CURING THE MISCHIEF OF ELECTION TRIBUNALS

The current series of judgment at the election tribunals have created  new wave ofjudicially imposed elected officials rather than democratically elected people as envisaged by the Nigerian Constitution. Indeed our elections are now replete with judge-made laws which have replaced votes with legal technicalities. The Electoral Act have been subjected to ridiculous interpretations beyond the intendment of the lawmaker.

The current amendment process is therefore an opportunity to cure the mischief introduced by the judiciary to impose its own candidates on the electorate or to remove the absurdities created from invidious interpretations therefrom: FOR EXAMPLE;Is it the intendment of the Lawmaker or the spirit of the Law ,that election of a Governor will be cancelled  JUST BECAUSE THE RIGHT COLOUR OF BIRO WAS NOT USED IN TICKING THE VOTERS REGISTER BY POLL CLERKS IN THE PROCESS OF ACCREDITATION? despite the obvious import of s146(1) Electoral Act 2006?  (now s

139)

In FAYEMI vs ONI (2009) 7 NWLR (pt1140) 223-442 the Court of Appeal  held ‘’ the truth is that there could only be accreditation of voters  for the Governorship election if the names of the  Voters in the registers had been ticked in  ‘blue’ to show that the voters had approached the presiding officers………… It is interesting to note that the same register of voters inspected by the tribunal had shown tickings in ‘blue’ the very colour the manual directed should be used for the accreditation….. and in respect of which virtually all electoral officers testified that following complaints from the presiding officers that the blue biros given to them malfunctioned they advised the use of shades other than blue…’’  The lower tribunal had found as follows”  On the issue of colour of ink even though the Manual for Election officials 2007 prescribe the use of blue ink for

accreditation for the Governorship election most of the electoral officers testified that on the said election they were not supplied with blue biros and where supplied they malfunctioned, hence according to them the presiding officers were instructed to make use of any available ink for accreditation We ourselves looked at the voters registers tendered  and we find as  truth that there are tickings in various colours

of ink….which is evidence of accreditation”  The Court of Appeal  per MD Muhammed JCA voided all the votes in the 10 local governments for improper accreditation  because the right colour of biro was not used, ignoring his own court judgement in Agbaje v Fashola(2008) 6 NWLR(pt 1082)90 at 127-128 or ANPP v Usman (2008)12NWLR (pt 1100)  In some  other instances  Elected officials have been removed by  Tribunal for the SINS OF INSTITUTIONS OR OFFICIALS CONDUCTING ELECTIONS  WHICH ARE NOT UNDER THE CONTROL OF THE CANDIDATES OR THE ELECTORATE.  Candidates and the Electorates were

therefore held vicariously liable for the offences or acts of omission or commission of INEC or the Police. Again  I take the case of  Fayemi v Oni 2010 where the Court of Appeal voided the votes  validly  cast by over 15000 voters on the reasoning that INEC did not produce the VOTERS REGISTER used for conducting the election..Was this the fault  of the voters or  candidate?

 OUR SUGGESTIONS

We thank the National Assembly for extending the Appeal in election cases  of Governorship to the Supreme Court as we believe this will straighten the present lack of clear position of law on elections at the level of the Court of Appeal. However we need to do more  to make peoples vote count and not to elevate the votes of 5 judges over that of the people who diligently come out to vote on election days. Therefore we propose the following relevant amendment to be incorporated in S139 of this Act

  Proposed amendment -1;

POWER OF ELECTION TRIBUNAL TO REMOVE OR    INSTALL CANDIDATES

 Explanation: In order to ensure that no person comes to power unless through the votes cast by the electorate or that only votes of the electorate are used in determining the winners  of an election and not the decision of an electoral tribunal ,  it is proposed that  a new  section be introduced in the ACT Thus:  Where in the determination of any petition before it,an Election Tribunal finds that   any person has not been validly elected for reasons of irregularities or that the election was not conducted in substantial compliance with the relevant electoral

law, or the tribunal shall order for another election, or supplementary election to be held within 60days of the judgement

Proposed amendment no - 2  

AVOIDING VICARIOUS LIABILITY ON ELECTORATES OR CANDIDATES

Explanation- To avoid  manifest injustice  to the electorate and the candidate  whose election is found to be irregular by reason of act of omission or commission of any other party or institutions relevant to  the election, the Tribunal should   be precluded  from voiding that election and awarding victory to the  Appellant. The tribunal may only order a rerun or supplementary election  while penalizing the institution concerned or ordering the trial of  individuals or officials found wanting.

 Therefore we propose a new sub section to s 139

“An election shall not be invalidated  for reasons of irregularity  arising from acts or omission of INEC or other institutions connected with the election, however if such acts or omission is  proved to be of substantial nature as to affect the  result of the  election, a fresh election shall be ordered in the areas affected’’  ALSO

‘’Where a candidate  or his agent or party challenging the conduct of an election is found to have contributed in the irregularity or violent disruption of the election or in any other manner to make the election voidable, the Tribunal shall not declare the party  as winner of the Election”

 Proposed amendment - 3 

CONSTITUTION OF MEMBERS OF THE TRIBUNAL    

This has to do with the present overbearing power of the President of the Court of Appeal in Constituting the  panel members  of Election Tribunals .He is vested with the power to constitute the panel at the lower court , and also at the Appeal , AND The President also can sit on the Appeal. As they say Absolute power corrupts absolutely. Today there are 59 justices of the Court of Appeal. Less than1/3 HAVE BEEN APPOINTED TO SERVE ON THE PANELS.WHILE SOME CONTINUE TO SERVE IN MANY PANELS.

The power to constitute the panel should be vested in the NATIONAL JUDICIAL COUNCIL to remove public perception of cronyism and manipulation of members of those panels and to give a fair chance of participation of as many judges as possible.

CONCLUSION.

We humbly submit that votes of Nigerians must truly count and the use of legal technicalities to rubbish our votes under any disguise must be removed by the Legislature .In the present situation the issue of SUBTANTIAL COMPLIANCE. s 146 (1) now s139 in 2010 Act have been watered  down  to nothing using various means .Today elections are voided at the whims and caprice of tribunal members under the guise of doing justice to election petitions..

 Being the text of the  Presentation at Senate Public Hearing on the Ammendment of the Electoral Act 2010 on Monday 29 November 2010 by the Director General Bureau for Public Opinion, BPO, Barrister Segun Ilori.