Issues that may emanate from 2019 election petition proceedings
The process of dealing with complaints and resolving election disputes is critical to the survival of any democracy particularly a fragile one like Nigeria. In addition to observing the voting process, attention must also be paid to the process of managing post-election disputes. This has become very important in view of the glaring desperation of politicians across political parties in Nigeria. The Election tribunals and courts are important to the whole democratic process because they represent the confidence of the people not only in the electoral process but also in the rule of law.
The malfunctioning of the tribunals and courts will lead to the electorate and the political class settling political scores through resort to unconventional means. Even with the best-conducted elections, disputes might arise. What is important is how fair and speedily such disputes are disposed of and justice given to the deserving. This paper as the title indicates will highlight issues that may emanate from the 2019 election petitions process.
ACCESS TO VITAL MATERIALS BY ELECTION PETITIONERS
A common complaint that had dogged the sittings of the various election petition tribunals and by, implication, threatens the outcome of the whole exercise, is the difficulties being encountered by petitioners in assembling the much needed materials and evidence required for their petitions under the frontloading regime. Under the Election Tribunal and Court Practice Direction, petitioners are compelled to frontload i.e. to file petitions alongside their list of witnesses, statement of oath and all accompanying documents to reduce delays. Unfortunately, the materials and evidences that petitioners and respondents alike would rely on to build their cases or defenses are with agencies whose commitments the petitioners or respondents cannot determine, there is the likely scenario in which justice could be denied some of those entitled to it simply because those statutorily in custody of those election materials such as the Independent National Electoral Commission (INEC), the police and other security agencies involved choose to be tardy and willfully uncooperative.
In 2015, this played out in several states across the country. INEC refused to allow some Petitioners and Respondents access to materials used for elections even after the Courts had ordered that materials be made accessible. The 2018 Electoral Act Amendment Bill tried to address this mischief by providing that any election officer who fails to obey a court or tribunal order with respect to inspection or production of materials shall be liable to imprisonment for 2 years without an option of fine. Regrettably, the President did not sign Electoral Act Amendment Bill 2018 into law.
TIME LIMITS FOR FILING AND CONCLUSION OF ELECTION PETITIONS
The constitutional provision as to limitation of time within which election petitions and appeal therefrom must be filed and concluded has remained a dramatic change in the way and manner election petitions are conducted in Nigeria. The Constitutional timeline for conclusion of election petition is a double-edged sword, as it were. On the one hand it is a salutary reform that cured the mischief of prolonged election petition process that often enabled the beneficiaries of ‘stolen’ electoral mandate to hold political offices for several years before final judgment is secured nullifying their elections and sacking them from the offices they fraudulently secured. On the other hand, the limitation of time prejudiced numerous meritorious election Petitions, which were unfortunately struck out for being choked by the time frame.
Section 285 (5 – 8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows: a. An election petition shall be filed within 21 days after the date of declaration of results of the election; b. An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition; c. An appeal from a decision of the election Tribunal or court shall be heard and disposed within 60 days from the date of the delivering of the judgment of the Tribunal;
d. The Court in all appeals from election Tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.
The Supreme Court has leaned towards very strict interpretation of the above constitutional provisions – brooking no discretion whatsoever on the part of the Court to extend any of the time limits under any circumstance. Thus in the case of ANPP v. Goni the Supreme Court, per Rhodes-Vivour, JSC, left no one in doubt about its attitude to the constitutional time line for election petitions:
The period of 180 days is not limited to trials but also to de novo trials that may be ordered by an appeal court. Once an election petition is not concluded within 180 days from the date the petition was filed by the petitioner, an election Tribunal no longer has jurisdiction to hear the petition and this applies to rehearing. The period of 180 days shall at all times be calculated from the date the petition was filed.
Still in the above case, the Supreme Court, per Onnoghen, JSC further opined and so held that:Courts do not have the vires to extend the time assigned by the Constitution. The time cannot be extended, or expanded or elongated, or in any way enlarged. The time fixed by the Constitution is like the rock of Gibralter or Mount Zion, which cannot be moved. If what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter.
It was the same cerebral Onnoghen, JSC, who in the case of Felix Amadi & Anor. v. INEC & Ors also foreclosed any hope of judicial magnanimity for enlargement of time in election petition appeals. He categorically pronounced that the time limit of 60 days for election petition appeals as provided in Section 285 (7) of the Constitution was sacrosanct. He reasoned that the obvious intendment of the Legislature in making that provision was to limit time and not to extend it. According to the jurist, it would therefore be inappropriate and indeed illegal to interpret the provision to attain the effect of extending the time therein allotted.
It would seem that the Election Petition Tribunals, Petitioners and their lawyers learnt a bitter lesson from the experience of 2011 election petitions whereby many petitions were asphyxiated by the constrictions of constitutional timelines, as it were. Thus, virtually all Petitions brought sequel to the 2015 elections were disposed of on the merit and went through the appeal process within the time limits prescribed by Section 285 of Constitution.
