(Modest Thoughts with Ayuba, Yilgak'ha, January 31, 2024; 08116181263)
This prose is a commentary on matters arising from the novel political situation that the supreme court ruling of Friday, January 12, 2024, on the Plateau State governorship appeal, has created. Novelty which is described as relating to something new, is a visible reality of any organic society. When Ideas, policies or laws, which were painstakingly made and celebrated yesterday become obsolete today, it is because change is a constant as one of the ancient philosophers, Hericlitus, will put it.
Practically speaking, the increasing complexity and dynamics of evolving societies often have the potential to throw up new and challenging situations or a situation that will require quick and appropriate solutions to manage that reality. The outcome of the supreme court ruling which upturned the appeal court ruling that favoured the All Progressives Party's candidate on November 19, 2023 and validated the victory of His Excellency Barr. Caleb Mutfwang (BCM) of the People's Democratic Party (PDP) at the ballot as well as at election tribunal, has created novel situations that were not known to law. Before the apex court ruling, the Court of Appeal tribunal, through its rulings had sacked two (2) senators; five (5) members house of representatives and, sixteen (16) house of assembly members including the governor, on the ground that they were not validly nominated and sponsored for lack of 'party structure'.
On that insinuation, the appeal court which is the final court to entertain any case arising from state assembly and national assembly elections, by law had invalidated the mandate of these state and national assembly members as well as the governor who were all PDP members. The difference, however, was that while the governor governor had the extended opportunity to further appeal to the supreme court, these law makers had no such window of opportunity to try their luck at the 'policy court'.
After the court of appeal judgement in respect of the governorship, governor Mutfwang whose mandate has been voided, promptly, approached the supreme court with an appeal which sought the review of the judgement that ousted him from office. The appeal of the governor was for the final court to determine whether the decision of court of appeal tribunal that removed him against the verdict of the lower election tribunal which validated his victory was right and, also, prayed that the verdict of the former be voided in his favour. The appeal was considered and his prayers were summarily and favourably answered.
The judgement indicated that the appeal court judgement was done in error, maintaining that the appellate court has no jurisdiction to entertain pre-election matters; neither does it has the powers to determined whether a party has structure or not. In specific terms, the novelty in this whole political situation is that the supreme court has declared that the judgement of the court of appeal was wrong but, yet, so many 'political heads' have rolled as the PDP lost its elected members at state and national levels with the principal offices some of them were controlling before the appeal court hurricane that befell it took place.
The whose situation is a dicey political lock-jam. What will be the way out? Will the beneficiaries of the appeal court judgement which was declared incorrect get away with it or something can be done legally to redeem those lost mandates? These are questions that have continued to generate heated debate amongst legal experts, political actors and public affairs commentators, some of which have made extreme, moderate legal, political or even moral submissions. There is no absolute solution because the issue at stake is not clearly known to law in Nigeria. The supreme court ruling has created a new political lock-jam in the state and the politics of Nigeria with dicey future implications if not legally addressed. In politics, there can never be absolute solution, really.
Before now, I used to think I went to school but the legal firework that followed the conduct of the 2023 election in Plateau State which produced elected representatives with His Excellency, BCM as tended to prove me substantially wrong. It was through that legal tussle that I got to learn legal phrases, terms or terminology like "justice in rem", "functus officio" and "writ certiorari", etc but my interest is on the first three.
Justice in rem refers to justice in respect of peculiar cases. Elementarily, the idea of justice in rem as applied to election tribunal cases is that, tribunal and appeal tribunals are special purpose courts which are set up to strictly and specifically handle issues arising from the conduct of election. They are different from conventional court cases. Here issues that do not directly touch on the election (including pre-election matters) are excluded, if not proactively raised within fourteen (14) days of the event or matter in contest by members of the political party involved who have stake (for instance as aspirant(s)). Also, fresh evidence which were not captured and presented at the point of filing any election case cannot be presented at any appeal after the case has been heard and decided at a lower court. This means that election tribunals cannot entertain any extreneous issue that has nothing to do with the conduct of election itself. This explained why the issues of fake certificate of president Tinubu and, the double nomination of the vice president, Shettima; the issues of party structure, invalid nomination of PDP candidates in Plateau State were jettisoned by the supreme court.
