Imperative of electoral reforms as 736 petitioners go to tribunals
Following gross irregularities and widespread violence that marred Kenya’s general elections in 2007, Kenyans decided to sanitise their nation’s political system using the instrumentality of the law. The result was the enactment of a new Constitution in 2010 through a popular and democratic process.
The action gave Kenya what is regarded in many quarters as one of the best constitutions in Africa today. And one key takeaway from the new constitution is the aspect that sought to prevent delay in the hearing of election petitions. Section 140 of the Constitution stipulates that presidential election petitions shall be heard and determined within 14 days. Sequel to this, following a disputed 2013 general elections, the Kenyan Parliament again reviewed the electoral system by enacting the Electoral Act 2016.
The review provided for electronic voting, and the appointment of the chairman and members of the Independent Election and Boundary Commission (IEBC) through an interview conducted by a selection board as well as the Offences Act 2016 to provide for electoral offenses and penalties.
With the provision of such progressive review, the Supreme Court of Kenya had little difficulty in upholding the petition of candidate Raila Odinga, who lost to Uhuru Kenyatta in the August 8, 2017 presidential election. Odinga filed his petition on August 18, 2017 and the Supreme Court, in its judgment delivered two weeks later, annulled Kenyatta’s election. That was made possible with the aid of technology.
Rather than spend precious time calling hundreds of witnesses to give oral evidence or adopt written depositions and be cross-examined by opposing lawyers, the electoral body was ordered by the Supreme Court to produce the uploaded results of the election. The registrar of the court was directed to collect the results and other election materials from the IEBC for examination by the parties and the court. And in the historic judgment, the court validated electronic voting. The court found that the massive irregularities in the transmission of election results had compromised the integrity of the election.
In annulling the results, the Supreme Court held that the IEBC “failed, neglected or refused to conduct the presidential election in a manner consistent with the dictates of the Constitution.” That judgment was and remains the first time any court annulled the result of a presidential election in Africa. And it has far-reaching implications for democracy and rule of law on the continent.
Recently, the office of the Chief Registrar, Election Petitions Tribunal at the Court of Appeal in Abuja released a document through which it disclosed that 736 election petitions had been filed by aggrieved politicians to challenge the outcome of the 2019 general elections at various levels. The document, which showed petitions filed as of April 4, 2019, revealed that the State Houses of Assembly elections had attracted 381 petitions, the House of Representatives elections 101 while the Senatorial elections had 207 petitions.
In addition, 43 petitions had been filed to challenge the outcome of governorship elections while four sought to upturn the victory of President Muhammadu Buhari. The relatively high number of petitions that have followed the elections is, however, not new. It has been an ugly trend since the 2007 elections, conducted by former President Olusegun Obasanjo’s government, which attracted 3,000 petitions. Also, in the aftermath of the 2015 general elections, an almost equal number of petitions, 730, trailed the polls. Of that figure, 179 were filed against House of Representatives seats, 79 for senatorial seats and 380 for Houses of Assembly seats.
The staggered 2016 governorship elections in Edo and Bayelsa received 32 petitions. Other staggered elections, including Anambra in 2017, received 21 petitions. The 2011 general elections had 733 petitions.The recurring high number of petitions that have trailed elections over the years not only indicates the disagreement of candidates with election results, it brings to fore issues bordering on the integrity of the electoral process regardless of whoever oversees it. And for the umpteenth, it reminds the nation of the urgent need for electoral reforms and its entrenchment in the nation’s voting processes.
This is beside rising concerns about the cost of filing election petitions, the cost of litigation, the negative effect of the petitions on governance in some cases and the overall drawbacks for the nation.To be sure, President Buhari, who is being criticised for having overseen an election fraught with irregularities and whose victory is being challenged at the tribunal, was also a perennial complainant and petitioner after every election he contested since 2003 until he finished as the victor in the 2015 elections.
In 1999, Chief Olu Falae, President Obasanjo’s main opposition at the time, alleged that the February 27 election was characterised by bribery and corruption. Hence, his resolve to challenge the result in court. In 2019, 20 years after, Abubakar Atiku, President Buhari’s main challenger, has yet cried foul. Atiku said, “In my democratic struggles for the past three decades, I have never seen our democracy so debased as it was on Saturday, February 23, 2019. 2007 was a challenge, but the late President Umaru Yar’Adua was remorseful. In 2019, it is sad to see those who trampled on democracy thumping their noses down on the Nigerian people. Consequently, I hereby reject the result of the sham election and will be challenging it in court.
