TUESDAY WITH REUBEN ABATI

Last week, The Supreme Court of Nigeria announced its verdict in the matter between Alhaji Atiku Abubakar and President Muhammadu Buhari, the Peoples Democratic Party (PDP), the ruling All Progressives Congress (APC and the Independent Electoral Commission (INEC). After the February 23 Presidential election and the declaration by INEC, of incumbent President Muhammadu Buhari as winner of that election, the PDP and its Presidential candidate, Alhaji Atiku Abubakar went straight to the Presidential Election Petition Tribunal to challenge the result.

INEC not only declared Buhari winner of that election. The Presidential Election Petition Tribunal further upheld the declaration in September 2019, delivering a marathon judgment that kept the entire nation glued to television for close to nine hours. Alhaji Atiku Abubakar and his party, the PDP, felt that they had been denied justice. So, they took their case all the way to the Supreme Court. But if Atiku and his supporters had hoped that they will secure victory at the Supreme Court, they were grossly disappointed. In just a sentence, the Supreme Court dismissed their appeal on October 30. The Chairman of the panel, the Chief Justice of Nigeria, Tanko Ibrahim Mohammed simply said: “We have examined all the briefs of argument and the exhibits for over two weeks and we have all agreed that there is no merit in this appeal.” Their Lordships promised to provide their reasons later. The entire appeal didn’t last for too long. It was a brisk, hasty procedure.

And this is where the problem lies. In the absence of a reasoned, written down and properly articulated judgment, it is difficult to take on their Lordships on the merit of their own submissions. When their reasons are finally available, it would be time to do a proper, extensive, judicial review. But what can be legitimately said at this point, is that the Supreme Court has created in this case, a problem of perception. Does the ordinary Nigerian think that justice has been done? For, it is a trite principle that justice must not only be done, it must be seen to have been done. Does the ordinary, reasonable man believe that given the approach adopted by the Supreme Court, there is fairness in the handling of the matter at the apex court? Professor Ben Nwabueze, SAN, in a widely circulated response has argued that the Supreme Court’s treatment of the Atiku case raises issues of fairness and fair hearing. He insists that the Supreme Court’s dismissal of the appeal is “inconsistent with Section 36 of the Constitution (and) it is, by the self-executing declaration in Section 1(3), null and void.” Section 1 (3) of the 1999 Constitution talks about the supremacy of the Constitution as basic law. Section 36 is on the inviolability of fair hearing as a pillar of the justice administration process. Nwabueze’s contention is that the apex court erred in the eyes of the law by holding an examination of the appeal before it, “in secret”, as declared and admitted, without regard to Section 36 (3) of the Nigerian Constitution.

He asks further: “… to whom does the word “We” in the CJN’s statement refer? Can the “We” be a reference to the Supreme Court? Can the Supreme Court function, as regards the hearing of the appeal, before the seven-man panel to hear the appeal was appointed, and the names of the members announced to the public? When exactly was the appointment of members made?” Nwabueze is a prodigious and productive analyst of the Nigerian legal system and perhaps one of the most percipient and most durable. His sympathy for the Atiku camp notwithstanding, he has raised fine points of jurisprudence which I hope the Supreme Court will address when it eventually provides the reasons for both its approach and decision in the Atiku Presidential Election Petition 2019. When their Lordships provide those reasons, how they frame their ratio decidendi or obiter dicta, in relation to the naked facts of the case or to use the CJN’s words, briefs and exhibits, and the issues for determination, will be of great interest. When they say the Atiku case lacks merit, for example, do they mean that it is incurably bad and if so, on what grounds?

And why did they have to sit “in secret”, more than two weeks earlier only to come out in the open to deliver judgment? Without any effort to listen at length to counsel on both sides, not to re-open arguments of course, a case before the Supreme Court not being the inception of a new action, but to defend their claims, the Justices rested their decision on the fact that they had examined the briefs and exhibits. The conduct of their one-day process was also so brisk, if not anti-climactic and peremptory, as if the matter before them had already been pre-determined. The Supreme Court, being a policy court and a court of last resort has a duty to worry about its brand and image. The treatment of the Atiku case, that is the 2019 Presidential Election Petition wrongly or rightly has fuelled all the suspicions that the ordinary Nigerian has expressed about the independence of the judiciary. It is hence not surprising that many Nigerians have expressed the view that they were not disappointed because they did not expect a different outcome, even without having any knowledge of briefs of argument or exhibits, but supremely confident all the same about their knowledge of the history of power and Presidential election petitions in Nigeria.

