A former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba, (SAN), has expressed his waning confidence in the Nigerian courts.
Agbakoba blamed his discouragement on the recent judgments coming out of the courts, which according to him are baffling and unexpected from justices at that level.
The senior lawyer who spoke as a guest at a television programme monitored by THISDAY, recalled times when one could easily predict the outcome of a case by analysing availablefacts with the law.
He said: “I have lost a bit of confidence in what the courts have been doing lately.
“There was a time you could say oh, on the facts and the law, this is the likely outcome; today you cannot because there have been all kinds of silly decisions. The silliest was that concerning the President of the Senate, who in order to become Nigeria’s president rushed off to buy the presidential ticket of the All Progressives Congress (APC) and that meant he did not take part in the senatorial.
“Lo and behold he lost; he now ran back after the horse has bolted. Clearly to anybody who has any brain which the Supreme Court justices might have had and they say no, the man actually should be the senatorial candidate. That is the most ridiculous decision that I have ever heard that the Supreme Court has delivered”, the former NBA President pointed explained.
Besides the case of the Senate President, Agbakoba also pointed at the apex court’s judgment on Imo State, where according to him, “everything was turned upside down.”
He further posited: “So, I don’t have the sort of confidence that I used to have in the judiciary and I will not be surprised if this thing goes one way or the other; I cannot forecast the outcome.”
The constitutional lawyer said that with the legal tools and the factual issues at his disposal, he already knows what should be the outcome of the presidential election petition.
“But I am not part of the panel; so, I don’t know whether the justices will see it the way I am seeing it. But I can tell you from my own perspective as a lawyer of 45 years at the bar, that the answers are glaringly obvious.
“But, as Oliver Weldinhome said in the realist school of jurisprudence, it is the prophecy of what the court does in fact and nothing more potential that is the law.
“So, if you ask me what is the outcome of the petition; first of all, I cannot say because it is subjudice, and secondly, I cannot even say because the Supreme Court itself is unpredictable.
“They ought to be predictable, which is why people are beginning to question; there is a new school of thinking coming up to say ‘should the Supreme Court really be final?’ ‘You see what they are causing now; should they be final or should their decisions be subject to parliamentary review?’ It is an argument that is now growing in judicial circles.”
“The confidence that is eroding for people to begin to think; ‘can’t we do something to these people, they are subservient; seven men just come out, sit down on the chair and will read something and we will say ok, that governor is sacked, why, who are these people, they should be taken seriously.’
“That would not have happened 20 years ago, when these people are coming out you will fear them and when they speak they speak without fear or favour. Is it the same thing now? I don’t”.
However, Agbakoba stated that Nigerians would have to wait for the outcome of the suits filed by the presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, his Labour Party counterpart, Peter Obi, and three others to know the position of the apex court on the matter.
On the issue of substantial compliance with the Electoral Act, Agbakoba observed that in the history of presidential petitions in Nigeria “not a single election has been overturned,” adding that the closest was when the Supreme Court split four to three in a petition by President Muhammadu Buhari in 2007.
He further pointed out that one of the Supreme Court justices on the panel had made a very profound statement when he held that, “looking at the legal framework of Nigeria’s electoral law and the number of witnesses required to be called, I doubt if any presidential candidate can ever win a petition because the bulk of evidence and the burden required to satisfy the court that you were the person who should have been declared the lawful winner is so heavy and the time frame in my view is insufficient.”
The senior lawyer explained that the above reason was why the Muhammad Uwais panel which he claimed he was a member, recommended that INEC must be impartial.
“The big problem is INEC’s culpability,” he said, adding that being a defendant, adding would do everything to protect the outcome of the election it conducted.
“So in the petitions that have been filed the key defendant were INEC not Tinubu or anybody else. The duty of INEC is to say here are the documents and INEC withdraws but INEC is actually an active defendant and INEC would obviously want to show that the elections were conducted in accordance with the Constitution and the Electoral Act. That is the problem.
“Had the Uwais recommendations been legislated we won’t be in this problem. But it is in the interest of those who won elections not to have it passed, the politicians; so, they have sat on it at the National Assembly.
Besides Agbakoba accused the National Assembly of insincerity in the passage of the Electoral Act, claiming that “the National Assembly told us a lie. Even I was caught up with the misrepresentation the National Assembly made. I thought that the representation of the National Assembly in respect of electronic voting has consequences; it has no consequence.
“So, if you didn’t use BVAS and so what; the electoral framework allows two parallel processes – manual and electronic; so, I could hear INEC say well, okay it failed and so what?
“It failed, but, don’t forget we are doing manual collation and that manual collation is exactly what you scanned into the BVAS; so, what are we talking about? What is the difference between the manual scan and the electronic scan? Those are going to be the challenging issues that INEC will present.
“And INEC in my view will present it strongly because they see themselves as having a duty to defend the election we conducted but if that burden was not on them then they will tell the truth.
“But I don’t know in any petition from 1999 that INEC has not absolutely been dishonest; that is the problem. I have seen in past petitions where INEC and the respondents are working together; so, how can you win; how are you going to win?
“INEC ought to be a neutral body; the court would summon INEC to say ‘yes you conducted this election; so tell us what happened,’ because INEC is not a party; so, INEC would then bring everything. There would be no burden to defend with their sweat and blood; no burden to lie and the court can see it from a neutral witness. But if INEC is a party it changes the picture, that is the problem,” Agbakoba explained.