“If I had lost in a free and fair election, I would have called the victor within seconds of my being aware of his victory to offer, not just my congratulations, but my services to help unite Nigeria by being a bridge between the North and the South.”In 2016, the 8th Assembly, based on recommendations from an array of stakeholders, including several civil society organisations (CSOs), pressure and observer groups, set to work on the 2015 Electoral Act to push for far-reaching reforms and scale down on post-election controversies.
Rationalising the reforms at a forum, the Senate President, Bukola Saraki said, “What we have done with the bill is to raise the level of transparency, credibility and acceptability of our electoral process. “We made sure that if the law is assented to and honestly applied by the Independent National Electoral Commission (INEC) and all those concerned, it would give us an election that will be better than what we had in 2015.”
An aspect of the preferred reforms had since seen the involvement of technology in parts of election conducted in the country, specifically with the introduction of card readers in the process in 2015. But the Electoral (Amendment) Bill 2018, passed by the National Assembly, sought deeper reforms, key among which is electronic voting and transmission of results as it obtains in Kenya – meaning that the entire registration, accreditation, vote counting, collation and announcement chain would be achieved electronically.Parts of the reforms include the introduction of electronic voting and use of technology in elections; factoring in youth and persons with disabilities in political party structures and elections; regulating election expenses, and increasing penalties for electoral offenders and consequential constitutional amendments. Others are Diaspora voting, increasing the participation of women, enshrining the smart card reader in the legal framework and creating an electoral offences commission and tribunal.
In declining assent to the bill, however, President Buhari cited a number of reasons. He expressed concern that passing a new electoral bill at a time when the nation had gone far into the electoral process for the 2019 general elections, which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process. “Any real or apparent change to the rules this close to the election may provide an opportunity for disruption and confusion in respect of which law governs the electoral process,” Buhari said.
For instance, the president noted that the time was too short to effectively deploy and implement the electronic voting aspect of the Amendment Bill nationwide because elections were close.Human rights lawyer, Mr. Femi Falana, however, opines that the failure of the Buhari government and indeed, successive governments, to reform the electoral process had created insurmountable legal obstacles for election petitioners. Stressing the need for electoral reforms, Falana said current state of the nation’s electoral laws gives ample room for greater frustration of election petitioners in their quest for justice.
“As things stand, the frustration of petitioners has been compounded by several judicial authorities, with some decisions holding that an election cannot be questioned on grounds of corrupt practices,” he said. “Judicial authorities had upheld many elections despite the fact that the polls were marred by malfeasance.“For instance, a petitioner is required to prove that there is substantial non-compliance and that the non-compliance has substantially affected the results of the election.”
Falana further stressed, “In Yussuf v Obasanjo, it was held that an election cannot be questioned on grounds of corrupt practices. In Falae v Obasanjo, it was held that it has to be proved that financial inducement was authorised by the winner of an election. In Buhari v Obasanjo, it was held that the onus of proving electoral malpractice rests on the petitioner.
“Several fraudulent elections have been upheld under the doctrine of substantial compliance. In several cases, winners of fraudulent elections that were annulled were allowed to take part in rerun elections ordered by the courts.”Shortly after the general elections, the European Union Election Observation Mission (EUEOM) to Nigeria, in its preliminary report on the elections, had called for electoral reforms as proposed by civil society organisations in Nigeria.
EUEOM’s Chief Observer, Maria Arena, noted that the systemic failings and electoral security problems observed during the elections showed that there was real need for serious electoral reforms in Nigeria. She observed that troubling electoral security and violence, abuse of incumbency, and institutional failings overshadowed the elections.
To restore faith in the electoral process, Arena stressed the need for reforms that will bring greater integrity to the electoral process in Nigeria. According to her, “Nigeria needs to agree on key reforms long before the next general elections. Change and improvements don’t happen overnight; reforms should neither be rushed nor left to the last moment.”
