General Elections In Nigeria 2023: A Review Of The Nation’s Political Culture And Electoral Integrity

(Being the text of the keynote address delivered by Femi Falana SAN at the 2023 Law Week Programme of the Nigerian Bar Association, Benin Branch held in Benin City, Edo State on July 3, 2023).

Introduction

On a yearly basis, the Nigerian Bar Association (NBA) and its branches, as well as the various sections, invite participants to scores of public lectures, symposia, and other intellectual activities to discuss professional matters and the state of the nation. At the end of such intellectual engagements, beautiful communiques are drawn up and adopted by participants. As Nigerian lawyers are comfortable with the status quo the NBA does not follow up on any of the resolutions.

But the Benin branch of the NBA is one of the branches that have continued to convince some of us to continue to promote human rights and rule of law in a very hostile political terrain. I thank the leaders and the entire members of the branch for inviting me to cross fertilize ideas with you on the controversial 2023 General Elections.  Even though we cannot comment on the petitions that are pending in the Court of Appeal and the various election petition tribunals due to ethical restrictions, we are not precluded from reviewing the recent decisions of the apex court that have redefined the nation’s electoral jurisprudence. At the end of my address, I am going to call on the Benin branch of the NBA to defend the democracy and human rights of the Nigerian people which have been recognised and enshrined in the Constitution and in several human rights laws that are enforceable in the country.

Post-election Nigeria

The topic of our discourse is predicated on the assumption that the 2023 General Elections have been concluded. Hence, we have been assembled here to review the democratic exercise. Even though the democratic exercise took place between February and March 2023 amidst challenges the legal battle to confirm the actual winners of the elections may not be determined until early next year. The reason is that the elections have shifted from the polling booths to the courts.

It is submitted that notwithstanding the shortcomings that characterised the 2023 general elections, the partial deployment of technology by the Independent National Electoral Commission was responsible for the reduction in the number of election petitions filed by aggrieved contestants. We are therefore going to call on the national assembly and state electoral bodies to ensure full deployment of technology in the conduct of national and local elections in Nigeria.

In asking me to speak about electoral integrity the organisers of this programme believe that the bar and the bench have a role to play in the electoral process. In this address we are going to make a case for the conduct of credible elections with a view to minimizing the involvement of judges in the electoral process. As the nation’s electoral jurisprudence has become otiose and outdated, we shall make a case for the adoption of electronic voting and the shift of onus of proof in election petitions.

In 2022, general elections were conducted by electoral bodies in three African countries namely Angola, Kenya, and Nigeria. The petitions filed against the results of the presidential elections declared by the election management bodies in Angola and Kenya were determined within 14 days by the Constitutional Court and the Supreme Court, respectively. But in the case of Nigeria, the results of the presidential and legislative elections will be confirmed after 8 months while the results of the governorship elections will be confirmed after 10 months.

At the end of the 2023 general elections, the Independent National Electoral Commission declared the winners and gave certificates of return to them. But in spite of the shortcomings that characterised the general election, the election petitions filed in the various election petition tribunals and the Court of Appeal are 436. It is curious to note that it is the lowest number of election petitions filed against elections conducted in Nigeria since 2007!

As the results of the elections have been questioned by many aggrieved parties the courts are required by the Constitution and the Electoral Act to determine the final results of the democratic exercise. Because the courts had resorted to technicalities in a number of political cases in the recent past and thereby awarded victories to those who never won elections the judiciary is in the eye of the storm. In recognition of the dilemma in which the judiciary has found itself the Chief Justice of Nigeria, the Honourable Justice Olukayode Ariwoola has warned tribunal judges to shun money and technicalities in deciding the ongoing election disputes.

On its part, the NBA warned judicial officers and lawyers to be wary of their official conducts while handling post 2023 election litigations. According to the NBA President, Mr. Maikayu SAN, “While we shall stand with the Courts and do everything legal to protect the integrity of the Bench against any form of intimidation by the political class, any person or group of persons, we will not hesitate to call out and pursue disciplinary action(s) against erring judicial officials. Similarly, members of the Bar who misconduct themselves while participating in the resolution of electoral disputes will face disciplinary action at the Legal Practitioners’ Disciplinary Committee (LPDC) and the Legal Practitioners’ Privileges Committee (LPPC), where Senior Advocates of Nigeria (SAN) are involved.”

