The Nigerian nation prepares for the conduct of general elections with new political office holders expected to be elected in the tightest contest in the annals of the nation. It is stale news that the elections initially slated for 14th and 28th February, 2015 had to be postponed to 28th of March and 11th of April 2015, respectively. Prior to this postponement, the electoral umpire, the Independent National Electoral Commission (INEC) had in different fora, most notably, at the National Council of State meeting held on the 5th of February, 2015 at the Presidential Villa affirmed its preparedness for the conduct of the elections. Similar to this assertion by the electoral umpire, were the categorical statements by the security agencies that they were also ready to assist the electoral commission to conduct free and fair polls by providing the needed security coverage.
It therefore came as a rude shock to Nigerians when Professor Attahiru Jega announced the postponement of the elections on the lone ground that the heads of the security apparatus had written to inform him and the Commission of their unavailability on the fixed dates of the elections owing to the fact that they had a special war to prosecute against the Boko Haram sect at the Northeast of Nigeria; they needed a postponement of at least six (6) weeks to enable them concentrate on the military offensive.
As is usual in Nigeria, a lot of conspiracy theories have inevitably sprung up. In any event, since new dates have been fixed, the elections are expected to take place on these dates. At the conclusion of the elections, winners and losers will be announced; some aggrieved candidates will surely dispute the declared results. This inevitably triggers recourse to judicial succour.
Exit elections. Enter petitions.
In Nigeria, election petitions are a recurrent decimal of the national political life. Since the 1960’s when Nigeria gained independence from Britain, the nation’s political jobbers have been involved in a wide range of political abracadabra. There is a time-tested and weather-beaten perception in Nigeria that the electoral bodies are known appendages of the Federal Government, dancing to the musical tunes of incumbent Presidents and Governors and their political parties, and that rigging of elections and the snatching of ballot boxes have become the favourite past times of these politicians.
Depending on the prism of a person’s political viewership, elections have arguably not been free and fair, with wide-spread vote manipulations and distortion, and more often than not the winners declared by the electoral bodies are usually rejected by the losers. Hence, the resort to the judicial alternative – filing of election petitions to challenge the authenticity of the electoral body’s result declarations.
Election petitions are litigations filed in court (in this case, a special court known as Election Petition Tribunal) by an aggrieved party or candidate who seeks to challenge the validity or authenticity of the results declared by the electoral body, the Independent National Electoral Commission (INEC). These election petition tribunals are a creation of Section 285 of the 1999 Constitution as amended. There are roughly 1695 electoral offices vied for during general elections, although, there are some states whose gubernatorial election timetables have been pecularized by judicial pronouncements; Ekiti, Osun, Bayelsa, Anambra et al fall into this category.
Election petition tribunals are not seised of jurisdiction to entertain pre-election matters; these are disputes where aggrieved aspirants or candidates challenge the process and outcome of nominations by their various parties. These suits are required to be filed before the elections proper so as to confer jurisdiction on the adjudicating courts. Matters of this category go up to the Supreme Court with the possible consequence of ousting the declared winner of the polls after swearing into office. A case that sneaks to mind is the Supreme Court decision of Rotimi Ameachi vs. INEC (2008) 5 NWLR (Pt. 1080) 227, where the apex court ordered that Rotimi Ameachi be sworn in as Governor of Rivers State with the court having held that he was the valid winner of the PDP gubernatorial primaries of 2006, and not Sir Celestine Omehia, who contested and won the Gubernatorial polls. It is worthy of note to highlight that Rotimi Ameachi did not contest the Gubernatorial polls yet was declared winner by the Supreme Court on account of their findings in the pre-election matter he filed.
Delays in Resolving Election Disputes
Before the 2011 polls in Nigeria, a loud outcry in respect of election petitions was the large amount of time it took to dispense with petitions at the various election petition tribunals constituted all over the nation to handle and adjudicate on electoral disputes. In some ridiculous instances, the disputes are resolved after over three years into the term of the disputed office; thereby robbing the rightful winner of some part of the fruits of his labour (this necessitated the landmark and locus classicus decision of the Supreme Court in the case of Peter Obi vs. INEC (2007) 11 NWLR (Pt. 1046), where the apex court held that the proper interpretation of Section 180(2) of the 1999 Constitution, was that Governor Obi’s term of office would commence running from the day he was sworn into office and not when Dr. Chris Ngige was sworn in).
In rare circumstances, the National Assembly of Nigeria reacted by amending the Constitution to reflect this tenure-related judgment of the Supreme Court. It also amended section 285 of the 1999 constitution to facilitate speedy disposal of election petitions and appeals. Before this noted amendment, section 285 of the 1999 constitution provided just for the constitution and jurisdiction of election tribunals. The section was amended by including subsections 5 – 8 to the section. These subsections as amended provide thus:
“(5).An election petition shall be filed within 21 days after the date of the declaration of result of the election.
(6).An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
(7).An appeal from a decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal.
(8).The court in all appeals from election tribunal may adopt the practice of first giving its decision and the reasons therefore to a later date.”
