Following the final verdict of the Supreme Court on the outcome of the 2023 presidential election, Prince Adewole Adebayo, one of the contestants in the election on the platform of the Social Democratic Party (SDP), has decried the attitude of politicians toward elections.
In this interview with DAILY POST, he spoke on a wide range of issues, including the fact that politicians only go to court to get power and not justice, the need for urgent electoral reform to ensure that winners in any election are not sworn into offices until the cases against them in courts are concluded, the appointment of judges into the Court of Appeal and Supreme Court, and the place of technicality in legal proceedings, among others.
The presidential election petitions were expected to last for 120 days at the Court of Appeal and 60 days at the Supreme Court, which is about six months. But at the time the judgment was given, it was eight months after the elections, what is your overview of the whole process; could it be better?
Of course, it could be better and we must thank God because it was a total departure from what we used to have before. Three years down the line, litigation is still on such that the person is already preparing for the next election. But now, we say we should cut it short, and that is already in place. Now, the next target is to conclude everything before anyone is sworn in so that there won’t be colour perception about the judgement. The next we should aim for after the election adjudication is concluded before being sworn in is that we should have a case where our elections won’t have to go to court at all, like you have in some countries where you have about 1000 elections, and only one or two go to court or none at all. That should be our aim now.
What should we do to get to that Eldorado?
There are three things we need to do, but the majority depends on the politicians. One of them is to ensure that the law is reformed. Everybody involved in law reform is a politician; 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 potential beneficiary of the law. The president is the other half of the legislative process because the legislative power of Nigeria is invested in two people – the National Assembly and the president, because if the president doesn’t sign, it cannot become law. So, the two of them are politicians, which means it is only by moral persuasion that such an amendment can be achieved.
In the 2023 election petition proceedings, the court spent less time than the litigants themselves. The Supreme Court spent less than a week to give its decision and they did similar thing when Awolowo and Shagari were before them. 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 behaviour, then, the judiciary is the easiest because it is the most law-abiding and most cooperative, and they don’t cause problems for anyone. I didn’t file the petition for the election, so the Supreme Court didn’t give me an unfair judgement because I didn’t file anything. And if I file a good one, they will give me good judgment. I think what is important to state here is that, an election petition is not a compulsory competition process in the quest for power. The reason we keep having this tension is because the court doesn’t have what the politicians want. 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 judgement leading 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 law, and I saw that in the course of our electioneering. There is none of this judgments by the Supreme Court that I didn’t predict. At no time can what happened on election day be before the court. That is not what it is for. What is before the court is the petition that the person brings before the court and if the petition doesn’t resemble what happened on election day, the court won’t talk about it because the court isn’t asked to supervise the Independent National Electoral Commission (INEC). The court is there to listen to the petition before it and if the petition before it doesn’t capture INEC’s errors correctly and goes outside to talk about other things that conflict with the law, don’t say the judge who lives in Surulere, where the anomalies of the election happened, it is expected to see reasons with you. Sorry, he is not looking at that. He is looking at what is written before him. Judges don’t have plenary powers. They are like you and I on an ordinary day. The jurisdiction to determine the issue is limited by the claim before it and the applicable law.
Some have argued that the Supreme Court placed more emphasis on technicalities in its decision instead of looking at the substance of the matter. For instance, the issue of the Chicago State University certificate which was not considered at all. What do you think?
In election matters, there are three things you have to consider. One, for people who are not lawyers, everything about law is technical to them. Two, election matter is said to be sui-generis; it doesn’t follow the traditional procedural, technical and substantive form because election itself is technical in nature. It has a time limit, what you can plead, who can be a petitioner and who can’t. The whole jurisprudence of election is technical by nature.
Thirdly, 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 more votes than me, but he is not qualified, that is technicality. Even if I say he doesn’t have a certificate, it is technicality because you are not saying he is the one the people voted for. You are saying that, well, he can be the winner, but his vote on technical grounds should be struck out or discountenanced or wasted because his deputy ought to file a paper within 30 days and he didn’t file it. That is technicality, too.
