Law as it ought to be or law as it is? In respect to our democracy, if the latter holds sway, would democracy breathe and thrive? Can a meaningful change happen through a flawed approach? These and many more questions are constantly begging for answers in this write up.
An election Petition is a method of commencing all actions instituted to challenge the result of an election in Nigeria. It is the formal legal means used to dispute an alleged election irregularity by a candidate or a political party who participated in an election (Abubakar V INEC 2004) NWLR pt 871 at 163).
Functionally, an election petition s a post-election proceeding instituted to challenge the validity of an election or dispute the due return of a candidate, or claiming the wrongly return of a candidate on the grounds of lack of qualification, corrupt practices, and irregularity in the election process.
The legal frame work for litigation in Nigeria in respect of election into the office of President, Vice President, Governors and their Deputies, Members of National Assembly and State House of Assembly and the Area Council Elections in the Federal capital Territory is made up of the constitution of the Federal Republic of Nigeria 1999 (As amended), Electoral Act 2010 (As amended), and the Election Petition Tribunal Rules and Procedure, contained in the First schedule of the Electoral Act. These legal instruments provide both the substantive and procedural law on election litigation in Nigeria. Between them, are issues on the jurisdiction of the Court, the Competence of Petition, and or Petitioner, the time limitation for filing petition, presentation of the case, and delivery of judgments are established.
According to the Electoral Act, 2020 (As amended) the grounds on which an election can be challenged includes the following:
That a person whose election is questioned was, at the time of the election, not qualified to contest the election; or
That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
That the respondent was not duly elected by a majority of lawful votes cast at the election; or;
That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election; and
That the person whose election is questioned had submitted to the commission affidavit containing false information of a fundamental nature in and of his qualification for the election (see Ojukwu v. Yar adua (2009) 12 NWLR (Pt 1154) 50.
This article seeks to bring to a glaring bare the lapses of the second ground, i.e (ii) and its great significance for the free and fair conduct of the election and the integrity of the whole electioneering process. The legal implication therein is that where a petitioner succeeds in establishing its case in this ground, the election is invalid and is liable to be nullified. However, the draftsmen of the Act did a volte-face in section 139 of the Act by introducing ambiguity in the form of a provision to the effect that: “An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election” .
This provision conferred unfettered discretion on the court or tribunal to determine the substantiality of compliance with electoral law and rules in the conduct of an electoral law and rules in the conduct of an election in which it is neither a participant nor an observer, effectively setting the court on a collision course with of public opinion. Commenting on the danger that an equivalent provision in section 146(i) of the 2006 Electoral Act presages for election litigation in Nigeria, an eminent jurist, Ogundare JSc in his dissenting judgment in Ojukwu V Yar ‘Aduna observed the following inter alia.
“……. It is saddening in the extreme that section 146 (1) above, a provision which was designed to ensure that minor infractions of the Electoral Act which could not, in any event, be expected to affect the result of an election has been elevated by our courts into a ground for the accommodation of the most glaring failure to comply with the provisions of the Electoral Act… where a petitioner’s complaint is founded non-compliance with an essential condition precedent to the conduct of the election, this cannot and ought not to be seen as a non-compliance that did not substantially affect the result of the election. The implication of this, is that the preponderant majority of election petitions in Nigeria would fail in our courts even in the face of clear evidence of serious malpractices unless a proper and correct interpretation is given to section 146 (1). Little wonder, no petition on malpractices in a presidential election has seen the light of the day. Signaling the truism that once declared the winner in a presidential election, your election cannot be annulled.
This ambiguity in the form of a provision has by implication shifted the power to decide elections from electorates to the courts, this giving room for the judiciary to subvert the general will of the people. Going to court to seek a redress to an electoral injustice should be ordinarily as a result of increased confidence in the role of the judiciary as a fair and impartial arbiter of electoral disputes. A situation whereby the judiciary is given a ‘carte blanche’ to decide who wins or lose an election is justice itself miscarried. It is the court casting the final vote. Despite the persuasive argument in favour of using the courts to decide the outcome of an election, it should not be at the expense of building the trust that citizens should have in the electoral process.
Between 2007 and 2019, it is believed that a total of 3479 election petitions were reportedly filed.
In 2019 alone, a total of 81 petitions were filed at the various election tribunals for the general elections. When you compare this statistics you can now understand why the courts had a considerable say in the outcome of the 2019 elections and going by what is already summering in the 2023 general elections, we might have more litigations than ever before.
Expectedly, there are fears and concerns that the courts have usurped the powers of the electorate to determine the outcome of elections. These fears become gigantic when criticisms and comments are trailing this unprecedented level of “judicial intervention” in the election process. Some of these criticisms have called to question the integrity of the judiciary and its continued relevance as a fair and impartial arbiter of election disputes.
Some of the judges handling elections matter have been accused or indicted of crass and undisguised partisanship and giving rulings and judgments that are absurd and ridiculous, thus giving credence to the fact that money is the life blood of our political process. This is against the background that our political process. This is against the background that our politicians and political parties are not about ideology or ethos, but cash, expediency, malleability and influence. All these amount to an endorsement of an extremely bad precedent.
In an article written by Iriekpen D. in This Day Newspaper, 16 December, 2010, he asserted that “many of the judgements delivered by the tribunals and courts of appeal were below expectations, thereby denying of lot of petitioners and appellants justice ……in some cases, some of the judges handed vague judgments. Some petitioners were denied justice on technical ground rather than on the merit of the case”.
According to Abiola Akiyode Afolabi Ph.d Election adjudication is the legal process by which the court or judge reviews the pieces of evidence, arguments and legal reasoning set forth by opposing parties or litigants in an election, to decide on the rights and obligation of the parties. Going by this, it implies there will be hearing by the court; that the parties give notice of factual issue(s) involved in their disputes to the court; and that the court considers and settles the parties claim on established principles of law; when the fairness of an election is called into question, we need an effective process of complaints adjudication to shift the facts and complaints whether proper election procedures were followed as prescribed in laws and regulations. If they were, then the election result reflected the will of the people (and we can say it is law as it ought to be). If not then appropriate remediless are involved to assure that the will of the people will be followed.
Lives in Lagos,
A Budding Lawyer.