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INTERVIEW: INEC bungled 2023 elections, people justified not to trust Supreme Court judgment – Agbakoba

Olisa Agbakoba
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A former President of the Nigerian Bar Association and Senior Advocate of Nigeria, Mr Olisa Agbakoba, shares his thoughts on the judiciary and some issues around the elections

You expressed disappointment over the judgment of the Supreme Court which declared the Senate President, Ahmad Lawan, instead of Bashir Machina as the senatorial candidate of the All Progressives Congress for Yobe North. What are the legal and or factual issues that the court did not address?

The point I made was that in recent times, the Supreme Court has become a bit unpredictable and a bit too technical, given the fact that the Supreme Court is a policy court. A policy court means that the Supreme Court does not deal with technicalities. So, I was worried and concerned that the lead judgment declined to deal with the case merely because the case was brought by a particular process called originating summons and not a process called writ of summons. That is not how to deal with an issue of high policy on whether a particular person should be the occupant of the senatorial seat. I then made a general point. If you go back to the history of the Supreme Court, there was a time when confidence in the Supreme Court was at the high peak, but now, there have been many judgments. For instance, the judgment that removed Emeka Ihedioha as the governor of Imo State, the decision of a court has to have some sort of connection with what the people think is reasonable. What will the man in the Lagos molue think about the judgment? It’s not for the court to assume that what they say will be what the people expect. There is an expectation of the public in relation to what everybody does, not just the Supreme Court, it could be the legislature or the executive. So, I said that in relation to what I have been seeing and hearing. I think that the Supreme Court can be more policy-driven and deliver judgment that accords more with the man in the molue. If the Supreme Court delivers a judgment and everybody says, ah, is this correct? There is a problem. That was the point I made.

Some argue that the courts serve justice based on the facts before them rather than what people think should likely be the outcome. Is it not right to say that the courts are unpredictable in this sense?

That was not the point I made. I wasn’t talking about the particular facts of the case. Apart from Justice (Helen) Ogunwunmiju; she is the only one that went into the case. I applaud her for at least going into the case. The Supreme Court is a policy court, and I don’t think it is at that level that they should be denying the hearing of a case merely because, according to the Supreme Court, the person who brought it did not come by a proper procedure. In any case, the decision of Justice Cletus Nweze was even wrong. It was wrong because the rules allowed for using the procedure that was used. So I’m surprised that they declined and said the facts are controversial and so when facts are controversial, we don’t allow you to come by originating summons, you must come by writ of summons. That was what he said, and I disagree. That’s my point. He could have said, ‘okay, let me now listen to whether in the fact of having come by the wrong procedure, is it even right.’ That would have been the correct approach because the Supreme Court is a policy court. I think we have to understand that the Supreme Court does not deal with technicalities. I will give you an example. I personally believe that the Supreme Court was wrong on the Central Bank of Nigeria case. When the states brought the case against the Federal Government, the proper cause of action was for the Supreme Court to throw it out, but they did not because being a policy court, they realised that the issue of lack of cash was a matter affecting every Nigerian. How would you have felt if you heard that the Supreme Court dismissed the case by the three governors because they sued the wrong party? People will ask if the Federal Government is not the one in charge of the process. Is the CBN not an agency of the Federal Government? So, the Supreme Court invoked its public policy jurisdiction but overlooked the fact that it didn’t have jurisdiction and made the decision. That is correct. So, even though I disagree that they had jurisdiction, I understand why they did it. That is why it’s a policy court. So, back to your question; if you check what I said in the previous interview, and I will encourage people to watch it again, there have been several decisions, not just the one about Ahmad Lawan. There have been a series of cases where I felt, and I feel that the public also feels the same way; if you get public opinion in relation to how the courts are functioning, they will tell you they (Supreme Court) could do better. That is the general feeling. That was the point I made.

Many people have argued that if the leadership of the judiciary is appointed by the President or governors as the case may be, the heads of the judiciary may not go against the wish of the executive, do you agree with that?

