Posted On: Sat 08 Jun 2019 By Barr. Ekene Bob-Ekechukwu
... AND WHAT IT PORTENDS FOR THE RULE OF LAW
Today being the 7th of June, 2019, our electoral law was mortified and our electoral processes endangered by the judgment of the Federal High Court sitting in Owerri. His Lordship, Justice Okon Abang of the Federal High Court Owerri ordered the Independence National Electoral Commission (INEC) to issue the hitherto withheld Certificate of Returns (CoR) for Owelle Rochas Okorocha to the Senate.
According to the facts of the case as deposed to by the Respondents in their Affidavit, during the National Assembly Elections held last February, one Prof. Ibeawuchi ,the Returning Officer (RO)for the Orlu Zone Senatorial District made a formal complaint that he declared Rochas Okorocha winner of the elections under duress. As a result of the foregoing, the INEC withdrew the CoR it had earlier issued to the winner citing duress as their reason for doing so. Okorocha dissatisfied with the Commission's decision went to the Federal High Court to seek redress. The rest as we now know is history.
In giving his judgment Justice Abang stated and I quote:
."Once a declaration is made and returns thereafter INEC becomes funtus officio and has no power under any law to withhold certificate of returns....action of INEC not to issue certificate of return is unknown to the Constitution and the Electoral Act.”
Jurisprudencially, the Law has the spirit and the letters. The spirit of the Law refers to the intentions of those who drafted the Law, while the letters has to do with its literal meaning. In most cases, the letters of the Law do not always reflect clearly, the intentions of legal drafters. This is part of human imperfections, as it is not always possible for one to have mastery of language to the extent of clearly expressing intentions in writing always.
Looking at the letter of the Electoral Act which His Lordship relied on, this judgment appears to be spot on. However when we consider the spirit and intentions of the drafters of the Electoral Act, the judgment appears to be a validation of an electoral crime. With all due respect, what His Lordship did was to pass judgment based on what is written in the Electoral Act without considering the noveau circumstances created by the issue of duress.
During the void created when late President Musa Yaradua travelled abroad for medical treatment without handing over to his Vice, Dr Goodluck Jonathan, the National Assembly brilliantly filled the lacunae and transferred presidential powers to him by invoking the "doctrine of necessity " which before then was not known to law. The fact that the drafters of the Electoral Act did not capture the issue of declaring results under duress (because they didn't envisage such a scenario at that time), doesn't justify the act.
Duress in law is already recognised as a vitiating element for any act, be it execution of contracts, or even declaration of election results. It is trite law that any act done under duress is neither admissible in evidence in a law court nor acceptable generally. That is why statements made by criminal suspects under duress is always rejected by the courts as if it never existed. In the light of this, the Learned trial Judge ought to have discountenanced the declaration made under duress by Prof. Ibeawuchi to the extent as if it never happened.
His Lordship ought to have used his discretion to fill the lacunae and give flesh to skeletal areas in the Law in order to give it life. This is where judicial activitism, which is a necessary ingredient for the growth of any Legal System comes in. I had expected His Lordship to make a huge mark by considering the fresh element of duress introduced into electoral matters by acknowledging and giving it a force of law in his judgment. But alas, that was not to be. His Lordship chose to follow the letters of the Law at the expense of justice and Rule of Law.
This judgment is inimical to our electoral progress as it has inadvertently invalidated electoral fraud and corruption. The implication now is that any one can put a gun at the head of an RO and compel him to announce results in his favour and such illegal act will stand because the courts does nt think otherwise. This is not good for Rule of Law and our fledgling democracy. Consequently, the worst case scenario would have been for His Lordship to order a rerun instead of ordering INEC to hand Okorocha a CoR. This judgment appears to be a pat on the back of Okorocha who should be facing criminal trial for electoral offences. The Law is not and can't be a perfect document. Judges are expected to use their discretion to make perfect the imperfections of the Law. Justice Okon Abang didn't do that in this case.
Therefore, I call upon the Respondents in this case , INEC, PDP and Chief Jones Onyereri not to relent but to immediately appeal this judgment, even up to the Supreme Court, to ensure that justice is done. They should set aside personal interest and fight for justice, bearing in mind that our electoral matters, Rule of Law and democracy has been seriously endangered by this clearly superficial judgment. Failure to upturn this lopsided judgment will surely lead to anarchy in future elections and injustice will clearly be enshrined in our electoral laws. A stitch in time saves nine!!