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19^th March 2007

Mr. Leandro Despouy,

UN Special Rapporteur on the Independence of Judges and Lawyers,

c/o Office of the High Commissioner for Human Rights
United Nations Office at Geneva

8-14 Avenue de la Paix
1211 Geneva 10
Switzerland

 Dear Mr. Leandro Despouy,

“Early Warning” Alert on Nigeria’s Deteriorating Rule of Law Situation and Request for Urgent Intervention.

We write to bring your attention to the deteriorating situation of the rule of law in Nigeria characterized, in the main, by willful and persistent disrespect for judicial authority in Nigeria.

Introduction: About Nigeria’s Political Organization

Nigeria is Africa’s most populous country, with a population of a hundred and forty million people, and plays a significant role in the affairs of the African region. She operates a republican democracy, has a written constitution that divides power among the tripartite branches of government – the executive, legislature and the Judiciary. The Constitution secures institutional autonomy for the Judicial branch, and commands all agencies of government to obey decisions and orders issued by its courts. Courts enjoy largely unrestricted powers of judicial review over all the acts of executive and legislative agencies. Nigeria is made of 36 federating States, operates a presidential system of government, and has a bi-cameral federal legislature, and unicameral legislatures at the state level.

Elected officials, - both executive officers, and legislative representatives – enjoy a four year term of office, while elections into elective offices take place at four-year intervals. Next month, (April 14^th and 21^st 2007 to be precise), elections will, barring any changes to the transition timetable – be conducted nationwide to fill elective offices through a secret ballot system. The elections will be conducted by the Independent National Electoral Commission (INEC), which is a federal executive body whose chairperson is appointed by the President, and confirmed by the Senate. Although the Constitution provides for the independence of INEC, the quality and inconsistencies in the decisions taken by this body has fostered widespread suspicions that it has, in actual fact, lost its independence and autonomy.

The Threat Posed by INEC to the Rule of Law

This perception is reinforced now by the refusal of this agency to abide by court decisions limiting its powers to disqualify some candidates seeking elective offices from contesting the forthcoming elections. The most disturbing is a policy pronouncement by INEC that it will not, except in the event of the death of a candidate cleared to contest a political office, review or change its final list of candidates who will contest the April elections. By that statement – published in paid media advertisements one of which is attached to this letter – INEC announces with bluntness and finality, that nothing (including decisions and orders of courts!) can make it change its position on the candidates it has cleared to contest the election. This is clearly an invidious affront to the judicial branch, and is clearly contemptuous of existing court decisions limiting INEC’s powers to disqualify candidates for the elections.

This policy is a significant threat to the institutional role and relevance of the Nigerian judiciary, and, if INEC does not recant this position now, its actions can destabilize Nigeria’s legal order, and its ability to offer and mediate a non-violent resolution of social and political disputes and conflicts. If we allow the materialization of this risk, the consequences can indeed be far-reaching, politically and socially, and foreboding for Nigeria’s fragile democracy. This fear is substantiated by Nigeria’s relatively recent history. In 1993, Nigeria’s transition from military to democratic rule was scuttled because of what the military said included the abuse or disrespect of the judicial process. A similar political and legal atmosphere is now gathering with rapid pace. There is therefore, a clear and present danger to Nigeria’s fledging democracy, and this is why Access to Justice invites your intervention.

The Context of the Problem

Controversies over the implementation of court orders by INEC centre around INEC’s decision to flout judicial decisions obtained by some aspirants to elective offices. Cases where it has refused compliance concerns: 1), cases involving the vice president of Nigeria who is currently entangled in a bitter and acrimonious feud with the President, and is contesting the office of president on the platform of another political party, and 2) cases involving candidates running for gubernatorial elections in one state (Anambra State) against someone widely believed to have influenced the appointment of the current INEC chairman into office. INEC has, in fact obeyed judicial orders in relation to other aspirants unquestioningly.

