All eyes on judges as aggrieved candidates shift battle to tribunals
On Tuesday, March 12, 2019, former Deputy Speaker of the House of Representatives, Emeka Ihedioha, basked in the praises of his supporters. The Independent National Electoral Commission had declared him the winner of the March 9 Imo State governorship election, the most contested in the state’s 47-year history.
Ihedioha of the Peoples Democratic Party floored 69 other candidates in 11 out of the 27 Local Government Areas. He polled 273,404 votes to defeat his closest contender, Uche Nwosu of the Action Alliance, who scored 190,364 votes.
Other candidates in the 70-man contest included a former senator, Ifeanyi Araraume, of the All Progressives Grand Alliance, who polled 114,676 votes; the All Progressives Congress’ Hope Uzodimma, a serving senator, who gar nered 96,458 votes and won in two LGAs to emerge fourth.
Ihedioha did not know then that he would become Imo’s shortest-serving civilian governor, with only eight months in office. Typical of most elections in Nigeria, the opposition hardly concedes defeat, choosing instead to contest the results in every competent court, particularly the nation’s highest court, the Supreme Court.
Ideally, no one goes to court without concrete evidence of electoral malpractices and fraud and expects to upturn the outcome in their favour. In this case, Hope Uzodimma challenged the results, maintaining that he scored the highest number of votes in the election, but INEC had returned Emeka Ihedioha as governor elected.
By January 2020, the simmering legal battle against Ihedioha’s victory peaked. On Tuesday, January 14 of that year, the Supreme Court sacked him as governor, handing the torch to the fourth man in the race, Uzodimma of the APC.
The seven-man panel led by the then Chief Justice Tanko Muhammad unanimously declared Uzodimma as the winner of the March 19 governorship election. Justice Kudirat Kekere-Ekun, who read the judgment, declared that the votes due to Uzodinma were unlawfully excluded from the 318 polling units and should be added to his votes.
The apex court had considered the submissions of a principal witness subpoenaed to present results and held that the Appeal Court was wrong in its earlier ruling. Therefore, the apex court declared Uzodimma the validly elected governor, and the certificate of return issued to Ihedioha was immediately withdrawn.
Uzodimma’s unlikely victory earned him the moniker ‘Supreme Court governor’ amongst large sections of the Imo electorate, hinting doubts about the legitimacy of his emergence.
Nonetheless, it would neither be the first nor the last time that courts decided the outcome of an election that INEC spent billions of naira to conduct, and which Nigerians risked their lives to vote in, but was marred by electoral deficiencies.
Of the 1,490 federal and state offices contested in the 2019 elections, the courts decided 776 (52.08 per cent). This surpassed the 46.1 per cent recorded in 2015 and the 51 per cent recorded in 2011. However, it pales in comparison to the 86.35 per cent recorded in 2007.
Court judgments upturning election results are worth celebrating as a sign of a healthy justice system and respect for the rule of law. It is also the hope of the electorate when their mandate is stolen by unscrupulous elements who tweak election results in their favour.
However, experts argue that the judiciary was never meant to determine who governs the people. In a well-conducted election, the Nigerian electorate should be the ultimate determinant of who leads them. But INEC, analysts say, is far from delivering a perfect condition for that to happen. Thus, they argue that the judiciary will remain in the picture as long as elections are marred by irregularities.
The PUNCH had in its editorial of March 12 noted, “a sad consequence of flawed elections is that the courts have supplanted voters as the ultimate deciders of elections. This is a negation of democracy which is anchored on the will of the people and their inalienable right to freely choose their leaders.”
More so, post-election regime changes have etched lasting consequences on Nigeria’s electoral cycle. For instance, only 28 out of 36 states held governorship elections in the March 18 polls. Anambra, Bayelsa, Edo, Ekiti, Imo, Kogi, Osun and Ondo states hold off-season governorship elections because litigation and court judgments altered the sequence in the eight states at different times.
Anambra: Obi Vs Ngige Vs Uba
In the Fourth Republic which started in 1999, this was the first governorship election outcome to be upturned by the court, in which case the eventual winner emerged through the court.