Endorsement of 2023 general elections by NBA 

Mr. Yakubu Maikyau SAN, the President of the Nigerian Bar Association commended the Independent National Electoral Commission for its good performance with respect to the conduct of the 2023 general elections. Mr. Maikayu said that “I will say that the elections went well. Those who came out were happy to express their franchise. …I will score INEC as having performed maybe about 78, 80 percent in the delivery of these elections. That will be an ‘A’ for every exam.”

Even the Independent National Electoral Commission admitted that there were logistics and technological challenges in the conduct of the elections. The INEC chairman, Professor Mahmood Yakubu stated: “No doubt, last week’s national elections raised some issues that require immediate, medium, and long-term solutions. The planning for the election was painstakingly done. However, its implementation came with challenges, some of them unforeseen. The issues of logistics, election technology, the behaviour of some election personnel at different levels, the attitude of some party agents and supporters added to the extremely challenging environment in which elections are usually held in Nigeria.”

In ensuring that future elections are not compromised by permanent and ad hoc staff, Professor Yakubu stated that “All staff found to be negligent, whether they are regular or ad hoc officials, including Collation and Returning Officers, must not be involved in forthcoming elections. RECs must also immediately initiate disciplinary action where prima facie evidence of wrongdoing has been established.” Happily, since INEC does not have the capacity to prosecute electoral offenders, the NBA has offered to mobilise lawyers to carry out the prosecution of the suspected electoral offenders who were arrested during the last elections. From the information at my disposal, the names of the prosecutors have been compiled for the prosecution. In fact, the prosecution will commence any moment from now.

In search of electoral integrity

Sometime in 2017, I compared the conduct of elections and resolution of election petitions in Nigeria and Kenya. In the well-publicized article, I called on stakeholders in the country to amend the Electoral Act and the relevant provisions of the Constitution to technologize the electoral process and fast-track the resolution of election disputes. I equally recommended the implementation of the recommendations of the Mohammed Uwais Electoral Reform Panel on appointment of electoral managers by advertisement and establishment of electoral offences commission to deal with cases of electoral malfeasance. The suggestions were ignored by the stakeholders who are beneficiaries of the dysfunctional electoral system.

It is interesting to note that the political leaders and senior lawyers who are dissatisfied with the results of the elections have suddenly embraced the Kenya model and recommended the implementation of the recommendations of the Uwais Panel. However, the demand for electoral reforms by members of the ruling class and professional bodies smacks of hypocrisy. We are not unaware of the fact that the integrity of elections of the national officers and local officers of the NBA is regularly challenged in the courts. From time to time, many branch executives are dissolved while caretaker committees have been appointed by the National Executive Committee to administer the affairs of the branches due to disputes arising from the conduct of elections.

A former head of state who has suddenly become an advocate of credible elections wanted to scuttle the democratic process with his ill-fated third term agenda. When his anti-democratic agenda failed woefully, he proclaimed that the 2007 general election was “a do or die battle” for the ruling party. Indeed, it was a deadly battle as over 300 people were brutally murdered by security forces and armed thugs. Not a few people have insisted that his regime conducted the most violent and compromised elections in the annals of the nation’s history.

Despite the fact that State Independent Electoral Commissions are headed by retired chief judges and senior lawyers, they conduct the worst elections in Africa where all candidates of the ruling party in every state are declared winners of all chairmanship and councillorship elections. The sole reason for the brazen manipulation of the election results in favour of the ruling parties is that state governors cannot afford to have elected chairmen and councilors from opposing political camps who may challenge the diversion of the statutory allocations of local government councils.

It is on record that the political parties and leaders that have accused the Independent National Electoral Commission of mismanaging the 2023 general elections performed worse in conducting primary elections of the majority of political parties. It is common knowledge that all the so called party chieftains engaged in the imposition of candidates. Hence, a total of 1,878 pre-election cases were filed in 2022 whereas 370 pre-election cases were recorded in 2019. While 436 post-election petitions have been filed in respect of the 2023 general elections, 807 post-election cases were filed in 2019.

