By AHURAKA YUSUF ISAH
On Thursday May 29, 2019, Chairman of the Presidential Advisory Committee on Anti-corruption (PACAC), Professor Itse Sagay (SAN) lodged an unexpected attack on the Supreme Court for the judgements it delivered in the disputed All Progressives Congress (APC) primaries in Rivers and Zamfara states. The supreme Court had on February 12, 2019 finally struck out all pending appeals challenging the judgement of the Port Harcourt Division of the Federal High Court which barred the APC from fielding candidates in the 2019 general elections. Justice Olabode Rhodes-Vivour led 5-man panel followed the apex court judgement of February 8, 2019 which upheld the order of a Federal High Court, Port Harcourt, nullifying the APC primaries in Rivers State.
The trial court had held that the primaries were held in disobedience to a court judgement barring the party from conducting congresses pending the determination of a suit filed by 22 aggrieved members of the party. Again, Supreme Court on May 24, 2019 nullified the elections of all the candidates of the APC in Zamfara State in the 2019 general elections. Delivering a unanimous judgment of the five-man panel led by the Acting Chief Justice of Nigeria, Justice Tanko Muhammad, the apex court declared the first runners-up in the 2019 general elections in the state as the winners of all the posts earlier declared to have been won by the APC and its candidates.
Justice Paul Galinje, who read the lead judgment upheld the decision of the Sokoto Division of the Court of Appeal to the effect that the APC did not conduct any valid primary election and as such had no candidate for any of the elections in the state. He described the votes polled by the APC candidates in the elections as wasted, adding that the party and the candidates with the second highest votes and the spread in the various elections were the valid winners. In other words, the 36 positions including governor and his deputy’s seats, 3 senate, 7 Reps members and 24 state House of Assembly seats were lost in one swoop to the PDP by the APC.
Professor Sagay however described the separate Supreme Court judgements, although in pari material, or on the same subject matter (appeal) which is the invalid conduct of primary elections in Rivers and Zamfara states by the APC at the build up to 2019 general elections, as ‘’travesty of justice’’. Professor Itsejuwa Esanjum Sagay (SAN), simply known as Professor Itse Sagay is a distinguished legal scholar, Professor of Law and human rights activist and the former Dean of the Faculties of Law at Universities of Ife and Benin respectively, a constitutional law expert and Senior Advocate of Nigeria.
He is unarguably fast becoming the greatest critics of institutions and individuals not courting President Buhari’s political interest. The Delta state (Ugheli) born and Supreme Court of Nigeria Amicus Curia was appointed by President Muhammadu Buhari in August 2015 as the Presidential Advisory Committee on Anti-corruption Chairman to advice his administration on prosecution of the war against corruption and the implementation of required reforms in Nigeria’s criminal justice system. Sagay began the scathing remarks on institutions or individuals while serving under the Buhari administration when on April 16, 2016 he delivered a paper titled “A Farewell to Election Petitions”, which he referred to as ‘’a Summary of his review of the Supreme Court decision in the Rivers State Governorship Case of Wike v. Peterside.
Wike Vs Peterside Judgement Attack
Supreme Court heard and delivered judgement in appeal number SC.1002/2015, between Wike Ezenwo Nyesom and Hon. (Dr) Dakuku Adol Peterside & 3 Ors on January 27, 2016; with reason for the judgement subsequently given on February 12, 2016. In his lead judgement, Justice Kudirat Motonmori Olatokunbo Kekere-Ekun dismissed the concurrent judgments of the Tribunal and the Court of Appeal and consequently return Nyesom Wike as the duly elected Governor of Rivers state. ‘’The generalized evidence led by mobile policemen, officers of the Department of State Security and Military Officers were against unidentified individuals and unidentified PDP thugs. ‘’For the evidence of disruption, violence and corrupt practices to warrant the nullification of the entire election in Rivers state, the 1st and 2nd respondents had to first prove the non-compliance polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election. It is only when this is done, that the respondents are to lead evidence in rebuttal. The 1st and 2nd respondents herein failed to bring their cases within these parameters. ‘’It is my view that the Tribunal and the court below were unduly influenced by the alleged failure of INEC officials to adhere to INEC’s Manual, Guidelines and directives on the exclusive use of the Card Readers for accreditation and heresay evidence and thereby, with due respect, came to the wrong conclusions. I hold that the appellant has shown sufficient reason for this court to interfere with the concurrent findings of the Tribunal and the court below’’. But Sagay argued otherwise. He said ‘’the Wike v. Peterside Supreme Court decision constituted the most devastating judicial blow on Democracy, the Rule of Law and Free, Fair and Credible Elections this country has ever seen.
Not only have incredibly high and insurmountable barriers against election petitions been erected by that decision, it also gives an indomitable rock like status to anyone, who by blood, mayhem, violence, massive irregularities, fights his way on to the governorship seat; indeed, any electoral office. He is assured of unshakeable, solid tenure for 4 years. The full implication of the Supreme Court’s decision in Wike v. Peterside is: “when you prepare for Elections, prepare for War”. This judgment constitutes, “A Farewell to Election Petitions”.
The Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 General Elections. Prior to the authorization of its use by the Guidelines, Sections 49 (1) and (2) of the Electoral Act 2010 (as amended) had adopted analogue procedure for the accreditation process. The National Assembly perhaps went to sleep by not amending the Electoral Act in order to replace the Voters’ Register (analogue procedure) with the Card Reader Machine, in order to serve as the sole determinant of valid accreditation process.
The 7-man panel of the Supreme Court led by the Chief Justice of Nigeria, Justice Mahmud Mohammed in the appeal number SC.1004/2015 in the matter between EDWARD NKWEGU OKEREKE (APPELLANT) AND NWEZE DAVIDUMAHI AND OTHERS (RESPONDENTS), held that; ‘’…since the Guidelines and Manual which authorized the use and deployment of the electronic card Reader Machine were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the voters’ Register whose judicial roots are firmly embedded in the selfsame Electoral Act from which it (the Voters’ Register), directly, derives its sustenance and currency’’.
Hon. Justice Chima Centus Nweze, who delivered the lead judgment said “the lower court was right in holding that the Card Reader Report was incomplete, unreliable and incapable of proving the appellant’s allegation of improper accreditation/over-voting’’. Should Voters’ Register or Card Reader Machine Report be the determinant of valid accreditation? This had been the basis of conflicting judgment amongst the Court of Appeal Divisions recently. But, again felt otherwise.
He said in his same paper, “A Farewell to Election Petitions”, that the Supreme Court, in rejecting the use of the Card Reader adopted its earlier views on the matter in Okereke v. Umahi S.C. 1004/2015, that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register “whose judicial roots are firmly embedded or entrenched in the selfsame Electoral Act from which it (Voters’ Register) directly derives its sustenance and currency” – per Nweze, JSC. The question may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register. ‘’The sum total of the role of the Card Reader is that it is complimentary to the usage of the Voters’ Register.” So where in all this did Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader? Absolutely nowhere.
What Nweze, JSC, had simply done was to give the Card Reader a bad name in order to subject it to judicial execution. ‘’Section 15 of the Electoral Act clearly empowers the INEC to issue Regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and its Administration thereof. Introduction of Card Readers is doing exactly that. By law, the guidelines thus issued are as potent as the permitting law, i.e., the Electoral Act itself. ‘
’It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ Register to ensure or guarantee, free, fair, credible and transparent elections, the Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the Voters’ Register as Nweze, JSC, wrongly asserted in Okereke v. Umahi ‘’ The Voters’ Register could only be regarded as having been dethroned and deposed if its purpose in the Electoral Act was to promote fraud, rigging and massive irregularities. In other words, it is only when its role and purpose is in conflict with that of the Card Reader, that it can be said to have been dethroned and deposed by the Card Reader, because the two would then be working at cross-purposes with each other.
Rivers And Zamfara Judgement Attack
In a statement he sent to journalists titled, ‘’Supreme Court Judgement on Zamfara APC: The Judiciary As Alternative Electorate’’, Sagay stated that the Zamfara and Rivers state judgments are a national tragedy. We should not allow our legal system to throw up such unimaginable injustice. “This major judicial disenfranchisement of the Zamfara and Rivers electorate should be reversed. I advise the APC legal team to apply for a review of the two judgments. Their Lordships ought to be given an opportunity to reverse this unprecedented tragedy.
The prefix ‘Justice’ preceding the names of Supreme Court and Court of Appeal judges is significant, for it prescribes what they stand for and what they represent: justice!” Sagay pointed out that in the governorship election in Zamfara, the APC candidate scored well over 500,000 votes while the PDP candidate scored just over 100,000 votes.
He noted that the APC won all three Senate seats in the state, seven House of Representative seats and 24 state House of Assembly seats. The statement reads in part: “By this judgment, the landslide APC victories in the governorship, Senate, House of Representative and House of Assembly elections are transferred to the PDP.
If the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote? Is the electorate to be punished for the transgressions of party officials? “Should the judiciary replace the electorate’s decision and install losers in office? Could the judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity? “Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights? Should the judiciary take over the electoral rights of the electorate? Is this not a clear case of technical law completely overthrowing justice?
“Have the members of the Supreme Court not achieved a level of creativity and authority to provide a solution without burying democracy and taking over from the registered voters as the judicial electorate? If this judgment had been an international one, it could have been described as ‘shocking the conscience of humanity.’ In this case, it shocks the conscience of Nigerian humanity.”
Citing several authorities, Sagay said the Supreme Court is specially endowed with the power and authority to do justice and to ignore law when it is technical and would create injustice, and to avoid at all costs a mechanical approach to the interpretation of the law. Now, has justice been served in Rivers and Zamfara states? No! In one case, innocent electorate in their hundreds of thousands were prevented from voting for their party by judicial order. “In Zamfara, where voting took place, the verdict of the electorate was taken away from the victorious party and awarded by the judiciary to the woeful losers. In the next four years, Zamfara state will be governed by a party and politicians rejected by the electorates.
This indeed shocks the conscience of Nigerian humanity,” Sagay stated. Curiously, lawyers are divided on legality or illegality of the law professor’s arguments. While some disagreed on seeking Supreme Court review of the judgements in Zamfara and Rivers states, others dismissed such urge as odious or mere academic exercise to waste apex court’s precious time. |