Recall that the National Chairman of INEC, Prof. Mahmood Yakubu, had admitted, during the presentation of certificates of return to senators-elect in Abuja, that Nigeria’s electoral process was due for an upgrade.Ahead of the 2019 general elections, former Nigeria Bar Association president, Dr. Olisa Agbakoba, had also expressed concerns about the high cost of handling election petitions.
While speaking at a public presentation of a report titled ‘Judicial Application of Election Petitions at the 2017 Anambra State Governorship Election Tribunal,’ he decried the high cost of filing and procuring relevant documents at election petitions tribunals. Agbakoba, a Senior Counsel with The Human Rights Law Service (HURILAWS), said, “Since 1999, HURILAWS has been involved in advocacy for reforms of the election conflict management process in Nigeria. HURILAWS has advocated a principled, effectively-managed, and disciplined election petition tribunal.
The former NBA chief stressed that the process of dealing with complaints and resolving election disputes is critical to the survival of any democracy, particularly a fragile one like Nigeria. Citing the 2017 Anambra State Governorship Election Tribunal as a case study, Agbakoba said the cost of filing election petition at the Anambra tribunal costs N400,000. He lamented that the high fee could discourage potential petitioners.
Where petitioners broke barriers to file their complaints, Agbakoba also pointed out, as it was with the three petitioners who filed complaints, that it was cumbersome for petitioners to establish the corrupt practices they alleged as having marred the election because, “as candidates of less popular political parties, who were largely self-funding, they could not muster enough financial muscles to deploy the massive array of evidence and witnesses requisite to upturn the apple cart, as it were.”
Although the Constitution stipulates that election petitions must be disposed of within 180 days of filing, the report also observed that “access to relevant election materials or documents by candidates in the election for purposes of election petition continued to be a challenge with the Independent National Electoral Commission levying very exorbitant fees for issuance of certified true copies of the election results and other election documents to candidates.
“Petitioners at the Anambra State election Petition Tribunal had to pay application fees in the range of N1, 000,000 to N1, 500, 000 to access such documents. The huge financial cost attendant to procuring election materials and documents from INEC for purposes of Election Petition might have contributed in dissuading potential petitioners from challenging the outcome of the November 18, 2017 Anambra State governorship election,” he added.
Aside suggestions for a reduction in litigation costs for election petitions, HURILAWS also recommended the expansion of the rule on non-compliance, access to election material and the burden and standard of proof, among others.On the issue of access to and high cost of procuring relevant election documents needed for election petitions, the report counseled INEC to “immediately after announcing the result of an election, make available at no cost, certified copies of all relevant election documents to all the political parties to facilitate fair challenges against the election outcome. Alternatively, certified copies of such documents may be made available by INEC to the National Library, which will in turn issue at nominal cost recertified copies to any person who wishes to have them be it for election petition, research, or other personal or public purposes.”
It recommended that it would be better to reduce the standard of proof where a petitioner is allegedly involved in corrupt practices against the conduct of an election to proof on a balance of probabilities.But, as evidenced in the Kenya election petition scenario, Agbakoba’s concerns for the petitioners would be effectively taken care of with technology wholly introduced into our voting process, especially with electronic voting and transmission of results, among other reforms being canvassed.
Specifically, beyond restoring integrity to the electoral process, technology will prevent a lot of current occupiers or would-be occupiers of public office, who ought not to have won elections, from occupying office. It will reduce incidences of peoples’ will being upturned with results manipulation. And it will permanently nail the coffin on the new culture of inconclusiveness about creeping into our elections narrative.
Shortly after President Buhari declined assent to the Electoral Reform Bill, the Director General of his Campaign Organisation, Festus Keyamo, had explained the President’s dissent as genuine.“If the President signs the electoral bill now, our election will not be deemed credible… We got to this situation, not because of the fault of the President but the fault of the cabinet of the National Assembly,” he said.
The unspoken gesture of the executive in turning down the all-important electoral reforms bill is that of timeliness. But some analysts and sections of the opposition, in puncturing that stance, have said President Buhari’s explanations are mere smokescreen for an unwillingness to sign into law vital aspects of the reform bill that could ultimately have jeopardised his chances of winning re-election. As Nigerians look forward to the inauguration of the 9th assembly, the onus lies on the 469 members of both chambers to, soon after inauguration, timeously debate, update and represent the Electoral (Amendment) Bill to the president for the needed assent.
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