COURT ORDERS STOPPING CONDUCT OF LOCAL GOVERNMENT ELECTION IN RIVERS STATE AND POLICE FROM PROTECTING LIVES AND PROPERTY HAVE NO LEGAL BACKING: A SERIOUS THREAT TO OUR DEMOCRACY
No doubt, Nigeria democracy which we finally secured on the May 29, 1999 after many years of struggle by Nigerians and Foreigners may be killed by the Judiciary if the Judiciary is not conscious in its relationship with politicians and political class. There is a serious threat to our democracy and the Judiciary must be vigilant in protecting and sustaining democracy in Nigeria.
In the last few days, all eyes have been on Rivers State of Nigeria over the conduct of Local Government Election in Rivers State. It has been a battle between the Governor of Rivers State, His Excellency, Sim Fubara, His Godfather, His Excellency Nyesom Wike, the Federal High Court, the State High Court in Rivers State, the Nigeria Police, DSS, the divided Rivers State House of Assembly, the PDP, the APC, APP and other political parties, citizens and the general public.
Actually, I have read a lot of write ups and listened to a lot of conversations but what I have not really read about is the constitutionality of Court Orders stopping the Local Government Election in Rivers State and the police from providing security for the election.
The Attorney-General of the Federation some months ago approached the Supreme Court of Nigeria in the Federal Government pursuit of Local Government Autonomy in Nigeria. The Supreme Court affirmed the position that it has always stated that Local Government Council can only be administered by democratically elected Chairmen and that it is unconstitutional to run the council without elected officials.
This judgment forced so many states who were not ready to conduct Local Government Election to embarked the journey of conducting Local Government election. The Governor of Rivers State on the strength of the Judgment of the Supreme Court started the process of conducting the Local Government election in Rivers State.
Since the process was put in motion for the conduct of Local Government election in Rivers State, the Wike Group and Fubara Government have been fighting each order and obtaining Court orders for election to hold and for election not to hold. The most recent is the Federal High Court restraining the police from participating in the election. The Federal High Court also restrain the RISIEC from conducting the election and INEC from releasing Voters Register to RISIEC for the conduct of the election.
With all due respect, the Court Order stopping the Rivers State Independent Electoral Commission (RISIEC) from conducting Local Government Election and the Police from providing security is absolutely illegal and unconstitutional. This is because the Rivers State Independent Electoral Commission (RISIEC) is a statutory body established by law and with specific function to conduct election into the Local Government Areas in Rivers State. Also, the Nigeria Police Force is established under Section 214 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended). Section 4 and 24 of the Police Act 2020 provide for the functions and powers of the Police to protect lives and property in Nigeria. The duties are clearly captured in the Law establishing them.
It is a well established position of the law and we submit with humility that public body or institution cannot be restrained by injunction from performing it duty. See the case of A.P.C v B.S.I.E.C (2015) All FWLR (PT 770) 1367 at 1399 para E – F and RT. HON. COSMOS CHUKWUDI NDUKWE V DR. IYORCHA AYU & ORS (2023) 309 at 352 paras A – B
No argument at all except for non legal minds, the present Electoral Act 2022 forbids the stopping of electoral process by way of injunction. The Court has no power to stop conduct of election. Section 84 (15) of the Electoral Act provides;
“Nothing in this section shall empower the Courts to stop the holding of primaries or general elections under this Act pending the determination of a suit”.
We submit that, to stop the conduct of an election is against the provision of Section 84 (15) of the Electoral Act, 2022. In the recent Akwa Ibom State case of RT. HON. FRIDAY IWOK & ORS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2022) LPELR-58805(CA), the Court held,
“On the issue of setting aside the primary election conducted by the 2nd Respondent in Akwa Ibom State on 22nd, 23rd and 24th May, 2022 and the stay of execution granted on the 18th May, 2022 at the instance of the 2nd Respondent. I fail to see the value that will accrue to the Appellants. The primary election the Appellants sought to set aside is for the various offices in the State Assembly, National Assembly and Governorship during the 2023 General Elections. The learned trial Judge felt tempering with the order will amount to giving with one hand and taking with the other. He concluded that to stop the conduct of the primary election would be against the provision of Section 84 (15) of the Electoral Act, 2022. He therefore granted the order to maintain the status quo ante bellum.
Section 84 (15) of the Electoral Act provides; Nothing in this section shall empower the Courts to stop the holding of primaries or general elections under this Act pending the determination of a suit.”
The Federal High Court Order stopping the conduct in Rivers State election was contrary to Section 87 of the Electoral Act 2022 which bars courts from stopping INEC in carryingout its electoral duties. By Section 87 of the Electoral Act 2022, no court can stop the holding of an election pending the determination of the suit.