The CJN is appointed by the National Judicial Council upon the shortlisting of the relevant candidates by the Federal Judicial Service Commission. So, there will be predominantly two names. Usually the most senior will be the lead person to be considered, while the second one is called the reserve candidate. Then, there will be a meeting of the NJC to confirm the appointment of the CJN. The President’s role is merely formal because he will receive a letter from the NJC saying, we have chosen this man as our CJN, and the President endorses it and sends the name to the Senate. So, in real terms, the appointing authority is the NJC under the constitution. But because it is necessary for the three arms of government to have a say, the NJC makes the nomination and no Nigerian president has ever rejected the nomination of the NJC. That’s why I say in real terms, the NJC actually makes the appointment. The President only endorses the name sent to him. So, the NJC and the judiciary are not subject to the control of the President and are therefore free from interference. Generally speaking, even under the military, the judiciary has been left alone, in fairness to the executive. It is for the judiciary to deliver justice without fear or favour. Sometimes, it is the judges themselves that apply a break. I remember a late judge; I can’t remember his name now. There was a case before him years ago. Do you know what he said? He said no, I will not decide this case because any case against Kabiyesi, and Kabiyesi then was General Ibrahim Babangida. So he likened the President of Nigeria to Kabiyesi and that when Kabiyesi said anything. no one could challenge it. Nobody prevented him from deciding cases, not even IBB. I would say that generally speaking, the executive has not interfered with the judiciary. Rather, it is the judiciary that should be able to take the best possible position and decide cases free of anyone’s control. Now, if we see the judiciary being muzzled by the Federal Government or state government or whatever, then it is the role of the Nigerian Bar Association to protest. So, generally speaking, the Nigerian judiciary has not been interfered with by the executive.

Many candidates who lost in the just concluded general elections were advised by the winners to go to court to challenge the results, yet some of those aggrieved, especially from the opposition, think approaching the courts is a hopeless venture, a waste of time, energy, and money. Do you think it will be hasty to assume that justice cannot be served by the court?

First, INEC bungled the elections; everybody knows that the elections were conducted in very challenging circumstances. So, the matter has now shifted from the polling units to the courts. We can only assume and hope that since the leading presidential candidates have filed petitions, the court will realise the huge duty upon them. We are all watching to make sure that they decide the case fairly in accordance with the facts, rules and the law. That’s what we can hope for, because we are bound to accept the judgment, no matter how aggrieved people are. Otherwise, you will have anarchy. There are democratic rules in the constitution, which says if you feel aggrieved, approach the courts. It is my hope that the courts will rise to the occasion and deliver justice. Once that is done and the judgment is sound, people will know. People have a huge expectation from the judiciary; in fact, they are under the watchful eyes of 200 million Nigerians and they ought to understand that this is an opportunity to absolutely give us confidence that the judiciary is truly the bastion of democracy.

There are concerns about the allegations of corruption in the judiciary and some lawyers have denied it, as a senior lawyer who has spent over 40 years in the bar, do you think the judiciary is as corrupt as perceived?

There is a perception, but I have not personally come across it. So let me make that clear. But there is a perception when the Independent Corrupt Practices Commission did a survey last year, in which they ranked the police and the judiciary as some of the corrupt institutions in Nigeria. So, I cannot specifically say they are. I can only say that I have not experienced it and contrary to public opinion about the judiciary, there are a lot of fine judges in Nigeria. If there are 10 judges, I would say eight are absolutely doing the best they can under the most difficult conditions. For example, look at the election petitions. If you know the weight that fell upon judges to sit on these cases under six weeks, some of them, in fact, the total number of cases decided from the tribunal to the Court of Appeal to the Supreme Court was well over 2,000 cases. That’s a lot of work, especially under the tough conditions they work. So, it is the issue of efficiency of the judiciary that concerns me, not corruption. I think the judiciary should actually be a lot more efficient. When I sat on the NJC, I kept making the point that the judiciary needs to be efficient and the answer I kept getting from the NJC was that we didn’t have money. Then I said you have money but you don’t want to use the opportunity given to you in the constitution to make sure that there is a good budget for the judiciary.