Why was the Supreme Court in such unusual haste? In the past, there was usually so much anxiety, drama and argumentation each time a Presidential election petition made it to the Supreme Court. The most dramatic incident in recent memory being the 1979 Presidential election which turned virtually every Nigerian into a mathematician, struggling to determine the meaning and exact calculation of two-thirds of 19 states. In 2019, the moving spirits of the Nigerian Supreme Court treated the Presidential election matter as if it was an irritating piece of distraction. I have tried to attempt two explanations. The first is that their Lordships felt that given the pressure of time, they were duty bound to determine the matter within the time frame provided by law. Section 285 of the 1999 Constitution and Section 134 of the Electoral Act provide strict time limits for the hearing of election petitions and this has been severally upheld by the Supreme Court (re: Ikpeazu v. Otti & ors., Felix Amadi and Anor. vs. INEC & Ors.; and ANPP vs Goni). In the Atiku case, the Supreme Court was definitely not out of time in the light of Section 285 (7) of the 1999 Constitution and the fact that Atiku and PDP appealed the decision of the Election Tribunal by September 23. Questions have therefore been legitimately raised about approach and procedure.

My second explanation is that the law is a social modulator, and may be that is what we have here. The judex are human beings and members of society. Sometimes, the judex gauge the mood of society and try to provide the necessary balance, especially in the face of potential threat. When the apex court goes that route though, it is travelling on the path of politics and social science rather than law. It is not impossible that the Supreme Court of Nigeria in the Atiku case took a firm decision to protect the country from any outbreak of violence or hostilities. Buba Galadima, a Buhari ally turned adversary, has said that Buhari’s declaration as winner did not result in any jubilation on the streets. He did not raise the flip question: would the declaration of Atiku as winner or anything close to that have resulted in the jubilation he seeks? Maybe not either. Galadima is obviously biased. But the plain truth is that the Nigerian voter is so alienated, cynical and so disconnected, he or she is right now largely indifferent and that is part of the problem with Nigerian democracy. The Nigerian electorate must rediscover their voice. Still, the judex must not descend into the arena of politics. The law must be applied in its purest form. The ruling of the Supreme Court when it eventually becomes available should address all the jurisprudential issues that have been raised on all sides for our collective education.

Nonetheless, whatever concerns anyone may have in this matter, the case is now closed. The Supreme Court is the apex court. There is no further appeal beyond it, especially in election matters, which are by the way sui generis. The principal petitioner, Alhaji Atiku Abubakar has already issued a statement dismissing the ruling of the Court. Both his statement and the eventual reasons of the Court would form useful historical documents. For now, we have Atiku’s statement before us. I think it drips with too much bitterness, innuendoes and cynicism. Atiku writes that: “Today, the nail has been put on the coffin and the gains we collectively made since 1999 are evaporating, and a requiem is at hand… In a democracy, you need a strong judiciary, a free press, and an impartial electoral umpire. Nigeria has none of those three elements as at today…” But even more telling is the opening paragraph of his statement and here it is: “It is said that the Supreme Court is not final because it is infallible, but that it is infallible because it is final.”

This statement is a direct paraphrase of Justice Robert H. Jackson’s declaration in Brown v. Allen, 344 US 443 (1953). Jackson (1892 – 1954) was an Associate Justice of the United States Supreme Court and a former United States Attorney-General. He said: “We are not final because we are infallible but we are infallible only because we are final.” Chukwudifu Oputa, JSC (as he then was), famously known as the Socrates of the Nigerian Supreme Court of his time, improved on this when he tried to address the question of whether there had been a conflict between the Supreme Court decisions in two cases: Skenconsult v. Ukey and Ezomo v. Oyakhire as follows: “My simple answer”, he said, “is that it is not part of the jurisdiction or duties of this Court to go on looking for imaginary conflicts. We are final not because we are infallible rather we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable damage through its mistakes.” (per Oputa, JSC, Adegoke Motors Ltd. v. Dr Babatunde Adesanya & Anor). Where the catch lies is that even when the Supreme Court arrives at a decision per incuriam, it is the only Court that has the power to overrule itself. But will Atiku’s counsel ask the Supreme Court to overrule itself? I don’t see that happening, especially as the party, the PDP has handed over the case to God, and with Atiku himself declaring that the matter “has come to a conclusion.”

Nonetheless, Atiku’s lawyers have called for a reform of Nigeria’s electoral jurisprudence. They have a point in that regard. There are too many knotty, controversial and unresolved issues to be dealt with, including access to vital materials by election petitioners, time limits for election petitions, administrative bottle-necks, and the use of technology. Atiku is obviously not convinced that he lost the 2019 Presidential election. This is the overall indication of his statement. He has also pointedly refused to congratulate the APC candidate and incumbent President, Muhammadu Buhari. Every student of Nigerian politics should be interested in what this means, and the implications for Nigeria’s future politics. Whatever that is, Alhaji Atiku Abubakar has two options before him: to start preparing for the 2023 Presidential election if his party’s zoning formula favours him or to retire to the position of a statesman and help defend Nigeria’s democracy. However, beyond elections, the biggest challenge facing Nigeria is that of sustainable development and economic growth. It is the task that all stakeholders must now address, going forward, in order to correct the many anomalies that hold the country down and behind. It is commendable that all parties involved in the Presidential Election Petition case, before and after, have resisted the temptation to resort to self-help.