Political culture and report of the Uwais Electoral Reform Panel

The result of the 2007 presidential election was almost annulled as it was decided on a narrow margin of 4-3 Justices of the Supreme Court. However, President Umoru Yaradua was honest to admit that the election which brought him to power was “highly flawed”. In order to put an end to the shameful conduct of elections and the political culture of violence and manipulation of election results, the President proceeded to set up the Mohammed Uwais Electoral Reform Panel. The 22-member Panel embarked on a tour of the country, collated the views of the Nigerian people and made profound recommendations which were submitted to the federal government.

The highlights of the Uwais Electoral Reform Panel include procedure for transparent appointment and removal of chairman and members of INEC board, unbundling of INEC, independent funding of INEC, proportional representation, independent candidates, fixing of dates of elections, election tribunals, time for determination of election petitions, and shifting of onus of proof of election petitions. At its meeting of March 9, 2009 the Federal Executive Council, under the leadership of President Umoru Yaradua rejected the vital recommendations of the Uwais Panel.

As the Yaradua regime did not adduce any convincing reason for rejecting the principal recommendations of the Uwais Panel, civil society organizations and other interest groups rejected the wishy-washy white paper issued on the report of the panel by the federal government. The ACN and CPC which later merged and became the All Progressive Congress (APC) campaigned vigorously for the implementation of the recommendations of the Panel. The National Leader of the APC, Asiwaju Bola Tinubu set up a body called the Coalition of Democrats for Electoral Reforms which equally campaigned for the adoption of the electoral reforms recommended by the Uwais Panel.

However, the report of the Panel was revisited when the Jonathan administration appointed Professor Attahiru Jega as the Chairman of INEC in 2010. As a former member of the Panel, Jega ensured that some of the recommendations of the Panel were implemented. Specifically, the recommendations on independent funding for INEC, appointment of dates for elections by INEC, fixing of 180 days for determination of election petitions, establishment of the Centre for Democratic Studies and delineation of constituencies were actualised. While in power, the APC, like the PDP, ignored the recommendations of the Uwais Panel.

It is pertinent to note that the Ahmed Lemu Panel set up by the Goodluck Jonathan administration to investigate the violence that occurred in 12 states in the North and Akwa Ibom in the south after the announcement of the results of the presidential election in April 2011 and the Ken Nnamani Electoral Reforms Panel instituted by the Muhammadu Buhari administration in 2016 recommended the implementation of the recommendations of the Uwais Panel.  But the federal government did not implement the recommendations of both panels.

Thus,  the recommendations that have not been implemented include the provision for transparent appointments of the Chairman and Board members of INEC through advertisement and shortlisting of members by the National Judicial Council, proportional representation in parliament, unbundling of INEC by establishing Political Parties Registration and Regulation Commission, the Electoral Offenses Commission, a Constituency Delineation Commission, shift of onus from petitioners to INEC to prove that elections were conducted in substantial compliance with the Electoral Act.

Composition of membership of election petition tribunals

By virtue of the 6th Schedule made pursuant to section 285 of the Constitution, the Governorship and national assembly election petition tribunals shall be constituted by a Chairman who shall be a Judge of a High Court and two other members who shall be appointed from among Judges of a High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. But contrary to the clear and unambiguous provision of the Constitution, the President of the Court of Appeal usually excludes Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal, or other members of the judiciary not below the rank of a Chief Magistrate in the constitution of election petition tribunals.

As only judges of the High Courts are constituted as members of the governorship and legislative petition tribunals, not less than 346 judges have been removed from the High Courts and posted to election petition tribunals currently sitting in all the states of the Federation and the Federal Capital Territory. The implication is that the regular cases being handled by the 346 judges of the High Courts, are adjourned indefinitely. Unlike regular cases, election petitions are time bound and as such they take precedence over other cases including human rights, criminal and commercial cases.

It is disturbing to note that the President of the Court of Appeal has granted the request of some interested parties to relocate the election petition tribunals from Port Harcourt, Rivers State and  Abakaliki, Ebonyi State to Abuja, Federal High Court by because the lives of tribunal judges and lawyers cannot be secured. The Ekiti State Election Petition Tribunal has also been relocated to Ilorin Kwara State without any request to that effect. Instead of relocating tribunals the Nigeria Police Force and other security agencies ought to have been directed to provide adequate security in the vicinity of the tribunals and the residence of the judges. It is unacceptable for a government which controls the monopoly of violence to relocate courts because of the threat to the lives of Judges by criminal gangs.