Why was there reluctance?

When the NJC was not forthcoming, I went to court and I won. I went to Ekiti State on how state courts are funded and I won. I went to the Federal High Court as to how state courts are founded and I won. Eventually, there was a case at the Supreme Court, and I go back to the point that I’m not sure that the Supreme Court understands that it’s a policy court. Can you imagine that we brought a case to the Supreme Court about the process to fund the judiciary, they didn’t decide on it. Rather, they went to other issues. Those are the opportunities, I think the judiciary is not picking up its responsibility because the key things in the judiciary is a lot of inefficiency, delays and speed of justice. You need funds to put in place structures because the structure of government at the legislative level and the federal level is a lot higher. There is a lot more money flowing into the legislature and the executive, and the judiciary has been somehow abandoned. So, they are operating in very terrible circumstances. Go around some states and see the conditions under which judges sit. However, it’s not enough to be sorry, because the NJC can resolve the problem. The NJC is charged with funding the courts. So the question is, are they doing this well enough? I don’t think so. The NJC needs to rise to its constitutional responsibility to make sure that judges are comfortable, well paid and able to do their work without fear or favour. Was it not only last year that they finally reviewed the money that the Chief Justice of Nigeria earns; the CJN was earning N3m yearly.

Another issue of concern is the rate at which courts decide the outcome of when the country practices democracy. Is it normal?

It’s not. First, the political culture is very poor. Nobody agrees they lost. So once you lose, you are headed to court. That’s the first problem. It is our politicians that overheat the system. Many people are bad losers. The second thing is the internal democracy of parties going back to almost 30 years. The Supreme Court has emphasised in a case that it is not for us to look into how you people in politics organise yourselves, that’s not our role, because it means we will be imposing candidates. So, the problem is with the internal democracy of political parties. As I speak to you, most of the cases, including the Machina and Lawan case, were the failure of internal democracy. Meanwhile, Lawan was busy contesting the presidential ticket when the other man took the ticket. When Lawan failed in the presidential primary, he came back. Meanwhile, INEC that is supposed to play a strong role under the Electoral Act was asleep because it’s INEC that will say this primary was recognised by us. It’s not for the court to decide like it did, but courts now appoint or validate elections. In the report by the Muhammed Uwais-led electoral reform panel, when the late President Umaru Yar’Adua became the President and recognised that the elections that brought him to office was flawed, I was a member of the Uwais panel that came up with a number of recommendations, which have not been implemented till today.

Will the implementation of the report have addressed issues like this?

If implemented, it would have resolved all these problems. The first thing we said was that INEC was doing too many things. INEC cannot be printing ballot papers and be supervising political parties. So, we said INEC’s work should be restricted to being the referee in the election, just like you have in a football game. The referee does not go and hang the goalpost, the net in the goalpost or paint the field. No, that’s the job of other people. So it’s time we begin to think of implementing the Uwais report. We recommended the creation of the political party regulatory commission to regulate political parties. For instance, there were 18 presidential candidates, but if you look at the result, a lot of them lacked public support, so why put them on the ballot paper? The money wasted just to put people who were not able to generate public support is ridiculous. We also assigned to the commission the task of stating clearly what party is following the rules and the applicable sanctions if you don’t follow the rules. INEC has not been able to regulate parties very well because that is not its job. My recommendation is the full implementation of the Uwais report. We also recommended the electoral offences commission, because any time there is an election people misbehave, you see violence, thuggery, vote-buying and nothing happens. It’s not because there is no court, but how can INEC be the one to prosecute offenders? That’s not its job. I think INEC is overburdened and because of that, it doesn’t have the capacity to deliver on its mandate. The lessons I think we should learn from this election, which I think is the worst in Nigerian history, is that INEC needs to be unbundled. Limit INEC’s statutory functions to being the referee in the election.