In August 2005, two years after INEC declared Dr Chris Ngige of the governing PDP as the winner of the state’s 2003 governorship elections, an Election Petitions Tribunal led by Justice Garba Nabaruma nullified his victory. The tribunal ruled that Peter Obi of the All Progressives Grand Alliance won the election. It would be the first nullification of a governor’s election by the Court of Appeal in the Fourth Republic. The second would follow in 2008 when the court sacked Kogi State governor, Idris Ibrahim. Although Ngige appealed to the Court of Appeal, his sacking was confirmed on March 15, 2006, after nearly three years of litigation. Obi assumed office two days later but got impeached on November 2, 2006, keeping him from office for seven months while his deputy, Virginia Etiaba, assumed the position. Obi was later reinstated by the court. However, during the 2007 general elections when Andy Uba won the governorship election in April 2007, Obi found himself in court once again, this time contending that the four-year tenure he had won in the 2003 elections only started to run when he became governor in March 2006. Therefore, the Supreme Court upheld his contention and returned him to office. Although Andy Uba clinched the governorship seat by over one million votes, his victory was dismissed by the court, which maintained that Obi’s four-year tenure should have remained undisturbed until March 2010.
Kogi: Idris Vs Audu
It was the second time in the Fourth Republic that the Court of Appeal upturned the election of a sitting governor and ordered a rerun. Having won 724,839 votes in the April 2007 election, Ibrahim Idris of the PDP defeated Mohammed Ohiare of the ACN to re-emerge as Kogi State Governor in April 2007. However, the Court of Appeal nullified his victory on the grounds that INEC wrongly excluded the All Nigeria Peoples Party candidate, Abubakar Audu, from the poll. In a lead judgment on February 6, 2008, Justice Victor Omage ordered a fresh election within 90 days. “I affirm the decision of the tribunal and direct that fresh election be conducted into the office of the governor of Kogi State within 90 days,” he said. He endorsed the tribunal’s decision that Audu’s exclusion from the election, despite being nominated by his party, was a wrongful use of power by INEC. Omage added that the alleged indictment of Audu for fraud by the federal and Kogi State governments, which formed the grounds for his exclusion, was unknown to law.
Consequently, the then President, Umaru Yar’Adua, ordered the Speaker of the state House of Assembly, Clarence Olafemi, to step in as acting governor. Idris returned as the governor of Kogi State after he won the March 29 rerun. But the ANPP candidate, Audu, challenged the results citing massive electoral fraud, non-compliance with the Electoral Act (2006), illegal thumb-printing, snatching of ballot boxes and violence. Audu prayed the state’s election petition panel to cancel the election and declare him the winner. Idris completed his tenure by 2012, making Kogi an off-season election state.
Osun: Aregebsola Vs Oyinlola
For Osun State, the disruption began in April 2007 after INEC announced Olagunsoye Oyinlola, a former Brigadier General in the Nigerian Army, as the governor of Osun State. Having served his first four-year tenure between 2003 and 2007, Oyinlola of the Peoples Democratic Party anticipated a second tenure to terminate in 2011. It looked probable until November 26, 2010, when a Court of Appeal in Ibadan nullified Oyinlola’s 2007 election victory. The presiding judge, Justice Clara Ogunbiyi, ruled that the Action Congress candidate, Rauf Aregbesola, should be sworn in as the governor immediately.
Aregebsola had filed a petition with the INEC against Oyinlola’s victory. When the tribunal rejected his petition, Aregbesola appealed the decision, leading to a fresh hearing in June 2009. A year earlier, in May 2008, Aregbesola brought forward 100 witnesses and presented 168 exhibits in his petition before the Election Petitions Tribunal, alleging violence and ballot box stuffing in at least 10 local government areas, including Atakumosa, Ayedaade, Boripe, Boluwaduro, Ife Central, Ife East, Ife South, Ifedayo, Isokan and Odo Otin. The Appeal Court unanimously nullified the election results of the 10 local governments, setting aside the judgement of a lower tribunal which had confirmed the election of Oyinlola. The deductions of the cancelled votes left Oyinlola with 172,880 votes and Aregbesola with 198,799, returning Aregbesola as the duly elected Governor of Osun State three years after. He would go on to complete his eight-year tenure, moving the Osun governorship elections from the usual calendar to what is obtainable today.
Ekiti: Fayemi Vs Oni
Another beneficiary of the court is Ekiti State’s Kayode Fayemi, who ran for governor on the platform of the Action Congress of Nigeria but lost to PDP’s Segun Oni. After three and a half years of legal battle, the Court of Appeal sitting in Ilorin, Kwara State, sacked Oni, who had scored 177,689 votes to defeat Fayemi, who scored 108,305 votes. In a rerun held in May 2009, Oni reportedly polled 111,140 votes to defeat Fayemi, who garnered 107,011 votes. The presiding judge, Justice Ayo Salami, while announcing the court’s unanimous ruling, noted that Fayemi won the governorship election of April 14, 2007, and the rerun poll that followed his petition held on May 5, 2009. The court said the ACN candidate won the rerun election by 10,955 votes. That ended Oni’s three-year tenure.
