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Politicians and the courts are shackling INEC
By Abdul Mahmud
The legal tussles over the leadership of the Peoples Democratic Party, PDP, present a real challenge to the Independent National Electoral Commission- INEC.
The challenge appears as an encumbrance on the statutory powers of INEC to conduct free and fair governorship elections, it also potentially implicates its ability or otherwise to prepare adequately for the Edo state governorship election, in particular and other elections in general, and encumbers framework for dealing with the problems of uncertainty and negative public perception of its work that the lack of consensus and consultation, crisis of confidence, squabbles in the party political ranks and politicians behaving badly, judicial rascality and conflicting judgments emanating from courts of coordinate jurisdiction create for the commission and for the polity.
Here is the evidence of party political squabbles that is today most pronounced in the leading opposition party, the Peoples Democratic Party, PDP.
Between 29th May, 2015, when the leading opposition party relinquished control of political power, and 29th May, 2016, a year following the assumption of power of the ruling party, the All Progressives Congress (APC), the leading opposition party had witnessed all sort of internal squabbles and crisis of confidence that have torn the once coercive party down the middle.
In the past few months, the baton of party political power has changed hands between the two warring claimants, Senator Ali Modu Sheriff and Senator Makarfi. The warring battles for the leadership of the party have often taken place within its state chapters and wards, creating factions within its ranks.
These battles, more pronounced in the courts, with conflicting rulings and judgments emanating from such courts of competent jurisdiction in Lagos, Abuja and Port Harcourt, imperil serious attempts at resolving the crisis in the party from within and without.
While the in-fighting and squabbles effectively undermine the ability of the party to play its opposition roles, it raise questions on the commitment of leaders of the party to the Nigerian democratic project and to the broadening out of political relations made profound by democratic tradition, political experiences and political horizon that share a common or contiguous relationship.
It is these shared relations, experiences and horizon that these politicians appear to take for granted.
The point here is that it is the political that gives meaning to politics, and for our experience we can imagine what will be lost to opposition politics if the political were to be lost to the shenanigans of our politicians and the rascality of judges.
Keeping Tab On The Actions, Conflicting Rulings And Judgments
If the loss of the political and the demeaning of politics don’t make sense, it is difficult for anyone, much less the Independent National Electoral Commission, to make sense of the challenge that conflicting rulings and judgments of competent courts on the crisis in the Peoples Democratic Party, PDP as follows, pose to the polity:
A. Ali Modu Sheriff and two others v INEC and another- suit number FHC/L/CS/613/2016
A suit filed at the Lagos Division of the Federal High Court in which the presiding judge, Justice Buba granted the following reliefs on May 12, 2016: 1) An order of interlocutory injunction restraining the PDP from conducting an election into the National Offices of the National Chairman, National Secretary and National Auditor occupied by the 1st, 2nd and 3rd plaintiffs respectively, pending the determination of the substantive suit.
2) An order of interlocutory injunction restraining INEC from monitoring and recognizing the conduct of any election by the PDP into the Offices of the National Offices of the National Chairman, National Secretary and National Auditor occupied by the 1st, 2nd and 3rd plaintiffs respectively, pending the determination of the substantive suit.
B. Emeka Dibia v PDP- suit number FCT/HC/CV/1443/2016
This action which was commenced at the High Court of the Federal Capital Territory and on May 18, 2016, the court declared that ” by Article 47(i) of the PDP Constitution, the appointment of Ali Modu Sheriff as Chairman after the resignation of Adamu Mua!azu is pending the conduct of an election to fill the vacancy. The court further declared that the tenure of 16 other national officers of the PDP is for four years and subsists till August, 2017″.
It must also be stressed that on May 26, 2016, the Federal High Court sitting in Lagos delivered another ruling where it ordered that “Senator Ahmed Makarfi and Senator Ben Obi too shall be served and heard as to why the order of the court is ignored and show cause why their appointments should not be nullified”.
