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How to Structure the Proposed Special Courts for Electoral Offences

The promise by President Goodluck Jonathan to set up Special Courts for Electoral Offences is laudable, although I do not know the form the special courts will take. It is the appropriate structure of the proposed special courts I intend to explore here. No doubt, a lot of electoral offences get committed any time elections are held in Nigeria. Electoral offences are part of the sore features of the recurring decimal that is non-free, unfair, incredible and violence-ridden elections witnessed in our country.

The electoral offences committed in Nigeria are of two species, just like the individuals involved thereof. The first type is constituted by criminalities perpetrated by persons who are bent on thwarting the will of the electorate. The culprits here are desperate politicians, their thugs, security agents and electoral officials who aid and abet them. These are disciples of the infamous “do-or-die” form of politics, unrepentantly opposed to “politics without bitterness”. They are the real criminals and electoral offenders. Unfortunately, even when known or caught, they are never tried, let alone convicted for their criminalities, because the culpable politicians are sacred cows who protect their thugs and accomplices in the security agencies and electoral body

In the second type, we have what are erroneously branded “electoral offences”. These are caused by and are reactions to the real electoral offences and cannot occur in their absence. They are sincere efforts by well-meaning Nigerians to foil and resist electoral malpractices. The people here try to fill the gap created by the inaction or connivance of law enforcement agents during elections. In my humble view, these people are not criminals. Unfortunately, some persons, who are perhaps exponents or supporters of electoral malpractices, mischievously criminalize them as “taking the laws into their hands”. To such people, the Nigerian electorate should be indifferent while its will is thwarted. I am aware of cases where persons who resisted ballot box snatching  by politicians, thugs and policemen or challenged the connivance of electoral officials in electoral malpractices, were eventually arrested, arraigned in court, charged and tried as electoral offenders. What a paradoxical fate for patriotic advocates of free, fair and credible elections!

The thrust of this piece is the appropriate structure of the proposed special courts for electoral offences. There is no doubt that Nigeria needs such courts. Should they be adhoc or permanent? How should they be composed? My humble view is that they should not be adhoc, to be reconstituted after every election, causing avoidable periodic depletion of public funds. Again, based on historical antecedents in Nigeria, subsequent administrations soon disband such adhoc courts. As an aftermath of the Nigerian banking crisis of the 1990s, the Abacha military government set up the adhoc Failed Bank and Related Offences Tribunals which tried bank failure-related offences. Subsequently, the Tribunals were wound up and their jurisdiction transferred back to the Federal High Court from where it was carved out. The idea to wind them up may have been informed by the presumptuous feeling that bank failures are over in Nigeria. But we now know better. Do we re-establish failed bank tribunals in the face of the resurgence of banking crisis in Nigeria?

Similarly, some years back, many states in Nigeria set up adhoc Rent Tribunals to handle cases of recovery of premises and other related issues of landlord-tenant relationship. After a while, they were disbanded; I am unaware if any state still has any such Rent Tribunal. The cases previously adjudicated upon by them are now handled by District (Magistrate) Courts and High Courts, depending on the amount of money claimed as arrears of rent and mesne profits. One wonders if what informed their establishment in the first place has now ceased to exist. This will not be a good fate for electoral offences courts.

Another reason is informed by the nature of criminal proceedings generally. Unlike civil suits which are easy to fast-track, criminal matters take a longer time to conclude. The entrenched legal injunctions that “it is better for nine criminals to go scot-free than for one innocent man to be punished” and “the guilt of an accused must be proved beyond reasonable doubt” compel judges and defence lawyers handling criminal cases to be very painstaking and cautious. Essentially, except in a proven case of voluntary confession or plea of guilty (in non-capital offences), the judge should never be in a haste to convict an accused person. Consequently, criminal trials usually drag for long in courts. Interlocutory appeals in criminal proceedings equally contribute to the delay. Thus, an adhoc electoral offences court may be stuck with a case from one election year to another. A case in point is the unending type of prosecution of corrupt persons undertaken by the EFCC and ICPC.

Furthermore, by the nature of criminal proceedings, if such adhoc courts are composed of serving judicial officers, the demerits will eventually outweigh the benefits. One side-effect of deploying serving Magistrates or Judges in adhoc judicial duties is that while they serve in that capacity, the cases pending in their regular courts suffer abandonment, resulting in case congestion, delay and denial of justice. If their adhoc cases drag into another election year, it takes a long time for them to return to their regular courts. And it would be untidy to recruit new judges for such adhoc duties, since they may be disbanded upon the completion of their assignments and fresh panels constituted every election year.

Against this background, I humbly feel that an adhoc judicial body is inappropriate for this job. The proposed special courts for electoral offences should be a permanent arrangement. We should not rule out the possibility of electoral malpractices recurring in this country, mindful of the allurements of elective offices in Nigeria. For instance, what would a serving Federal legislator in Nigeria not do to get “re-elected” in order to harvest a bumper emolument of more than N27 million quarterly? Think of the high cost of electioneering in Nigeria which compels politicians to fight to get “elected” and recoup their huge expense. These are so because the concept of “service to the people” – venerated in other climes – is an anathema to the Nigerian politician. Besides, even if we stamp out violence during elections, how about electoral officials who disenfranchise eligible voters or collude with desperate politicians to thwart the will of the electorate? What of security personnel who shirk their duties and connive with exponents of electoral malpractices?

However, the proposed special courts for electoral offences should not constitute another judicial body that is distinct from the existing Federal and State High Courts. Otherwise, what happens to the judges and staff if a subsequent administration scraps the courts? Rather, they should be special divisions of the Federal and State High Courts in every state of the federation and Abuja, but with new judges appointed to man them. I do not subscribe to the use of magistrates here, although there may be misdemeanours and simple offences usually triable by them. The use of magistrates will engender delay, considering the lengthy process of appeal from magistrate’s courts. Again, if the special courts are a permanent part of the judiciary, then retired judges and lawyers should not be part of their composition.

On the contrary, if these courts would be adhoc, I humbly suggest that each be composed of three members, made up of a retired High Court Judge, a retired Chief Magistrate and a lawyer or a retired High Court Judge and two lawyers. The Magistrates and lawyers must be seasoned in litigation and criminal procedure.

To ensure speedy disposition of the cases, appeals from the decisions of the special courts may need to end at the Court of Appeal, although they are criminal matters. Furthermore, for the same reasons that the courts should not be adhoc, the several divisions of the Court of Appeal should take such appeals in their normal schedules instead of having special panels for them.

I learnt there is a bill currently before the National Assembly for the establishment of an Electoral Offences Commission, as recommended by the Uwais Electoral Reform Panel. We do not need any Electoral Offences Commission, for that would be a commission too many. The special electoral offences courts, whether permanent or adhoc, should be supervised by the National Judicial Council (NJC). And their establishment, composition, jurisdiction and modus operandi can be well provided for through an amendment of the Electoral Act 2006 and not a separate legislation.

As a matter of necessity, the Nigerian Bar Association (NBA) should be involved in the selection of the Judges or Members of the courts. And great care must be taken to appoint only persons of proven integrity to man these courts when established. In the final analysis, the material issues will be the independence, fairness and courage of the judges and prosecutors, in addition to the government’s political will and non-interference in the process.

Ikechukwu A. Ogu, a legal practitioner, writes from Central Business District Abuja. Email: ikechukwuogu@yahoo.com.

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