Rivers: Amaechi Vs Omehia
Even shorter than Ihedioha’s eight-month tenure was Celestine Omehia’s five months in office as the governor of Rivers State.
Although Omehia secured a landslide victory of 1.8 million votes against Labour Party’s Ashley Emenike, who got 101,347 votes, trouble came knocking when the Supreme Court ruled that Rotimi Amaechi was the PDP’s legitimate candidate in the primary election. It maintained that Amaechi, who had won the PDP primaries months earlier, was substituted by the party on the eve of voting due to graft allegations. The court did not cancel the results of the elections, which, international observers say, were riddled with “massive vote rigging and violence” and were declared a farce. Instead, it installed Amaechi to ride on the party’s victory. In October 2009, Omehia prayed the apex court to review its judgment, but the court denied his request. Amaechi became the first aspirant to become governor without participating in the main election. That judgment also established that votes in an election belong to the party and not the candidate.
Edo: Osunbor Vs Oshiomhole
Adams Oshiomole served as Edo State Governor from 2008 to 2016, having won a court case that nullified the victory of PDP’s Oserheimen Osunbor. INEC declared Osunbor as the winner, having polled 329,740 votes to defeat Oshiomhole of the Action Congress of Nigeria with 197,472 votes. However, the ACN contested the election results in court, saying it was marred by gross rigging. Therefore, on March 20, 2008, an Edo State elections tribunal nullified the Osunbor’s election and declared Oshiomhole the winner. However, the incumbent remained in office until November 11, 2008, when the Appeal Court sitting in Benin upheld the ruling of the election tribunal. At the time, the Court of Appeal was the final court for governorship elections.
Ondo: Mimiko Vs Agagu
Olusegun Mimiko rode on the wings of the judiciary to become the first member of the Labour Party to win a governorship election in the Fourth Republic. He also became Ondo State’s first governor to finish a second term since 1999. But that did not come on the platter of gold. On April 16, 2007, two days after the governorship election, INEC announced the then incumbent governor, Olusegun Agagu, of the PDP as the winner of the polls. However, Mimiko, popularly known as Iroko at the time, challenged Agagu’s victory in the court. After a two-year legal battle, the Ondo State Election Petitions Tribunal in July 2008 declared Mimiko as the winner.
The Court of Appeal sitting in Edo State in February 2009 aligned the tribunal’s verdict sacking Agagu and declaring that Mimiko be sworn in immediately. His tenure began in 2009 and ended in 2017, two years after the mainstream governorship elections held in most states.
Bayelsa: Sylva Vs Amgbare
Timipre Sylva of the PDP won the 2007 Bayelsa State governorship election to succeed Goodluck Jonathan, who had been nominated as the vice-president to Yar’Adua. However, his opponent from the ACN, Ebitimi Amgbare, challenged his victory. While the Bayelsa State Election Petitions Tribunal maintained Sylva’s victory, Amgbare pushed further to the Appeal Court in Port Harcourt, which unanimously overruled the tribunal’s verdict and annulled Sylva’s election on April 15, 2008.
The court also ordered that the Speaker of the House of Assembly, Werinipre Seibarugo, step in as the acting governor until a rerun was held within 90 days.
Nonetheless, Sylva polled 588,204 votes out of the 598,000 total votes to reclaim his office on May 27, 2008. However, the Supreme Court on January 27, 2012, sacked Sylva and installed Nestor Binabo as the acting governor until the February elections that brought Seriake Dickson into office. Sylva was one of five governors the apex court showed the political red card following an appeal by INEC saying that they were long overdue to leave office.
The rest include Murtala Nyako of Adamawa, Liyel Imoke of Cross River, Ibrahim Idris of Kogi and Aliyu Wammako of Sokoto.
Zamfara: Matawalle Vs Idris
Although he emerged second in the March 2019 governorship election in Zamfara, Bello Matawalle, who didn’t win the election, became governor by the order of court.
According to INEC, Muktar Idris of the APC, who polled 534,541 votes, defeated PDP’s Matawalle, who managed to poll 189,452 votes. Expectedly, Idris received his certificate of return and proceeded with celebrations until the Court of Appeal in Sokoto ordered a certificate withdrawal. Matawalle had rejected the result, vowing to “reclaim his stolen mandate” at the state election petitions tribunal.