Shockingly, the Federal High Court also restrained the police from performing his statutory function of protecting lives and property in Rivers State during the Local Government Election. We submit that the Court cannot also stop the police from performing its statutory function. We refer to the case of MUKHTAR LUKMAN LADAN v. ENGR. MUHAMMAD KABIR LAWAL (2024) LPELR-62079(CA) Per M. S. HASSAN ,JCA, P. 10, paras. B-D,
“The Fundamental Rights (Enforcement Procedure) Rules are not meant to shield any citizen from criminal investigation or to be used to stultify the investigation of an alleged crime.”
The Court held further as follows;
“Section 214 of the Constitution 1999 (as Amended) recognizes one Police Force for Nigeria and the said Police are given a duty under Section 4 of the Police Act to prevent and detect crime, apprehend offenders, preserve law and order, protect life and property and enforce all laws and regulations with which they are directly charged. It is an important statutory duty which they owe to the generality of Nigerians and all other persons lawfully living within Nigeria, it follows that in their duty to detect crime or allegations of crime committed by any person should normally be investigated by the Police.”
See also the case of PASTOR TAIWO ABIODUN AMOS & ORS v. PASTOR JOSEPH O. DANIEL & ORS (2023) LPELR-60454(CA) POLICE, Mallam Abdullahi Hassan & Ors V. Economic and Financial Crimes Commission & Ors (2014) 1 NWLR (Pt. 1389) 607 @ pp. 632 – 633, Dokubo-Asari V. FRN (2007) 12 NWLR ((Pt. 1048) 320 @ p. 360.
The question is, does our electoral laws support stopping of conduct of election in Nigeria? The answer is in the negative. The Processes filed and obtained are abuse of court process. It is my submission that the court orders obtained against the conduct of Local Government election in Rivers State was the height of abuse of court process. It cannot be explained how we got here. In the case of ADAMU V NIGERIA AIRFORCE (2022) 5 nwlr (Pt.1822)159 at 186 paras A – B Eko, JSC held,
“A process of court filed which has no backing of the law is regarded as an abuse of court process”
The court process could also be said to be abused where there is no iota of law supporting it. In other words, the court process is premised or founded on frivolity or recklessness. see Ntuks v. NPA (2007) 13 NWLR (Pt. 1050) 392.
The judges must maintain a big distance from politicians as admonished by Niki Tobi JSC in BUHARI VS INEC (2008) 19 NWRL (PT. 1120) 246 at 409, where the Erudite Jurist held,
“I see from exhibit EP2/34 the need for Nigerian Judges to maintain a very big distance from politics and politicians. Our Constitution forbids any mingling. As Judges. We must obey the constitution. The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trade mark of politicians. Non-bias is the trade mark of the Judge. That again creates a scenario of superlatives in the realm of opposites. Therefore the expressions, “politician” and “Judge” are opposites, so to say, in their functional contents as above, though not in their ordinary dictionary meaning. Their waters never meet in the same way Rivers Nigeria and Benue meet at the confluence near Lokoja. If they meet the victim will be democracy most of the time. And that will be bad for sovereign Nigeria. And so Judges should, on no account, dance to the music played by politicians because that will completely destroy their role as independent umpires in the judicial process. Let no Judge flirt with politicians in the performance of their constitutional adjudicatory functions. When I say this, I must also say that I have nothing against politicians. They are our brothers and sisters in our homes. One can hardly find in any Nigerian community or family without them. There cannot be democracy without them and we need democracy, not despotism, oligarchy and totalitarianism. They are jolly good fellows. The only point I am making is that their professional tools are different from ours and the Nigerian Judge should know this before he finds himself or falls into a mirage where he cannot retrace his steps to administer justice. That type of misfortune can fall on him if the National Judicial Council gets annoyed of his conduct. Ours are not theirs. Theirs are not ours. I will not say more. I will not say less too. So be it”
I need not add words in what was well captured by Niki Tobi in the above quote.
Before I conclude, I must remind all that in the year 1993 during the MKO Abiola election popularly called “JUNE 12”. It was a Court Order that was obtained to stop the Electoral Body performing its function. In the 1993 drama, there were Court Orders and Counter Court Orders. We should never go back to the bad old days. Never again should our Judiciary be allowed to ridicule itself through the selfish ambition and aspirations of politicians.
CONCLUSION
In concluding, I must emphasized and state categorically that every Nigerian has a duty to protect and sustain this Nigeria Democracy that was secured with blood of many political and democracy activists in a struggle that lasted from the year 1983 to May 29, 1999. The struggle for this present democracy lasted for good sixteen (16) years. Sixteen years of unlawful arrest, detention, raiding of peoples homes, offices, killing of opposition voices, attack of protesters, hijacking of the judiciary, legislature, intimidation, harrassment, etc. We must remember that the pains of securing democracy would never go away in some families who lost their love ones in the fight for this democracy. So many of these families are not benefitting at all or even remembered for the sacrifices of their loves. It is therefore our duty to use our position to protect this democracy.
Ekom Nwoko, Esq is Lawyer with Nwoko & Co. He can be reached via 08024683888 and ekomnwoko8@gmail.com