Against the backdrop of the final verdict on the 2023 presidential election delivered by the Supreme Court penultimate week, the presidential candidate of the Social Democratic Party (SDP), Adewole Adebayo, in this interview, speaks on the country’s judicial process, the judicial commission, appointment of judges and other sundry issues. SUBAIR MOHAMMED brings excerpts.
What is your overview of the judicial part of the presidential election, could it be better?
Of course, it could be better. We must thank God. In previous elections, three years down the line, litigation was still on such that the litigant was already preparing for the next election, but now, things are changing for the better.
Now what’s next target is for the tribunal to decide on all election petitions before the winner in an election is sworn in so that there won’t be colour perception about the judgment. We should be working towards a situation where our elections won’t have to go to court at all like what exists in some countries where you have about 1,000 elections and only one or two go to court or none at all. That should be our aim now.
What do we need to do to achieve that?
There are three things we need to do, but the majority of these depend on the politicians. One is to ensure that the law is reformed. Everybody that is involved in law reform is a politician and that is the irony of the matter. When we say we need to change the law, we must not forget that every member of the National Assembly is a politician and a potential beneficiary of the law.
The president is the other half of the legislative process because the legislative power in Nigeria is vested in two arms. One is the legislature represented by the National Assembly and the executive headed by the president. If the president doesn’t sign the bill, it cannot become a law.
So, both of them are politicians, which means it is only by moral persuasion and emphasising it in the public that it becomes profitable for them to make this amendment.
On the court side, there isn’t a problem. Where there is a problem is where you are asking the court to be faster than the legal proceedings or to give you relief which they can’t give by law or to stop entertaining cases which they must entertain by law. Once the law is changed and the politicians change their behaviours, then the judiciary will be the easiest because it is the most law abiding, most cooperative, and they don’t cause problem for anyone.
I think what is important to state here is that election petition is not a compulsory competition process in the quest for power.
Why we keep on having this tension is that what the politicians want, the court doesn’t have. So, there is no time in the history of election litigation that the politicians will be satisfied with the court because the court can only give you justice. Politicians don’t want justice. They want judgment that leads to power. So, they see the court as another layer of getting power. But the court isn’t designed to give you power. The court is designed to give you justice. So, sometimes you may get justice, but if justice doesn’t land you in power, you say this isn’t justice.
I think there is a general misunderstanding of the rule of the court and the rule of the law, and I saw that in the course of our electioneering. There is none of this judgment by the Supreme Court that I didn’t predict.
The court is there to listen to the petition before it. And if the petition before it doesn’t capture errors of INEC correctly and goes outside to talk about other things then it goes in conflict with the law. The jurisdiction to determine the issue is limited by the claim before it and the applicable law.
Some people have opined that the Supreme Court laid more emphasis on the technicalities in its decision instead of the substance of the matter just like the issue of Chicago State University, which was not looked at at all. What do you think?
In election matters, there are three things you have to consider. You have to consider the people who are not lawyers because to them, everything about the law is technicality. Secondly, election matter is said to be swin sineris because it doesn’t follow the traditional procedural, technical and substantive because election itself is technical in nature. It has time limit, what you can plead, who can be a petitioner and who can’t. The whole jurisprudence of election is technical by nature.
The claim of the party before the court was not a substantive claim; it was a claim based on technicality because if I come to court and say I scored the highest votes and I can prove it, that is substantive. If I come to court and say well, the other person scored higher votes than me but he is not qualified, that is technicality. Even if I say he doesn’t have certificate, it is technicality. On the issue of Chicago State University, there are three stages to it. Even if the court had admitted the evidence, it still won’t make a difference.
The iRev and Bi-modal Voter Accreditation machine came up at the Supreme Court even though the court had earlier ruled on a similar matter. Do you think the apex court has spoken loudly enough for everybody to understand?
That brings me back to what I said earlier. Politicians don’t go typically to court looking for justice. They go there looking for power. The way to get a good and clean election is to have good and clean politicians.
Next to that is to have your agents at every polling unit. Once the election is conducted there and you are given your results, you collate your own results. In fact, you can have your own internal iRev. In SDP, when we ran, we had our own situation room, and we were collating our results from all our agents on the field. When we started having problems was when we noticed they were not sending us anything.
From our findings, very few controversies emanated from the polling units. If you are complaining about 86,000 polling units, you will automatically need 86,000 polling agents to prove your case. This is the result given to me but it is completely different from what was announced on TV. People think election litigation process is a continuation of election campaign.
What do you make of retired Justice Musa Dattijo Muhammed’s claim that the Chief Registrar of the Supreme Court earns more than the Chief Justice of Nigeria?
What he said is only surprising to the public, it is not to anybody who has met him. The way he spoke at the valedictory is how he speaks every day. He is known for that. He speaks straight from his heart. He believes in the Supreme Court jurisprudence.
The crisis of welfare in the judiciary, where it has to look outside its own means to take care of its judges. It is also part of the problems you will find in the relationship between senior lawyers like us and judges where a judge would have a birthday or an event and lawyers who know that judges are not well paid would give some kind of support.
It appears there is no room for any function for number in the judiciary?
Yes, that’s why the number two lasts long. It’s like the governor and his deputy governor. I think our general attitude to leadership in Nigeria needs a kind of review. We need to be a little more liberal. We need to avoid concentration of power and privileges. In the case of the Supreme Court regarding what Justice Dattijo talked about, even the Chief Justice himself has some measure of injustice with respect to remuneration. I don’t think that speech is lost on his colleagues but for the public, there isn’t much we can do for them because the solution is within their rank which is to review their own salary and talk to the commission involved.
The constitution talks about the number of justices that should be at the Supreme Court at a given time. But the number has depleted consistently through death and retirement. What do you think should be the mode of appointing judges and justices?
There are two sides to appointments of Justices of the Court of Appeal and Supreme Court. One side is the judiciary itself, where they deal with the quality of the person they want and the president who has the power to appoint. From my reading of the constitution, the president is even more powerful than any other person because he is the one who can appoint. The NJC can make recommendations to the president. If the president isn’t satisfied, he won’t appoint. And that is the end. On the other hand, if the president appoints somebody and the judiciary isn’t happy, the person will have a hard time.
Can the president appoint without the input of the NJC?
Under the constitution, if somebody makes recommendations to you, it is not an appointment. From what I know about the presidential constitution, you are not bound to take any advice. You can disregard it. It is just that it hasn’t happened before.
How do we open the processes of appointing justices to the Supreme Court?
Appointment to the highest court should be from bench and bar because whatever the bench is writing, the bar is producing it. But in Nigeria, I think we are trying to make two radical changes. At the minimum, start with the Court of Appeal, don’t jump to the Supreme Court all at once. The judges are watching the lawyers too because they know their behaviour. The way we are watching the court and that’s how the court too is watching the bar. Let’s start calibrating from the Court of Appeal where you learn judicial process.
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