In the following weeks, the Supreme Court announced that the over 500,000 votes the APC amassed were a waste because the APC failed to conduct a fair primary. The apex court consequently sacked all the APC candidates in the state and handed their victory to the political party that came second, which was PDP.
The ruling validated an earlier judgment of the Court of Appeal, Sokoto Division, which ruled that the APC did not conduct valid primaries in Zamfara State.
The Supreme Court also ruled that the candidate who polled the second highest number of votes in the election and who satisfied the constitutional requirement should be declared the winner of the election. Satisfying these conditions, Matawalle was eventually sworn in as governor on May 29, 2019. He later defected to the APC in 2022. However, he lost his reelection bid to the PDP’s candidate, Dauda Lawal and he has since congratulated the winner.
Recently, more governors have had their victory subjected to the legal test. Perhaps the most recent is Ademola Adeleke of Osun State, whom INEC declared the winner of the July 2022 polls. Meanwhile, his opponent, the then incumbent governor Adegboyega Oyetola of the APC, had directed his grievances to the state tribunal. Consequently, on January 27, the Osun State election petitions tribunal court declared Oyetola the winner of the governorship election. It directed INEC to withdraw Adeleke’s certificate of return. Adeleke rejected the verdict calling it a “miscarriage of justice”. He challenged the ruling at the Court of Appeal.
On Friday, March 24, the Court of Appeal nullified the ruling of the tribunals and declared Adeleke as the winner of the election. The court ruling was greeted by jubilation in many parts of the state, just as supporters of Oyetola jubilated when the tribunal earlier announced him as the winner. From findings, the matter will shift to the Supreme Court.
Months earlier, on March 8, 2022, the Federal High Court in Abuja had sacked the Ebonyi State Governor, Dave Umahi and his deputy, Kelechi Igwe, for defecting from the PDP, on whose platform they were elected in 2019, to the APC. However, the Appeal Court reversed the judgment in October 2022 after Umahi appealed.
Notably, governors are not the only winners that emerge from the courts. The Supreme Court has sacked serving senators and named new candidates, in some cases, those who were not even on the ballot paper for their party’s primary.
Ahmad Lawan
A classic example of the court’s intervention in the party’s primaries is the confirmation of the candidacy of the Senate President, Ahmad Lawan, as the senatorial candidate for Yobe North. In a three-against-two split judgment of its five-member panel in early February, the Supreme Court held that the decisions of the Federal High Court in Yobe and the Court of Appeal in Abuja, which named Bashi Machina, and not Lawan, as the validly elected senatorial candidate, “were perverse and must be set aside.” The governing party had challenged the judgements of the lower courts, which affirmed Bashir Machina as the elected candidate, having won the primaries months earlier. It prayed the Supreme Court to void the previous verdicts and give credence to the APC’s National Working Committee’s transmitting of Lawan’s name to INEC as its preferred candidate.
The court said Machina should have begun his suit by a writ of summons going by the allegations of fraud levelled against the APC in transmitting Lawan’s name to INEC.
Ibrahim Shekarau
On March 10, the Supreme Court sacked former Kano State Governor, Senator Ibrahim Shekarau and affirmed Rufai Hanga as the Senator-elect for Kano Central Senatorial District of Kano State on the platform of the New Nigeria Peoples Party.
February 25 and beyond
Following the conclusion of the elections, the major political parties have since assembled their army of Senior Advocates of Nigeria and junior lawyers to argue and defend their cases at the national and state tribunals. This marks the beginning of the elections after elections as judges prepare to vote.
The PUNCH reported that the election petitions tribunals in Oyo and Osun states had received at least 34 petitions as part of fallouts from the March 18 general elections.
In Osun State, all the petitions faulted the victory of the candidates of the APC, who won the three senatorial seats and nine House of Representatives seats in the February 25 election.
In all the 28 states where governorship elections held on March 18, INEC has announced 26 governors-elect, while Adamawa and Kebbi were inconclusive. But in almost all the 28 states, there are dissatisfied candidates who have vowed to challenge the result in court. This is the same for the 469 National Assembly seats, the presidential election being challenged by four parties and the House of Assembly seats.
Implications for the judiciary
These antecedents have invariably brought the judiciary under close scrutiny as it decisions are publicly criticised by people.
