NJC’s new policy direction on elections stirs controversy

The policy direction on election and political disputes by the National Judicial Council (NJC) has continued to generate differing views by lawyers in the country. The NJC had at the end of its 98th meeting which held from May 10 to 11, 2022, announced a new policy to reduce multiplicity of litigations, conflicting orders and […]

The policy direction on election and political disputes by the National Judicial Council (NJC) has continued to generate differing views by lawyers in the country.

The NJC had at the end of its 98th meeting which held from May 10 to 11, 2022, announced a new policy to reduce multiplicity of litigations, conflicting orders and forum shopping in any electioneering season.

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The NJC said the policy direction was brought under its powers vested by the Schedule III, Part I, 21(i) of the Nigerian constitution.

The council noted that the direction was to “embrace prudential limitations on their powers with a view to curtailing the incidences of unscrupulous forum shopping disrupting the administration of justice and the democratic process.”

According to a statement by the Director of Information of the NJC, Soji Oye: “All heads of courts are to assign cases or constitute with a view to forestalling the incidences of conflicting judgements and rulings.”

In its reaction, the Access to Justice (A2J) said it regarded the NJC’s intervention on the matter as a “one-step” progress towards dealing with a longstanding problem and not the solution to the problem.

The convener of A2J, Joseph Otteh, said some aspects of the policy direction raised constitutional questions on whether the NJC had not overreached its powers and encroached into the rule-making powers of individual courts at state and federal levels.

Otteh said, “The policy direction forbids cases to be assigned or entertained by any court once ‘facts or issues have been ruled upon’ presumably by another courts. This rule creates a real risk that chief judges will refuse to assign any case filed in court where they believe that a case has facts or issues that have been ‘ruled upon’.

“Cases filed in court may not come in a straitjacket. Therefore, any assessment by a chief judge that a case has facts or issues which have been ‘ruled upon’ may be a patently wrong or unfounded one, or at least may be contestable. The policy directives do not offer litigants the opportunity to make representations to a chief judge before or even after a decision is made by the chief judge to preclude the assignment of the case.”

Otteh argued that the power was unconstitutional, as Section 36 of the Nigerian 1999 Constitution provided that every person was entitled to a fair hearing in the determination of his civil rights and obligations, while Article 7 of the African Charter on Human and Peoples’ Rights guaranteed every person the right to have their cause heard.

He further said, “This means that whatever is the merit of the case, a litigant has the right to present their case to an adjudicating authority.

“To give chief judges the power to close-off the door to the exercise of this important constitutional right peremptorily is particularly obnoxious and objectionable. It is mostly after a case has been presented at trial that it will fall to be decided whether ‘facts and issues’ in a case have been the subject of a previous litigation, and not before it.”

Otteh said the policy direction failed to address the accountability of individual judges for failure to exercise proper diligence when adjudicating over election/political cases after its strict procedure on the punishment of judges found guilty of misconduct.

He added that, “Overall, while the policy guidelines of the NJC are well intended, they do not offer the best formula for dealing with the problems they address.

“They concentrate too much power on chief judges that can be abused and used to violate constitutionally protected rights of fair hearing.

“They also fall short in articulating a better approach to dealing with abuses of adjudicational authority by erring judges.”

Similarly, Hameed Ajibola Jimoh Esq said the policy direction might have infringed on the constitutional provision of sovereignty for every superior court of record under the administrative control of the chief judge of that particular state or the Federal High Court or the President of the Court of Appeal, including the Supreme Court.

Jimoh said, “Nevertheless, the respective chief judge, the President of the Court of Appeal or the Chief Justice of Nigeria may ratify and adopt the directive as his.

“So, I believe that the judiciary has its own way of resolving this kind of issue among themselves.”

1. M. D. Umukoro Esq also agreed that the policy direction was clear that a directive or rules which were inconsistent or infringed on the clear provisions of the constitution or acts of the country was void.

Umukoro said, “In as much as the directive is to curb forum shopping and multiplicity of suits, such directive must be consistent with the laws of the land.

“A directive that says all suits involving INEC should be filed in the FCT doesn’t put into consideration the cost of prosecution of such cases if the litigant is not resident in the FCT.

“Again, the beauty of all this is where the policy directive is inconsistent on appeal it will be declared so.”

The Publicity Secretary of the Nigerian Bar Association (NBA), Abuja branch, Ikem Onyeka, said he could not comment on the legality of the NJC directive until the association discussed the matter.

He said, “Whatever I tell you as my personal opinion on the matter would be interpreted to be the position of the branch.”

However, Obioma Ezenwobodo Esq said although the constitution did not empower the NJC to enforce administrative rules on the courts, the direction “was an advisory policy” to reduce incidents of conflicting orders and duplication of cases in courts.

 

By John Chuks Azu & Adelanwa Bamgboye, Lagos