throne than they were at the beginnings. In the end, Atiku and Buhari may find
out belatedly that working together before the presidential
election is a whole lot better than working together after the presidential election!
Hey guys, any lessons for you folks out there?
And the Tribunal rises! Case dismissed (?)
Franklin Otorofani, Esquire (USA)
Contact: mudiagaone@yahoo.com
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