Following its ruling that upheld the senatorial candidacy of Lawan and former Minister of Niger Delta Affairs, Godwill Akpabio, the Supreme Court came under heavy fire.
Although both parties were said not to have participated in the main senatorial primaries on May 28, 2022 in their states, due to their participation in the APC presidential primary, which they both lost, the Supreme Court ordered the INEC to recognise them as candidates for the February 25 elections.
In its defence in the court of public opinion, the apex court argued that those “venting convoluted anger” were ignorant of the law.
It warned those fueling the verbal attacks on the judiciary and the Chief Justice of Nigeria, Justice Olukayode Ariwoola, to desist from such and channel such energies to political parties which “fail to organise themselves well.”
The apex court argued that it would handle fewer election cases in a healthier political atmosphere if political parties conducted themselves orderly.
The statement read, “We have made it abundantly clear on different occasions that judicial officers are neither political office holders nor politicians that should be dressed in such robes. Courts don’t advertise or scout for cases for adjudication, but at the same time, we are duty-bound to adjudicate in all matters that come before us to give justice to whoever is due, irrespective of status.
“No court in any clime is a Father Christmas; no one can get what they didn’t ask for…Similarly, all matters are thoroughly analysed and considered based on their merits, not the faces that appear in court or sentiments that attempt to becloud the sense of reasoning.
“If political parties fail to organise themselves well by managing their internal wrangling maturely and now choose to bring themselves to the court, we are duty-bound to adjudicate by the provisions of the law and not the dictates of any individual or deity, as some people would want us to do.”
Judiciary necessary to maintain sanity
Wherever the sword of justice swings, some analysts argue that the judiciary is a necessary solution to sanitise Nigeria’s political scene.
A former Vice President of the Nigerian Bar Association and Chairman, Section of Public Interest and Development of the NBA, Mr Monday Ubani, said while Nigeria’s flawed electoral process had necessitated court interventions, the judiciary must avoid upholding technicality over substantial justice.
He stated, “It is not for the court to supplant the mandate of the people, because from our understanding of democracy, it is the government of the people, by the people and for the people.
“However, when elections are conducted, there are grievances. The position of the law is that anyone that feels aggrieved after the declaration of result has the right to approach the judiciary for redress.
“The court has been empowered by the Electoral Act to decide issues that are brought to them. But we must be careful in deciding those issues, not to adhere to technicalities rather on substantial justice. Most times, we see technicality prevailing over substantial justice, which is not giving the judiciary a good name.”
The convener of Concerned Nigerians, Deji Adeyanji, argued that although it is not ideal for judges to decide the outcome of elections, their intervention is necessary when mandates are stolen.
He said in an interview with our correspondent, “It does not make any sense for judges to be voting in the courtroom and to determine the destiny of millions of ordinary voters who have exercised their franchise.
“There are things that judges should not concern themselves about. They should focus on criminal litigation, human rights cases, constitutional interpretations, and all these and leave elections for the electorates.
“But there are compelling cases where election victory has been blatantly stolen by politicians. And you can see clear cases like that in many states in this election. These are special circumstances where the doctrine of necessity can be applied; where the courts intend to save an ugly situation. It is apparent that some candidates won, but some people are hell-bent on doing otherwise.”
He added, “If the people lose confidence in the judiciary, it is the beginning of the end for any nation. What makes law what it is has been the certainty of the outcome. So, when outcomes are no longer certain and cases are left at the discretion of judges, rather than the certainty of the law, then people begin to resort to self-help.”
Cases too few to cry wolf
However, the Director-General of the Voice of Nigeria, Osita Okechukwu, argued that the volume of cases requiring court judgments was “infinitesimal” compared to the totality of uncontested electoral results. He said “judiciary takeover” was therefore a rarity.
Okechukwu added, “Look at the number of states where results have been announced. I think they are 26; the remaining two are still inconclusive. That leaves us with two states where the court is likely to decide a rerun or otherwise. So, how many are going to court?
“Going to court is a democratic process provided by the constitution. But those they have decided out of 36 states are only eight. I have heard people argue that it is now a government of the court by the people. That is not true. What the court is doing is to reinforce the people’s mandate, not subverting it.
“The court set out to look into the process of the election of a candidate INEC declared. If it finds out that the people’s vote are reflected by INEC, it will uphold it. So, the people win at the end of the day. Yes, we know there are rare cases, I don’t want to mention names, where the Supreme Court mysteriously went against the people’s vote. That is there, but it is a rarity. It is infinitesimal.”