C. In Chief Joseph Jero v PDP- suit number FCT/HC/CV/1867/2016, the court held that:
1) The purported amendment of Article 27(6) of the PDP Constitution of 2012 at a special convention of the party held on 10th and 11th December, 2014 is unconstitutional, null and void and of no effect, for non-compliance with mandatory due process as provided for in Article 66(2) and(3) of the said Constitution;
2) By the reason of this judgment, the purported amendment introduced in Article 47 on the aforesaid date is hereby set aside;
3) All persons or individuals, officers, servants and agents of the PDP parading themselves as national officers of the PDP purportedly pursuant to the said amendment, which has now been nullified are hereby restrained from further parading themselves around in those capacities and claiming the rights and privileges or appurtenances.
D. Benson Akingboye and another v INEC and PDP- suit number FHC/AB/CS/439/2016
In its ruling delivered on June 30, 2016, the court made the following orders:
1) An order of interlocutory injunction restraining the 1st defendant by itself, officers, servants or privies from dealing with and according any recognition (including primary elections/congresses of candidates of the PDP for the gubernatorial elections to be conducted by the 1st defendant in Edo and Ondo states of the Federal Republic of Nigeria) purportedly on behalf of the 2nd defendant or by any other persons other than Senator Ali Modu Sheriff, Professor Wale Oladipo and Fatai Adeyanju led National Executive Committee of the PDP, pending the determination of the Originating Summons;
2) An order of interlocutory injunction restraining the defendants or their organs, officers, agents, servants, surrogates and privies from according recognition to, dealing with and according all facilities required by law ( regarding gubernatorial elections to be conducted by the 1st defendant in Edo and Ondo states of Nigeria) to any other persons or group of persons other than Senator Ali Modu Sheriff, Professor Wale Oladipo and Fatai Adeyanju led National Executive Committee, pending the hearing and determination of the Originating Summons;
3) An order directing the 1st and 2nd defendants by their organs, officers, agents, servants, surrogates and privies to recognize, deal with and accord all facilities required by law ( regarding the gubernatorial elections to be conducted by the defendants in Edo and Ondo states) to the National Executive Committee and National Working Committee of the 2nd defendant, pending the determination of the originating summons;
4) An order directing the 1st and 2nd defendants to reject and ignore any activity (including primary elections/congresses for the nomination of candidates of the PDP for the gubernatorial elections in Edo and Ondo states of the Federal Republic of Nigeria) purportedly conducted on behalf of the 2nd defendant by any other persons or group of persons other than the Ali Modu Sheriff, Professor Wale Oladipo and Fatai Adeyanju led National Executive Committee of the PDP, pending the hearing and determination of the originating summons.
E. PDP v Ali Modu Sheriff and 4 others – suit number FHC/PH/524/2016
On July 4, 2016, the Federal High Court, sitting in Port Harcourt ordered as follows:
1) That the National Convention of the plaintiff is supreme and controlling authority of the plaintiff and its principal representatives, policy making and administering body;
2) That the decisions of the National Convention of the plaintiff made pursuant to its authority expressly provided for in the Constitution of the plaintiff is binding on all members of the plaintiff, the 1st and 2nd defendants inclusive;
3) That the decision of the National Convention of the plaintiff cannot be countermanded by members of a National officer/officers or an organ/organs of the plaintiff;
4) That the 1st and 2nd defendants or any and/or the national officers of the National Executive Committee and members of the National Convention who were removed from office by the National Convention of the plaintiff held on 21st May 2016 in Port Harcourt, Rivers state cannot hold or continue to hold themselves out either individually or collectively as the Chairman, Secretary or National Officers or National Working Committee of the plaintiff;
5) An order of perpetual injunction restraining the 1st and 2nd defendants or any and/or the National Officers, the members of both National Executive Committee of the plaintiff who were removed from office by the National Convention held on 21st May, 2016 in Port Harcourt, Rivers state cannot hold or continue to hold themselves out either individually or collectively as the Chairman, Secretary or National Officers or National Working Committee of the plaintiff;
