Faleke v Bello: Barr Mokikan Pick Holes in Justice Halima’s Judgement

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…Would judges at this level deliberately take a position they ought to know is contrary to the laws of the land in dispensing Justice?

Judges enjoy the best of all worlds. I have not heard that any judge is penalized for wrong judgements which lead to a miscarriage of justice, beyond limiting their career advancements. Am not even sure about that. Only when it is incontrovertible that a case of money for judgement is established that one hears of sanctions.

You may argue that the appellate courts are there to ensure such miscarriage of justice is corrected. May be we are getting to that point when in addition to the provision of the appellate courts, some sanctions are introduced for judges that demonstrate such a questionable level of competence as some judges are wont to do.

I expect to be vilified for this by some people. It is a reflection of how extremely disappointing this tribunal judgement is to me and many others. I have read the account as posted on some of the social platforms by different individuals, and the account as reported on Channels TV 10pm news and some radio stations at different times. I know I will be accused by some for reacting without waiting to read the entire judgement. I just cannot resist the urge. Because of some of what appear to me as gaffs which will do so much damage to the image and integrity of our judiciary if allowed to stand. Everything contained in the judgement appear to flow from the inability of the tribunal to answer a simple question.

There was an election on November 21 2015. The constitution says ” a candidate for an election to the office of governor of a state SHALL BE DEEMED TO HAVE BEEN DULY ELECTED (caps mine). (Please note- the constitution did not say declared or announced) where, there being two or more candidates- a) he has the highest number of votes cast at the election; and b) he has not less than one quarter of all the votes cast in each of at least two thirds of all local government areas in the state”.  See Sec. 179 (2) of the constitution. At the time INEC declared the election inconclusive these two provisions were already satisfied. What followed thereafter we all know, I therefore will not repeat or bore you with the details. Section 181 (1) adequately provides for what to do in the unforeseen event of “a person DULY ELECTED as governor dies before taking and subscribing the oath of allegiance…the person elected with him as Deputy Governor shall be sworn in as governor…”  Sec. 179(2) provides for qualifications to be DEEMED DULY ELECTED. Sec 181(1) now addresses the DULY ELECTED in the event of anything happening to him to make it impossible for swearing in.

If not for the common saying that the law is an ass, I would have said this looks straight forward. The main question that Hon Faleke asked the tribunal to answer was whether INEC was right in declaring the election of November 21 inconclusive in view of what we know about the facts and the applicable laws.

From all I have read and heard so far, it would appear the question is yet to be answered. The closest to it was where the tribunal said “INEC said the election was inconclusive”. Who did not know that they said so? Were they right or wrong in saying so? That is where the tribunal ought to start from. All other issues will stand or collapse on whatever the answer to this question is. If the answer is that INEC erred in declaring the election inconclusive, the supplementary election will count for nothing. Since the tribunal could not answer the most critical question, and the question requires an answer, Hon Falake has to approach their superiors, which is the appeal court. And if there is no answer at that level, proceed to the Supreme Court. It is important to do this for the sake of our democracy.

It will be helpful at whatever stage the question is to be answered to avert our minds to section 53(2&4) of the Electoral Act. This is the section that has anything to do with election rerun. Supplementary or rerun election is provided for only in units where there are over voting. You will recall that not all units where INEC ordered a rerun had problems of over voting. Some were due to violence, rejection of card reader etc as reported by INEC itself.

While the tribunal failed to address itself to the constitutional provisions in addressing this petition, it went ahead to base its judgement on some curious pronouncements.

That Hon Faleke has no locus because he did not participate in a particular stage of the election. The tribunal took this position because it pretended not to know that sec. 179(2) of the constitution already operated to make the election conclusive. But let us even agree that it holds true for Hon Faleke, what do we say of AYB. Please check out s.141 of the Electoral Act 2010 as amended.  It provides that “An election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not FULLY PARTICIPATED IN ALL THE STAGES OF THE ELECTION. (Caps mine). The following questions can be validly raised: how many stages make up all the stages of the election? What are these stages? The electoral act did not provide answers. In such a case the law will invite a reasonable person to assist. The question to follow will then be How many stages did AYB FULLY participate in? Please note the word FULLY. I believe the tribunal has the answer to this. Yet it took the position it took. These questions will not apply in the case of Hon Faleke if we uphold the operation of Sec. 179(2) and 181(1) of the constitution. It is also curious that the tribunal declared that AYB can inherit electoral votes. This particular provision in sec. 141 of the Electoral Act was not in the Act that preceded this. That was why it was possible for Amaechi to become a governor by  inheriting the votes of Celestine, without participating in all the stages of the election. It was to address the lacuna that allowed Amaechi to become governor without participating in all the stages of the election that informed the provision of this section. And that is one of the reasons it is described as Electoral Act 2010 (as amended). Is it possible to imagine that none of the judges on the panel knew about this. It is even more curious when it is already a notorious fact that there have been at least two other Supreme Court decisions that reversed the decision in Amaechi that electoral votes belong to the party. From the amendment to the Act and the Supreme Court decisions after Amaechi, electoral votes are no longer the property of the party.

Would judges at this level deliberately take a position they ought to know is contrary to the laws of the land in dispensing Justice?

I also noticed that none of what I have heard so far alluded to any authority as the basis for each of the issues the tribunal pronounced on. May be am yet to read/see those ones.

Let me say that the judgement of the tribunal did not come to me as a surprise although it is extremely very disappointing. What makes it disappointing at this stage is the reasons adduced for throwing the petition out.

Personally, I have said it in all the fora I have been privileged to address since this mandate issue started that we should expect AYB to serve a maximum of one year in office. He was sworn in in January. He has only gone close to half way as we are now in June. Justice is experienced in traveling long and winding distances, scaling obstacles and avoiding fatal arrows. It is that experience that makes Justice sweeter at the end of the day. I do hope the appellate jurists will be more interested in substantial Justice in their consideration and not be swayed by technicalities that will deliver injustice. I continue to miss our retired Chief Justice of Nigeria, Justice Belgore for his judicial radicalism that made it possible to unseat a PDP Governor under the circumstances in which he did. I hope the judiciary will produce more of his type.

In conclusion, please you must know that this is not the time to be downcast or dispirited. We must continue in high spirit as this can only be a temporary setback. The bold, confident and future-oriented amongst us must hand-hold and encourage those who may be discouraged by the judgement of the tribunal. God of justice

– Barrister Femi Mokinkan

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