The judiciary in the eye of the storm

No doubt, the lack of internal democracy in the political parties has led to a situation whereby courts are regularly inundated with political cases. But the determination of winners of party primaries and general elections through legal technicalities has caused untold embarrassment for the judiciary. In fact, the judiciary has been accused of involving itself in the manipulation of results of party primaries as some well -connected politicians who did not participate were made candidates by the courts! Recently, suits concerning the disputes of political parties which occurred in Edo State and Anambra States were filed in Jigawa and Kebbi State respectively.

Ex parte orders were granted for the removal of political party leaders. In reaction, the persons affected by such orders approached other courts in other jurisdictions which also granted ex parte orders in their favour.  About two years, the APC Chairman, Comrade Adams Oshiomole was removed from office via an ex parte order. A few months later, it was the turn of the PDP Chairman to be removed via an ex parte. His successor, Dr. Iyocha Ayu was also kicked out of office via ex parte order. To the embarrassment of the judiciary, the media reported that the removal of the APC and PDP leaders was instigated by governors who used the manipulated the judiciary to achieve the dubious objectives.

In Ibrahim Haruna Ibrahim v Labour Party and Anor^[1] the court held that the 1st defendant’s failure to submit its register to the electoral body 30 days before the primaries as stipulated by the Electoral Act violates the Electoral Act and thus, renders the purported primary election “null and void and of no effect.” The Court said that “The fundamentally flawed primary election of the first defendant, (Labour Party) as a result of failure to comply with the mandatory provisions of sections 77(2) and (3) cannot produce a qualified candidate.”

The learned trial Judge ought to have known that the Federal High Court lacked the jurisdictional competence to hear and determine the case on the grounds that the action was statute barred by virtue of section 285(14) of the Constitution.  Dr. Otti was not made a party to the suit. Therefore, the proper parties were not before the court. Dr. Otti was not served with the originating summons. To that extent, he is not bound by the judgment of the Court. The Kano Judicial Division of the Federal High Court is barred by the Practice Directions issued by the Chief Judge of the Federal High Court from entertaining primary election of the Labour Party that took place outside Kano State.

Following public condemnation of the judgment, the learned trial judge issued a statement to the effect that he did not annul the election of Dr. Otti. But since the judgment annulled the primary elections conducted in Abia and Kano States, Dr. Otti applied for leave to the Court of Appeal against the judgment as an interested party and for a stay of execution of the judgment pending the determination of the appeal. Both prayers have since been granted by the Court of Appeal.

It is indubitably clear that political parties are now run by courts. It is a dangerous trend which should be halted in the interest of the judiciary. While the NJC indicted and cautioned the judges who granted such conflicting orders the NBA has not deemed it fit to sanction the lawyers involved in the legal charade. Hence, the practice of going to obtain ex parte orders by senior lawyers for the removal of elected party leaders and elected representatives of the people has continued unabated.

In another embarrassing development, Adamu Bulkachuwa, an All Progressives Congress (APC) Senator until November 2022 when he defected to the Peoples’ Democratic (PDP), openly admitted that he  influenced the decisions of his wife, the Honourable Justice Zainab Bulkachuwa, former President of the Court of Appeal. According to him, “Particularly my wife, whose freedom and independence I encroached upon when she was in office, and she has been very tolerant and accepted my encroachment and extended her help to my colleagues.”

In order to prevent him from further spilling the beans and thereby expose the Senate and the judiciary to ridicule, Senator Bulkachuwa was stopped in the middle of his speech by the Senate President, Dr. Ahmed Lawan. The open confession of Senator Bulkachuwa has attracted public indignation and exposed the judiciary to untold embarrassment. Notwithstanding that Justice Bulkachuwa has insisted that she carried her judicial duties without fear or favour the weighty admission of her husband cannot be swept under the carpet. In the interest of the integrity of the Nigerian judiciary, the statement made by the Senator on the floor of the Senate ought to be investigated by the security agencies.