In the case of Lyon in Bayelsa, the Supreme Court didn’t say Lyon didn’t win the election. They said his deputy had a technical problem. That is the issue. You can’t come to court to seek technical relief and complain that the court is answering you technically. This year’s petition was the most technical of all because all the things they were talking about were technical by nature. 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, but the Supreme Court, being a final court, didn’t do ‘aguendo’ where you don’t agree with it, but you will still admit it in case a court above disagrees with you. If they had brought it to the Court of Appeal, it would have said the case isn’t admissible, but let me just assume that it is admissible in case it gets to the court above. But the case was brought to the Supreme Court as fresh, but it has a strict rule because they don’t admit witnesses. Again, for the court to look at what the court at the lower level hadn’t looked at before, they have to assume the position of the court below because if they are to assume the function of the court below the time limited for Court of Appeal to sit on it had expired and that limitation of time is not stated in the electoral act, it is situated inside the constitution and the constitution is superior to the Supreme Court because it is from the constitution that the Supreme Court was created. So, anything that is contrary to the constitution, the Supreme Court cannot help you.
There are some pronouncements that the Supreme Court made in that judgement, which I hope politicians will abide by, for example, the issue of 25 per cent of the FCT, what is your take on that?
When the Supreme Court made a decision in the case of Atiku or Obi versus Tinubu, it didn’t have to search for a new rule. They just referred to the INEC decision. It is very clear that it is not required. In four year’s time, some would have forgotten if the issue came tangentially close. Some people would still make the argument that it is the nature of law practice. Don’t assume this is the last time you will hear it or hear it in court.
The INEC IREV and its Bimodal Voter Accreditation machine came up in the petitions of the petitioners at the Supreme Court, even though the court had earlier ruled on similar matters in the past, like that of Adeleke vs Oyetola and Oyebanji vs Oni. Do you think the apex court has spoken loudly enough for everybody to now understand?
That brings me back to what I said earlier. Politicians don’t go 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 and you are given your results, you collate your own results. In fact, you can have your own internal IREV. In the SDP, where 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, we noticed that they went on ‘Awol’ as they were not sending us anything. From our findings, very few controversies emanated from the polling units. If you are complaining about 86000 polling units, you will automatically need 86000 polling agents to come and say I was there, this is the result given to me, but it is completely different from what was announced on TV. People think the election litigation process is a continuation of the election campaign.
What is your take on retired Justice Musa Muhammed Datijo’s allegations, like the Chief Registrar of the Supreme Court earning 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 his valedictory is how he speaks every day. He is known for that. He speaks straight from his heart. He believes in Supreme Court jurisprudence. He is concerned about what they do outside the courtroom, which is the administrative side. That was what led to the problem where the late Gani Fawehinmi took the entire Supreme Court to court when they had to collect Mercedes Benz from President Babangida at that time. It is also part of the problems you will find in the relationships between the senior lawyers like us and judges, where a judge would have a birthday or an event and lawyers who know that the judges are not well paid give some kind of support. It is also the same reason they had a problem with Walter Onoghen before he entered the executive branch. If you are the head of the court, you will have problems with your colleagues just like any human resources problem because, for example, if the courtroom roof is leaking, it is the Chief Registrar, who is the Head of the Tenders Board, who has to award the contract, while the Chief Justice of the court, who is also the chairman of the body, is the approving authority. If you go to the states, you will see that the administrative judges in the divisions always complain about the chief judge of the state.
It appears there is no room for any function for the number in the judiciary, what do you have to say about that?
Yes, that’s why number two lasts so long. It’s like a governor and deputy governor. I think our general attitude to leadership in Nigeria needs a kind of review, which is that we need to be a little more liberal. We need to avoid concentrations of power and privilege. In the case of the Supreme Court regarding what Justice Datijo is talking about, even the Chief Justice himself has some measure of injustice to him 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 ranks, which is to review their own salary and talk to the commission involved
The constitution talked about the number of justices that should be at the Supreme Court at a given time, about 21, including the CJN. But the number has depleted consistently through death and retirement. What do you think should be the mode of appointment of judges and justices?
There are two sides to appointments of Justices of 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 are not bound to take. You can disregard it. It is just that it hasn’t happened before.
How do we open the process of appointment of justices to the Supreme Court so that this inbreeding can be reduced?
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. I think 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, that’s how the court is watching the bar. Let’s start calibrating from the court of appeal where you learn judicial work.