6) A declaration that the 3rd defendant cannot in its role as a monitoring agency of the activities of the plaintiff interfere or negate a decision of the plaintiff’s National Convention reached in accordance with the plaintiff’s Constitution;
7) An order restraining the 3rd defendant from according or continue to accord any recognition to the 1st and 2nd defendants or any and/or all the national officers, the members of both the National Executive Committee and National Working Committee of the plaintiff, who were removed from office by the National Convention of the plaintiff held on 21st May, 2016 in Port Harcourt, Rivers state as officers or organs of the plaintiff;
8) An order directing the 3rd defendant to recognize the National Caretaker Committee appointed by the National Convention of the plaintiff held in Port Harcourt on 21st May, 2016 as the Executive Committee appointed by the national authority of the plaintiff, including: a. Conduct primaries for political offices; b. Submission of the plaintiff’s list of candidates for any election conducted by the 3rd defendant;
9) A mandatory injunction restraining the 1st and 2nd defendants, their allies, representatives and persons acting for and on their behalf from any action or conduct whatsoever and howsoever, which is contrary to the decisions reached at the National Convention of the plaintiff held in Port Harcourt, Rivers state on 21st May, 2016;
10) That it is unlawful for the 4th and 5th defendants to deploy security personnel to the 1st and 2nd defendants for the purpose of preventing the 1st and 2nd defendants or any and/or all the National Officers, the members of both the National Executive Committee and National Working Committee of the plaintiff who were removed from office by the National Convention of the plaintiff in accordance with the plaintiff’s constitution;
11) An order restraining the 4th defendant from deploying security personnel to the 1st and 2nd defendants for the purposes of preventing the 1st and 2nd defendants or any and/or all the National Officers, the members of both the National Executive Committee and National Working Committee of the plaintiff from vacating their respective offices from where they were removed by the National Convention of the plaintiff in accordance with the plaintiff’s constitution.
F. Ali Modu Sheriff and 8 others v INEC and another- suit number FHC/ABJ/CS/464/2016
The Federal High Court sitting in Abuja delivered a ruling on 28th day of July, 2016 and ordered that:
1) The Port Harcourt National Convention held on 21st May, 2016 was unlawfully held and the National Caretaker Committee was unlawfully and illegally appointed and cannot take decisions in behalf of the PDP;
2) Any action taken by Senator Ahmed Makarfi led National Caretaker Committee, having regards to the subsistence of the orders of the Lagos Division of this Court, inclusive of the authority to issue letter of instructions appointing Ferdinand Orbih, SAN to act for the PDP is unlawful, illegal and accordingly declared null and void;
3) The National Convention was held in violent contravention of the orders of this court, Lagos Division, dated 12th and 20th May, 2016 respectively. That unless the orders of the Lagos Division of this court are set aside, Senator Ahmed Makarfi led National Caretaker Committee of the PDP acts in vain in affairs of the PDP;
4) That having regard to the subsisting orders of the Lagos Division of this court dated 12th and 20th May, 2016 and the orders of this court as presently constituted dated 30th June, 2016, Dr Ali Modu Sheriff is the National Chairman of the PDP, inclusive of authority to appoint a counsel to represent it in court.
G. Pastor Osagie Ize-Iyamu v INEC – suit number FCT/HC/CV/2295/2016
In an exparte application filed along with the motion on notice by the governorship candidate of Senator Ahmed Makarfi led PDP, the presiding vacation judge, Justice Adeniyi ordered on 4th day of August as follows:
1) That parties are hereby ordered to maintain status quo ante bellum, that is the position with respect to the subject matter of this suit as at 03/08/2016, when the same was filed, pending the hearing and determination of the motion on notice. Accordingly, the motion on notice is hereby set down to Tuesday the 9th day of August for hearing.
