Section 285(6) Of The 1999 Constitution Should Go

Opinion

Opinion

By Babatunde Raji Fashola

The subject affords the opportunity to examine wider issues of our national development beyond elections and how we have taken decisions. As you probably know I have now been in government for exactly 11 years and 10 days of an unbroken period of public service in two different capacities as Chief of Staff and later Governor, except for the period of November 6, 2006 when I resigned to contest election, to May 29th, 2007 when I was sworn in as Governor.

This has made it difficult for me to experience in practice the impact of the Constitutional provisions of Section 285 (6) of the 1999 Constitution which provides that: “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.

In order to fill the gap of my lack of practical experience, I have consulted some lawyers and requested them to kindly give me the benefit of their practical experience in the process of trying the cases of their clients under the provisions of Section 285 (6) of the Constitution or similar provisions.

The lawyers I spoke to, who I list in no particular order, are Messrs Ebun Olusegun Sofunde, SAN, Charles Edosomwan SAN, Niyi Akintola, SAN, and Yemi Osinbajo, SAN; and I told them that I will be sharing their experiences with my audience.

They were all unanimous in their views that the provision of Sections 285 (6) was a derogation from the principles of fair hearing enshrined in the same Constitution.

They were unanimous in their view that it has not enriched our electoral process or our democracy. They all called for a rethink by the National Assembly in one way or the other.

What is undebatable in the election petition cases successfully decided is that some commendable levels of good governance, elevation of the quality of life and improvement of the human development indices of the people have taken place; since all these Governors were finally able to retrieve their stolen mandates.

Do we know then or can we imagine how many Amaechis, Oshiomholes, Fayemis, Mimikos and Aregbesolas we have lost in Nigeria, in all those petitions that were filed after the 2011 elections and which were never decided on their merits simply because we enacted Section 285 (6) into our Constitution and chose to limit time and rush petitions to conclusions often without the benefit of full trial?

What is the level of development they will have facilitated in those states in the event that their petitions were successful if they had been heard on the merits? What message have we inadvertently sent out in support of impunity towards electoral process? What message are we sending out about peace and security when people are driven from justice?

Yes, I agree that those delays were inordinate and carried a lot of cost for judicial time; but the question is whether we found the right remedy, or indeed whether we genuinely sought the right remedy or whether the party in the majority simply bulldozed its way through parliament in order to preserve further “losses” or better still simply sought to prevent a retrieval of mandates that it had stolen at the polls.

In my view this is where the wider question lies. This is my unspoken question that this topic and this platform gives expression to. What were the reasons for those inordinate delays? What roles did the parties to the petition play in the delays? What roles did lawyers play deliberately or by lack of professionalism? What roles did the Judges play in the delays?

Were the professionals involved in the trial sufficiently prepared by training and experience for the tasks which we assigned to them? Was there any assessment process within the institution of the Nigerian Bar and the Nigerian judiciary to examine performances of lawyers and judges involved in the undertaking of this national project of monumental and life changing impact? The underlying question reaches to the underbelly of the Nigerian professional class and our elite. I am one of them. How well have we done for this nation? How much better could we have done? How many adjournments were granted in those periods of delay as a result of lack of preparation by lawyers and judges or as a result of brinkmanship or indeed collusion to frustrate trial?

Are we truly helpless in the face of such conduct or are we prepared to change what we do not accept  or are we going to pursue quick fixes like Section 285 (6) which compound the problem? The unspoken statement that is coming out of the experiences of the lawyers who have assisted me about the disposition of parties to an election is this:- “It is better to rig and get into office because I can frustrate trial from being started and concluded in 180 days”.

We have not heard the unspoken statement of those who have been at the receiving end of such unjust treatment in the run up to the 2015 elections. I can only hazard a guess that it may not sound good unless we get our legislators to re-think and remove Section 285 (6); because if the hunter has learnt to shoot without missing, the bird that seeks to survive must learn to fly without perching.

But before I continue, I wish to use this experience and experiment to empirically discuss the call that I have heard about the need for special courts as a result of some of our judicial shortcomings.My position is simple. It will not work. The Federal High Court started life as special court but it has become almost a regular court like the High Court with almost unlimited jurisdiction.

The Election Tribunals are special courts, manned by serving judges in many instances and the evidence before us demonstrates clearly that the problem of prompt, meritorious and just disposition of petitions is still unresolved. The truth is that there is nothing special about any court unless its personnel and officers are special. It is people who define courts and it is not the other way round. It is us who must change if we desire change.

Between 1990 and 2002 when I practiced law in Lagos and I was in court every day or almost, and I do not re-call that up to 5 adjournments were granted at my instance.  The reason is simple. I was always prepared to prosecute or defend my clients’ cases. I lived on the practice of the law entirely and no other trade.

Concluding cases and billing for them was therefore important. I had also served pupilage for 3 full years; where, with every sense of modesty, I can say I was very well trained and exposed before I ventured on my own.

Can we encourage compulsory pupilage to improve the quality of professionalism? This has been a matter for debate over several decades but it is one of the options we must not dismiss in the pursuit of professional excellence.

