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‘Timeframe For Election Petitions Limits Fair Hearing’

By Editorial board
18 April 2015   |   1:01 pm
Banji Alabi, a constitutional lawyer re-assesses the process of the last election and offers a predictive opinion on the capacity and possible attitude of the Election Tribunals to determine disputes arising from the 2015 Election
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Court

How would you assess the recent general elections?
The just-concluded general elections were largely a success. Nigerians have attained an enviable feat in democracy.

The Independent National Electoral Commission (INEC) made a timely introduction of the Electronic Voter Card Reader. The outcome was that rigging was manifestly reduced to the barest minimum, as the number of accredited voters was ascertained before the commencement of the electoral process, such that if the votes cast out-numbered the number of accredited voters, the error would be easily spotted out.

It is unfortunate that allegations of rigging and some pockets of violence were recorded in some quarters, but it is good to know that it wasn’t as widespread as it was in previous elections.

It is expected that future elections turn out to be a further improvement of the just-concluded ones. We will like to see how technology can further help to restore the integrity of the ballot in Nigeria. Nigeria is long overdue for this.

Issues, such as people being disenfranchised of voters as a result of relocation from where they registered or Nigerians not being able to vote because they are abroad, can be addressed with the aid of technology.

How would you react to the current trend of unsuccessful candidates accepting defeat immediately?
It is a welcome development and we hope this is done with sincerity and not just a new political fad.

The purpose of an election is to give the electorate a spectrum of manifestos and candidates. Once the electorate have chosen one of the candidates as acceptable to them, the unsuccessful candidates should congratulate the successful one and cooperate with him/her to work out his/her manifesto for the common good of the electorate. The politics of winner-takes-it-all must be eschewed and rightly so.

Contrary to the generally perceived impression, this trend wouldn’t affect the internal economy of the legal profession. Interestingly, lawyers make more money when the polity is stable and business is thriving across sectors.

The problem about the development would be where cases of serious electoral malpractice that should be redressed in the interest of our democracy are not litigated. Where this occurs, the actual will of the people is compromised, simply because the candidate wants to make a gentleman appeal.

We should address the root cause of malpractice to discourage impunity.

Do you think most election disputes would be determined before the expiration of the 180 days allowed for such?
That is the challenge I was trying to explain. I don’t believe most of the election disputes would have been determined before the expiration of the 180 days.

The implication of the 180 days timeline is that this whole process of inspection, analysis of evidence and taking the testimony of scores of witnesses must be concluded within 180 days.

The situation becomes more frustrating for a Petitioner where the Respondent, the winner of the election in most cases, adopts delay tactics through objections and interlocutory appeals.

All these time-wasting objections and possible interlocutory appeals must be determined within the same 180 days prescribed for hearing the petition and delivering final judgment.

The reality is that the substantive hearing of the Petition is frustrated in most cases.

In your opinion, is the timeline a violation of the right of candidates that approach the tribunal to resolve election grievances?
The question has been presented before the Supreme Court and the opinion of the court is that this is proper.

I belong to the school of thought that believes that the 180-day timeframe is a violation of the fundamental right to fair hearing of the parties to an election petition.

It is also an infringement of the independence of the courts to determine cases before them.

Unfortunately, all the cases filed after the Supreme Court’s decision in ANPP v. Goni to review its position were not taken by the court.

They were frustrated by the very same reason that time had lapsed.

The 1999 Constitution (as amended) in Section 36, guarantees the right to “fair hearing within a reasonable time.” Therefore, the subsequent amendment of the Constitution to deprive the litigants of fair hearing by inserting an unreasonable time limit offends the earlier guaranteed right to fair hearing.

The provisions of Chapter IV of the Constitution regarding fundamental rights could not even have been validly amended in the manner of the subsequent amendment introduced under Section 285, sub-section 6, which has become a vehicle of injustice and must be reviewed in the next constitutional amendment.

The Petitioner is now made to suffer unjustly for any delay in the litigation process, including those deliberately caused by the Respondents to the Petition, who have no motivation to have the Petition decided on the merit. This is unjust!

The injustice cannot even be justified by the fact that the provision for 180 days was smuggled into the constitution and is still there.

How can litigants avoid the consequences of the 180-day timeframe?
The Petitioners have to be far more diligent than they would be in regular lawsuits. At the time of filing the Petition, special care must be taken to minimise the possibility of technical objections.

From the moment of filing the Petition, it is also important for the Petitioners’ counsel to have a date track and proper docket management system that tells them when to do what.

A lot of time-saving can also be achieved through a proper evaluation of the case before filing. This helps to narrow the dispute to what can be easily proved to sustain the case and reduce the number of witness to be called or dispense with evidence that may not be procured timely.

With the cooperation of parties, there could also be agreement on certain pieces of evidence to be tendered and this dispenses with contention on admissibility at trial.

What is even more important is for opposing counsel to act responsibly as they are ethically obliged to. As counsel, we have a duty to the court and must not take undue advantage of the legal process to frustrate justice. Frivolous objections in Petitions will destroy our electoral jurisprudence.

The Tribunals must also discourage it by adopting a case management approach that suspends those objections till the final judgment.

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