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Imo Verdict: Supreme Court Has Stirred The Hornets’ Nest

Published by Guardian

Interrogating calls for judicial review

Decisions on election petitions by Nigeria’s Supreme Court have always impacted on the polity, not only at the level of the country’s jurisprudence, but also by influencing political parties and voters’ behaviours.

The recent apex court’s ruling on the 2019 governorship tussle in Imo State has continued to generate reactions. But looking back at the nation’s political history shows a plethora of instances of such earth-shaking pronouncements that affected the course of democracy.

Can the Supreme Court over-rule itself through a judicial review? How far does the apex court’s pronouncement on the appeal by Uche Nwosu’s appeal on December 20, 2019 affect the position of APC in the governorship litigation?

Background

At the country’s return to the path of multi-party democracy, no governorship election provided great consequence like that of the 2007 contest in Rivers State, which was a straight race between the Peoples Democratic Party (PDP) and the All Nigeria Peoples Party (ANPP).

However, despite the fact that PDP defeated ANPP amid allegations of rigging and ballot box snatching, the legal tango that progressed to the Supreme Court was an intra-party disputation between Sir Celestine Omehia and a former Speaker of the state House of Assembly, Mr. Chibuike Rotimi Amaechi, over who was the validly nominated candidate of PDP.

Although Amaechi had, shortly after his name was substituted with that of Omehia, retreated to Ghana during which time the election was held, the apex court on October 25, 2007 sacked Omehia and declared Amaechi the authentic candidate for the party.

Attempt by Omehia to get the apex court to review its judgment was unsuccessful, despite the fact that the Court of Appeal Abuja had earlier granted his reliefs challenging the election of his successor, Rotimi Amaechi. Justice Muhammad Muntaka-Coomassie, who read the Supreme Court’s decision, said the Court of Appeal “erred in law to have ruled in favour of Mr. Omehia,” stressing that Omehia had no stake in the case he filed.

In line with other such cases, Amaechi should have enjoyed four complete years in office, which would have warranted that he sought re-election in October 2011, but he decided to participate in the April general election, thereby making Rivers State to escape off-season gubernatorial poll.

Miscarriage of justice

Almost 12 years after the contentious ruling, the Supreme Court overruled itself, stressing that the decision to enthrone Amaechi as governor, in place of Omehia, was wrong in law, adding that the ruling has lost the potency to serve as judicial precedent.

Delivering its judgment in the case, Abdulrauf Abdulkadir Modibbo versus Mustapha and two others, which sought the court’s finding on who was the rightful APC candidate for the Yola North/South. The apex court declared that the controversial law relied on in the Amaechi versus Omehia case had been thrashed by Section 141 of the Electoral Act, which stipulates that “before anybody is declared elected in any election, such a person must participate in all the stages of the election.”

It would be recalled that Amaechi participated in the December 2006 governorship primary, but the PDP, which was empowered by the Electoral Act and the Constitution to identify its candidate, decided on submitting Omehia’s name since, according to it, Amaechi’s election at the primary ‘developed some K-leg.’

It was against that background that most observers held that the apex court’s ruling was not only shocking, but also amounted to a miscarriage of justice unprecedented in history. At the time of its ruling, however, the Supreme Court said Omehia “never existed in the eyes of the law”.

Despite the legal maxim that justice delayed is justice denied, the nation’s jurisprudence, especially as it pertains to electoral disputations, have always suffered from needless delays and procedural hiccups, which predispose the judicial institution to miscarriage of justice.

For instance, in April 2007 the Independent National Electoral Commission (INEC) was dragged to court by Ifeanyichukwu Okonkwo for conducting a supplementary election on a date later than the 30 days prescribed by the Electoral Act and the constitution before the expiration of the term of office of the incumbent governor. The plaintiff had argued that by holding a supplementary poll on May 5, 2007 INEC infringed on the stipulations of the Constitution, insisting therefore that the supplementary poll, which returned Chief Ikedi Ohakim of Progressive Peoples Alliance (PPA) as winner was not only illegal, unconstitutional, but also null and void. Till this day, the matter is yet to be dispensed with at the Court of Appeal Abuja.

Mixture of facts, fancies

In the current matter of Supreme Court’s ruling on the 2019 Imo State governorship poll, legal and political issues have been thrown up. While the political considerations revolve around whether, despite the existence of a power sharing arrangement in the state, Imo electorate voted for Governor Hope Uzodinma of the APC.

It is on record that right from 1999 through 2007 and 2011 to 2019, Imo West Senatorial District, otherwise known as the Orlu Zone, have provided occupants for the office of governor for 16 years. Governor Achike Udenwa served for eight years (1999 -2007), Senator Rochas Okorocha held sway for another eight years spanning 2011 to 2019.