These were also enacted verbatim by the National Assembly in Section 134 (1)-(4) of the Electoral Act, 2010 (as amended) and both enactments proved beyond doubt that election petition tribunals and courts are required, as a matter of law to deliver judgment in matters before them within the prescribed limited time otherwise such matters would be struck out having been caught by limitation of time as were the technical outcomes in petitions and appeals in the cases of Daniel Sarror V Gabriel Suswan (2012) LPELR – 9728 (SC), Akpan Udoedehe V Godswill Akpabio (2011) LPELR – 9273(SC), and Dora Akunyili Anor V Chris Ngige & Ors. These and other numerous petitions were stuck out at the election petitions tribunals due to the expiration of the constitutionally stipulated 180 days.
Under Sections 285(2), 246(1)(c) and 233(2)(iv) of the 1999 Constitution as amended, gubernatorial elections are challenged at the Election Tribunal, with the Court of Appeal and Supreme Court having appellate jurisdiction. In accordance with Sections 285(2) and 246(1),(b)&(3) of the Constitution, the Election Petition Tribunal and Court of Appeal are the courts with jurisdiction in respect of State and National Assembly elections while according to Sections 239(1) and 233(2)(1) of the Constitution, the Court of Appeal and Supreme Court adjudicate over petitions and appeals arising from the conduct of the Presidential elections.
It is mandatory for presidential election petitions to be decided within 180 days at the Presidential Election Tribunal (Court of Appeal) and 60 days at the Supreme Court but for the governorship elections, the Constitution stipulates 180 days at the Tribunal, 60 days at the Court of Appeal and 60 days at the Supreme Court.
The quorum of an election tribunal is properly constituted with the chair-man and any other member. By Section 239 (2) of the Constitution, the Appeal Court panel is properly constituted with at least three Justices to hear and determine original petitions challenging the conduct of the Presidential elections. But Section 234 of the Constitution provides that the Supreme Court panel should be properly constituted with at least five Justices of the court to hear and adjudicate on presidential and governorship appeals pending before it.
There are however, always two sides to a coin and no matter how meritorious an enactment may be, there are bound to be some unpalatable fallouts of same as is the case presently with the elegant and precise provisions of Sections 285(5)-(8) of the 1999 Constitution (as amended).
While this amendment moves by the National Assembly were highly commended, in practice, a lot of problems arose. It is on record that most of the petitions arising from the 2011 elections were dispensed with on technical grounds of this nature, thereby further worsening the problems being that justice was not served on the merits of the facts and issues of the case.
The surgical operation performed on the Constitution and the Electoral Act, 2010 by the National Assembly left loopholes which were exploited by respondents or election tribunals that indulged respondents in frivolous applications which were not in the interest of the good of society, the sole intent when the legislature effected the amendments to our electoral laws. This apparent failure to move with the tide has obviously led to mutative results contrary to the good intentions of the legislature in trying to curb the mischief of inordinate delays in disposing of election petitions and appeals.
As we approach yet another electoral season, it is pertinent that some recommendations be made so as to broaden our electoral horizon as we gravitate towards more credible elections.
Recommendations for Better and Quicker Resolution of Electoral Petitions
First, legislative amendments should be made to the Nigerian Constitution and Electoral Act so as to shift the burden of proof to the electoral body, INEC. It is on record that some officials of the electoral body are unscrupulous and have colluded with interested parties to subvert the wishes of the people on a number of occasions by rigging the elections and manipulating the votes. If INEC is made to shoulder the duty of proving the conduct of credible elections, it will become serious in ensuring proper and responsible conduct of elections. In addition, its conniving officials should be publicly disgraced and punished, serving as a deterrent to potential unscrupulous elements in its employ.
Second, the practice directions, rules and laws guiding electoral petitions should be amended to ensure that interlocutory applications must be decided during the substantive judgment, with the consequence that no interlocutory appeal should be allowed while the substantive suit is stayed pending appeal. If this is done, it will aid in reducing the time petitions are conducted.
Third, adjournments should be rarely granted owing to the time limit of the nature of litigations. There are instances when senior lawyers are known to seek for adjournments on flimsy grounds such as the need to attend the burial ceremonial of distant relatives. Nothing stops the particular counsel from attending the burial, but what about sending someone from his chambers to continue with the matter while he is away. Besides, usually in election petitions, different law offices combine as a team to prosecute or defend petitions, so any other counsel can hold the brief of the team leader for expeditious resolution of the petition.
Fourth, electoral offenders should be prosecuted and jailed. One cannot understand the failure of the National Assembly to create an Electoral Offences Tribunal as recommended by the Justice Mohammed Uwais Panel while beneficiaries of illegal and invalid result declarations of INEC should be banned from holding public offices.
Conclusively, the conduct of election petitions can be patterned in such a way as to be worth the while of all parties involved, with the majority of litigants going home with the inner satisfaction that justice was indeed served, notwithstanding who won or lost. It is trite in law that justice should not only be done but should be manifestly seen to be done.
Aruoture John is a Legal Practitioner based in Delta State.