It is a process of training. In the professional realm, I do not know a substitute for training. The Housemanship and Residency programme for doctors are training programmes we can borrow from. I also think that the time to start a more transparent process of assessing judicial officers has come upon us if we expect the Nigeria society to take us seriously.

In my humble view, standards can only improve by measurement, sanctions and rewards. I say this for many reasons:

a. Whether we like it or not, our actions or inactions, efficiency or inefficiency have far reaching consequences on the lives of the people on whose behalf we act.

b. I once heard that many years before I was admitted to the Bar, judges were assessed by number of their cases that were upheld or reversed on appeal. This can only make sense, because if a judge gets it wrong all the time, even though I agree that the law is not an exact mathematical science, frequent reversals by an appellate court can lead to the strong inference that the judge is either incompetent or compromised; either way, in my view, he becomes undeserving of continuing in such high and important office.

c.As for lawyers, cases of professional misconduct must be more rigorously dealt with and expeditiously too.

Thankfully, the learned Chief Justice of the Supreme Court of Nigeria, My Lord Hon. Justice Mariam Alooma Mukhtar has shown the way. How many of us are ready to follow or even go ahead of her?

Under-performing lawyers and judges cannot be viewed any differently from under-performing doctors and surgeons who are either improperly trained or who do not prepare themselves. The consequences have far reaching effect on the lives of ordinary citizens who depend on these skills.

If an organization like the Federation of International Football Association (FIFA) has set rigorous rules of compliance for football players whether in the amateur or professional cadre; whose main objective is to entertain fans, and they have referees assessors and sanction poor performance of referees game after game, then no less a standard of assessment must be demanded of the Nigerian lawyers and judges.

I have deliberately used this platform to examine the role of professional class through the Nigerian Bar Association because this is the Association that regulates my own trade.

Other professional associations need to raise their game.

We lost N3 Trillion to fuel subsidy in a society where there are accountants and auditors.

After starting the first television station in Africa several decades ago, we can now only get clear picture quality on television through a South African owned cable television in a country that has many electrical/electronic engineers.

We are exporting sick patients to India in a country where doctors and nurses once helped to build the Saudi healthcare system.

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Buildings are collapsing and we are losing lives in the process but we have architects, structural engineers and professional builders.

I will not take time to examine other professions but nobody appears free from blame. What is important is whether we recognize that there is a problem in which we all have roles to play or whether we are all still hiding behind a finger in the belief that someone else is at fault.

I can speak for myself. I have had a monumental privilege to serve my state in an exalted capacity. In my little corner in Lagos I am putting in my own shift. Whether I succeed or not, will be a matter of judgment of the chroniclers of history. Whatever the verdict, I am certain that even my harshest critics will find it difficult to agree that I did not make an effort.

There are many other individuals in and out of Government who have sacrificed so much for a better society and we must salute them. But the relevant question today is whether as an association of professionals we can all say that we have made sufficient efforts? Is it Government or politicians who have run our institutions and are to blame? Or is us the professionals?

For those who have heard before what I have said here it must now be a familiar refrain. But my purpose here is not to tell you what is bad; on the contrary it is to highlight the challenges that lie on our path to greatness and to say to you all here that I have unshaking faith that we can surmount them.

In surmounting them I do not believe that the problem lies only with law and I therefore will not advocate that we must amend the provisions of Section 285 (6) as some people have suggested. My recommendation is simple. Section 285 (6) of the Constitution must be deleted for no other reason than the fact that it has proven to have no utilitarian value in improving the electoral process and the fact that it compromises justice and the right to a fair hearing .Following from this first recommendation I must reiterate that the constitution of election tribunals and the trial of election petitions are not stand alone process or procedures. They are part of the entire electoral process starting with the voters’ registration, actual voting, collation and announcement of results, swearing in of elected officials and the resolution of election disputes, which is what Section 285 (6) is all about.

Therefore, the biggest hurdle we have to cross must be to ensure credibility of the processes that precede the resolution of election conflicts. In other words, our voters’ registration processes, our voting processes and result collation and announcement must be open and transparent, not merely by our say so, but by the experience of those who interact with it.We must get to the situation where, even before the formal announcement by the electoral umpire, the results are already known and accepted by those who participated, so that the umpire’s declaration only ratifies what is already known and accepted. In this way we will first be reducing the number of disputed elections and petitions and enriching our electoral processes and institutions.

While technology and the availability of electricity will be critical to this undertaking, they will not on their own be sufficient. We must also provide transport infrastructure to make the logistics of distribution of electoral materials more efficient.

Perhaps more importantly, we must punish electoral offenders well in advance of the 2015 elections by demonstrating our resolve to stand up against what undermines our collective national development and has killed many dreams and aspirations before now and threatens to do more havoc unless it is decisively dealt with.

I assert with every authority that I can muster, that our level of under development is not unconnected with our political inefficiencies. In a nation where there are so many lawyers and where many election petitions have been successful, and hitherto valid returns have been nullified, I find it strange that the records do not reveal one single trial for electoral fraud or offences, not to talk of a conviction in the history of our nation’s electoral experience dating back to the 1950s.

