‘Why proving presidential election petition is greatest hurdle in Nigeria’

Following the decision of the Presidential Election Petition Tribunal last Wednesday, which dismissed the petition filed by the Peoples Democratic Party (PDP) and its presidential candidate, Atiku Abubakar against President Muhammadu Buhari and his party in its entirety, some lawyers have stated that proving such electoral malpractice is one of the greatest hurdles to cross in Nigeria.

While the lawyers commend the tribunal for keeping to the statutory time within which to deliver judgment, they were unanimous in their view that such burden of proof, which the law lay on the petitioner would continue to embolden politicians to ensure they win the election, by all means, knowing what lay ahead for their opponents.

Lagos-based legal practitioner, Mr.Stephen Azubuike said the Tribunal made some remarkable findings that raise arguable issues of law.

“The petitioners may opt to exercise their constitutional right of appeal by calling upon the Supreme Court to give a final verdict on the contentious issues.

“Perhaps it is important to mention that, discharging the onus of proof on a presidential election by a petitioner who is alleging significant electoral malpractices and other strong allegations is one of the greatest hurdles to cross in such a
petition.

It is doubtful if the burden can be adequately discharged within the short period allowed by law,” he argued.

According to him, the implication of the judgment is that an incumbent can go all out in an election to win at all costs, “bearing in mind that the petitioner has a date with the red sea in court.”

His words: “With the current disposition of the Tribunal, for instance, how can anyone ever prove that security agencies and thugs worked for the incumbent? My take is that, while innovative ways of discharging this burden remain to be discovered, it should never be said or insinuated that the security agents or thugs must be joined to the suit before it can be proved or determined.”

Also speaking, managing partner, CLP Legal, Lagos, Mr. Okey Egbuchu, who said he was not surprised by the judgment, echoed the same sentiment by Azubuike.

He said: “The judgment did not surprise me. Proving election malpractice in the whole of Nigeria by the standards required of law is perhaps the highest-burden in any election anywhere in the world.”

According to him, the easier option is proving infraction of the law rather than widespread rigging which is factual and purely evidence-based.

The national president, Campaign for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, who commanded both the tribunal and the parties for exhibiting discipline in the best tradition of legal practice, pointed out that part of the challenges of proving presidential election petition borders on the difficulty in calling witnesses across the entire country within the limited time available to determine the petition.

He said: “It also turned out to be part of the fundamental challenge of the exercise in which petitioners could not but limit themselves to calling a little above 60 witnesses when they had frontloaded far much more than that to cover the entire jurisdiction of the country.”

Ugwummadu stressed that the judgment certainly dealt with areas of our electoral jurisprudence, which are largely recondite and misconceived.

“In a clearer manner, it explains, for instance, what exactly is meant in Section 131(d) of the 1999 Constitution regarding the qualification that any person aspiring to be elected as the president of Nigeria must have been educated up to at least School Certificate level or its equivalent.

“In effect and by this judgment, it does not necessarily mean that you must attach your school leaving certificate to your application form once you are able to show by other credible documents and qualifications that you must have been educated up to at least School Certificate level or it’s equivalent,” he stated.

Underscoring the difficulty of proving the presidential election petition, the lawyer emphasised that the requirement for the proof of criminal allegations in an election petition must be discharged according to the standards of a criminal trial, which is beyond all reasonable doubt.

“The burden of proof remains permanently with whoever makes an allegation until (s)he discharges it. These are already all trite principles of law,” he said.

In his own contribution, the convener, Access to Justice, Mr. Joseph Otteh said the way forward is that electoral disputes’ adjudication must make a shift in its approach to electoral complaint resolution so as to protect the integrity of the electoral process.

He said: “Access to Justice is concerned that the Tribunal’s inquiry was significantly coloured by the application of technical rules of evidence applied to general causes more than an overarching desire to safeguard the integrity of the electoral process.

“Up till now, Nigeria’s electoral dispute adjudication continues to be predicated on a philosophy that is unsuited to the needs of growing democracy and this needs to change. When an electoral court insists on “proof beyond a reasonable doubt”, the court raises the bar for reaching the truth about the integrity of the elections conducted and ascertaining whether announced results were consistent with voter choices, and the court’s approach then keeps the truth buried under the rigours of those high thresholds set. In the end “democracy” is the ultimate victim.”

While explaining that it may not be the case that the Tribunal buried the truth on the matter, he pointed out the need for courts to depart from evidential technicality.

“We think rather that our courts’ philosophy to electoral adjudication needs to be reconstructed and better realigned to meet the need of both protecting and revalidating electoral choices made by Nigerian people,” he emphasised.