Electoral Law Guest Columnist Legal Articles Nigerian Law Procedural Law

ELECTION PETITION TRIBUNALS: PANACEA FOR ELECTORAL BROUHAHA – Ayotomiwa P. Olufunso Esq

INTRODUCTION
Following recent elections in Nigeria, especially the 2019 elections, a lot of issues and controversies have erupted during and after the elections. This has occasioned certain frustrating perceptions and conclusions from a good number of the electorate; especially that the Nigerian State can no longer get it right in the conduct of free, fair and credible elections. But look! Just in the midst of this frustration within the citizenry, a Legal Messiah appears. Election Petition Tribunals set in. This emergence has led to the filing and determination of different election petitions across the country from aggrieved contestants, stakeholders of the electoral process and their respective lawyers over the past decade.

The Supreme Court of Nigeria in beaming a curious searchlight on the electoral process in Nigeria made the following observation:

Elections are hardly ever conducted without some irregularities. No matter how well the regulatory authority conducts an election, there are complaints.”1

This observation by the nation’s apex Court is hardly controvertible and is even reinforced by the array of electoral irregularities, fraud and malpractices that are perpetrated in broad daylight. Based on the conduct of elections over the years in Nigeria and the available statistics, it can be categorically stated that since independence, there has been hardly any election completely free of charges of irregularities, electoral malpractices and violence.

In its Report on the 2015 General Elections, the national electoral umpire, Independent National Electoral Commission (INEC) disclosed that about 600 petitions were filed at the various Election Petition Tribunals set up in all the States across the six geo-political zones of the country. This report was however able to document and review 560 of the petitions and the judgments of the courts arising from such petitions. Majority of the 560 petitions, precisely 309 (55.1%), were with respect to State legislative Constituency elections. Petitions with respect to Federal Constituency elections were 155 (27.6%), Senate 69 (12.3%), while 27 petitions (4.8%) were filed challenging the outcome of the Governorship Elections.2

Furthermore, on the 26th March, 2019, the Secretary of the Tribunal set up in Nasarawa State stated that the National Assembly and State Houses of Assembly Election Petition Tribunal sitting in Lafia had received 12 petitions from different candidates. These reports are certainly pointers to the low confidence levels attached to our ailing electoral system and the influx of petitions at various election petition Tribunals in the bid to seek fairness and justice.

ELECTION PETITION TRIBUNALS (EPTs)
Section 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (CFRN) creates Election Tribunals in Nigeria. It provides for the establishment of the National Assembly, Governorship and Legislative Houses EPTs. By the CFRN, the Court of Appeal has original jurisdiction to entertain petitions arising from the conduct of Presidential Elections. EPTs hear and determine petitions based on facts and evidence before it. They are established to address abnormalities that infect general elections conducted in Nigeria while acting as neutral bodies in the course of discharging this duty.

Divergent views and opinions however abound with respect to the functionality of EPTs. While some opine that EPTs have proffered solutions to electioneering challenges, others are of the opinion that the EPTs are biased and unfair in their decisions. The latter argument is meanwhile understandable since regardless of the final decision of the EPTs, one side of the litigation divide would invariably get favoured by the decision while the other side loses. The decision would therefore still be considered as being unjust and unfair to the losing side, even if the decision was truly just and in tandem with the extant laws.

The Electoral Act 2010 (as amended) establishes grounds upon which election results may be challenged at an EPT. The genius of this provision is evident; to prevent frivolous and baseless petitions from being filed at the EPT. These grounds include:

  1. That the person whose election is questioned was not qualified to contest;
  • That the election was marred by corrupt practices or non compliance with the provisions of the Electoral Act;
  • That the candidate returned as the winner of an election did not score the majority of lawful votes; and
  • That the Petitioner was unlawfully excluded from the election despite being validly nominated.3

Any petition brought outside the ambit of these grounds would be considered incompetent and struck out by the Tribunal. This was the judicial decision in Nwabochi v. Gift (1998) 12 NWLR (Pt. 579) 522, where the grounds upon which the petition was filed were not in tandem with the provisions of the law. In the case, per Nsofor, JCA stated:

As the law stands, it does not appear the present petitioner may present an election petition under any of the grounds stated in section 89 (1) of decree no. 7 of 1997. His remedy may lie elsewhere. What has happened may have been beyond the contemplation of the legislation in question.”

Also, complaints made by a petitioner which form the grounds of such petition must be founded on only occurrences or happenings during and after the election (election and post-election matters). An EPT has no jurisdiction to entertain matters which took place before the conduct of an election (pre-election matters).4

An objective review of decisions reached so far by EPTs would reveal several incidences of reversed results and election nullification on grounds of electoral irregularities and malpractices. Just recently, the Governorship EPT sitting in Abuja reversed the results reached at the Osun Governorship election by nullifying the results of re-run elections conducted in 7 local governments in the state. The EPT stated that the re-run was illegal and that the alteration of Forms EC8A and EC8B (Forms evidencing final election results in from pollen units within the local government area) after the completion of the election has further established the fact that the incumbent Governor was not elected or returned by majority of lawful votes in the Governorship election conducted on Saturday, 22nd September, 2018. The EPT therefore declared his return null and void. This decision is meanwhile still subject to appeal.