The Electoral Umpire As Caesar’s Wife
As the statutory body charged with conducting free and fair elections, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010, give limited room and latitude to INEC to cherry-pick orders, rulings and judgments of courts of competent jurisdiction to obey.
For an electoral umpire operating in a nascent democracy, how it engages with the polity to confer respect for it and repose confidence in its work is determined to a large extent by how it respects the law and the judgments of courts, and how it sticks to the democratic character of its mandate to deliver free and fair elections, and to the demands of accountability of the electorates and politicians.
It was in recognition of all of this that the court expressed in Dr Chris Ngige v Dr Peter Obi (2006) All FWLR (PT 330 ) at 1041 that “INEC has not only a pivotal, but also a dedicated role to play in ensuring a free and fair election in this country, and like Caesar’s wife, it must be seen to live above board… if it wants to be taken seriously as it should be or is expected to be taken, it must learn to do things properly and in accordance with the law”.
How do the electorates and politicians expect the electoral umpire to live above board, discharge its constitutional role in a democracy made chaotic by politicians who set rules for themselves and by judges who try to settle political issues and objectives in questionable ways to determine conflicts that the internal political mechanisms and frameworks of political parties can resolve?
How can INEC do things properly, how can it be taken seriously when there is a conscious resolve by power and law to undermine its integrity? How can it act in accordance with the law when the courts foist uncertainties in their interpretations of the law?
The pivotal and dedicated roles that INEC is expected to play in the polity are further problematized by conflicting orders, rulings and judgments emerging from our courts. While it is conceded that courts often help to instil discipline in politicians, it have also helped in such authorities as Ugwu v Ararume (2007) 12 NWLR (PT 1048) 367 to rescue our laws and institutions from politicians intent on turning them into vassals of their political estates.
In the Supreme Court case of Amaechi v INEC (SC 252/2007, for instance, Justice Katsina-Alu not only warned that “[this] court has wide jurisdiction to give consequential orders and to grant reliefs which the circumstances and the justice of a case dictate.
Wherever justice demands it, [this] court shall rise to do justice without regard to technicality”, but he also restated what should guide our courts- the circumstances and justice of a case.
The circumstances of the cases involving Dr Ali Modu Sheriff and Senator Ahmed Makarfi are well too known, but what isn’t known is the answer to where justice lies in the cases, considering the conflicting orders, rulings and judgments that have emerged from courts of coordinate jurisdiction and in sad instances from divisions of the same court.
Again, can the electoral umpire play the pivotal role in ensuring a free and fair election when it cannot be sure of its role as guaranteed by the law?
INEC under Professor Mahmud Yakubu has consistently shown its desire to stand on the good sides of the law; but how long more can it stand on the constantly shifting and uncertain legal and judicial sand?
Becoming Caesar’s wife in such chaotic political atmosphere is a desideratum, but our politicians and judges must help INEC to live above board.
Unshackling The Electoral Umpire- What Can INEC Do?
Conflicting orders, rulings and judgments surely place INEC in the quandary of which orders, rulings and judgments to obey. As stated earlier, INEC has consistently held the view that it will obey the judgments of courts duly served on it.
And only recently it obeyed the judgment of the Federal High Court, Port Harcourt, Rivers state, which declared that the PDP did not violate its constitution when it constituted the National Caretaker Committee of the party, monitored the governorship primary election that produced Pastor Osagie Ize-Iyamu as the governorship candidate of the PDP, Edo state, and subsequently proclaimed the pastor as the recognized governorship candidate of the warring party, PDP.
Though critics accuse INEC of bias, of cherry picking orders, rulings and judgments of courts to respect and obey. They cite the case of a certain Matthew Iduoriyekemwen, who was elected as the PDP Edo state factional governorship candidate of Senator Ali Modu Sheriff led PDP on the strength of the judgment of the Federal High Court, Abuja, which declared Senator Ali Modu Sheriff Chairman of the PDP.