Determination of election petitions

In Kenya, election petitions are filed not later than 7 days after the declaration of results while they are determined within 14 days by the courts in accordance with section 140 of the Constitution. The timeline has been made possible due to electronic compilation of voters register, accreditation of voters, voting and declaration of results. Thus, the introduction of technology in the electoral system has revolutionized the electoral jurisprudence of Kenya.

Sin the case of Nigeria, section 285 (6) of the amended 1999 Constitution states that “an election petition shall be filed within 21 days after the date of the declaration of the result of elections and that an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. It is further provided that an appeal from the decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of delivery of judgment of the tribunal or Court of Appeal.

It is submitted that section 285(6) of the Constitution of Nigeria which provides for a 180-day period for resolution of electoral disputes can no longer be justified in view of the partial introduction of the electronic system. Time will be abridged once INEC is compelled to use BVAS machines and transmit election results from each polling unit to the central server of INEC. It is therefore suggested that the Constitution and the Electoral Act be amended to provide for the resolution of election petitions within 14 days at the election petition tribunals or Court of Appeal while appeals arising therefrom are determined within 14 days. Furthermore, appeals arising from governorship election petitions should terminate at the Court of Appeal as was the case before 2011.

Under the Electoral Act, a petitioner is required to prove irregularities and non-compliance with the electoral law and that the irregularities and non-compliance with the electoral law have affected the results of the election. We suggest the adoption of the recommendation of the Uwais Panel to the effect that the burden of proving that an election was conducted substantially in accordance with the electoral law should shift to INEC and the winner of the election. The proposed amendments of the Constitution and the Electoral Act should make it mandatory for the courts to conclude all election petitions before the inauguration of newly elected governments.

The right to challenge candidates who are not qualified to contest elections should not be made the internal affair of political parties. Concerned citizens should be vested with the locus standi to challenge the competence or qualification of political aspirants, as was the case under the Electoral Act 2010. However, all pre-election matters ought to be determined before the conduct of elections as it is a mockery of democracy on the part of the courts to annul the results of elections on the grounds that the winner was not qualified to have contested the election.

Locus standi to challenge nomination of candidates of rival political parties

It is settled law that a member of a political lacks the locus standi to question the nomination of the candidate of another political party. Thus, in Peoples Democratic Party v All Progressives Congress^[2]  the Supreme Court dismissed the case of the appellant seeking to invalidate the nomination of Kashim Shettima as the vice-presidential candidate of the All Progressives Congress (APC) on grounds of the double nomination. In throwing out the case, Adamu Jauro JSC who read the leading judgment said:

“The position of the law has always been that no political party can challenge the nomination of a candidate of another political party. The position did not change in section 285(14)(c) of the constitution. No matter pained or disgruntled a political party is with the way and manner another political party is conducting or has conducted its affairs concerning its nomination of candidates for any position, it must keep mum and remain an onlooker for he lacks locus standi to challenge such nomination in court.” Section 285(14)(c) of the  constitution only allows a political party to challenge the decisions and activities of INEC disqualifying its own candidate from participating in an election.”

Justice Adamu Jauro described the appellant as a meddlesome interloper and a busybody. As it was found that the issue of nomination of the vice presidential candidate was purely an internal affair of the APC, the court awarded N2 million against the PDP and in favour of the APC and other respondents in the appeal.

It would be recalled that as far back as 2016, the Supreme Court had settled the issue of locus standi in pre-election matters in the case Alahassan & Anor v Ishaku & Ors^[3]  where Mary Peter-Odili JSC held: “As I said earlier, the appellant is a member of the PDP, not APC, and even if he is a member of the APC, he would have no locus to challenge the nomination of the 1st Respondent as he is not one of the aspirants who participated in the primary election. In my view, Appellant is a meddlesome interloper who, having assumed the role of a hired mourner, is crying more than the bereaved”.

Jurisdiction of state high court to hear pre-election matters

The Nigerian Bar Association (NBA) has criticized the National Assembly for conferring exclusive jurisdiction on federal high court to hear and determine pre-election cases.  Mr. Yakubu Maikyau, NBA’s President, spoke at a special court session to mark the commencement of the Federal High Court legal year 2022/2023 in Abuja on September 15 2022. Citing Sections 29(5) and 83(14) of the Electoral Act, 2022, Mr. Maikyau said that the innovative and novel provisions of the law come with a lot of pressure on the already overloaded dockets of the judges. He further said that “We fault the decision of the National Assembly to limit the hearing and determination of pre-election matters to the federal high court without regard for its infrastructural and manpower deficit.