Functus officio, by description, means that ruling of court or tribunal cannot be benefitted in retrospection. Therefore, the ruling of the supreme court which favours governor Mutfwang cannot be benefitted by state assembly whose fate were sealed at the court of appeal. By implication, they have to bear the cross of the fate that has befallen them within the context of functus officio. That is the position of law but not the position of politics, considering that the issues at stake are novel. Hence, the back and forward political puzzle that is on going in Plateau State.
The writ of certiorari is, technically, an anti thesis of functus officio. In a sense, "it is a formal order issued by a higher court, typically, an appellate court, to a lower court or tribunal. It instructs the lower court to send up the entire record of the specific case for review. This, essentially, allows the higher court to re-examine the lower court's decision and, potentially, overturn it or correct any errors it finds." In other words, lower tribunal or appeal tribunal court judgements can be reviewed. It is in the light of this postulation that political pundits like Hon. Timothy Holy, a former member House of representatives for Pankshin, Kanke and Kanan wrote as follow: "I am of the strong opinion that all PDP members of the State Assembly sacked by the Appeal Court should resume their offices immediately to continue from where they were stopped. This is because of last Friday's judgement of the Supreme Court (per Justices Okoro, Helen & Emmanuel Agim). For our national assembly members, our Distinguished Senators and Honourable Members should immediately write to the Senate President, Rt. Hon Speaker and the Chairman of the Independent National Electoral Commission, INEC intimating them of the Supreme Court nullification of the decision of the Appeal Court regarding their elections. These decisions are in line and in conformity with the positions of Justices of Supreme Court that sat on our case last Friday that the Court of Appeal lacks jurisdiction in all the cases. Taking this path is actionalising the decision, consolidating our position, and giving life to the judgment." I don't know but this opinion is more political than the explicitly legal process which wit of certiorari prescribes. In other words, the supreme court has not asked the appeal court to submit its decision regarding the state and national assembly members from Plateau State.
Some moralist have proposed that the beneficiaries of the allegely faulty appeal court rulings in Plateau State, particularly, the 16 yet to be sworn-in house of assembly members and the national assembly members including the former governor of the state, Senator Simon Bako Along who was recently left his ministerial appointment and sworn-in at the red-chamber to represent Plateau South Senatorial zone are to resign. How easy this suggestion can go will be a matter of conjecture.
We are in a democracy. While these issues are being debated, one question that readily comes to mine, also, is that going forward, should matters of election (election disputes) be allowed to be handled by the Independent Electoral Commission (INEC) solely together with the tribunal courts as it were. This is be after final results of elections are collated and winners declared and returned elected, these outcome are often further tested at the tribunal up the final court, as the case may be and, in some cases, some of the winners the electoral umpire had earlier returned are reversed or have their victories invalidated. In as much as the two steps process of validation of victory is to ensure proper checks on human tendencies, has the arrangement addressed our fears in the light of present realities?
The second concern that needs reconsideration is that if electoral tribunals and appeal tribunals are to continue to preside over electoral disputes in Nigeria, at what point should the state and national assembly election be tribunal concluded in the light of the current Plateau contradiction? Will candidates contesting at those leveled be allowed, henceforth, to pursue their case up to the supreme court like it were in the case of governorship and presidential poll? It this should happened, it means more responsibility for the apex court because the number of electoral cases they will be handling will increase exponentially. Now, which way to go on this matter.
Democracy has its practical good sides and downsides. In theory, the system promises equal opportunity for all citizens to participate which is good. In addition, we have been taught that democracy is a game of numbers but left in glaring delimma about who has the convincing powers to determine the winning majority. Is it the court or the people? Whichever way you look at it, there are issues.
