What is substantial compliance?

No Comments » March 25th, 2008 posted by // Categories: Elections 2007




What is substantial compliance?    26/3/2008

In a season of judicial scrutiny of electoral decisions, what constitutes substantial compliance with the Electoral Act has thrown up a debate. Group Political Editor, BOLADE OMONIJO throws light on the issue.

Two codes are supremely important in guiding and determining petitions arising from elections. They are the 1999 Constitution and the Electoral Act, 2006.

The Constitution provides broad framework for composition of the Independent National Electoral Commission, INEC, while the Electoral Act breaks down what is expected, stage-by-stage of all participants in the electoral process.

In the past 10 months, tribunals specially inaugurated to give accelerated hearing to petitions at all levels of the electoral process have been very busy, sometimes sitting on Saturdays and public holidays. Verdicts are already being delivered, while some tribunals have always wound down.

Till date, tribunals in Kebbi, Adamawa, Kogi, Plateau, Akwa Ibom, Bayelsa, Oyo, Edo, Enugu, Ebonyi, Abia, Nasarawa, Imo, Kano, Sokoto, Yobe and Borno states have determined governorship election petitions presented to them. Outstanding are petitions mainly in South-West states of Oyo, Ogun, Ondo, Osun as well as Delta in the South South and Kwara in the North Central zones.

One major issue that has arisen in all the matters, including the Presidential Election Petition has been the principle of substantiality. What is substantial compliance?

Section 145(1) (b) of the Electoral Act states that: An election maybe questioned on any of the following grounds… that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act.”

Section 146 (1) states further: “An election shall not be liable to be invalidated by reasons of non-compliance with the provisions of this Act if it appears to the Electoral 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.

The provisions invest substantial powers in members of the tribunals to determine whether the petitioner has proved that the law was breached in the conduct of the election, and whether such a breach could have affected the result declared by INEC.

In the presidential election petition, the petitioners in the consolidated matter alleged that polls did not open at the appointed time, that ballot papers did not packed in booklets and serialized as made mandatory by the Act.

The petitioners alleged that, contrary to provisions of S.49 (1) and (2) of the Electoral Act, the electoral officers who conducted the 2007 presidential election were not sworn on oath of neutrality and loyalty.

Members of the Presidential Election Tribunal found that the petitioners proved their cases beyond reasonable doubts. However, invoking its powers on the principle of substantiality, the tribunal held that the petitioners failed to prove how such non-compliance affected the result of the election.

In Oyo State, three of the judges, in a split decision, held that governorship poll in the four disputed Ogbomosho Local Government areas were marred by such irregularities and malpractices that as many as 93,000 votes had to be deducted from those received by the All Nigeria Peoples Party (ANPP) and Peoples Democratic Party (PDP), candidates.

The three judges held that, having satisfied the provisions of S.179 (2) of the 1999 Constitution. According to the supreme law of the country, two conditions to be fulfilled by a candidate aspiring to be governor of a state are: receiving majority of lawful votes and attaining a geographical spread of, at least, one-quarter of the votes cast in two-thirds of the local government areas of the state. Their lordships said, after subtracting the votes from multiple voting and invalid ballots, Chief Adebayo Alao-Akala still met the two conditions. They therefore, affirmed his election.

But, in a minority judgment, Justice Bashir Wali differed. He held that 93,000 votes were substantial enough to void the election in the four local government areas. Therefore, he held that, while with that action Chief Alao-Akala could still be deemed to have received majority of lawful votes, he failed to attain the mandatory geographical spread. As such, he ordered fresh polls. Different folks, different strokes.

In Edo State, the tribunal unanimously held that the petitioners had successfully proved that the AC candidate won majority of lawful votes and had the required spread. They therefore, ruled that Comrade Adams Oshiomhole who was the party’s candidate be sworn in as governor. But for the provision in S. 149 that grants him at that stage of the petition a 21-day period of grace, Professor Oserheimen Osunbor would have ceased to be governor of the state from Thursday, Marcy 20.

