Against the backdrop of the verdict of the 2023 presidential election by the Supreme Court, Prince Adewole Ebenezer Adebayo, one of the contestants in the presidential election on the platform of the Social Democratic Party (SDP), says election petition isn’t a compulsory competition process in the quest for power even as he added that politicians don’t want justice, rather they go to court to seek power. He spoke with Gbenga Aderanti. Excerpts:
What is your overview of the presidential elections, the Judicial part of it, especially, from the 120 days from the Appeal Court to 60 days at the Supreme Court, but at the time the judgment was given, it was 8 months after the elections, could it be better?
Of course, it could be better. And we must thank God, unlike what we used to have before. Three years down the line, litigation would still be on such that the person would be preparing for the coming election. But now, we say we should cut it short (which is in place now). Now, the next target is to conclude everything before anyone is sworn in so that there won’t be colour perception about the judgment.
The next we should aim for after election adjudication is concluded before being sworn in. We should have a case where our elections won’t have to go to court at all like you have in some countries where you have about 1000 elections, only one or two go to court or none at all. That should be our aim now.
What do we then do to get to that eldorado?
There are three things we need to do, but the majority depend on the politicians. One of it is to ensure that the law is reformed. Everybody involved in law reform is a politician. That is the irony of the matter. When we say we need to change the law, we must not forget that every member of the National Assembly is a politician and potential beneficiary of the law. The president himself who is the other half of the legislative process because the legislative power of Nigeria is invested in two people. National Assembly and the president because if the president doesn’t sign, it can not become a law. So, the two of them are politicians, which means it is only by moral persuasion and emphasising it in the public that it becomes profitable for them to make this amendment.
This year’s 2023 election petitions proceedings, the court spent less time than the litigants themselves. Supreme Court spent less than a week to give decision and they gave that similar thing when Awolowo/Shagari was before them. On the court side, there isn’t a problem. Where there is a problem is where you are asking the court to be faster than the legal proceedings or to give you relief which they can’t give by law or to stop entertaining cases which they must entertain by law. Once the law is changed and the politicians change their behaviour, then the judiciary is the easiest because it is the most law abiding, most cooperative, and they don’t cause problem for anyone. I didn’t file the petition for the election, so the Supreme Court didn’t give unfair judgment to me because I didn’t file anything. And if I file a good one, they will give me good judgment . I think what is important to state here is that election petition is not a compulsory competition process in the quest for power. Why we keep on having this tension is that what the politicians want, the court doesn’t have it. So, there is no time in the history of election litigation that the politicians will be satisfied with the court because court can only give you justice. Politicians don’t want justice. They want judgment leading to power. So, they see the court as another layer of getting power. But the court isn’t designed to give you power. The court is designed to give you justice. So, sometimes you may get justice, but if justice doesn’t land you in power, you say this isn’t justice.
I think there is a general misunderstanding of the rule of the court and the rule of the law, and I saw that in the course of our electioneering. There is none of this judgment by the Supreme Court that I didn’t predict. At no time can what happened at election day be before the court. That is not what it is for. What is before the court is the petition that the person brings before the court. And if the petition doesn’t resemble what happened on the election day, the court won’t talk about it because the court isn’t asked to supervise INEC. The court is there to listen to the petition before it. And if the petition before it doesn’t capture errors of INEC correctly and goes outside to talk about other things conflict with the law . Dont say the judge who lives in surulere where the anomalies of the election happened, and it is expected that he would see reasons with you. Sorry, he is not looking at that. He is looking at what it’s written before him. Judges don’t have plenary powers. They are like you and me on an ordinary day. The jurisdiction to determine the issue is limited by the claim before it and the applicable law.
Some have opined that the Supreme Court lay more emphasis on the technicalities in its decision instead of the substance of the matter. Like the issue of Chicago State University, which was not looked at all. What do you think?
In election matter, there are three things you have to consider. One – for people who are not lawyers. Everything about law is technicality to them. Two- election matter is said to be swin sineris because it doesn’t follow the traditional procedural, technical and substantive because election itself is technical in nature, it has time limit, what you can plead, who can be a petitioner and who can’t. The whole jurisprudence of election is technical by nature.
Thirdly- the claim of the party before the court was not a substantive claim, it was a claim based on technicality because if I come to court and say I scored the highest votes and I can prove it, that is substantive. If I come to court and say well, the other person scored higher votes than me but he is not qualified, that is technicality , even if I say he doesn’t have certificate, it is technicality because you are not saying he is the one the people voted for you, are saying that well, he can be the winner but his vote on technical ground should be struck out or discontenance or wasted because his deputy ought to file a paper within 30 days and he didn’t file it. That is technicality, too.
