Lawyers have expressed divergent views on the proposition from some quarters in the judiciary that retired judges should be appointed to preside over election cases.
At the moment, serving judges are being engaged to preside over election cases. However, why some lawyers opined that retired judges should be engaged, others argued that the system of using serving judges should continue.
Recall that a former Chief Justice of Nigeria (CJN), Justice Mohammed Uwais, before and after his retirement from the Bench was the first person to propose the engagement of retired justices to handle political cases, particularly election petition matters.
This, according to him, was in a bid to stem the ugly trend of scandals bordering on corruption being linked to the judiciary, especially the judges. Uwais added then that most of the scandals that shook the judiciary in the past emanated from politicians who lost their cases in court and felt that the judicial officers who gave such judgement must suffer for doing their jobs.
In a similar development, the President of National Industrial Court of Nigeria (NICN), Justice B. Kanyip, had also in 2013 while in Lagos as a judge, made a case for a system barring serving judicial officers from entertaining election related cases in the country. He equally suggested the use of retired judges for political cases.
He premised his submissions on the ground that taking away such responsibility from serving judges would not only reduce the courts’ dockets, but also insulate serving judges and safeguard their integrity, especially in the eyes of discerning public
He further noted that the country was blessed with plenty of talented retired judges, who were not yet tired, adding that embracing his suggestion would also not only be economically wise, but afford the country to further benefit from the wisdom and experience of the retired judges.
Era of retired judges
The question of how the decision on the current practice of using serving judges (and magistrates) to try election petitions and pre-election matters was arrived at is not a legal matter. It was further discovered that some retired judges were used initially when democratic rule started in 1978.
But the practice had to be abandoned when it was discovered that there was no adequate means of disciplining any erring retired judge employed for such duties. This was because such retired judges had nothing to lose, other than being removed from such duties.
The decision was then taken to rely on the use of serving judges who could be subjected to serious disciplinary actions, including dismissal from service. It was also discovered that the number of election petitions were not as many as they are nowadays.
The reason for this was that there was still a lot of discipline in the system which the nation inherited from our colonial rulers, regarding actions of public officers. But as we progressed, it was found that public offices became places where some incumbents could amass wealth illegally and get away with their crimes. Contests for political offices therefore became very attractive in that once you got one, you would automatically join the very wealthy class in the society.
The contests for every political office, be it at the local government level, State House of Assembly or at the National Assembly, became a do or die affair. The question of conceding defeat was therefore never in consideration by any of the contestants.
Members of the legal profession soon joined by reaping in the fat briefs emanating from court litigations. While these were going on, it was even alleged that some of the counsel went ahead to charge the amounts meant for bribing the judges handling the election petitions in addition to their normal fees.
Lawyers react
Speaking on the issue, a foremost Senior Advocate of Nigeria, Aare Afe Babalola, recently argued in favour of using retired judges to handle election petition matters. Babalola said. “There have been accusations and counter-accusations from politicians regarding the integrity of some tribunals
Most of these accusations and allegations ranging from the plausible to the ludicrous have often been made or informed by no other factor than the side of the political divide on which the politician making the allegation has found himself on account of the judgement sought to be impugned.
“Cases have been reported in which parties to election petitions already submitted to court for adjudication and in some cases even already adjourned for judgement declared openly that the outcome or judgement of the petition would be favourable to them.
Some have been reported to have distributed traditional wear or uniforms amongst their party members and supporters and made extensive elaborate preparations for celebrations, including engagements of musicians all before the actual judgement of the tribunal or appellate court is delivered.
“At one time, there were allegations by a particular set of petitioners that the respondent, and also incumbent governor of the state at that time, was about to take steps to arrest by judicial means, the imminent delivery of the judgement of the appellate court.
The respondent in reply, aside from a denial of the allegation, posed the question whether the petitioners had not by their allegation, inadvertently given away the fact that they were already privy to the contents of a judgement yet to be delivered. “He queried why they would be so bothered that anyone was trying to arrest a judgment if they had not been assured that the judgement would be in their favour?
