Awa Kalu (SAN): What’s Wrong With The Courts?
Awa Kalu (SAN): What’s Wrong With The Courts?
Awa Kalu (SAN): What’s Wrong With The Courts
Awa Kalu
It is now trite that there are three arms of government recognized by our constitution – The Constitution of the Federal Republic of Nigeria, 1999.

While most people love to add the epithet “as amended”, I would like to limit my reference to that much-vilified document as “the constitution”. The Constitution which came into force in 1999 having been given birth to by a military decree has since been amended by ‘alteration Acts’; four (4) times.

Most neutral observers would quite inevitably confirm that almost all the alterations ostensibly have the aim of consolidating political strategies and power. The basic question that our teeming constitutional law experts would need to think about is why the constitution should be dominated by political calculus.

Another point which cannot be denied is that since 1999 at least, Judicial action has been dominated by cases and matters hovering around political power and politically-motivated litigation. Those who doubt this contention ought to examine any contemporary law reports. If you are in doubt, See the following cases for instance: –
1. Falae v Obasanjo (1999) 6 NWLR Pt 606) Pg 283
2. Buhari v Obasanjo (2005) 13 NWLR Pt 941 Pg 1
3. Buhari v Inec & Ors (2008) 19 NWLR Pt 1120 Pg 419
4. Duokplolagha v Alemeiyesigha (1999) 6 NWLR Pt 607 Pg 502 CA
5. Balewa v Muazu (1999) 5 NWLR Pt 604 Pg 638 CA
6. AD v Fayose (2004) 8 NWLR Pt 876 Pg 639
7. Awuse v Odili (2004) 8 NWLR Pt 876 Pg 481
8. Ogboru v Ibori (2004) 7 NWLR Pt 871 Pg 192
9. Ikpeazu v Otti (2015) 18 NWLR Pt 1490 Pg 47

Why is this so, you may ask. The answer is not far fetched for instance the constitution provides that the judicial powers of the federation (as well as the states) is vested in the courts created by the constitution.

Similarly, the courts are imbued with the power and are vested with jurisdiction to hear and determine whether in the making of any piece of legislation either the National Assembly or a State House of Assembly has exercised the power to make such law in accordance with the constitution. Strikingly, there is no political office that is insulated from judicial enquiry save in circumstances that are limited.

Accordingly, whether a person has been validly elected to the office of the President, Vice President, Governor or Deputy Governor under the Constitution comes within the jurisdiction of the courts or tribunals created by the same Constitution.

In addition, whether one is elected as a member of the National Assembly, States House of Assembly or even as Officials of a Local Government Council, such office comes within the purview of judicial scrutiny. It is, for this reason, there is a political season which instructively, always yields to “a judicial season”.

It must be noted that our courts, in several decades have had to contend with two politically charged scenarios – whether a person has been validly elected, and again whether the term of office of any person elected under the Constitution has ceased.

For example, the very first election under the 1999 Constitution brought Chief Olusegun Obasanjo, the winner of the election before the presidential election tribunal by the loser the then General Muhammadu Buhari. When Chief Obasanjo was re-elected in 2003 he again was challenged.

It is on record that the only person in recent presidential election history in this country who refused to file a petition is Dr Goodluck Ebele Jonathan, GCFR. In fact, each election to the office of Governor has yielded in each election cycle several petitions together with the resultant appeals.

It is to be remembered that during the tenure of Chief Olusegun Obasanjo as President, he took the volatile step of declaring the office of his then Vice President Atiku Abubakar, GCON vacant.

The question then that came to the Court of Appeal sitting at first instance, was whether the term of office of Alhaji Atiku Abubakar, as Vice President under the Constitution had ceased, See Alhaji Atiku Abubakar v Attorney General of the Federation and 5 Ors [2007] 3NWLR Pt 1022 515.

The outcome of that case will have a bearing subsequently when we offer comments on the supreme court’s decision in respect of the Bayelsa debacle. Our experience is that when the office of the President, Vice President, Governor or Deputy Governor comes up for judicial review, it is usually an earth-shaking experience.

It will serve no useful purpose to bring up any of the innumerable pre-election or election petition cases, that have come before our courts and tribunals. It is pertinent at this stage to indicate that pursuant to the provisions of the Electoral Act, an election may be challenged by an election petition brought by a candidate who contested for election or by the political party which sponsored such candidate and thus participated in the election.

Consequently, what this comes to is that every political heavyweight or gladiator who comes to a tribunal or court brings his political fortunes into the equation. Similarly, any political heavyweight or gladiator whose fortune is in the balance also adds the fortunes of his political party in the mix.

It is therefore quite simple to understand why it is not within the reasonable contemplation of political parties or their candidates that an election petition or an appeal arising from it should be lost without a show of muscle, the fight to a finish. This explains the win-at-any-cost mentality.

Guided by this background, it is hoped that party faithful in Bayelsa, as well as Imo States, would understand that litigation in court is unlike the game of football where the outcome of a match may be a draw.

On the other hand, in court, particularly in post-election challenges, there must be a winner as well as a loser. In football as organised by major leagues around the world, the integrity of the outcome of a match is very important and for this reason, the players, as well as the officials, pass through various tests and processes in order to guarantee their fitness as well as their individual and collective integrity.

As an example, all football players undergo rigorous medical tests to ensure that they are not on drugs or other prohibited substances such as performance-enhancing beverages. In that regard, anything that can promote suspicion, in the overall interpretation of the outcome of a game is scrupulously forbidden.

Once you understand the stringent regulations of all sports judged as competition, it becomes quite easy to understand that the outcome of litigation can, most times, ruffle several feathers.

This is another way of stating the obvious namely, that political litigation resulting in the loss of a political office is always akin to heavy weather.

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