In the case of Lion in Bayelsa, the Supreme Court didn’t say Lion didn’t win the election. They said his deputy had a technical problem. That is the issue. You can’t come to court to seek technical relief and be complaining that the court is answering you technically. This year’s petition was the most technical of all because all the things they were talking about were technical by nature. On the issue of Chicago State University, there are three stages to it. Even if the court had admitted the evidence it still won’t make a difference but the Supreme Court being a final court didn’t do _aguendo_ where you dont agree with it but you will still admit it in case a court above you disagree with you. If they had brought it to the Court of Appeal, it would have said the case isn’t admissible, but let me just assume that it is admissible in case it gets to the court above. But the case was brought to the Supreme Court as fresh, but it has a strict rule because they don’t admit witnesses . Again for the court to look at what the court at the lower hadn’t looked at before they have to assume the position of the court below because if they are to assume the function of the court below the time limited for Court of Appeal to sit on it had expired and that limitation of time is not stated in the electoral act , it is situated inside the constitution and the constitution is superior to the Supreme Court because it is from the constitution that the Supreme Court was created. So, anything that is contrary to the constitution, the Supreme Court can not help you.
There were some pronouncements that the Supreme Court made in that judgment which I hope politicians will abide with. For example, the issue of 25% of the FCT…
When the Supreme Court made a decision in the case of Atiku or Obi versus Tinubu, it didn’t have to search for a new rule. They just referred to the INEC decision. It is very clear that it is not required. In four year’s time, some would have forgotten if the issue came tangentially close. Some people would still make the argument that it is the nature of law practice. Dont assume this is the last time you will hear it or hear it in the court.
The INEC IREV and its bimodial voter accreditation machine came up in the petitions of the petitioners at the Supreme Court even though the court had earlier ruled on similar matter in the past like that of Adeleke and Oyetola and Oyebanji and Oni. Do you think the apex court has spoken loudly enough for everybody to now understand?
That brings me back to what I said earlier.
Politicians don’t go typically to court looking for justice they are going there looking for power . The way to get a good and clean election is to have good and clean politicians. Next to that is to have your agents at every polling unit. Once the election is conducted there and you are given your results, you collate your own results infact you can have your own internal IREV. In SDP, when we ran, we had our own situation room, and we were collating our results from all our agents on the field. When we started having problems was when we noticed they went awol as they were not sending us anything. From our findings, very few controversy emanated from the polling units . If you are complaining about 86000 polling units, you will automatically need 86000 polling agents to come and say I was there , this is the result given to me but is completely different from what was announced on TV. People think the election litigation process is a continuation of the elections campaign.
It appears there is no room for any function for number in the judiciary .
Yes, that’s why the number two lasts long. It’s like governor and deputy governor. I think our general attitude to leadership in Nigeria needs a kind of review, which is that we need to be a little more liberal. We need to avoid concentration of power and prevelegies . In the case of the Supreme Court regarding what Justice Datijjo is talking about, even the Chief Justice himself has some measure of injustice to home with respect to remuneration. I don’t think that speech is lost on his colleagues but for the public there isnt much we can do for them because the solution is within their rank which is to review their own salary and talk to the commission involved
The constitution talked about the number of justices that should be at the Supreme Court at a given time about 21, including the CJN. But the number has depleted consistently through death and retirement. What do you think should be the mode of appointment of judges and justices ?
There are two sides to appointments of Justices of Court of Appeal and Supreme Court. One side is the judiciary itself, where they deal with the quality of the person they want and the president who had the power to appoint. From my reading of the constitution, the president is even more powerful than any other person because he is the one who can appoint. The NJC can make recommendations to the president. If the president isn’t satisfied, he won’t appoint. And that is the end. On the other hand, if the president appoints somebody and the judiciary isn’t happy, the person will have a hard time.
Can the president appoint without the input of the NJC?
Under the constitution, if somebody makes recommendations to you, it is not an appointment. From what I know about the presidential constitution, you are not bound to take any advice you are not bound to take it. You can disregard it. It is just that it hasnt happened before.
How do we open the processes of appointment of justices to the Supreme Court such that this inbreeding can be reduced?
Appointment to the highest court should be from bench and bar because whatever the bench is writing, the bar is producing it, but in Nigeria, I think we are trying to make two radical changes. I think at the minimum start with the Court of Appeal, don’t jump to the Supreme Court all at once . The judges are watching the lawyers too because they know their behaviour. The way we are watching the court and that’s how the court too is watching the bar. Let’s start calibrating from the court of appeal where you learn judicial process.
