Lawyers differ on courts’ powers to stop INEC during elections

A worker holds an election poster to be displayed at a polling station (Photo by PIUS UTOMI EKPEI / AFP)

The constant “interference” in the work of the Independent National Electoral Commission (INEC) by the courts during election processes, and the seeming acquiescence of the electoral body in contravention of extant laws have elicited concerns as to whether INEC is spineless in resisting such meddlesomeness, or unaware of its powers.

The courts stopped INEC from conducting supplementary election in Adamawa State, and stopped it from collating votes in Bauchi State in the Saturday March 9 polls, contrary to Section 87 of the 2010 Electoral Act, which bars courts from stopping INEC in carrying out its electoral duties.

Interrogating this development, the former General Secretary of the Labour Party (LP) and Abuja-based legal practitioner, Dr. Kayode Ajulo said if the interferences bordered on pre-election matters, the Constitution empowers courts to adjudicate on all matters.

According to him, Section 6(6)(b) of the 1999 Constitution guarantees courts the inherent powers to adjudicate on matters between persons or between government/authority and any persons in Nigeria for the determination of any question as to the civil rights and obligations of that person.

His words: “For the above inherent powers of the courts to be hindered or ousted in any way whatsoever, there must be a specific provision of the Constitution itself, or any valid statute ousting the jurisdiction of the courts to make any order in respect of such matter. See Inakoju v. Adeleke (2007).”

Ajulo further argued that while Section 87 (10) of the Electoral Act vests in the Federal High Court, states’ High Courts and the High Court of the FCT powers to entertain pre-election matters, Subsection (11) however, limits the powers of the courts in entertaining the matters by providing that nothing under Section 87 shall empower the courts to stop the holding of primaries or general election under the Act, pending the determination of the suit.

“Never forget, the suit borders on pre-election matters. So, it suffices to say that in any pre-election matter filed under Section 87, no court can stop the holding of primaries or general election pending the determination of the suit.

“Can this provision hindering the powers of courts to stop the holding of elections apply to other election matters not being pre-election matter? No. It is trite that whenever any provision of the Nigerian Constitution or statute purports to oust the jurisdiction of the court, such provision must be construed very strictly. See the decision of the Supreme Court in Inakoju v. Adeleke (Supra).

“So, in my opinion, which is solidly founded on law, I know not of any provision of the Constitution or statute ousting the jurisdiction of the courts to stop the holding of elections pending the determination of suits that are not pre-election matters,” he stressed.

Also, a Lagos-based advocate, Mr. Theophilus Akanwa explained that the courts are governed by laws and rules, which is why when a court or tribunal lacks jurisdiction, it cannot proceed with the matter before it and when it proceeds with such a matter, the appellate courts will always set aside any decision that the lower court reached.

According to him, courts cannot interfere in the works of INEC while elections are going on except the said matter is a pre-election matter.

“The just delivered Court of Appeal’s case in Zamfara State is one of such pre-election matters. The instances of Bauchi and Adamawa states and other states, where courts made pronouncements restraining INEC, but later reversed themselves are clear examples of the lack of powers by courts to restrain INEC from conducting elections.

“INEC on its own also stated that it was going on with the conduct of elections in those states in view of the fact that courts cannot restrict it. The Electoral Act is clear that courts lack powers to stop INEC from conducting elections,” he stated.

Consequently, Akanwa stressed that it has become very important for judges to get themselves acquainted with relevant laws, and to take the right decisions at the appropriate time when such cases are filed before them.

Referring to the same Section 87 (10) of the electoral Act, which says: “Nothing in this section shall empower the courts to stop the holding of primaries, or general election, or the processes thereof under this Act pending the determination of a suit,” Akwa Ibom State-based lawyer, Dotun Ilori held that the Federal High Court erred in law in stopping the electoral process in Bauchi State.

The “error,” he said applies to anywhere the courts also stopped the holding of primaries, or general election, or the processes thereof.

He however, absolved INEC of any blame. “The blame cannot be placed at INEC’s doorpost however. INEC has to obey court orders. Doing otherwise will be contrary to the spirit and tenets of the rule of law, and an invitation to anarchy.

“If blames must be apportioned, let it be on the courts spewing out the orders. There must be a better entrenched regime of discipline in Nigeria’s judicial system,” he suggested, adding that the courts must be made to be more circumspect in arriving at their decisions.

For Abuja-based legal practitioner, Abubakar Sani, Section 87 (10) of the Electoral Act, which prohibits courts from halting elections is clearly being observed in the breach with the spate of court orders intended to achieve just such a purpose.

“Happily, they have all been limited in duration. The CJN however, needs to read the riot act to the judiciary to scrupulously respect any clear legislative intention to restrict their jurisdiction in the way, which Section 87 (10) of the Electoral Act clearly does. Any adjudication in the absence of jurisdiction is a nullity,” he said.

Similarly, Lagos-based lawyer and rights activist, Emeka Nwadioke is of the view that the courts ought to have exercised greater restraint prior to handing down the restraining orders in the light of the unambiguous provision of Section 87 (10) of the Electoral Act.

Attempting to arrest an electoral process, he said, is tantamount to a coup on our democratic norms, more so when the Electoral Act has made copious provisions on how to redress electoral infractions and perceived wrongs.

His words: “The public policy nuances of that provision are also not lost on discerning democracy watchers. It is to obviate chaos and anarchy that INEC is shielded from such judicial decrees in the performance of its duties.

“It is trite that all orders issued by courts of competent jurisdiction must be obeyed unless set aside. Accordingly, INEC must be commended for displaying good corporate governance in complying with the orders. It accords with the rule of law.

“However, INEC was perhaps dilatory in not filing the appropriate processes to hold the hand of the Abuja Federal High Court. This notwithstanding, the court ought to have hastened slowly, acutely aware of the extant provisions of the Electoral Act, which clearly divests it of jurisdiction to hear and determine post-election matters.”

Nwadioke, who said that the orders may have brought odium to the hallowed temple of justice, expressed the hope that the courts would be more circumspect going forward. “It also begs the question whether litigants and counsel who pursue such manifestly irregular cases should not be met with heavy costs,” he charged.

Another Lagos-based lawyer, Chris Okeke thinks that INEC is not acting cowardly as the country’s Constitution, he said, gives the interpretative powers to the courts.

Said he: “This is the first and enduring principle. This power extends to controversies between persons, governments and organs of governments. It follows therefore that once there is a controversy, then the powers of the court is called upon and activated.

“To that extent, any law and legislation by whatever name it is called that abridges and or seems to abridge the power of the courts, when called upon in appropriate cases will always be struck down.

“That is the situation with INEC. Once any of those INEC laws infringes on the powers of the courts, the courts will always stand up against it. It doesn’t matter if it is called pre-election, post-election, rerun or any other name.”

Okeke insisted that the court has the power to decide whether it can adjudicate in the first place, adding that the courts have not interfered, but exercised their powers under the law.

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