Furthermore, a breakdown of the results of the general elections, especially the spread of membership of the state Assembly, which election was held simultaneously with the governorship show that APC had scant presence. Could it be that voters in Imo West concentrated on the governorship, despite the fact that the then incumbent had a preferred candidate in the person of Ugwumba Uche Nwosu of Action Alliance (AA)?

A rights group, International Society for Civil Liberties and the Rule of Law (Intersociety), contended that the Supreme Court’s resort to “canceled votes from 388 poling units, which it wholly re-imported, reversed, validated and awarded to the newly crowned governor is also strange.”

In a statement by its chairman of Board of Trustees (BoT), Emeka Umeagbalasi, Intersociety stated: “Our questions are, how come the “canceled votes” were not reflected in the total number of accredited voters given by the Imo State’s INEC as 823,743? If elections were truly canceled in the 388 polling units which statutorily has average of 500 registered voters per polling unit or total of 194,000 registered voters, what was the number of voters turnout from each of the 388 polling units, particularly those issued with PVCs?

“Also how possible was it that all the registered voters from the said 388 polling units came out 100 per cent and “voted for Hope Uzodimma 100 per cent,” with zero votes to other candidates? Truth be told, it is an act of impossibility for the said 388 polling units, with total registered voters of about 194,000 to record 100 per cent voters turnout with 100 per cent votes for Hope Uzodimma and zero votes to others. This is more so when not all of them were issued with PVCs.”

PDP has held mass actions condemning the ruling, but the questions that informed publics are asking is whether the judgment could be revisited on the grounds of new information and mixed facts and law.

Historical perspective

The first time the Supreme Court was challenged to revise its judgment was in 2006 shortly after it ruled on the constitutional issue relating to the tenure of Mr. Peter Obi. One of the candidates in the 2003 Anambra State governorship election, Mr. Ifeanyichukwu Okonkwo of the Nigerian Advance Party (NAP), contended that his exclusion from the election constituted a credible ground to annul the election.

Mr. Ifeanyichukwu Okonkwo

Incidentally, by the time the apex court was to deliver reasons from his judgment, Okonwko was also excluded, thus prompting his fresh appeal to the Supreme Court. In a letter dated 24 march 2009, signed by Deputy Chief Registrar (Litigation), S. Olorundahunsi, the Supreme Court invited Okonkwo to the court.

Part of the letter titled Re: The matter of Appeal No. SC/123/2007 between Peter Obi vs INEC and 7 others, read: “Your letter dated 23/3/2009 on the above subject matter refers. I am directed by my Lord Hon. Justice Idris Legbo Kutigi (GCON) to advise you to come properly by way of motion on notice praying the court for the reliefs sought in the said letter. That way, it is believed the interest of justice will better be served.”

Consequent upon the foregoing, Okonkwo told The Guardian that instead of holding protest rallies, the PDP should seize the opportunities provided by the Constitution to return to the Supreme Court.

He contended that the apex court’s ruling on December 20, 2019 stopped APC from further action, stressing that it represents a credible grounds for judicial review.

Okonkwo noted: “The Judiciary cannot as the legislature may, avoid a measure because it is doubtful. With whatever doubts, with whatever difficulties, a case maybe attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction, which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.”

He maintained that the Judgment of the Supreme Court in Appeal SC. 1462/2019 delivered on Tuesday 14 January 2020 must be challenged on grounds of want of jurisdiction, stressing, “The All Progressives Congress (APC) the 2nd Appellant by the judgment of the same Supreme Court in appeal No. SC. 1384/2019 delivered on 20/12/2019 constitutes “cause of action estopped” against the APC, which is different from “Issue estoppel”.

He recalled that on the instance of Omehia versus Amaechi, when Omeha wanted Amaechi’s judgment to be set aside because he was not heard, the Supreme Court said he (Omehia) was guilty of standing by; you knew when this was going on and you did not come forward.

“You also remember the case of late Colonel Madaki, when somebody gave evidence against him in a court in Oyo State, which indicted him; he came back to the court and asked the court to set it aside; he went on appeal.

“PDP went to drink and dance around and did not know that the Supreme Court had foreclosed APC from coming back to that court to ask for any other mandate. It is the name of APC that is on the ballot, not Hope Uzodinma, the person who won the election is APC not Hope Uzodinma.

“They were in court when the court said in a decree that they already had a candidate. The Supreme Court must salvage itself. This is the defining moment in our democracy.”

As happened with the juggled wage payment scheme called the Imo formula, the Supreme Court’s findings on the state’s gubernatorial contest of 2019 could pave the way for a new thinking on Nigeria’s democracy and the place of the judiciary in the electoral process. The last may not have been heard about the Imo governorship challenge between the two political rivals, the ruling APC and PDP. There would surely be interesting developments and huge lessons to learn in the days to come.

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