Noting the implications of stalling regular cases for pre-election suits, the NBA President said “the suspension of the hearing of such matters comes with grave consequences on the economy and affects the confidence of investors.” He urged the lawmakers to reconsider this amendment to the Electoral Act 2022. The NBA suggested the establishment of a court that will deal mainly with electoral and other related matters.

The concern of the NBA is understandable as the 77 judges of the court were struggling to beat the statutory 180-day deadline for hearing and concluding the 1,838 pre-election cases pending before them. The position of the NBA must have been anchored on the decision of the Court of Appeal in Ishaku v Suleiman & Ors^[4] where Akeju JCA held that “Election or election matters are sui generis with special rules or procedures, they cannot be taken as general civil matters and without mentioning it as part of the jurisdiction of a State High Court that Court has no jurisdiction to hear and determine them…”

It is not in doubt that the national assembly invoked its power under  section 252(2) of the Constitution to confer jurisdiction on the Federal High Court to hear pre-election cases via section 29(5) and section 84(14) of the Electoral Act, 2022. It is submitted that the National Assembly lacks the vires to confer exclusive jurisdiction on the Federal High Court to hear pre-election cases in Nigeria. Therefore, the unlimited jurisdiction of the High Court of a State to hear pre-election cases has not been taken away by the Electoral Act, 2022. To that extent, by the combined effect of sections 252 and 272 of the Constitution as well as sections 29 and 84(14) of the Electoral Act, 2022, both the Federal High Court and State High Court have concurrent jurisdiction to hear and determine pre-election cases.

Democracy or plutocracy?

By virtue of section 14(1) and (2) of the Constitution, the federal republic of Nigeria shall be country based on the principles of democracy and social justice. Accordingly, sovereignty belongs to the people from whom government through the Constitution shall derive all its powers and authority, the security of the people shall be the primary purpose of government, and the participation by the people in their government shall be ensured in accordance with the provisions of the Constitution.

It may be said that the provisions of section 14 of the Constitution pertain to mere political objectives which are not justiciable it is submitted that the democratic rights of the Nigerian people are enforceable by article 13(1) of the African Charter on Human and Peoples Rights which provides that “every citizen shall have the right to participate in the government of their country, either directly or indirectly or through chosen representatives in accordance with the provisions of the law.”

But contrary to the Constitution and the African Charter which provide for popular democracy the members of the political class have monetized the democratic process in Nigeria. During the 2022 party primaries, the APC and PDP decided to restrict participation by imposing nominations which majority of party members cannot afford. For instance the nomination fee paid by every aspirant in the presidential primary of the APC was N100 million while the sum of N40 million was collected from each presidential aspirant by the PDP. And at the venue of the conventions of both parties held at Abuja last year, delegates were bribed with millions of dollars by many of the aspirants. The campaigns and the elections gulped billions of Naira and millions of dollars. In spite of the threats of the anti-graft agencies to end the monetization of the elections, the purchasers operated in an atmosphere of impunity.

.With the total control of the political arena by money bags, democracy has since been replaced by plutocracy. As if that was not enough, armed thugs unleashed violence on voters who did not vote for certain political leaders. The violence that marred the elections in many parts of the country claimed the lives of 137 people. The electioneering campaign was not based on the socioeconomic problems confronting the people but on religion and ethnicity. Instead of expanding the democratic space the national assembly members empowered INEC to deregister political parties that fail to win any seat in the parliament.

Having hijacked the democratic process the members of the ruling class have completely excluded majority of the people from the democratic process. Since the ruling class will not peacefully relinquish power to the people it is suggested that mass based organisations be mobilized to participate in politics. It is the only way to end the highly expensive and violent winner-take-all presidential system which has made a mockery of democracy in Nigeria. It is however worthy to note that the use of BVAS machines eliminated the inflation of votes. Hence, many politicians lost their elections. In particular, many sitting senators lost their seats while some governors failed to win senatorial elections.

