… Say ‘doctrine of necessity’ at work
Prominent Nigerian lawyers have upheld the decision by Zainab Bulkachuwa, presi dent of the Court of Appeal, to relocate the governor ship elections tribunals of Akwa Ibom, Rivers and Taraba States to Abuja, the federal capital territory (FCT) over security concerns.
Deborah Musa, secretary of the tribunal, had said that Justice Ishaq Bello, acting chief judge of the Federal Capital Territory (FCT) High Court, approved the FCT High Court, Apo, as the secretariat and trial court for the tribunals.
But governors on the plat form of the People’s Demo cratic Party (PDP) had recently, arising from a meeting where it elected Olusegun Mimiko, Ondo State governor, as its chairman, expressed con cern over the re location of the election petition tribunals in the affected states and that the governors were not comfortable with the decision.
The lawyers, who spoke with BusinessDay were of the view that the government of the day would be failing in its primary constitutional duty of section 14 (1)(b) of the 1999 constitu tion which demands that the security of the people be ensured and that judges and litigants and their witnesses are not excluded from the provision.
Festus Keyamo, human rights activist and social critic, said in an interview with BusinessDay that since it was the Chief Jus tice of Nigeria that ordered the relocation of the affected states’ tribunals to Abuja, the decision remained lawfully valid given the reasons cited.
“Once violence is threatened or there is likelihood of break down of law and order, there is no reason why for the safety of its members that the tribunal cannot sit elsewhere. Don’t forget that by sitting in Abuja it does not lose its nomenclature or its character. It remains the state’s election tribunal; it’s only that there is a sitting somewhere else for the purpose of security. There is nothing wrong about that,” he said.
According to him, complaints by the PDP governors amounted to nothing, and argued that since it has a limited number of days to conclude election petitions, and should there be any disas ter while the tribunal is sitting, the whole process would be affected.
Armstrong Chinagorom, se nior legal and advocacy officer, International Centre for Devel opment & Budget Advocacy, said section 285(2) of the 1999 con stitution of the Federal Republic of Nigeria 1999 (as amended) provides that “there shall be established in each state of the federation an election tribunal to be known as the governorship election tribunal which shall, to the exclusion of any court or tri bunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of governor or deputy governor of a state”.
According to him, “The sec tion reads that there shall be established in each state of the federation, not that there shall be established for each state of the Federation. This shows that the tribunal shall be established in the state in question and not outside the state”.
He noted that in essence, the constitution was to ensure access to justice in all ramifica tions, cost of litigation, time, and proximity to the tribunal by the parties and their witnesses and other stakeholders.
“On the strength of this alone, one would say that the relocation of the tribunal of the states is unconstitutional more so, when the word used in the section is ‘shall’, being a mandatory provi sion,” he said.
He however, explained that a look at the entire circumstance raises a number of questions as to whether it will be lawful under any circumstance to relocate the tribunal elsewhere.
“Those questions include: Does it make any sense what soever establishing a tribunal in a state where the essence of the tribunal will be defeated by insecurity? What is the guarantee that the tribunal will carry out its mandate in the state safely in the state? If the constitution provided no exception to the rule, do we insist on the rule when there are obvious circumstances that will make the provision impossible to implement? If for instance, in Riv ers State, the courts were closed down for several months partly because of insecurity, what is the guarantee that the tribunal can sit? Will the government of the day not be failing in its primary constitutional duty of section 14 (1) (b) of the constitution which demands that the security of the people be ensured? Or are the judges and litigants and their witnesses excluded from the provision?” he queried.
Chinagorom said if the above questions cannot be answered in favour of leaving the tribunal in the states, the legal, consti tutional and even natural law of ensuring the security and safety of the people, including the judges, the tribunal staff, the litigants, their witnesses, and supporters should justify the relocation.
“To the litigants the cost of prosecuting and defending the action could be higher than when it is held in the state. If the litigants go for lawyers in Abuja to reduce cost, then, it works against the practice and earn ings of the lawyers in the state. To the tribunal and its essence of establishment in the first place, the prevailing security situation in the affected states will not frustrate the sitting of the tribu nal and this upholds the ultimate interest of justice”.
He submits that if the secu rity situation will not make it reasonable and safe to have the tribunals in the affected states, the doctrine of necessity to fill in the lacunae arising from the absence of an exception to the provision of section 285(2) of the constitution should be applied.
NATHANIEL AKHIGBE