INEC refuses to clear Atiku Abubakar, Nigeria’s vice president, and presidential candidate of the Action Congress Party to contest the elections on the basis that Atiku Abubakar has been indicted by an administrative panel of inquiry for fraud. Indeed, Atiku Abubakar was indicted by a panel of inquiry for conduct adjudged to constitute fraudulent offences. The Nigerian Constitution indeed provides that a person indicted for fraud or embezzlement pursuant to a Tribunal of Inquiry Act or Law, whose indictment is accepted by the government is not qualified to contest the presidential elections. Atiku Abubakar, whilst Vice-President enjoys constitutional immunity over prosecution for any criminal offences.

However, Mr. Abubakar is contesting the indictment in a court of law at the moment, and a final decision has not, at this time, been given. Should the court entertaining this lawsuit decide in favour of Alhaji Abubakar, and quash the indictment, the indictment will lose its force. But of particular importance is the fact that on March 7 2007, Abubakar Atiku, together with the Action Congress, a political party on whose platform Atiku Abubakar is seeking to contest the presidential elections obtained a court judgment declaring that INEC has no powers to disqualify anybody from participating in the elections. The court ruled that only a court of law has powers in that respect. We have attached a copy of this decision to this letter.

INEC has refused to comply with that decision although it has appealed the judgment to a higher court. Well-established principles of Nigerian law recognize that a Judgment is valid and enforceable even if appealed against, and until set aside by another court, should be complied with. INEC has been hard-pressed to justify its refusal to comply with the Judgment, and has often cited untenable arguments, such as saying the Judgment did not name Atiku Abubakar, or that the Judgment confirms its (INEC) position that it has powers to verify a candidate’s eligibility for political office. It is intriguing that INEC is resisting the implementation of this decision. As has been said above, INEC has in a number of instances, respected judicial decisions concerning other aspirants to political office. A few other persons similarly indicted by the Administrative Panel of Inquiry have been cleared to contest the elections by INEC following judicial decisions in their favour. INEC has not challenged those judicial decisions.

Last week, INEC warned that orders made by courts against it will likely derail the planned elections. Some of the orders referred to mandate INEC to accept the candidatures of previously excluded aspirants wishing to contest elective offices. In relation to gubernatorial aspirants, INEC has indeed taken the unprecedented and alarming step of announcing that it has shut its doors to any change in the list of its candidates, except the change is occasioned by the death of a candidate. In a media statement it advertised in major newspapers (a copy of which is attached), INEC says any changes to the list of cleared candidates will affect the printing of ballot papers which has already commenced. It is feared that INEC will soon announce a similar measure in respect of the presidential aspirants.

Implications of INEC’s Disrespect of Court Verdicts

INEC’s shut-the-door policy will clearly favour candidates widely rumoured to be favourites of INEC, and those who the Presidency seem eager to exclude from the electoral process. However, as we have said, INEC’s defiance of judicial orders in an election already charged with boiling passions can provoke an avoidable, but predictable political and social chaos. The courts are currently providing a non-violent forum for the ventilation and resolution of highly-charged political tensions and conflicts, some of them with deep ethnic connotations. If the courts are ruled out of reckoning by any of the actors or institutions concerned with the elections, the consequences, as we have said, can be devastating, the costs staggering, and the impact clearly deleterious to Nigeria’s nascent democracy. It is imperative, politically, to protect the authority of the judicial process, in order to save Nigeria from a threatening implosion.

Suggested Intervention

Nigeria has ratified major international and regional treaties, such as the International Covenant on Civil and Political Rights, and the African Charter on Human and Peoples’ Rights which establish norms relating to the independence of courts of law, and respect for the rule of law, and must abide by these undertakings. We therefore urge you to use your good offices in securing respect for the integrity of the Nigerian judicial process, respect for the judgments and orders of Courts by all agencies of government. We would urge you to request a Country visit to Nigeria urgently, and, in the meantime, to raise these concerns with the Nigerian government, with other foreign governments as well, and the Chairperson of the African Union.

Access to Justice (AJ) is an advocacy group working to defend rights of equal and non-discriminatory access to courts of law, defend the independence of judicial institutions, expand access of marginalized people to equal and impartial justice, and to promote integrity, accountability and ethics in legal and judicial institutions.

Sincerely,

Joseph Chu’ma Otteh

Executive Director.