After 18 days of waiting anxiously for Justice Zainab Bulkachuwa to name her replacement and fix a date for hearing in a time-bound presidential election petition, the Peoples Democratic Party (PDP) and its presidential candidate, Atiku Abubakar can now heave a sigh of relief.
This followed news that the tribunal has issued and served notice on all parties concerned for the commencement of hearing tomorrow in a proceeding that has 180 days life-span, starting from the date it was filed.The petitioners had filed the action on March 18, 2019, challenging President Muhammadu Buhari’s victory in the February 23 poll, and by law, the hearing must be concluded by September, 2019.
Justice Bulkachuwa withdrew as a member and head of the five-man panel on May 22, following the allegation of the likelihood of bias levelled against her by the PDP and Atiku. The petitioners had alleged in their earlier application filed on May 16, 2019 that with the judge remaining as a member and head of the five-man tribunal, their petition would not be handled impartially.
The application was based on the fact that Bulkachuwa’s husband, Adamu Bulkachuwa, is a senator-elect on the platform of the All Progressives Congress (APC), the party whose victory the petitioners are challenging at the tribunal.They also added that her son, Aliyu Abubakar, was a governorship aspirant on the platform of the same party in Gombe State.
Nine days after she recused herself without appointing a replacement, the petitioners wrote to her on May 31, complaining that they were already running against time due to the “strict requirement of keeping to the constitutional calendar for a petition” and urged her to act fast in the interest of justice.
Decrying the undue delay in appointing a replacement for such sensitive matter, a professor of law at the University of Benin, Edoba Omoregie said there was no reasonable excuse for the delay, even as none has been given so far. This development, he said, goes to show that something untoward is happening. His words: “The implications for the justice system and the electoral process as a whole are several, including the fact that those seeking justice will lose faith in the system and resort to self-help. That can take several complexions.
“Perpetrators of electoral fraud may be buoyed to continue their obnoxious actions, knowing that the justice system offers no hope of reprieve for the aggrieved. Nigerians as a whole, especially supporters of the aggrieved, will lose faith in the system and in turn they cannot be expected to defend it if challenged by anti-democratic forces.
“The nation’s determined effort at democratic stability runs the risk of being reversed by elements I will describe as fifth columnists, who could, quite easily, take advantage of the frustration with the electoral and justice system to truncate democracy.”
Concerning the direct consequences of the delay on the petition itself, Omoregie said days lost cannot be regained, suggesting to the petitioner to make do with the rest available days by resorting to skilled case management mechanisms. “Honestly, this is easier said than done. This is because of the enormous amount of documents and long list of witnesses lined up on both sides for the petition and defence.
“This goes to show that the decision to limit time for conclusion of election petitions was never properly thought-out. Legally, this is against basic principles of the justice system. It’s normal to set limit for the commencement of an action in court or tribunal, but quite abnormal to set time for conclusion of trial. That ought to be left to the judiciary to determine,” he argued.
He further argued that the National Assembly got it all wrong by limiting the number of days for conclusion of election petitions, adding that there is need for a review going forward by leaving trial and time for conclusion of petition to courts to determine.
“Judges are duty-bound to avoid delays in trials and to equally avoid undue haste in the process. By their training, judges are equipped to strike a reasonable balance. Although it’s said that justice delayed is justice denied, it’s also true that justice hurried is justice denied,” he said.
Also, the Director, Access to Justice, Joseph Otteh stressed that time is of essence in electoral litigations and that it would amount to a denial of the right to seek redress for any alleged injustice for a court to delay the adjudication of those grievances by its internal run of pace. He explained that the failure of the Court of Appeal to recompose its panel with dispatch gives room for some concerns.
“It is also disturbing given that the delay might be misinterpreted by some as a ploy by the judiciary to frustrate a fair and meritorious adjudication of the case. The delays may be caused innocently and without ulterior motive, but the judiciary does walk a tight rope now and needs to avoid putting itself in greater danger of public distrust or getting caught up by the rough tides of some shades of public opinion,” Otteh advised.
Mr. Theophilus Akanwa, a Lagos-based legal practitioner said while the delay lingered, the acting CJN and National Judicial Council (NJC) should have intervened in the matter by ordering her to appoint her replacement expeditiously. Another Lagos-based lawyer, Stephen Azubuike noted that the situation was not healthy for the country as a whole and not just the tribunal.
He said: “The 1999 Constitution (as amended) clearly gave the Court of Appeal original jurisdiction under Section 239 to hear and determine Presidential Election Petition.
The Court of Appeal itself is led by the President of the Court of Appeal in the person of Justice Bulkachuwa. “Given the agitations trailing Justice Bulkachuwa’s membership of the panel of Court of Appeal justices to determine the case, Her Ladyship recused herself from the Panel, which she chaired, on personal reasons.
“Now, part of the administrative functions of Justice Bulkachuwa as the President of the Court of Appeal, was to appoint Justices who would handle a given case pending before the Court of Appeal. Having recused herself from the panel, Her Ladyship could have urgently proceeded to appoint another justice of the Court of Appeal as a replacement…” Azubuike stated. He, however, explained that even though the Constitution did not specifically provide for a time frame, the learned jurist would have considered the short period within which the petition ought to be disposed off in ensuring that a replacement was made without wasting anytime.
Considering the nature of the agitation, which Bulkachuwa had to bow, she might have taken her time to ensure that any other justice appointed into the panel would be reasonably considered “clear” from any connection with the political atmosphere and powerhouses.
“Nevertheless, this should not have taken too long so that it doesn’t appear like the petitioners were made to suffer for the alarm they raised against Justice Bulkachuwa’s painful recusal. “As it stands, the hearing and determination of the petition within the constitutionally permitted period is at risk. This should weigh on the mind of the President of the Court of Appeal more than anything else,” he stated.
In the same vein, Bankole Kayode another legal practitioner defended Bulkachuwa saying no one knows whether justices nominated to replace her also declined for one reason or the other since such would not be made public. His words: “This is election petition at the topmost level. It is possible that some of the justices are cousins or relatives of one big political shot or the other. They could have links to politicians too and what happened to Justice Bulkachuwa may also happen to them if they decided to sit in the panel.
“Bearing in mind that time is of essence, she has to do her job with a lot of caution and consultation. It is not something that she will just name anybody immediately. If she does that and it goes the same circle of recusal, time would still be running.”
Kayode stated that appointing a replacement in such circumstance may not be as simple as members of public see it.“She must do a painstaking investigation to ensure that whoever she’s going to name to substitute her on that panel must be one that cannot be faulted on the basis of the likelihood of bias,” he emphasised.