There must be a first time for something positive in this regard. This is our responsibility as lawyers whether as Attorneys General in the public sector or as private practitioners with involvement in public interest litigation.

In all of the cases where the tribunal that upheld election petitions and nullified the initial returns, the tribunals clearly made findings either of violence at the polls, tampering with electoral process, making false returns or participating in multiple voting, and so on.

These are clearly findings that amount to allegations of infraction of the provisions of Sections 120, 122, 123, 124, 125, 126, 128, 129, 130 and 131 of Electoral Act 2010 which make these conducts criminal offences.

These findings were made in respect of polling stations, wards, Local Governments and so on.

The names of the persons posted to these stations are known. I am scandalized that there is no attempt to bring these persons before a court of law. I have been concerned about electoral malpractice and this is the main reason why I requested the Lagos State the Ministry of Justice to sponsor a research into the matter, by Professor I. E. Sagay, SAN, which has since been published into a book titled ‘The Enforcement of Electoral Laws and Case Law of 2007 Election Petition Judgments’.

It was presented to the public on 16th of May 2013 and I commend it to all of us. Part of Professor Sagay’s findings and conclusions are instructive and they appear on pages 341-342 and page 347.

On pages 341-342, Professor Sagay said: “Therefore the problem of non-prosectuion of offenders against the act is not due to inadequate laws. Indeed as stated earlier, the other parts of the Act, outside VIII are dotted with offences and punishments of infringements of the issue covered by that chapter.”

And so the question arises, why has there not been a single arrest and trial of an offence offender? The reasons are not far to seek. Section 158 (2) clearly provides that the prosecution of electoral offenders is the responsibility of INEC thus: “A prosecution under this Act shall be undertaken by legal officers of the Commission or by any legal practitioner appointed by it. Section 158 (1) provides that prosecution under the Act shall be triable in a magistrate court or in a High Court of a state in which the offence is committed or in Abuja. (See, Section 150 of the 2010 Act).

“To promote the process of prosecution of offenders, the Commission is encouraged in Section 157 to prosecute anyone found to have committed an electoral offence, by an Election Tribunal during the process of hearing in an election petition. (Section 148 of Electoral Act 2010).

“It is or should be obvious to anyone who observed the 2007 General Elections that INEC, the institution empowered by law to prosecute election offenders, was itself the number one election offender. Since the criminality extended from the bottom right to the topmost echelons of INEC, it was obvious that there was not going to be any prosecution.

“Governorship election results were nullified in Cross River, Rivers, Bayelsa, Delta, Edo, Ondo, Ekiti, Osun, Adamawa, Kogi and Sokoto States; eleven states! INEC was fully involved in all the fraud, rigging and arbitrary vote allocation involved in these cases. In Delta, the Court of Appeal made a finding that there had been no election at all. That the INEC simply announced fake results”.

He concluded on page 347 as follows: “Thus with an Electoral Offences Commission which will investigate, and prosecute persons for electoral offences, we shall have an equivalent of the EFCC in election matters”.

The recommendation of the Electoral Offences Commission is not different in my view from a recommendation of a special court about which I made my position known. With respect to that, I am of the view that unless we can find special people, nothing new will come out of that Commission. As I have argued, if we change our ways, we will not need special agencies, at least not with the rapidity with which we resort to them.

They increase the cost of governance, consume taxpayers’ money and I doubt that their performances to date have justified their existence. The same money can be used to strengthen the investigative capacities of the police and the existing courts to do the same job. Therefore I say to us all, that we must never give up.

When the merger of the All Progressives Congress was first mooted the naysayers were quick to go into our history books to assert that it will not materialize because the records show that all attempted mergers in Nigeria’s political history have failed. If the parties to that merger had listened to them, a new and positive history will never have been made.

Because they chose to swim against the tide, what was once said to be impossible became possible, became probable and actually materialized. The All Progressives Congress is born. That is the type of resolve and courage that we will require to dispense with Section 285 (6) and simultaneously deal with delays of the trial of election processes.

We must choose the path that was never beaten, and make a highway of it. We are lawyers and leaders. Many nations have been led to greatness by their lawyers. The Nigerian lawyers must rise from this conference and seek to be counted amongst the best professionals in their land by showing the way forward to build a nation where peace and justice shall reign.

I will now conclude by asking you whether something changes for you today or will this be another conference whose papers will gather dust. Will we rise from here with a few resolutions to:

a. Mobilize people from all constituents to engage the National Assembly to remove Section 285 (6) from the Constitution;

b. Compel the Disciplinary Committee of the Bar to expeditiously hear and determine all cases of professional misconduct and apply appropriate sanctions as dictated by the conclusions;

c. Engage with the National Judicial Council to set up a framework for open and transparent periodic assessment of judges with appropriate rules of appeal; and

d. Prosecute all those alleged to have been complicit in tampering with our electoral processes.

•An abridged speech delivered by the Lagos State Governor, Babatunde Fashola at the Nigerian Bar Association conference in Calabar, Cross River State on 27 August, 2013

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