He stated further that the petitioners had already distributed celebration uniforms to their supporters. The judgment, when it was eventually delivered, was in favour of the petitioners.
“Having regard to the numerous, persistent and disturbing accusations made against election tribunal judges by desperate politicians, the coincidence or otherwise of judgements which were predicted by politicians who had made victory preparation in advance of the judgements, and the tempting pressure in a poor economy, is it proper for serving judges to handle political cases?
“In any event, whether the ‘prediction’ of politicians regarding the outcome of yet to be delivered judgments pans out or not, the integrity of the judiciary is always the ultimate loser. This is so for if the ‘prediction’ is found to be correct, the losing side will forever point to the fact that the judgement had already been known well in advance of the delivery of the same.
If on the other hand, the ‘prediction’ is found to be false, then supporters of the losing side will also forever allege that some underhand dealings were responsible for the change in the judgement from what they had been told or assured to expect. “This heightened level of attention and criticism is bound to affect the psyche of some judges and rub off on their ability to discharge their duty.
It exposes them in several instances to a situation in which their every conduct and pronouncement is expected to measure up not to the dictates of the law, but to the high, often misguided and misplaced expectation of the public which in most cases is totally ignorant of the position of the law.
“Judges being human beings and not infallible may sometimes unwittingly yield to some of these pressures and let themselves be influenced by totally irrelevant factors. Furthermore, serving judges are of course very much interested in career advancement”. In his own submissions, a former NBA President, O. C. J. Okocha (SAN), said: “Even if retired judges are used, the integrity of the judiciary is still at stake.
And then we all know that our judges retire from the High Court at the age of 65, while they retire at the age of 70 from the Court of Appeal and the Supreme Court. “Knowing Nigeria for what it is with our medical facilities, and knowing the judges themselves with the conditions they find themselves when they retire, most of them are old and feeble. “I do not think they are suited to do the rigorous work of election tribunals.
Besides, election petition cases are time-bound. They have limited time to do their work so that the country can move forward. I don’t subscribe to the fact that retired justices should be brought back from retirement to sit on election petitions. “I am aware that the alternative they proposed when they were doing constitutional review was the creation of constitutional courts to hear only political matters such as election petition matters to determine who was properly and validly elected. It did not scale through.
“I think proliferation of courts is not even a good thing. I believe that the regular judges, who have their reputation at stake should be allowed to do the job. They know that if they allow politicians to corrupt them, then, their image is already tarnished.
“And let me say this, politicians like to raise all those issues: oh, it was a political judgement. It was a kangaroo court. But a fair conscience fears no accusation.
Judges who constitute election petition tribunals and have done their work with truth and justice in mind, will not listen to all those frivolous allegations. They will do their job. And if they know there is one authority over them, the NJC, if they go and soil their hand and an allegation is booked against them, then, their whole career as a whole will be put in jeopardy.
For all those reasons, the sitting judges should continue. “I know that this will affect their regular cases, but that is the sacrifice lawyers and their clients will have to make. And it depends on how the judges schedule their work.
They should schedule their work in such a way that even if they go for election petition which is time bound, they will be in a position to come back to finish or continue with the pending cases they have before their regular courts”, Okocha said.
On his part, Chief Mike Ahamba (SAN), said retaining serving judges to handle election petition matters was much better than going for retired judges. The silk said: “Using retired judges to handle election petitions cannot work in Nigeria in this era. If it worked sometimes, you can’t use them in this era. “The retired judges when they are gone, they are gone. They can’t come back.
The government should try to impose sanctions on those who don’t behave like judges in election petition cases. “The fact is that whether a judge is serving or not serving, a corrupt mind is a corrupt mind.
The problem in Nigeria is the impunity with which wrongdoings are treated because nobody calls anybody to question. In public service, if somebody goes contrary to the ethics and the norms, they should be sanctioned. That is the way to live in a society. That is my view”.