While INEC can justifiably be taken up on the question of the judgment, INEC is under no legal obligation, as we shall see later, to respect and obey conflicting judgments.
Having said that, it is also worth noting that though the Electoral Act, 2010 defines primaries as “an intra-party election by voters of a given party to nominate candidates for elective offices in accordance with a political party’s constitution and law”, primaries, congresses and conventions, as the primary affairs of political parties, must be conducted according to the dictate of the law.
By virtue of Section 85(1) and (2) of the Electoral Act, political parties are mandated by law to serve INEC “at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of electing members of executive committees, other governing bodies or nominating candidates for any of the elective offices”.
The primary elections which produced the factional governorship candidate of the PDP, Edo state, Matthew Iduoriyekemwen, according to INEC, were conducted without the statutory 21 days’ notice served on it as stipulated by Section 85(1) and (2) the Electoral Act, 2010. So, what then is the question?
What can INEC do when it is served the conflicting judgments of courts of competent jurisdiction on the same subjects?
The Federal High Court, Lagos, Abuja and Port Harcourt Divisions are not only courts of coordinate jurisdiction, but they are also Courts of Divisions of the Federal High Court.
What it means in effect here is that the Federal High Court sitting in Lagos, Abuja and Port Harcourt is one court, distinguished only administratively as divisions of the same court- Federal High Court. Flowing from the foregoing, therefore, it is a settled position of our jurisprudence that courts of divisions of the Federal High Court are one, and as courts of divisions of the same court they have coordinate jurisdiction and no one single division is bound by the decisions or judgments of the other division.
See Barclays Bank v Hassan (1950) WNLR 293; First Bank Nigeria PLC & Anor v First City Monument Bank PLC & Anor (2013) LPELR- 22050(CA).
So is INEC expected to obey conflicting orders or judgments of divisions of courts of coordinate jurisdiction? My view that is INEC is not under any mandatory obligation to obey orders, rulings and judgments of courts of coordinate jurisdiction that are so patently conflictual that they confuse lawyers, much less laymen.
I concede here that the twin principles of “first or latest in time” and “correctness of judgments” implicit in the Supreme Court decision of Osakue v Federal College of Education Asaba (2010) 1 NWLR (PT 1201), per Ogbuagu JSC:
“For the umpteenth time, where there appear to be conflicting judgments of this court, the latter or latest will or should simply apply and must be followed if the circumstances are the same… where there is no discernible ratio decidendi common to the decisions of the SUPERIOR COURT, the LOWER COURT or a COURT OF COORDINATE JURISDICTION is FREE TO CHOOSE which appear to it to be CORRECT”.
While these principles are sound principles of our case law jurisprudence, my candid view is that INEC is not a court created by Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), so it is not expected to apply the principles in every material particular.
For me, the approach INEC must adopt in discerning which conflicting orders, rulings, decisions and judgments of courts of coordinate jurisdiction and or courts of Divisions of the Federal High Court to obey is that which promote public policy.
But, where INEC, not minding it isn’t a court, chooses to abide by the principle of the “latest decision in time” as enunciated in Osakue’s case, for instance, it must show consistency in its application of the principle; or where it chooses to cherry pick judgments that in its considered opinion are correct, it must consider the good purposes of public policy that the orders, rulings, decisions or judgment purport to promote and protect within the Rule of Law framework.
Taking the Edo state governorship tussle as an example, judgment that empowers INEC to conduct the Edo governorship election within “the framework of recognized rules and principles which restrict discretionary powers which Coke colourfully spoke as a golden straight method of law as opposed to uncertain and crooked cord of discretion”, to borrow the dictum of the Learned Justice of the Supreme Court, Obaseki JSC in Governor of Lagos state v Ojukwu (1986) 1NWLR (PT 18) 621 at 647, within the constitutional and legal time frame, and without extending the tenure of the outgoing governor or creating a constitutional impasse, is what INEC should cherry – pick.
Abdul Mahmud is the President, Public Interest Lawyers League (PILL)