In the tribunal’s words: “The first petitioner, Comrade Adams Oshiomhole, is hereby declared as the elected governor of Edo State, being the candidate who has scored the highest number of valid votes and has satisfied the requirements of the constitution and the Electoral Act, 2006.

“We order that the certificate of return issued to Professor Oserheimen Osunbor as elected governor of Edo State is hereby withdrawn and nullified.”

The Edo verdict is, so far, the most radical and far-reaching, so far. The only comparable situation in history was the reverse of the FEDECO verdict in respect of the governorship tussle in Ondo State in 1983 and the Anambra tussle of 2003. But, even then, Chief Akin Omoboriowo who had contested on the platform of National Party of Nigeria (NPN), and declared winner of the election, was yet to be sworn-in when the judiciary halted the joke.

In the Anambra case where the All Progressive Grand Alliance (APGA), candidate, Mr Peter Obi, challenged INEC’s declaration of PDP’s candidate, Mr Chris Ngige as winner of the 2003 poll, it took three years to determine the case. Obi was finally cleared to take office in place of Ngige on March 15, 2006.

In respect of the consolidated presidential election petition and many governorship tussles, appeals are still pending to determine whether the word shall in the Electoral Act connotes mandatory injunction or are mere fanciful dressing for the provisions.

In respect of the presidential poll, the apex court shall determine whether such non-compliance as found by the third tribunal was strong enough to invalidate the election, or whether the tribunal correctly exercised its discretion in holding that the non-compliance was not substantial enough to order fresh polls. The apex court may well determine, too, whether the petitioner should be saddled with the task of providing the connection between non-compliance with the law and the declared result.

One thing is certain, even at this point. Beyond the electoral reforms being packaged by the Yar’Adua administration, the judiciary has proved to be a change agent. The electoral map of the country has changed just as the schedule of elections.

While many lawyers and informed politicians had canvassed that elections be staggered to aid the process of building political culture for the nation, the judicial pronouncements have already affected a stagger of elections. In Anambra State now, no governorship poll, by the Supreme Court pronouncement, is due until March 2010. However, honourable members of the House of Assembly shall quit in 2011.

Local polls are expected to be held in between.

Similarly, in Rivers States, and if the Edo, Enugu and Kebbi verdicts scale through the Appeal Court scrutiny, there will be different dates for government polls in the states.

With the pronouncement of superior courts of the land, the rule of impunity by parties in fielding and substituting candidates may be over. Without cogent and verifiable reasons, no political party could again are candidates validly nominated on its platform. This is the consequence of the judicial intervention in the petition filed by Senator Ifeanyi Araraume in Imo State and Hon Rotimi Amaechi of River State.

Willful disqualification of candidates by INEC has been laid to rest by the Supreme Court in the case instituted by former Vice President, Alhaji Atiku Abubakar. The apex court held that only a competent court of law rule that no Commission or Administrative Panel of Inquiry could usurp judicial power of interpreting and giving effect to provisions of the constitution.

Never again could INEC or security agencies or any other executive body be involved in screening out and thus abridging the fundamental right to contest elections.

Perhaps, on a dangerous note, the courts have also ruled that the most important factor in an election is the political party. The Supreme Court, in the Amaechi vs PDP, Omehia and others ruled that Sir Celestine Omehia was wrongly fielded as PDP candidate in the 2007 Rivers State gubernatorial poll. The court therefore ruled that Amaechi who ought to be the rightful candidate should be sworn in as voters cast for Omedia could be deemed to have been cast for Amaechi. This may have far-reaching effects for future polls.

The law is said to be an ass. To what extent can science be brought into legal procedure? In what ways can “substantial compliance” be quantified in all situations?

These are issues for lawyers and political scientists to resolve in a season of loud calls for electoral and political reforms.


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