If the majority democracy relies on, is not qualitative to the extend that the people are substantially armed with knowledge to make informed choices or decisions regarding the alternatives that are available to them and, also, without duress or compulsion from any quarters, there will be problem. In other words, the rule of the majority democracy emphasises could throw up possibilities that are counter productive if the majority lacks the requisite quality to make decisions that work for all. This concern is captured in the view of a philosopher, Franz Kafka, who wrote that: "One idiot is one idiot. Two idiots are two idiots. Ten thousand idiots are a political party." What does this suggests to you? Kafka's postulation is pregnant with meanings. Commenting on the philosopher's submission, an anonymous commentator stated, emphatically, as follows: "Never underestimate the power of idiots in large numbers. They can even elect an idiot to represent them as president." This submission with the commentary that it attracts is very instructive. They spoke to the reality of how an unformed majority of people, who are united in action, could produce a leader of their kind in a democracy!
Again, allowing the courts to determine the will of the majority is a relative challenge too. How can the the will of the majority be left at the mercy of 3, 5 or 7 panel of justices who might be pruned to human inducements or errors to decide? Ain't this result in thwarting the will of the people in some cases?
Another concern that needs mention for public discourse is when the will of the people is decided based on legal technicalities. In a democracy, there is no technicality that is as important as the expression of the will of the majority which democracy is anchored on as it were. Unfortunately, legal technicalities have take precedence in legal jurisprudence. This is a situation whereby a matter that concerns the will of the people is sacrificed on the altar of legal technicalities. Granted, technicalities have it place in law as it is in any other profession but its applicability in a democracy should always reflect the will of the majority. No more, no less!
In view of the novel issues arising from the contradictions generated by the appeal court ruling and, the subsequent supreme court ruling which, finally, validated the election of governor Mutfwang with the state/national assembly members losing their seats, on the same ground, because the latter could not have the opportunity to test their fate at the apex appeal court, responsibility has beckon on the national assembly to rise to the occasion to salvage our democracy from sliding towards anarchy. The assembly is called upon to promptly and critically review the Nigeria's legal system, particularly, our electoral laws with the view to curtail the reoccurrence of these new realities of politics and legal demands that have emanated from Plateau state!
It is important to note that any issue arising from this legal tussle that is not trashed will resurface itself in the future general elections. With the issue of party primaries being the the exclusive preserve of the political parties, there is the need to promptly legislate on the conduct of political parties to ensure internal party democracy thrive. Intra party democracy has to be taken seriously if, as a nation or states, we must get our leadership recruitment process right.
The point has to be reiterated that the recruitment of party officials at all levels must be taken seriously to make sure that capable hands who have the wherewithal to, efficiently, run the affairs of political parties emerged without undue manipulation from transactional politicians. This point has to be stressed with emphasis. Nigeria is party democracy and, therefore, the place of party structure cannot be taken carelessly, going forwards. In other words, when Nigeria gets it right at the party level, the county's democracy will be better. Political parties are like family units of a society. In a party democracy, citizens have to belong as active members of a political platform in order to contribute in shaping the society through participatory leadership recruitment process. A citizen who belongs to no political party in a multiparty democracy is like members of a society who have no family root.
Plateau politics is at stake. Which way to go: The way of "functus officio" or "writ of certiorari"? Anyway, in a sporting competition, ""any team can have a bad century!"", as Janice Peterchak will put it. However, in a contest between good (virtue) and evil (vice), good should prevail or win by all legitimate means. As the legal issues generated by the 2023 general settles, it is important to state that the next election is no far anymore. Therefore, those who emerged victorious at the polls/tribunal courts should roll off their sleeves and settle for responsible and purposeful governance. This is because the people that voted them into power deserve nothing short of good governance that is driven by quality leadership. Wake up Nigeria; the world is watching. May the country, generally and; Plateau State, in particular, prosper in peace, unity and sustainable development!
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