Beyond the fanfare that ushers in a new administration today, the yet undecided presidential electoral petitions are dark clouds hanging over on a potential new day for governance in Nigeria.
And without prejudice to merits of subsisting petitions, the customary drags and delays in the dispensation of justice pose a distraction to the real business of governance that today’s Nigeria needs badly. It is, therefore, incumbent on the judiciary, especially the tribunal, to speedily, though fairly, put closure to the 2023 presidential election, and douse political tension for the country to move forward.
Despite the disappointments expressed by Nigerians in the aftermath of the last general elections, it is refreshing that various Election Tribunals have opened windows of opportunity for hearing. And for obvious reasons, all eyes are on the Presidential Election Petition Court (PEPC), being the original authority saddled with the duty of settling the controversy surrounding the presidential election.
Assuring Nigerians of a fair trial, the Presiding Judge of PEPC, Haruna Tsammani, JCA, said at the pre-hearing session that they were determined to look at the matter dispassionately and give justice to whoever deserves justice. He warned lawyers representing the parties in the suit against unnecessary applications that could delay proceedings, adding that the Court would consider the substance of each case over technicalities so that “whoever leaves here will be satisfied that justice has been done.” Substantiating this resolve, the Court further announced that there would be no oral examination of witnesses (only adoption of witness statements will be required) except for star witnesses.
The stance of the Court to timely hear and determine the presidential election petition on the altar of merit, fairness, and substantial justice is commendable. While it remains to be manifestly seen whether the totality of the ensuing actions of the Court will mirror this verbal pledge, lawyers involved in the matter should take the hint of the Court to desist from tactics or antics that are capable of unreasonably stalling proceedings. Accordingly, the Court is enjoined to hastily throw out unmeritorious, frivolous, or vexatious applications with substantial costs against the legal representatives of such applicants.
Needless to assert that presidential electoral litigation is deserving of accelerated hearing given the fact that it centres on the highest office in the land. Opinions are unanimous that the extant constitutional lifespan for the determination of an election petition is too lengthy. Hence, it should be abridged. Section 285(5) of the 1999 Constitution (as amended) stipulates that every election petition shall be filed within 21 days after the date of the declaration of result of the election.
By Subsection (6) of Section 285, the Tribunal is bound to deliver its judgment in writing within 180 days from the date of the filing of the petition, while by Subsection (7) of the same Section, an appeal arising therefrom shall be concluded within 60 days of the delivery of the judgment of the tribunal or court of appeal. Therefore, it may take a total number of 240 days from the date of filing a petition for any dispute arising from the outcome of a presidential election to be finally resolved by the Supreme Court; while other election petitions could last up to 300 days! It is noteworthy that the Kenyan Supreme Court decided presidential election petitions within 14 days and 26 days in 2017 and 2022 respectively.
Indeed, a legal system that allows an embattled winner of an election to first assume office before determining whether he was duly elected ab initio is flawed and illogical. An ideal framework would allow election petitions to be concluded before inaugurating newly-elected or re-elected. This is practically impossible with the extant mechanism. Nigeria’s defective judicial electoral structure is partially responsible for the current agitation by a section of the people that the presidential inauguration ceremony slated for May 29 should be deferred until the petitions challenging the victory of the President-elect are judicially resolved.
Truly, issues bordering on whether the President-elect met the constitutional threshold and other legal issues forming the ballast of the various petitions are questions of law that can only be answered by the Court. Since the Court has yet to clear the air, the verdict of INEC on the presidential election still stands tall. Consequently, there is no legal albatross or impediment that should have derailed the May 29 presidential swearing-in ceremony.
Regardless, the concern raised by some of the ‘protesters’ should not be completely jettisoned as it exposes lapses in our extant electoral laws. For there to be progress in our electoral process, there are several cardinal factors that should be considered. For instance, are Election Tribunals really necessary? It is opined that the current two/three-tiered election adjudicatory system be collapsed into one/two-tiered system. That is, the Supreme Court should assume both original and final jurisdiction in presidential election petitions, while the Court of Appeal sitting as Election Tribunal should assume original jurisdiction over other election petitions.
While it appears that speedy disposal of electoral matters may interfere with litigants’ right to a fair hearing within a reasonable time as enshrined in Section 36(1) of the Constitution, however, good governance has often become the sacrificial lamb of protracted electoral trials. Election petitions often distract the affected elected officers from discharging the duties of their office – and there are a plethora of examples across states. And if there is any country on the planet earth that needs the full concentration of such duties to the citizenry, it is Nigeria. The country is writhing on all fronts and needs less distraction from its past to forge ahead. Therefore, it is the battle for the soul and survival of the country that should be uppermost in the mind of all.
To strike a balance, the entire adjudicatory system needs to be heavily digitised. Nigerian Courts have to fully embrace the innovative solutions proffered by technology, especially Bimodal Voter Accreditation System (BVAS). The recent decision of the Supreme Court in Oyetola V. Adeleke strongly suggests that the apex bench is not yet keen on substantially dispensing with analogue solutions.
It declared BVAS Report secondary evidence and held that BVAS Report cannot operate in isolation from the manual Voters Register. In other words, a duly authenticated BVAS Report is not sufficient to prove any material allegation of facts. The Supreme Court further held that the BVAS machine is the primary source of evidence and must be physically produced and relied upon in the course of the trial of the petition.
It is posited that reliance on the manual collation of results and physical production of BVAS machines will make the adjudicatory process cumbersome and slow, if followed strictly. It is doubtful whether the Supreme Court averted its mind to the fact that it is the same set of BVAS machines that are used for all the elections before arriving at its judgment. With this precedent, how will litigants in the ongoing tribunal proceedings across the federation simultaneously have access to the BVAS machine let alone be able to produce the same to substantiate their claims? Ideally, the content of a duly authenticated BVAS Report that captures accreditation and the results that have been uploaded to the INEC Result Viewing Portal ought to override the voters’ register that is susceptible to fraud, manipulation, alteration, mutilation, cancellation, and destruction. In fact, BVAS was introduced to improve the electoral process by addressing anomalies associated with voters’ registers.
While the National Assembly is expected to review the electoral laws to bring the same in line with modern realities, in the interim, the Nigerian judiciary should do away with all time-wasting practices in the adjudicatory process. The Court should record proceedings via electronic means, rather than long hand. Importantly, the Court should ensure that matters are fairly and justly dispensed with.
The vast majority of Nigerians believe that the swearing-in of the President-elect today will automatically foist a fait accompli on the Court. This perspective stems from the fact that no Nigerian Court has ever been bold enough to interfere with the outcome of a general election, however badly conducted. This situation is not peculiar, as only four countries in the entire world, Kenya inclusive, have nullified presidential elections.
Nigerian Courts should take a cue from their Kenyan counterpart and ensure that election petitions are dispassionately and fairly determined without fear or favour. And the earlier that is done, the better for Nigerians that are angling for the real business of governance – which is the inherent essence of both democracy and the electoral process.
