Three components of Nigerian laws are: The Constitution, Laws made by legislature since the adoption of the constitution, and Supreme court’s decisions. The constitution expressly prohibits the legislatures from making what is known in legal parlance as ex post facto laws. By implication Supreme Court (SC) is also barred from making the same ex facto laws via its decisions. It is therefore pleasing that the SC has agreed to reopen the case of Obiechina VS Chime (Enugu Gubernatorial Election) filed about 5 years ago and which is yet to be adjudicated.
Per Nigerian Vanguard report http://www.vanguardngr.com/2016/10/enugu-guber-primaries-how-far-can-obiechina-go/)
one of the panelist judges Justice Dattijo Muhammad, asked of the relevance of the suit considering that another general election has been conducted and somebody had been sworn- in into the office under contest. Justice Dattijo Muhammad’s question is the subject of this follow up to my earlier essay on Obiechina VS Chime.
If the SC wants an easy way out it would answer the learned justice’s question by saying “it is too late to reopen the question.” Apart from being a bad precedent it would also be a miscarriage of justice. It would also make the defendant in the case (INEC) both the defendant and the judge – a condition the SC cannot allow in its court. The defendant (INEC) knew very well that it had a case pending in the court and proceeded to conduct another election thereby creating the condition that prompted Justice Muhammad’s question. It ought to be the duty of SC to make sure that such cleverness is never attempted by any person or body to take laws into their hands.
The SC should proceed with its current plan as instructed by the Chief Justice Mahmud Mohammed which is to serve all the defendants a new set of hearing notices. And the case to reheard.
Supreme Court decisions (precedents) become part of the law of the land for justice rendered on the present cases become the basis for similar future cases. If one were to accept this premise (that it is too late to adjudicate Obiechina VSChime), it follows that INEC could in the future ignore a pending case in court and conduct elections and that these new elections would become legal. This will be exactly an ex post facto law.
Ex Post Facto Laws are generally forbidden in both written constitutions and by international organizations. Since Supreme Court decisions are considered laws until another Legislation is passed vacating the decision, it follows that this should apply.
Notwithstanding the foregoing provisions of this section, the National Assembly or a House of Assembly shall not, in relation to any criminal offence whatsoever, have power to make any law which shall have retrospective effect.
Nigerian Constitution Part II (9)
This can be interpreted that ex post facto laws are not allowed by the Nigerian constitution. If so Obiechina VS Chime must go on in accordance with existing laws when it was brought to the Supreme Court. The laws allowed for petitions to court for electoral misconducts, and resolutions by the court. Nigerian Supreme Court should therefore resolve Obiechina VS Chime.
An ex post facto law (in this case a Supreme Court decision to not review Obiechina VS Chime) is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law. It will be a miscarriage of justice and the precedence would carry into future overrides of judicial status of election petitions by INEC or other institutions. This is perhaps the most important rationale for bringing up and adjudicating the petition on its merits
It is worth noting that nothing has changed except for passage of time. All the evidence provided with the petitions, all the lower court trials and decisions are still available to the SC to use in making its decisions.
The Supreme Court of Nigeria should not allow its powers to be usurped by INEC or any other institution in Nigeria or Nigeria is lost. It is worthy of note that this is not the first time that INEC conducted an election when a matter was before the court. INEC had received a serious reprimand when it had conducted an election when Governor Peter Obi’s term was before the court. That election was not known to the laws of Nigeria at that time. All the elections conducted by INEC since Obiechina VS Chime was before the court is therefore unknown to the Nigerian law.
SC should find a way to censure INEC for constantly taking the law into its hands. It appears as if INEC does not respect Nigeria’s apex court for some reason. INEC should be made to understand that until Nigeria abolishes the Supreme Court, that all persons and institutions in Nigeria must recognize its authority.
Written by Benjamin Obiajulu Aduba.
