ON June 23, 2016, a respected and United Nations-recognised human rights organisation, Justice Action & Human Rights Protection International Network (JAHRPIN), published a full-page advertisement in this newspaper last Thursday regarding some of the judicial and political interventions of the Attorney General of the Federation (AGF), Abubakar Malami. It is incredible how the import of that advertisement escaped the attention of the Nigerian media. Shortly before the Kogi State Governorship Election Petition Tribunal gave judgement, the AGF had granted an interview to the Kaduna-based Liberty Radio/TV wherein he commented without restraint and with bias on the petitions pending before the tribunal. The NGO took the AGF to task, deprecating his prejudicial statements and wondering whether the coterminousness of his views with the judgement of the tribunal should not elicit deep concerns and investigations from the government.
Hereunder is the kernel of JAHRPIN’s position:
“….After the widely condemned misguided action of the Nigerian Attorney General with the INEC, at JAHRPI, we would have thought that the Nigerian Attorney General’s focus would have been to salvage the reputation of his office, but what happened thereafter is most shocking. Our records at JAHRPI showed that instead of the Attorney General to admit misgivings in his earlier pronouncements on INEC, he unapologetically rubbished the independence of the Nigerian judiciary by openly commenting on such a case, which was before the electoral tribunal. In fact, whilst the Tribunal was still undecided on what to do after hearing from all parties in the dispute, the Attorney General went public with his opinion or directives in a two-page interview as published in The Nation newspaper edition of Sunday, June 5, 2016. Unfortunately, the interview contained sufficient information to be readily categorized as influencing the Bench. In JAHRPl’s analysis, it is obvious that the Nigerian Attorney General did not avoid the risk of prejudging the pending litigations, which were undergoing careful examination of the facts and law underlying the cases by the Judges at the Election Tribunal. In every objective estimation and conclusion by JAHRPI what the Nigerian Chief Law officer did had the capacity and essential ingredients to hamper the chances of some contending parties getting justice in the case.
“Without a doubt, the Attorney General acted in a manner that portrays him as having prodded these umpires to be partial. This assumption unfortunately turned into reality when few days after the Attorney General made his views public, the Electoral Tribunal ruled in line with the views of the Attorney General. If these were acts of coincidence, the conclusion by JAHRPI is that they were most unreasonable as it was a direct act of irresponsibility for the nation’s number one judicial officer to engage in actions of breaking the most fundamental legal principle of prejudicing a case.
“At JAHRPI, we consider it highly regrettable that a country like Nigeria where the Constitution defines the role of the Attorney General, the duty of the Judiciary and the task of the INEC as completely different and independent have now been usurped by the Attorney General through many flawed remarks and notoriously wrong directives to both INEC and the Election Tribunal on the disputes in Kogi election, thus combining to be the product of Kogi elections.
“Based on the totality of the Attorney General’s bias, at JAHRPI we do not believe that both INEC and the Judiciary acted independently without the pressing demands of the Attorney General. The evidence that the interference of the Attorney General was irresistible is evinced from an examination of the outcomes from the decisions of INEC and the Election tribunal. These decisions are clear indications that INEC officials fell short of their declaration to Nigerians to conduct their duties without partiality. On the side of the Election Tribunal, it is obvious that the decision of the Judges has pitched them against their judicial oath to administer justice without respect to persons.
“In fact, even though the Nigerian constitution does not suggest that these institutions in any way need the advice or consent of the Attorney General to reach any decision on the Kogi issue, however, the Attorney General’s naked hostility to the independence of these noble institutions was clear as he obviously stretched the law beyond acceptable limits contained in the constitution by using his directives to supplant the law as well as the Nigerian Electoral Act 2010.”
Pursuant to JAHRPIN’s pungent observations and demand for the re-examination of the Kogi election judgement and sanction of the AGF, Palladium has gone through the tribunal’s judgement again and juxtaposed some of its decisions with the earlier broadcast and published comments of the AGF on the Kogi petition. The similarities are too disturbing and unethical to be ignored. As the reader will discover from the juxtapositions below, it would be unreasonable to suggest that the tribunal was not influenced either directly or, as JAHRPIN said, coincidentally.