Threats to the dividends of democracy

The federal government has given the impression that there are no alternatives to the management of the national economy by market forces. Nigerian lawyers ought to join issues with the managers of the peripheral capitalist system to justify the continued execution of neoliberal economic policies that have continued to multiply poverty and inequality in the land.  Even the World Bank has said that over 4 million citizens have been pauperized by the removal of fuel subsidy by the new regime. That figure has been added to the 133 million Nigerians that are said to be extremely poor.

It is high time the NBA engaged the federal, state and local governments in the management of the economy by insisting on full compliance with section 16 of the Constitution, Central Bank Act, Appropriation Act and Appropriation Laws of the States and local governments. It is my submission that the increase in prices of petroleum products, merger of exchange rates, devaluation of the Naira through dollarisation, planned increase in electricity tariffs, planned reintroduction of tuition fees in tertiary institutions and implementation of other neoliberal policies by the Bola Tinubu administration require urgent review by the NBA. These policies have legal implications which must not escape the scrutiny of Nigerian lawyers.

The combined effect of section 16 of the Constitution and section 4 of the Price Control Act is that the federal government is under a legal obligation to determine and fix the prices of petroleum products and other essential commodities. See Bamidle Aturu v Minister of Petroleum Resources^[5]. Since the Nigerian State is required to make education free at all levels, the planned reintroduction of tuition fees in tertiary institutions should be questioned. Instead of implementing the Students Loan Act, governments should guarantee access to tertiary education by ensuring that grants, scholarships, and bursary awards are made available to needy students.

Illegal dissolution of local governments

We have also observed that some of the policies and programmes announced by the newly elected governors cannot be justified under the Constitution. For instance, the governor of Plateau state, a senior lawyer, recently announced the dissolution of democratically elected local government councils in the state and proceeded to constitute caretaker committees to run them. The action of the governor is in complete defiance of the order of injunction granted against the dissolution of the local governments by the High Court of the State.

The NBA should quickly wade into the matter and draw the attention of the governor to the Supreme Court case of Eze vs. Governor of Abia State ^[6] Akaahs JSC held that, “The frequent dissolution of local governments and appointment of caretaker councils by State Governors in this country is not only illegal but highly undemocratic as section 7(1) of the Constitution of Federal Republic of Nigeria 1999(as amended) guarantees the existence of democratically elected local government councils.” See also Dogari v. AG, Taraba State^[7]   and Governor of Ekiti State v. Olubunmi^[8].

It was a similar scenario that played out in the case of Bashorun Bosun Mojeed Ajuwon & 10 Ors v Governor of Oyo State & 6 Ors ^[9] where it was held by the Supreme Court that Governor Seyi Makinde acted “invidiously and in contemptuous disregard of a High Court judgment” when he dissolved the democratically elected chairmen and councilors and appointed caretaker committees in their stead. Since the tenure of the appellants had expired the Court ordered the Oyo State government to pay each of the sacked chairmen and councilors their accrued salaries and allowances while the apex court awarded a whopping cost of N20 million in favour of the appellants.

In the same vein the Governor of Benue State, Rev Fr. Nyacinth Ala was reported to have suspended elected chairmen and councilors in order to allow a committee of the house of assembly to conduct an investigation into allegations of diversion of public funds leveled against them. The purported suspension is illegal as the Supreme Court had condemned the removal of elected local government council officials under the pretext of fighting corruption and fraud.

In Yantaba v Governor of Katsina ^[10], the Supreme Court held that where a local government misbehaves or embezzles money or is involved in any fraudulent activities, the solution is not to dissolve the entire local government as there are agencies of government e.g the Police, EFCC, ICPC and others, which could be invited to investigate the matter and where anybody is found culpable, should be sanctioned in line with available laws governing the matter as it has been that governors lack the vires to dissolve elected council officials and appoint caretaker committees or sole administrators to run the affairs of local governments.

Curiously, some members of the Lagos State House of Assembly are alleged to have perfected plans to penalize non indigenes in the State  due to political differences. The legislators have announced their intention to sponsor a bill that will subject citizens who are non-indigenes to discriminatory treatment on account of perceived political differences. As a matter of urgency the legislators should be advised to jettison the reactionary proposal because it is illegal and unconstitutional. No government has the power to subject citizens to discriminatory in any manner whatsoever.

