‘Constitutional timelines for hearing, delivery of judgment in election petitions should vary’

Sebastine Hon, a senior advocate of Nigeria (SAN), and private legal practitioner, in this interview with BENJAMIN AGESAN in Makurdi, Benue State, speaks on the impact of Covid-19 on the dispensation of justice in the country, among other issues. Excerpts:

With rising infection rate of Covid-19 and fatalities across the states, what is the impact of the plague on the dispensation of justice?

Well, the National Judicial Council has just released rules regulating hearing of causes and matters during this period. That is the best the Council can do under the circumstances; because the virtual hearing ordered by some states and some courts was not effective enough. Loss of network during such hearings, interruption of calls and a whole gamut of other challenges could not permit that effort to take root. The rules rolled out by the NJC seem much more realistic; but I can assure you that things shall not be that easy. If medical personnel treating Covid-19 patients are being easily infected, then I wonder what Personal Protection Equipment (PPE) any person concerned with the dispensation of justice – the Judges, lawyers, court officials, etc – will put on to ward off the deadly virus. We, honestly, have a marauding and menacing enemy on the prowl. No one wants to take avoidable risks. To directly answer your question, everyone knows that all aspects of our community and national life have been adversely affected by the outbreak of the virus, and the legal profession cannot be an exception. Justice delivery has suffered remarkably as a result of the scourge – in terms of delay, defeat of some causes that ought to have been determined within specified times, loss of revenue for the government, dilapidation of structures and other challenges that cannot be easily explained. It will take not less than 5 years or even more – depending on how prolonged the virus stays with us – for the administration of justice to get retooled and to take back its pride of place as the general ombudsman for the common man.

What will happen to cases that are time bound?

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Here again, the Chief Justice of Nigeria, Hon. Justice I.T. Muhammad, the Acting President of the Court of Appeal, Hon. Justice Monica Dongban-Mensem, the Chief Judge of the Federal High Court, Hon. Justice John Tsoho, and other heads of courts commendably took proactive steps to save time-bound matters. Through these judicial leaders, pre-election and other time-bound matters were and continue to be disposed of. I must also commend the judicial officers who risked their lives and conducted proceedings during this very difficult time. Such sacrificial conduct must be commended by all and sundry. I personally hail them, including the court staff that worked and continue to work during court sittings. The lawyers who participated in the proceedings are also not left out; they are all heroes of our time. Apart from election-related matters, there are other suits that are subject to time limitation. Indeed, all matters, apart from criminal matters, suffer from time limitation. Such matters, in my humble opinion, cannot suffer effluxion of time; because the circumstances and consequences of the plague have created what we call force majeure or uncontrollable circumstances. In law, force majeure exterminates or at least suspends all legal obligations, hence during the lockdown occasioned by Covid-19, time ought to, and must, stop running. Time will not, therefore, continue to run during this time, hence time limitation will not affect causes of action.

The recent judgments of the Supreme Court in Imo and Bayelsa generated so much fuss, leading to variegated legal opinions from senior members of the Bar. Could that be due to lapses in our electoral laws or what; and if yes, what aspects of our electoral acts should be amended to improve on Nigeria’s electoral processes?

In spite of the hoopla that followed those two judgments, I would not want to offer any deep comment thereon. The Supreme Court has spoken; and it is not in the best tradition of our professional calling to criticise them openly, even if one disagrees with the learned Justices. I don’t even have any reason to criticise those judgments, because I have not taken time to read them. Even if I have such adverse opinions to make, the best channels are either through academic journals or text books – as I always do – or by personal memos written to the Justices, urging them to do a rethink in their subsequent judgments. With respect to the second segment of your question, I will readily say that there is no electoral system that is one hundred percent full proof. In particular, our electoral laws, albeit amended severally, need further panel-beating. The starting point, of course, is our Constitution itself. In my opinion, the Constitution should be amended to ensure that retired Justices and Judges of our courts are recalled to head Election Tribunals. I have made this position in several interviews over the years. The reason is plain enough: such retired Justices and Judges are, presumably, old enough and fairly more independent than sitting Judges and Justices, hence will deliver more even-handed justice. This is by no means running down the Judiciary; but it is an honest suggestion aimed at improving on the system. Secondly, the Constitution should further be amended in such a way that presidential, governorship and legislative election petitions will be determined within different time frames. The current situation whereby all petitions are by force of law to be concluded within 180 days spews injustice to many petitioners whose areas of coverage are very wide. For instance, a State Constituency is far smaller than the whole of Nigeria in all ramifications, particularly when it comes to proving electoral malfeasances. How and why would a petitioner in a State Constituency election petition, who has a far smaller area of complaint, enjoy the luxury of having his petition determined within 180 days, the same number of days a petitioner in a governorship or presidential petition has? Similar concerns arise with respect to the 14 days allocated to all manners of petitioners to prove their petitions. How would, for instance, a petitioner in a presidential election be able to call thousands of witnesses within just 14 days – when the Justices do manual recording of proceedings? The other aspect that needs to be amended is the area of tendering documentary evidence. The rule now is that only makers of such documents should tender them. The same difficulty of one calling thousands of makers of such INEC and other documents is faced by litigants in election petitions. I hereby strongly suggest that either the Evidence Act, 2011 or the Electoral Act, 2010 as amended should be amended to enable petitioners or witnesses called by them tender certified INEC documents in evidence during hearings, to be able to secure sound electoral justice. After all, the Evidence Act provides that there is a presumption of regularity and genuineness in favour of certified public documents. In any case, INEC is always made a party to all such election petitions, making it extremely impossible for any petitioner to smuggle unknown results or other INEC documents into the proceedings. Finally, the Electoral Act should be amended to specifically provide for use of the Smart Card Reader for accreditation. This will eliminate fraud at the all-important accreditation stage, thereby ensuring a more credible electoral process in our dear country.

You successfully defended the election of His Excellency Samuel Ortom, the governor of Benue State, in the law courts for two consecutive times. What would you say is the biggest challenge in handling election petitions?

I have analysed some of the challenges above. The biggest challenge is the time frame for presenting the parties’ cases at the Tribunal and before the appellate courts. For the avoidance of any doubt, I have handled similar petitions in several states like Akwa Ibom, Abia, Rivers, Bayelsa, Katsina, Taraba, Plateau, Ogun, Yobe. I have also handled the Presidential election petition; and I must tell you that time is the biggest challenge. In some of the sittings, we close around 2am and have to reconvene 9am for another round of straight sitting. That is why I am suggesting that the constitutional timelines for hearing and delivery of judgment in election petitions should not be the same for all elections. For instance, the Presidential should have 240 days; the Governorship 200 days; the National Assembly 180 days and State Assembly 150 days. Also, the timelines for presentation and defence of petitions should be extended; for it is unrealistic for a petitioner to call hundreds or thousands of witnesses within 14 days. It is also unrealistic for a sitting elected and inaugurated person to defend his mandate within 10 days.

You are a celebrated author, whose law textbooks are read widely within and outside Nigeria. You still practise law at the highest level. How do you combine the two?

As a Christian, I always announce that the Holy Spirit of the Sovereign God of the universe is my Source. As it is written in the Holy Bible, the joy of the Lord is my strength. All glory and honour to God the Father, God the Son and God the Holy Spirit. I say no more.

Finally, do you have any advice to younger lawyers?

Yes, first of all, I strongly charge them to be God-fearing. Then, they should be hardworking, honest and focused. You cannot be dishonest and expect good success. You cannot be lazy or unfocused on what you are doing and expect good success. Above all, you cannot leave God by the side and expect to have a smooth sail in life.