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Press Conference by Access to Justice on Disqualifications by INEC Despite Court Orders and its Implications for the Rule of Law

 On behalf of the Access to Justice, I warmly welcome you all to this press briefing organized to raise our concerns over the political and social risk we are all exposed to following INEC’s blatant disregard for court orders and its implications for the rule of law.

We are on the threshold of history and the world watches with attention. We want to warn that there are imminent threats to Nigeria’s social and political stability. These threats are self-induced by agencies of government and they include INEC, and the Federal government. The controversies trailing INEC’s compliance, or rather non-compliance, with court orders concerning the disqualification of some opposition candidates is gradually building a storm cloud over the nation. The incidents of INEC’s disrespect for court orders are mounting by the day and have become a potent threat to our peaceful and democratic existence.

INEC and the Threat to National Stability

On March 7, 2007, the Federal High Court, Abuja, pronounced categorically and unequivocally, that “{INEC} has no power to disqualify candidates under the provisions of the Constitution of the Federal Republic of Nigeria 1999, and the Electoral Act 2006.” This was the considered judgment of the court in Action Congress (AC) & Anor v. Independent National Electoral Commission; Suit No FHC/ABJ/CS/3/2007. The Court also held that:

“The power to disqualify any candidate sponsored by any political party including the 1 st plaintiff from contesting an election is vested in the Courts as provided for in section 32(5) of the Electoral Act 2006 and any other legislation that is validly enacted in that behalf”.

Following this decision the INEC Chairman, Prof. Maurice Iwu, was reported to have announced that “Court judgment or no court judgment, Atiku is disqualified.” Since then INEC has disqualified several candidates, most of them in the face of court orders to the contrary. Prof. Iwu, however, maintains that any candidate disqualified, was not disqualified by the Commission but by the Constitution. This position is absurd and will scrape the barrels to find legal support and justification. By continuing to disqualify candidates in disobedience to subsisting court orders and decisions, INEC is displaying a rare spirit of impunity. This is a crushing blow to the rule of law in Nigeria and largely undermines cornerstone values of constitutional democracy.

A Culture of Subjugation and Selective Compliance

But perhaps, a more engaging theme is the culture of subjugation and selective compliance with court orders that INEC has demonstrated recently. A review of some cases establishes this woeful trend. Justice Abimbola O. Ogie of the Federal High Court, Abuja, in Suit No FHC/ABJ/M/43/2007, issued an order mandating INEC to accept Prince Nicholas Ukachukwu, ANPP’s gubernatorial candidate in Anambra State as validly nominated. Nevertheless, INEC disregarded this order and not only disqualified Prince Nicholas Ukachukwu from contesting the gubernatorial elections in Anambra State but also disqualified Peter Obi (APGA), Chris Ngige (AC), and said it had duly informed their various political parties of the reasons for their disqualification. INEC however retained the name of Dame Virginia Etiaba as (APGA) gubernatorial candidate even though she had withdrawn and there is a court order to substitute her name with that of Peter Obi.

In another case, INEC included the name of the presidential candidate of the All Progressives Grand Alliance (APGA), Chief Odumegwu Ojukwu, despite a Court order restraining INEC from including any candidate from the two factions of APGA. This is another court order flouted.

In relation to gubernatorial aspirants, INEC has indeed taken the unprecedented and alarming step of announcing that it has shut the doors to any change in the list of candidates, except the change is occasioned by death of a candidate. In a media statement it advertised in major newspapers, 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.

The INEC boss Prof. Iwu is reported to have said, “If INEC accedes to court judgments seeking to change candidates now fundamental logistical problems will be created. And this may critically affect the ultimate efficiency and success of the elections.” INEC is the author of the problem in the first place and this is largely a pretext for entrenching INEC’s resolve to completely shut out some candidates. What INEC can do and should do is to allow all candidates litigating their qualification to contest, subject to section 145(1)(a) of the Electoral Act.

Our Concern: Rule of Law

The rule of law demands that all men are subject to the laws of the land as enforced by the court. It does not afford anybody the privilege of exemption, exclusion or even selective obedience. It is therefore disturbing that INEC has, willfully and persistently, demonstrated disrespect for court orders. Instead of deferring to judicial authority, INEC insists that orders made by courts “are capable of scuttling the elections”. This is clearly an affront to the judicial system and contemptuous of our courts.

INEC has also pledged to contest every court decision rendered against its exclusion of some candidates. Does this right of appeal preclude compliance with existing judicial decisions? The answer is emphatically NO! Nigerian jurisprudence is replete with authorities to the effect that a subsisting judgment, even if appealed against, is valid and enforceable until it is set aside. The 1999 Constitution in section 287(3) clearly states that:

The decisions of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively.

The Supreme Court also in Shitta-Bey v. Federal Public Service Commission held that it is indeed contemptuous on the part of a public body to refuse to implement a declaratory order made in its presence by a competent Court in a suit to which it is party. Thus, while INEC may challenge any court decision, it should abide by it in the interim.

Implications of INEC’s Disobedience

The real threat to the transition process is not the orders of court; it is the pertinacious INEC, which appears determined to pervert the rule of law. INEC’s disrespect for or selective compliance with court orders is a clear and present danger to the rule of law and our nascent democracy. It is an undemocratic resort to self-help, and this undermines the integrity of our judicial arm. By flouting orders of court, INEC is sabotaging the whole electoral process, which it purports to guard.

The polity is heating up and the courts have, up till now, provided a violence free avenue for ventilating these political tensions and grievances. The Courts are playing a critically important role at the moment; and are helping the nation absorb and mediate boiling political passions in a peaceful manner. If we undermine the ability of the courts to carryout these functions, the disputants may take their disputes to the streets , market places, towns, and villages and the result can be very destabilizing for our country and the democratic process.

By having resort to the Courts to resolve their differences, the political contenders evince a clear appreciation for the rule of law and confidence in the ability of the Courts to administer justice. If this confidence is eroded, and the authority of the courts is diluted, the judiciary is then made irrelevant and this throws the arena open for all aggrieved parties to take the laws into their hands and resort to self help. According to the 1948 Universal Declaration of Human Right, “It is essential if man is not to have recourse as the last resort to rebellion against tyranny and oppression that human right should be protected by the Rule of Law.”

Our Call

Based on the foregoing, we make the following calls:

 

1. We call on the Federal Government and INEC to demonstrate respect for the rule of law and abide by judicial pronouncements by rescinding its decisions, particularly those in disregard of existing court orders, excluding certain candidates from the forthcoming elections. This attitude would better serve our democracy.
2. We call on lawyers and the litigants they represent to show a conscientious deference to the Rule of law and avoid any abuse or disrespect of the judicial process.
3. We call on the leadership of the Judiciary and indeed our judicial officers to maintain a firm commitment to the Rule of law and protect the sanctity of our courts and the judicial process. Let judicial powers be exercised judiciously and judicially to serve and protect the interests, of not just the parties before it, but our entire society.

Conclusion
We also applaud the significant role of the media as the watchdog of society. We implore you to continue the good work as we all pray for free and fair elections. Thank you for coming and we look forward to a stronger and better partnership with you in the days ahead.