However, the issue reared its frightening ‘rock of Gibralter’ head in the case of Ikpeazu v. Otti & Ors in an offside manner. The Appellant argued in one of his grounds of appeal at the Supreme Court that the judgment of the Court of Appeal that nullified his election as Governor of Abia State was dated December 31, 2015 but was not certified until January 6, 2016. He therefore submitted through his counsel that the signing of the enrolled and certification of the judgment on that date lead to the conclusion that the lower court disposed of the appeal on January 6, 2016 – 4 days outside the 60 days time line mandatorily stipulated by the
In upholding the Respondents’ preliminary objection to this ground of appeal and issue raised therefrom, the Supreme Court held that “the fact that the Appellant could not obtain his copy of the judgment until January 6, 2016 does not mean that other parties did not get their own copies before that date”. The ground of appeal and issue therefrom, the Supreme Court further held, were merely attacks against what the Registry of the lower Court did after the judgment had been delivered. Therefore the ground of appeal was attacking the acts of certification, enrollment order and availability of the judgment to the appellant before January 6, 2016, and there was nothing to show that the Appellant was complaining about anything done by the Justices of the Court of Appeal after delivery of the Judgment on December 31, 2015. The Supreme Court therefore upheld the Respondent’s preliminary objection and dismissed the Appellant’s ground of appeal and issue raised therefrom challenging the competence of lower court’s decision on grounds that it was delivered outside the constitutional time limit.
It has been advocated that Section 285 of the 1999 Constitution and Section 134 of the Electoral Act be amended to provide exceptions to the election petition timelines, e.g., for days to stop counting where there is a stay of proceedings, and for days to start counting afresh where there is an order for de novo hearing of an election petition. It will be interesting to see if the courts will shift its position on the issue of timelines.
USE OF THE CARD READER
The Independent National Electoral Commission (INEC) is one of the executive bodies created under section 153 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 160 (1) of the said Constitution provides that any of such bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions. Pursuant to the aforesaid powers conferred upon it by the Constitution, INEC like in 2015 has issued ‘Regulation and Guidelines for the Conduct Elections 2019’, which among other things provides that “accreditation process shall comprise of verification of voters using the Card Reader; checking of the Register of voters; and inking of the cuticle of the specified finger”
The introduction of the Card Reader via the Approved Guidelines is an innovative measure by INEC aimed at improving the transparency and credibility of the electoral process. The use of the Card Reader is a novel addendum to the accreditation and voting procedure specified under Section 49 of the Electoral Act, 2010 (as amended), which provides as follows: A person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card. The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.
However, INEC’s decision to use the Card Reader without the National Assembly amending Section 49 of the Electoral Act, 2010 (as amended) may be a big issue in 2019. After the 2015 elections, the Supreme Court in the case of Mahmud Aliyu Shinkafi v. Y. Abdulazeez Abubakar Yari & 2 Ors. laid to rest the controversy elicited from the divergent positions taken by the various election tribunals and Court of Appeal on whether the card reader can be relied upon in seeking to nullify an election. The Court pronounced on the issue as follows:
My view on this is that the principle of law that is well established cannot be abolished simply because an appellant failed to prove his case in accordance with those principles. My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multiple voting by a voter. I am not aware that the Card Reader Machine has replaced the voters’ register or taken the place of Statement of results.
In the appeal from the Abia State governorship election petition – Okezie Victor Ikpeazu v. Alex Otti & 4 Ors – the Supreme Court in stating the reasons for its judgment, reiterated extensively the status and function of the Card Reader in the scheme of our electoral process. Olabode Rhodes-Vivour, JSC, concurring with the lead judgment, trenchantly captured the attitude of the Court on the use of the Card Reader, when he opined:
Where a petitioner seeks to prove that there was over voting in the election in which he participated, he would succeed if he is able to show that the number of votes exceeds the number of would be voters in the voter register. If the petitioner decides to rely on Card reader Reports as in this case to show that the number of votes exceeds the number of voters recorded by the card reader but less than would be voters on the voters register, he would fail. That explains the plight of the petitioner in this petition/appeal. The card reader may be the only authentic document if and only if the National Assembly amends the Electoral Act to provide for card readers. It is only then that card readers would be relevant for nullifying elections.
The implication of the Supreme Court decision is that the Approved Guidelines and Regulations for the Conduct of Elections made by INEC pursuant to powers conferred on it by Section 160 (1) of the Constitution of the Federal Republic of Nigeria, 1999, cannot supersede the provisions of the Electoral Act, 2011 (as amended). The Court firmly placed its stamp of authority on the position that the legally recognized mode of accreditation of voters is as provided under Section 49 of the Electoral Act, and accordingly any allegation of over-voting or similar malpractices must be proved by having recourse to and tendering the Register of Voters. The Supreme Court did not really discountenance evidence of the Card Reader reports as irrelevant, neither did it designate the use of the Card Reader as amounting to electronic voting contrary section 52 (2) of the Electoral Act; instead the Court held that a Petitioner cannot rely on the Card Reader to establish such allegation up until it is legally recognized by incorporation into the Electoral Act by the National Assembly. The question then is, of what use is the card reader if it has no probative value at the election tribunal?
The 2019 General Elections, if campaigns are anything to go by, is going to be competitiveness. There is the likelihood that election petition tribunals and courts will be inundated with petitions. The President of Nigeria would have tremendously assisted the election petitions process if he had signed into law the 2018 Electoral Act Amendment Bill, which addressed some of the election petition issues highlighted in this paper. Unfortunately, the President did not sign the 2018 Electoral Act Amendment Bill into law. It will therefore be interesting to see how the courts/tribunals will navigate some of the difficult issues that will arise after the 2019 elections.
Okeke is of the Human Right Law Services and writes from Lagos.
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