Two incidents in our polity warrant a critical review of the election procedures in Nigeria. The first is the Court of Appeal judgement in Ilorin on Friday, 15 October 2010. After 42 months spanning 3 and a half years, the appellate court declared that Dr John Olukayode Fayemi of the Action Congress of Nigeria and not Engr. Segun Oni of the Peoples Democratic Party won the 14 April 2007 and 25 April / 5 May 2009 re-run gubernatorial elections. The second reason for us to take holistic look at our election procedures is the on-going  alteration  of the First amendment to  1999 Constitution of Nigeria as well as the Electoral Act 2010. Before delving into the main issues in this piece, a little update is germane.

Hitherto, legal framework in Nigeria does not have time limit on election petitions (particularly since the Supreme Court ruling in Paul Unongo v Aper Aku and others, (1983) 2 SCNLR 332) neither does it recognise inauguration of candidates after disposal of petitions against them.  Hence politicians, especially beneficiaries of electoral fraud use all the subterfuges in the statute books to frustrate the judicial process. They hire the best of election petition lawyers who use all the legal technicalities to delay court processes (since many of them use the state resources to fund their litigations). Some of the delay tactics they indulge in include filing of frivolous interlocutory applications and exparte motions. They also line up hundreds of witnesses to testify, all in a bid to waste the time of the court. In some extreme cases, some desperate litigants buy off witnesses of the opposing camps or threaten them to stay off the witness box. In the recent past, judges of the election tribunals are also being financially induced or threatened as being alleged in certain quarters.  

Perhaps, these account for why some tribunals, against all judicial best practices, still strike out election petitions on technical grounds even when Office of President of Appeal Court who set up tribunals has strongly advised against this. There have also been some funny judgements being given by some election tribunals. There is currently the drama playing out between the Supreme Court and the Court of Appeal where the apex court had unjustifiably ‘arrested’ the judgement of Appeal Court in the Sokoto Gubernatorial Election. A simple issue such as withdrawing an earlier filed brief has been delayed from March to November 2010. This is curious.

In order to cure the mischief of protracted litigation on election petitions, the Office of the President Court of Appeal in 2007 issued practice direction which stipulate  timelines for the filing of petitions and other briefs as well as limiting the number of witnesses that the parties in a suit can call. This assisted to fast track the tribunal process to an extent but lawyers are still able to use other ploys to delay the cause of justice.

Then came the Electoral Reform Committee report in December 2008. The report, in order to cure the mischief highlighted above, recommended that election petitions should be time bound, ERC proposed 6 months for the resolution of all petitions both at the lower tribunal and the appellate court and that the swearing-in of winners should be  after the disposition of election petitions against them. Unfortunately, the Council of State in March 2009 rejected these twin recommendations.

The National Assembly in eventually amending the 1999 Constitution pegged the filing of petitions to 21 days after election results are declared, gave 180 days for the hearing of the petitions at the lower tribunal and 60 days for determination of appeals at the appellate courts. The amendment however fell short of determination of election petition before inauguration of winners even as it agreed that the number of judges at the tribunal should be reduced from 5 to 3.

The most counter-productive and retrogressive of all the amendments to the 1999 Constitution was the alteration to section 239 to give original jurisdiction to the Court of Appeal as the Court of first instance in Governorship election petitions. The Court of Appeal,  at present, has maximum of 70 judges. Already the court has original jurisdiction on presidential election petition cases, adding the gubernatorial petitions to that will collapse the Court. How will it source the judges that will serve on the governorship election petitions given that one may have to be established in each of the States? INEC said there will be gubernatorial elections in 32 States in 2011 April, add the Presidential tribunal to this. At three per tribunal, the Appeal Court will need 99 judges! So where will it source the balance of 29 judges? That is one headache; the other is that all appeals from National and State Assemblies Election Petitions will still come to the same Court of Appeal for final resolution. Yet, the judiciary has to do all these within a total of 240 days! (180 days at the lower tribunal and 60 days at the appellate court). Will that guarantee justice?

At present, the national assembly is contemplating an amendment which will restore original jurisdiction back to the lower tribunal. However, some legislators want gubernatorial petitions to terminate at the Supreme Court. This will worsen the already bad situation. If governors who lose at the Appeal Court are allowed to go to Supreme Court, that will further delay the cause of justice and overwhelm the apex court as well. There are only 21 Justices of the Supreme Court according to S. 230 (2b) of 1999 Constitution. We must note that with 63 registered political parties in Nigeria thus far, and the locus of these political parties and their candidates to challenge the outcome of the elections, the entire court system in Nigeria will be shut down for election petitions alone. Each election year, civil and criminal cases before these courts are adjourned sine dine (indefinitely) in order to give full attention to election petitions since they are sui generis. This is not good enough and the more reason we must stick to having time line for resolution of election disputes.

On a final note, the time is ripe to revisit the Electoral Reform Committee recommendations on election dispute resolutions. These recommendations are on page 242 of the main report of the Committee. They are: the need to produce rules and procedures that enhance speedy disposal of election petitions; the need to shift the burden of proof on election petitions from the petitioners to INEC; Rules of evidence should be formulated to achieve substantive justice rather than mere observance of technicalities; Elections to the office of President and Governors should be held at least 6 months before the expiration of their terms. No executive should be sworn in before the conclusion of the cases against him/her. In the case of legislators no one should be sworn in before the determination of the cases against him/her; and lastly, INEC should have no right of appeal. These measures, if taken, will restore sanity into our post election dispute resolutions. However, we must do everything to reverse this democracy by court order. Election should be determined at the poll not at the court as is currently the case.