THIS DAY
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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.