It’s the season for post-election litigation, what is your advice to lawyers and judges handling various election cases across the country?

They should follow what the law says and the facts of the law. If you look at the facts of the law, you apply them. It’s as simple as that. Do what is right. Like I said, the problem starts from the lack of internal democracy and from there it moves on to the fact that INEC is not strong on regulating political parties. These are the two problems. If INEC were to be strong, a lot of the cases going to court will not.

The controversy generated by the Supreme Court ruling on the last governorship election in Imo State has yet to disappear, and in a recent interview, you said everything was turned upside down. Could you expatiate on this?

The judgment of the Supreme Court was clear and people criticised it because it went and fetched the number four and made him the governor, what other lights do you want me to throw on this? That’s all.

What are your thoughts on the CBN’s cashless policy?

It’s a good policy, but it has been badly implemented. Too much cash in the system makes monetary policy difficult to control, so, while I agree with the general principle behind the policy, I just don’t understand why it was so badly implemented that the policy now turned around to give Nigerians the challenge of not accessing money in their account. If it was well implemented, it would have been a good policy. Also, the period of currency change was bad. In the United States, their old currency is still being used, since five years ago.

What is your message to the president-elect, Bola Tinubu, on how to turn around the fortunes of the country without delay?

Don’t forget that all the presidential candidates adopted their manifestos, and I read all of them. So, the problem is not the manifesto, the problem is the political will to deliver on the promises. So, my expectation is for the next president to recognise the very challenging circumstances that Nigerians are faced with. Unemployment, healthcare, a broken economy, no electricity, high cost of living; those are the things that I hope the President by May 29 can say, I promised Nigerians that they will feel my impact. That’s what I want; I’m not interested in this thing that every quarter we have statistics that our economy has grown by three per cent. Who feels it on the streets all these things they say, so I’m not interested in the statistics economy, I’m interested in the real economy that people, a man on the street can say, yes, I feel good. That would be the success of the president, not to rely on CBN’s reports or that of the National Bureau of Statistics, or to rely on these words of people in the streets who are happy, they can see a difference. That’s what I’m hoping that the next president can achieve so that people can applaud him. I used to always say that the best popularity of the president is to ask him to walk down the road. If he walks down Broad Street (Lagos) and he is hailed, that’s how you know he’s doing the right thing. But if he is bullied, he’s doing the wrong thing because that’s the ultimate. Any president who feels he can walk around Broad Street and behave must be prepared to do the hard work and that is how he will earn that respect.

The current administration has been accused of being selective in obeying court orders, how can the president-elect avoid the temptation of disobeying court orders?

By simply saying that I’m going to obey court orders. That’s all. It’s as simple as that. It’s not difficult; let him appoint an Attorney General that he instructs to look into all court orders. In fact, I would suggest that any Ministry, Department or Agency that entangles the government in any problem should be penalised so that there is a personal consequence. If for instance the police cause the Federal Government to lose the case because some policemen shot somebody dead, it’s not enough to take the policemen to their orderly room to try them, there has to be consequences for them and those around them. It is when there is that consequence that you begin to see the government become more responsible and accountable. So, obeying court order is not rocket science. I mean, how dare you disobey court order in the United States? Even former President Donald Trump, who appointed about 60 judges and filed about 60 cases when he lost the election; the many judges he appointed did not agree with him. Court orders were all obeyed. I remember a case where a judge was presiding over the question of an illegal immigrant from Nicaragua. On the day of the case, the judge asked where the boy was, but the guy had been flown out. The court publicly ordered ‘go and return him immediately to America’, and it was obeyed. That is the level they obey court orders. The courts should also do things in the correct way because if they don’t, it opens them to ridicule.

Interview culled from Punch.com

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