By Edward Okon Bassey
The current mockery of the Nigerian judiciary owing to absurdities noted in the judgements of election tribunals happened only because Bola Tinubu was declared winner of the presidential election this year. Because of his alleged criminal past, everything was done by heavily compromised judges at both the Court of Appeal and the Supreme Court to reject pieces of evidence capable of exposing him.
Paragraph 4 (5) of the first schedule to the Electoral Act was found as a useful tool to eliminate all pieces of evidence not only tending to show that Tinubu didn’t win the presidential election but also those showing that he was not qualified to contest in the first place. That provision was effectively used to knock out the evidence of many of Peter Obi and Atiku Abubakar’s witnesses on the grounds that they were not front-loaded within 21 days of filing their petitions. From nowhere, the tribunals began to reject evidence of subpoenaed witnesses ordered by themselves, despite the distinction the Court of Appeal made in Peter Obi v INEC and which singled out official and adversarial witnesses as not affected by the provision in the Electoral Act.
Having saved Tinubu, the courts are now having a mountain to climb convincing anyone that the evidence of subpoenaed official witnesses not within the control of the party calling them are inadmissible after 21 days of filing an election petition. Are we worshipping rules or seeking justice? Even if the rule in the Electoral Act does not specifically exempt official witnesses, is it not implied? Does jurisprudence not teach us that a bad law is no law at all? Is it even possible to front-load evidence of a witness the court has yet to order to appear? Who is doing this to us?
Many legal pundits including Jibrin Okutepa, SAN, are warning that if the Supreme Court does not urgently retrace its steps by distinguishing between official and adversarial witnesses on one hand and other subpoenaed witnesses in deciding governorship election appeals before it, irreparable injustice could be done not only to the parties involved but also to the nation at large.
The Supreme Court must have the courage to state that official witnesses not within the control of the party calling them are not affected by the almighty provision aforementioned. If the apex court failed to do so, there could be a conundrum in evidencial jurisprudence not only in electoral matters but also in other cases, civil or criminal, leading to a total collapse in the administration of justice. This is so because where public institutions are shut out from giving evidence in election tribunals by mere techinicalty, even when they are willing to do so, certificate forgers and other criminals would have a field day while the standard of justice dispensed in such tribunals would be a thing of mockery.
To avoid this calamity, the Supreme Court must rise to the challenge by holding that paragraph 4 (5) of the first schedule to the Electoral Act is inapplicable to subpoenaed official witnesses that a party calling them have no control over. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, is also available to show that paragraph 4 (5) of the first schedule to the Electoral Act is unconstitutional. Any law which prohibits a party or their witnesses from being heard, for no fault of theirs, is inconsistent with the citizen’s constitutional right to fair hearing. If inconsistent, such law is null and void.
Bassey is a legal practitioner based in Lagos.