Also reacting, Sylvester Udemezue, said: “In my opinion, there are hardly any cogent reasons to have taken any serving judge away from his jurisdiction, for election matters. “It is part of the problem we are talking about. How many judges are in those states? Do we have enough already?
How far have they performed in clearing the backlog of pending cases on their cause lists? “Now, you dislocate them by dragging them to election tribunals. In the six months or thereabouts, after the elections, the judges would abandon their own courts and thousands of cases pending before them, for election petition tribunals.
When they return from election petition assignment, they would take annual leave or join annual vacation 2023. That’s it for the year 2023. The litigants whose cases have been before them for years should go to hell. “Are election cases more important than the tens of thousands of cases pending before each court for years — in some cases for up to 10- 15 years?
“Why take these judges away and suspend dispensation of justice in those other cases? Why not consider using retired magistrates, judges/ justices of High Courts, the FHC, NICN, CA, SC. Many are retired but very active, vibrant, not tired. “Non-aligned SANs, scholars and other senior lawyers and activists. Many are willing and capable.
After all, election petition job is well remunerated; that in itself is a huge motivation “Besides, using serving judges makes the judges susceptible to control by the party that controls the incumbent government. Seasoned scholars, SANs, lawyers and retired jurists (chosen based on track record of performance and integrity) will be more fearless, courageous, impartial and independent-minded”.
Throwing his weight behind retired judges handling election cases, another Senior Advocate of Nigeria, Femi Falana, in a statement issued in 2019 submitted that the judges serving in courts have been overburdened with national assignments and have left their jurisdictions, hence leaving all matters pending in their courts.
Falana further stated that a review should be carried out regarding preferences given to election petitions and appeals, adding that in certain neighbouring nations, election petitions are not handled by regular courts, but by constitutional courts.
“Over 350 judges drawn from State High Courts, Federal High Court and National Industrial Court and handling election petitions have adjourned all matters pending in their courts indefinitely.
Their lordship and ladyships are said to have left their jurisdictions for “national assignment” in other parts of the country. “Apart from appeals arising from pre-election cases and election petitions, both the Court of Appeal and Supreme Court are adjourning all pending appeals till 2020 and 2021.
The vacation of the Justices of the Court of Appeal has been cancelled to enable them to handle election related appeals. “Since all litigants are equal before the law, it is high time the preference given to election petitions and appeals by Nigerian courts was reviewed. In some neighbouring African countries, election petitions are not handled by regular courts, but by constitutional courts.
“It is therefore suggested that the Constitution be amended to allow retired judges to handle election petitions and appeals arising from them. If our retired judges can handle arbitral matters and participate in judicial commissions of enquiry, they should be saddled with the responsibility to handle election petitions and appeals arising from them.
“The injustice meted out to litigants whose cases are not political by the legal system should stop forthwith in the interest of justice”, Falana said.
Also throwing his weight behind using retired judges for election cases, Livinus Okey, noted that the names of about 257 judges of various States’ High Courts, Federal High Court, National Industrial Court and some Chief Magistrates, were published to hear election petitions.
“The implication of this is that the selected judges will have to suspend hearing their regular matters for the period that they will be on this special assignment. “Section 285(9) of the Constitution, as amended, provides the basis for time factor in the determination of election disputes.
“The Preamble of the provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 requires that cases bordering on violations of fundamental rights of citizens of the Federal Republic of Nigeria are to be given accelerated hearing. By the provisions of Section 36(4) of the Constitution “any person charged with a criminal offence shall be entitled to a fair hearing within a reasonable time.
“These provisions are hardly complied with by the courts. We now have fundamental rights enforcement cases and criminal trials spending an average of 2 and 5 years respectively at the trial court. No sense of urgency or priority given them, as required by the law. “Sadly, these are now part of the cases that will be further adjourned for another six more months, while election cases are ongoing .
“There should be a more reformative approach that will not disrupt routine court proceedings. I am of the opinion that retired judges and senior lawyers should be appointed on contract basis to hear election petitions. The need for the immediate appointment of more judges also is suggested”, Okey said.
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