THE ROLE OF THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
INEC has been a credible force in the conduct of elections since its establishment. Its mission is to serve as an independent and effective electoral management body committed to the conduct of free, fair and credible elections for sustainable democracy in Nigeria.

However, based on the recent happenings on the electoral scene, there have been lots of stone-throws, outrage and resentment towards INEC for its role during elections, all challenging its stance on its independence, effectiveness and fairness. It can only be reasonable to say that the role INEC plays in encouraging the eventual filing of numerous petitions at Tribunals cannot be overemphasized. Its brazen failure at building and sustaining the confidence of the populace has further made EPTs popular. These days, you could predict perfectly well without any stressful permutation that EPTs would eventually wade in to salvage the constant electoral deformities incidental to every election in Nigeria.

The term “Inconclusive Election” was like a viral sewage odour that emanated from the 2019 general elections and sadly portrayed INEC in embarrassing light. Governorship elections in Osun, Kano, Benue, and Adamawa States amongst others were all declared inconclusive for one reason or the other. A former President of the Nigerian Senate, Senator David Mark took a aimed dig at the electoral body by stating that inconclusive elections are alien to our sacrosanct constitution and a bad precedent adding that the likelihood of politicians riding on its back to create crisis in the polity is high. In his remarks to reporters in Otupko, he stated:

Moreover, the term ‘inconclusive election’ is a bad precedent; the word is very strange and unknown to the Constitution. And you know politicians they will take advantage of it to create problems”.5

Apart from the threat and havoc that the rampancy of inconclusive elections poses and wreaks on our democracy, a mammoth part of our finance is required. Supplementary elections become inevitable. Elections are driven with money as supplementary elections are no exceptions. The policy of inconclusive elections is just evidently harmful to the economy.

Another cankerworm that has eaten deep into our electoral system is the massive and unintelligible registration of political parties with low or zero ideology. Apparently realizing this point, Toluwasanmi rhetorically queried:

What manner of democracy do we say we practice when political parties lack ideological base? How do the people relate with political parties and make choices during elections? Today the PDP has no ideological coloration, just as the AC, ANPP and other parties; they are amorphous contraptions carrying on as hustlers in the land of anything goes.”6

The registration of more political parties would not remedy the age long problems of democracy and elections in Nigeria. It only exacerbates it. A lot of reforms must be embarked upon with a view to recovering the long lost confidence of Nigerian towards the electioneering process. Its stance on implementing the rule of law and upholding sound democracy must also be clear and uncompromising.

CONCLUSION
The legitimacy of an unshaken democracy cannot be guaranteed when credible elections are not conducted. Just as the saying goes that “Justice must not only be done but must be manifestly and undoubtedly seen to be done”, so it must be manifestly clear to the electorate and international observers that free and fair elections have become ingrained the system. This is where INEC and EPTs need to sit up and address these rampaging inadequacies.

The urgency of reformation and revolution of the electoral system cannot be overemphasized. Although, those who have benefited from the decomposed system are likely to resist change but there is an immediate need for a stern and articulate reformation.

The issue of inconclusive elections should be reduced to the lowest minimum. INEC should organize itself to salvage the situation. Even if the institution is empowered to declare elections inconclusive, it should show itself approved as being competent enough to conduct credible elections by totally abolishing the trend or only opt for it as a rare remedy.

EPTs which are seen as the last hope of electoral candidates and the electorates who have taken pains to perform their civic duty of voting must avoid bribery, partiality and bias in its functions and decisions. These tribunals which are likened to courts should also serve as temples of justice and must always uphold the integrity of the judiciary. Although the Tribunals have been outstanding in discharging its duties as many unfair results have been reversed and unscrupulous elections nullified, more can still be done by the Tribunals.
Credible elections are known as the true representation of democracy and the collapse of democracy in a country is the resurgence of “DEMOCRAZY”. Stakeholders involved in pre-election, election and post-election matters must brace up and address their critical problems so that public confidence and good governance can be reinstated.

Endnotes

1. Okechukwu vs INEC (2014) 17 NWLR (Pt. 1436) 259 at 309

2. INEC report on 2015 general elections (compendium)

3. section 138(1) of the Electoral Act 2010 (as amended)

4. Amaechi v. INEC (2008) 5 NWLR Pt. (1080) 227

5. Vanguard news

6. Vanguard, January 2, 2009 p.39

Ayotomiwa P. Olufunso Esq

Guest Columnist

Ayotomiwa is a legal practitioner in Lagos, he graduated from Obafemi Awolowo University. He is currently serving as an Associate and company secretary in the legal department of Diamond PFC.
He has special interest in corporate law and and real estate. He is passionate about learning and making impact in the legal community. He is an unrepentant Chelsea fan and has an undying love for good music.

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