AGF’S INTERVIEW AND TRIBUNAL’S FINDINGS
- ON LOCUS STANDI OF HON. FALEKE
Attoney General of the Federation on Liberty Radio/Tv, Kaduna & The Nation on Sunday, June 5
“So… what we are saying is that someone that has not participated in the primaries can definitely not benefit from the process of election”.
Kogi State Governorship Election Petition Tribunal
“It is also a fact that a complainant must be an aspirant who participated in the primaries that produced the candidates… Having analysed as above and the reasoning in the above cases, it is therefore this tribunal’s considered view that the Petitioner who has not been shown to have participated as an aspirant in the primaries of the APC for the choice of a gubernatorial candidate for the 21/11/2015 and 5/12/2015 elections lacks locus standi to challenge the nomination sponsorship and substitution of the late gubernatorial candidate of the 2nd Respondent”
Pages 64-65.
- SUBSTITUTION ON ACCOUNT OF PRINCE AUDU’S DEATH.
AGF
The primaries had taken place in compliance with the timetable that was put in place… It is only logical that since you have a valid primaries (sic) that had never been subjected to petition or contention. The option is to revisit it and then if you want to be just and fair, you look for the second candidate in that process that has been legitimately and lawfully conducted by INEC.
TRIBUNAL
“… It is the tribunal’s considered view that the fact that the 2nd Respondent participated in the APC primaries and was the 1st runner-up as shown in exhibit R2 (8) to the late Prince Audu, the gubernatorial candidate of APC… it naturally follows that on the exigency of the death of the gubernatorial candidate of the party, that the party’s runner up in its primaries in the person of the 2nd Respondent will be an appropriate choice of candidate to substitute it’s deceased candidate in the circumstance, more so when APC was invited by INEC to substitute it candidate”
Page 133.
“To our minds, the 2nd Respondent having participated in the governorship primaries of APC and being the 1st runner-up in the election which produced the late Prince Audu as the winner is more qualified to step into the shoes of the winner of that primary election in the person (in replacement) of Prince Audu, now deceased, than the petitioner who did not participate in the governorship primary election and was never nominated by APC at any stage as its governorship candidate”.
Page 139
- VOTES BEING WON FOR POLITICAL PARTIES
AGF
“In the case of Amaechi versus INEC it was made abundantly clear and again by the interpretation of section 112 of the Constitution that votes are cast for political parties… Arising from the issue of Amaechi was that votes cast are for the party simpliciter”.
TRIBUNAL
“The tribunal is not in any doubt that the said 240,687 secured through the candidacy of late Prince Audu and the petitioner belong to the party in whose name, the joint candidates secured the votes. To that end, the issue of transfer of votes to the 2nd Respondent does not arise. Consequently, it is the tribunal’s view that both the votes garnered at the 21/11/2015 election which was declared inconclusive and the ones general in 5/12/2015 belong to the political party who sponsored the respective candidates”.
Page 141.
- ON INEC’S DECLARATION OF 21/11/2015 ELECTION INCONCLUSIVE
AGF
“Whether we like it or not the process was inconclusive arising from the position taken by INEC.
…Again the election in its own right was declared inconclusive by INEC: So again note that it is the declaration of an election that creates a mandate, if results are not declared where will you get the mandate from?
TRIBUNAL
“The tribunal find (sic) from the facts available in the instant petition that the election of 21/11/2015 was declared inconclusive by the 1st Respondent (INEC). This being the case, it is the tribunal’s view that no right can accrue from inconclusive election to the petitioner…Page 74.
- NON-DECLARATION OF HON. FALEKE AS DEPUTY GOVERNOR ELECT.
AGF.
“If supposing INEC had even declared Audu before his unfortunate death as the winner of the election and was sworn-in and then died, it is automatic that the deputy governor will step in”.
TRIBUNAL
“It is however obvious from the fact available to this tribunal that the facts in contemplation by section 181 of 1999 Constitution have not arisen in the instant case, as there is no evidence, documentary or otherwise presently before the tribunal to show that before the death of the APC gubernatorial candidate, Prince Audu, that the gubernatorial candidate and his deputy have been pronounced as governor and deputy governor-elect respectively.
Pages 57-58
