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Election Tribunals as a Blind Alley
The Polity By Yusuph Olaniyonu,
Email:yusupholaniyonu@thisdayonline.com,Tel:08055001965, 04.27.2007
President Olusegun Obasanjo last week made one of the best speeches of his
presidency. The essence of that speech was his admission that the last general
election was fraught with irregularities perpetrated by all the parties
including his own. The President in a concilliatory tone then advised aggrieved
persons to file their petitions at the tribunal as a way of saving the political
process. Surprisingly, Major Gen. Muhammadu Buhari (rtd) who one believes should
be eager to head for the tribunal suddenly made a u-turn and said that he would
not be challenging the declaration of Umaru Musa Yar' Adua as the next president
of Nigeria. With this development, as a journalist I became curious and I was
forced to start making enquiries about why this turn-around on both sides.
Fortunately, I took a look at the Electoral Act and to have a better
understanding of the issue, I held a discussion with Lagos lawyer, Femi Falana
who really opened my eyes to a lot of issues, particularly what was contained in
our case laws.
The Election Petition Tribunal (EPT) based on the Electoral Act and our case
laws are blind alleys which can never give justice to petitioner. Except in rare
cases like the Obi Vs Ngige case when the establishment had made up its mind to
dump Ngige, it will be easier for the biblical camel to pass through the eye of
the needle than for a petitioner to get the results of the election upturned
through the EPT. The provision of the Electoral Act is so skewed and loaded
against the petitioner.
Let us look at the provision of the law as they relate to filing of petitions.
Contrary to the position of President Obasanjo and so many other Nigerians that
the election petitions should be determined before May 29 handover, the Section
141 of the Act provides for 30 days from the day of the election for a
petitioner to file a petition. Also paragraph 50 and 51 of the First Schedule of
the Act provides for the respondent to file his statement of defence within 21
days from receipt of the election petition. After that, the petitioner has 14
days to register his reply to the statement of defence. Though, the petitioner
would want to shorten the period by fulflling his own responsibility as early as
possible, but the respondents would most likely waste time as much as allowed by
law. And we have just 33 days to handover day. Justice Umaru Abdullahi, the
president of the Court of Appeal on April 3, gave a 7-page practice direction
for election tribunals. The judge tried to reduce the number of days for the
filing of cases. But the practice direction has been faulted because the judge
actually lacks the power he claims to act under Section 285 (3) and paragraph 50
of the First Schedule 50 of the Electoral Act. In any case, even the practice
direction also created its own time-wasting mechanism by providing for a
pre-hearing conference to hold seven days after the filing and service of the
Respondent's reply.
Meanwhile in the case of Aper Aku Vs Paul Unongo and the Supreme Court decision
of Buhari Vs Obasanjo, it was held that the courts cannot be compelled to
conclude a case within a particular time. So, like in the Obi case the election
petition can continue till eternity except the Supreme Court later in future
reverses these case laws.
What all these mean is that before the cases expected to upturn the election of
a governor or the president commences, the respondent would have been sworn in
as the incumbent. The incumbent president or governor will now start prosecuting
the case using government funds and state power. In fact, Section 150
sub-section (2) of the Electoral Act allows the Attorney-General of the state or
federation to defend the new governor or president at the EPT. Meanwhile,
pursuing a petition at the EPT is an expensive effort which the incumbent can
even make more expensive and uncomfortable for the petitioner. For example, the
petitioner is expected to deposit N5000 as security for costs to each of the
witnesses. One incumbent governor in 2003 simply organised for youths to start
protesting and shooting close to the venue of the tribunal's sitting. The
tribunal members in fear relocated to Abuja and the petitioner had to bear the
cost of shipping his witnesses and other material evidence to the new location.
And the governor who need not pay lawyers from his pocket will still use state
resources to ship his own witness to Abuja.
This same incumbent will still enjoy the protection under Section 149 (1) which
states that where election of an incumbent is nullified, he will be in office
for the next 21 days during which he has the right to file notice of appeal. And
that notice of appeal serves as a stay of execution of the judgement of the EPT
until the final appeal is determined. And following paragraph 1(a) of the
practice direction, the petitioner is expected to forward alongside his petition
a list of all the witnesses that he intends to call in proof of the petition. If
this is complied with and the petition is forwarded to the respondent, is it not
possible for the respondent who is now exercising state power to buy, intimidate
or induce by other means the key witnesses and ensure they do not co-operate
with the petitioner?
Also, Section 146 of the Act states 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". By this
provision, the matter of what constitutes 'substantial compliance ' is at the
discretion of the court. In cases where many Nigerians were disenfranchised as
it happened last week and the week before, how will the court determine
substantial compliance with the Electoral Act? In 1983, in the Ojukwu Vs
Onwudiwe case where election did not hold in 54 polling units out of the total
140, the court still held that the election substantially complied with the
Electoral Act. Also in the Buhari Vs Obasanjo case in 2003, despite all the
irregularities proved by the petitioner the courts including the Supreme Courts
still submitted that the irregularitties were not sufficient to vitiate the
electoral process.
Also, the issue of standard of proof of fact is another major obstacle that a
petitioner has to bother about. Ordinarily, an election petition is a civil
matter which by our rule of evidence ought to require only proof based on
balance of probability. And this was followed in the Ajasin Vs Omoboriowo case
in 1983 by the Supreme Court. But a week later, the Supreme Court claiming that
election petitions are sui generis, reversed itself in the Nwobodo Vs Onoh case
by insisting that the proof of allegation of falsification of figures borders on
criminality and therefore should be proved beyond reasonable doubt. This
requirement of strict proof of evidence requires that if a petitioner alleges
that votes were not properly counted or inflated, he must give particulars of
the brigged votes. Also, if a petitioner says policemen or election officials
aided electoral malpractices, he must give particulars of the officers and the
acts being complained of. That was why Ajasin succeeded and Nwobodo failed to
get the announced election results reversed. Many commentators believed that the
easier standard of proof was adopted in the Ajasin case by the Supreme Court in
response to the violent eruption that greeted the announcement of Omoboriowo as
duly elected in Ondo State.
From the above, I can now understand why the late sage Chief Obafemi Awolowo who
was never afraid of pursuing any matter in court decided not to challenge the
NPN 'landslide victory' in 1983 at the tribunal. Like Awolowo, like Buhari. Both
men yielded to wise counsel and chose not to embark on an exercise in futility.
The next National Assembly surely has a responsibilty to ensure that this
injustice does not continue. The present Electoral Act should be discarded by
the next legislature which will consist of men who do not make laws for
personal, myopic considerations. We need a new electoral law. The present one
cannot bring justice to any petitioner, except the powers that be desperately
want to throw away the incumbent.
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