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Monday Ubani is a Senior Advocate of Nigeria (SAN) and former chairman of Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL). The renowned human rights lawyer, in this interview, delves into issues around the court judgements by Justices Umar and James Omotoso, on the 2027 election timetable. He explains the reason the appellate court should speedily decide on the matter. According to him, there’s nothing wrong in judges having divergences, saying that what is important is that the judiciary must be independent and upright, among others. JOY ANIGBOGU brings the excerpts:
What are your thoughts on the conflicting judgements of Justice M.G. Umar and that of Justice James Omotosho regarding the election timetable?
Modifying several portions of the timetable, the administrative guideline of the Independent National Electoral Commission (INEC), which was the 2027 general elections, and the argument which the court actually brought is that that particular guideline had breached the statutory framework that actually gave INEC power to issue guidelines. When there’s any conflict between a guideline, which is a subsidiary legislation, and then the substantive law, the position of the law is that the subsidiary law will be declared invalid, null and void to the extent of its inconsistency. So, from the findings of the court, that INEC asking the parties to deliver their membership register on or before 10th of May will actually affect the rights of political parties and their candidates, who still have up to September, within which to submit names of those who have gone through the primaries in those political parties. So, what the court was trying to say is that if an act, an enabling act, has given rights to somebody, you cannot, through any guideline, administrative or otherwise, reduce that particular power. Now, nullifying the one issue of the guideline completely, including the issue of submission of the party membership register on or before 10th of May, giving a deadline to sometime in September. But in the case of Justice James Omotoso, he agreed substantially to the judgment of Justice Umar as to the issue of the fact that electoral guidelines shouldn’t supersede the substantive law. That is, there was no point of divergence, there was convergence there by both Justices. But what Justice Omotoso was saying in his own judgment, is that in the case of the parties registers that was asked to be submitted on or before 10th of May, that it doesn’t lie in the mouth of any court to try now to make any finding that conflicts with that, invalidate that particular guideline or the timetable, because their powers are derived from the constitution in order to give a timeline, and that the timetable is towards the election itself. So, if the law has given them powers in order to issue guidelines and timetable, and the guideline and timetable don’t conflict with the provisions of the enabling act, then you cannot in any way invalidate that particular timeline with regards to the party register. That’s where they disagreed. The issue of scope of the powers of INEC with regards to power that has been given to it to monitor, to organise, to prepare for elections. So, what the later Judge was trying to say, is that the administrative powers that have been given to them, as long as it doesn’t offend any of the enabling law, then you have no right to tamper with that timetable that has been fixed.
If these rulings expose ambiguities of the electoral act itself, or is the problem more about interpretation by the courts? Because I’m wondering why we keep having these divergent points. Is that how the judiciary is supposed to work?
Well, the point is that judges see things differently. They’re all human beings. They’re not angels. They’re not spirits. The way you look at the issue, your own perspective may be different from the way your colleague here does when he sees the same thing. So, that is why we have the appellate process. So when there’s any conflicting judgment like this, that will be harmonised at the appropriate appellate courts, and that’s how the Court of Appeal, or finally Supreme Court, now set a tone as to what the correct interpretation will be. Of course, it’s the judges that say what the law is. As far as you have enacted a law, there’s a school of thought that says that the law is what the judges say it is. And so, where there are divergences like this, then the appellate process comes in to harmonise and say this is the correct interpretation of the law, and that becomes a law. So, it’s a healthy development in our jurisprudence. There’s nothing wrong in judges having divergences, but there are ones that actually become a misconduct. And I would say that if I’m given the opportunity, and people have written and said about it, but this particular case, doesn’t fall within those misbehaviours we’re talking about with our justices.
If INEC is forced to radically adjust their current timetable in order to comply with these judgments, what kind of administrative or logistical chaos could this trigger internally?
That’s why we say that the appellate process needs to be hastened up so that we can have a clarity to what position INEC could take. INEC has gone on an appeal with regards to Justice Umar’s judgment, and I’m sure too that either the Social Democratic Party (SDP) will go on an appeal with regards to Justice Omotoso’s judgement. So, part of the recommendation is that let it be handled by the same panel, let it not be given to a different panel of a court of appeal so that there’ll be no contradiction further at the other level. Let the same panel that has Justice Umar’s appeal process also be the one to consolidate the case of Justice of Omotoso and make a pronouncement. And now give clarity to INEC because INEC is waiting for clarity. Justice Omotoso and the court of appeal should be done fast so that there won’t be any crisis as we head towards the 2027 election. We must avoid crises, we must avoid a situation where judgments will begin to create more doubts and a lack of coherence in the entire system. We need coherence, we need clarity, and we need a situation where INEC will operate under the rule of law. That again is very important. So there must be clarity and we must drive for that in a manner that is speed.
But in the meantime some analysts are worried that excessive judicial intervention in electoral matters is gradually turning our courts into a political battleground. I’m just wondering if you share the same concern and what do you think can be done about this?
Under the law, the judiciary has a role to play in dispute resolution. Yes, I agree that we go to court a lot, especially on political matters. There’s a high level of desperation on the part of politicians. And there are certain things we need to do probably on the level of the structure of the system in order to reduce this level of desperation. But that is another topic for another day. But as long as we have a judicial system, it’s important, our responsibility is to resolve disputes. Disputes will certainly arise even between husband and wife. The only arm of government under the law that has the responsibility to really resolve disputes is the court. But the point is that the court must remain independent and that is the safeguarding law. The court must remain very independent, the court must be very bold, and the court must be expeditious. It must be very fast in resolving these issues. Where we have a problem is where you need to do forum shopping, do issue abuse, ex parte orders, and then begin to do certain things that are considered misconduct, non-professional judicial misconduct. That’s where the issues are. But the point is that when we have a very strong judiciary, it goes a long way in resolving disputes because disputes will certainly arise. And which arm of government is supposed to resolve disputes is the judiciary. But we must ensure that our judiciary is very independent and very upright, and that it dispenses justice, irrespective of any person’s status, irrespective of who you are, that’s what we should rather insist on. That the judiciary is getting involved in political decisions and all that is because that is the arm of government that resolves disputes. And there’s no other arm of government except we want to use guns and matches in order to resolve our issues. But as long as we have a judiciary in any system, it should be the one to do that. We must have a judiciary that’s very bold enough, that’s very independent, and that dispenses justice, without looking at any person, and without looking at the status of that individual, that’s what we should always insist on.