Serving judges should be excluded from election tribunals – Afe Babalola

In Nigeria, judicial power is by virtue of Section 6 of the 1999 Constitution vested in the courts created for the federation and component states. These courts have wide powers subject to their respective jurisdictions to adjudicate on all matters involving all persons and authorities.

One of the bodies saddled by the Constitution with a very important role is  z the various election tribunals. Election tribunals are the direct creation of Section 285 of the Constitution. The section makes provision for the National Assembly Elections Tribunal and the Governorship and Legislative Houses Election Tribunal. The composition of the said tribunals is, however, as provided in the Sixth Schedule to the Constitution.

By virtue of the said Schedule, each tribunal is to comprised a chairman and four other members who are to be appointed by the President of the Court of Appeal from serving judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or others not below the rank of a Chief Magistrate.

It is from the clear wordings of the Sixth Schedule that a problem with Nigeria’s dispute resolution mechanism for election petitions should appear to any discerning mind.

This is as a result of the involvement of serving judges in the hearing and determination of election petitions. The judiciary is an important arm of any government. It plays a very vital role in the interpretation of laws which are passed by the legislature and eventually enforced by the executive arm of government. Independence of the judiciary which may be loosely defined as the ability of the judiciary to discharge its duties without being influenced directly or indirectly by outside interference or considerations is a prerequisite or sine qua non for the achievement and sustenance of any truly democratic process.

Thus the question that arises is whether appointing serving judges to serve on election tribunals in the course of which they will be required to adjudicate on purely political matters, which election disputes in reality amount to, will not in the long run erode the Independence of the judiciary?

The answer to this all-important question can be found in the controversies that have trailed most decisions of the various elections tribunals over the years.

It will be rightly observed that there has been a significant increase in the number of election petitions filed from 2007 to date.

The courts have, therefore, had more opportunity to pronounce on very contentious issues and in so doing add to our jurisprudence on election petitions.

Whilst some of these decisions have attracted much praise and commendation for the tribunals and the judges who served on them, some of the decisions of these tribunals have, however, attracted condemnation from some quarters.

There have been accusations and counteraccusations from politicians regarding the integrity of some tribunals. Most of these accusations and allegations ranging from the plausible to the ludicrous have often been made or informed by no other factor than the side of the political divide on which the politician making the allegation has found himself on account of the judgment sought to be impugned.

Cases have been reported in which parties to election petitions already submitted to court for adjudication and in some cases even already adjourned for judgment, declared openly that the outcome or judgment of the petition would be favourable to them.

Some have been reported to have distributed traditional wear or uniforms amongst their party members and supporters and made extensive elaborate preparations for celebrations including engagements of musicians all before the actual judgment of the tribunal or Appellate Court is delivered.

At one time, there were allegations by a particular set of petitioners that the respondent and also incumbent governor of the state at that time was about to take steps to arrest by judicial means, the imminent delivery of the judgment of the Appellate Court.

The respondent in reply aside from a denial of the allegation, posed the question whether the petitioners had not by their allegation, inadvertently given away the fact that they were already privy to the contents of a judgment yet to be delivered.

He queried why they would be so bothered that anyone was trying to arrest a judgment if they had not been assured that it (the judgment) would be in their favour?

He stated further that the petitioners had already distributed celebration uniforms to their supporters. The judgment, when it was eventually delivered, was in favour of the Petitioners.

In yet another case, a newspaper reported soon after conclusions of arguments on a contentious application before a tribunal, that the application had been granted by the said tribunal. This was despite the fact that the tribunal was yet to deliver its ruling on the said application.

It had as a matter of fact adjourned its ruling by over 48 hours in open court. When this anomaly was investigated, it was discovered that the media accounts of the grant of the application were influenced by a media statement sent to several media houses before the actual delivery of the ruling in open court by one of the media assistants to one of the parties in the petition.

Most curiously, the eventual decision of the tribunal when it was eventually handed down by which it granted the application tallied with the accounts reported by the newspapers a day before.

Having regard to the numerous, persistent, and disturbing accusations made against election tribunal judges by desperate politicians, the coincidence or otherwise of judgments which were predicted by politicians who had made victory preparation in advance of the judgments, and the tempting pressure in a poor economy, is it proper for serving judges to handle political cases?

In any event whether the “prediction” of politicians regarding the outcome of yet to be delivered judgments pans out or not, the integrity of the Judiciary is always the ultimate loser.

This is so for if the “prediction” is found to be correct, the losing side will forever point to the fact that the judgment had already been known well in advance of the delivery of same.

If on the other hand the “prediction” is found to be false, then supporters of the losing side will also forever allege that some underhand dealings were responsible for the change in the judgment from what they had been told or assured to expect.

This heightened level of attention and criticism is bound to affect the psyche of some judges and rub off on their ability to discharge their duty.

It exposes them in several instances to a situation in which their every conduct and pronouncement is expected to measure up not to the dictates of the law but to the high and often misguided and misplaced expectation of the public which in most cases is totally ignorant of the position of the law.

Judges being human beings and not infallible may sometimes unwittingly yield to some of these pressures and let themselves be influenced by totally irrelevant factors.

Furthermore, serving judges are of course very much interested in career advancement. Often some of the politicians who come before the tribunals either as petitioners or respondents may ultimately be able to decide or influence the professional fortunes of some of the judges.

When this is viewed against the determination of the average Nigerian politician to win at all costs, a compelling reason for worry emerges. In the long run, the judiciary and the public it is meant to serve will be the ultimate losers.

Another very important consideration for the exclusion of sitting judges on election petitions is the effect which the length of such sittings will have on existing cases before those judges prior to their appointment.

One of the most known challenges facing the administration of justice is the issue of delay in the court process. William E. Gladstone popularly noted that “justice delayed is justice denied”.

In many jurisdictions all over the world, timeliness and delay in the administration of justice are generally measured by gauging the time taken for a dispute to progress from the commencement point of filing or referral to resolution.

In conclusion, I advocate the appointment of retired judges to serve on election petition tribunals. In addition, there is no reason why election petitions cannot be referred to arbitration rather than tribunals.

This, to my mind, will ensure that petitions are determined not only with dispatch but also in an atmosphere of fair play.

The winner takes all attitude which pervades every sphere of the electoral process from campaigns to the resolution of electoral disputes will be totally absent if the resort is had to arbitration.

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