In the case of Lafia Local Government v Governor of Nasarawa State^[11], where Rhodes-Vivour, JSC held that, “Section 42 of the Constitution guarantees to every citizen of Nigeria freedom from discrimination on the basis of belonging to a particular community, ethnic group, place of origin, sex, religion or political opinion. The discrimination complained about must emanate from a law in force in Nigeria or any executive or administrative action of the government. This includes laws made by the legislative houses and legislation made by local governments, and this includes policy statements. The rights are enforceable against the state and not against individuals.”

Electoral law and Technology

In the celebrated case of Oyetola v Adeleke^[12], the Supreme Court addressed the issues surrounding the use of BVAS for accreditation, transmission of results and voters register under the Electoral Act. After reviewing the relevant provisions of the Electoral Act and INEC Guidelines the apex court held as follows:

2022. The evidence required to prove non-accreditation improper accreditation and over voting under the Electoral Act 2022 are the BVAS machines, the Register of Voters and the Polling Unit result in INEC Form ECBA by virtue of sections 47(1)(2) and 51(2) of the Electoral Act 2022, Regulations 14, 16, 19(b)(iv), (e)(-) and 48(a) of the INEC Regulations and Guidelines for the Conduct of Elections 2022. It was the view of their lordships that an on the spot electronic transmission of results from BVAS may in some instances be frustrated by lack of internet connectivity, BVAS battery failure and error in pressing the ‘send button’ of the BVAS by INEC officials.
2023. The Register of voters for each polling unit is relevant evidence to prove non accreditation of voters in the disputed polling units on the election day. In the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the Register of voters due to human errors in the ticking of the names in the Register of voters, the BVAS Record shall prevail.

iii.     No part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that requires that the Presiding Officer of the election in a polling unit to transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere.

From the foregoing, it has been pointed out that the production of Bimodal Verification System machines and register of voters are required to prove non accreditation of voters or over voting and the that the law does not require a presiding officer of the election in a polling unit to transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base. In view of such authoritative pronouncements by the Supreme Court, the national assembly ought to address all lacunae in the Electoral Act and the Guidelines of INEC without any delay.

Conclusion

In conclusion, I wish to submit that plutocracy has replaced democracy in Nigeria. The resultant effect is that people have lost confidence in the democratic process. Hence, out of the 93 million voters that were registered, only 22 million voted in the presidential election. I call on all mass based organisations to mobilise the Nigerian people to take their political destiny in their hands by participating in the democratic process.

Permit to join the NBA calling on the INEC to  address the problems of late arrival of INEC officials and ballot materials at the polling stations, malfunctioning BVAS machines, limited or non-transmission of the results from the polling units to the INEC Results Viewing Portal (IReV), insecurity at some polling units, including violent attacks on voters and officials, voter intimidation, snatching and destruction of voting materials, significant cases of vote-buying, and limited access facilities for persons living with disabilities.

Finally, the Benin branch of the NBA should prevail on the national body of lawyers to convoke a national summit to review the 2023 general elections as soon as the curtain is drawn on the election petitions by the various election petition tribunals, the Court of Appeal and the Supreme Court. The NBA should ensure that the summit is attended by the representatives of all relevant stakeholders. At the end of the programme, the NBA should collaborate with the judiciary committees of both houses of the national assembly in drafting amendments to the Constitution and the Electoral Act with a view to institutionalising credible elections in Nigeria.

[1] . (Unreported Suit No FHC/KN/CS/107/2023)

[2] . (Unreported Suit No SC/CV/501/2023)

[3] . (2016) LPELR-40083(SC) (Pp. 39 paras. D),

[4] . (2023) LPELR-59910(CA)

[5] . (FHC/ABJ/591/2009)

[6] . (2014) 14 NWLR (PT 1426)

[7] . (2011) All FWLR (PT 603) 1926 SC

[8] . (2017) 7 WRN 1 SC

[9] . (2021) 16 NWLR (Pt 1803) 485

[10] . (2022) 1 NWLR (PT. 1811) 259

[11] . [2012] 17 NWLR (Pt. 1328) 94 at 127-128, paras. F-G

[12] . (Unreported Suit No: SC/CV/508/2023 of May 9, 2023)