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INEC and burden of unending litigations from 2023 general elections

By From Sodiq Omolaoye, Abuja 
19 March 2023   |   3:09 am
As with all elections, the 2023 general elections will come and go. But as it obtains in the aftermath of wars, where massive destruction of cities and properties have long-lasting effects, some of the outcomes of this year’s elections might finally be determined by the court.

• Court Cases Are Distractions But We Are Battle Ready – INEC
• With Too Much Involvement, Nigerians May Lose Faith In Judiciary – Prof. Jinadu
• ‘Cash And Carry’ Democracy Responsible For Unnecessary Judicial Intervention – Rafsanjani
• Desperate Politicians Exploiting Litigation For Underserved Electoral Victory – Itodo

As with all elections, the 2023 general elections will come and go. But as it obtains in the aftermath of wars, where massive destruction of cities and properties have long-lasting effects, some of the outcomes of this year’s elections might finally be determined by the court.

While some outcomes might be overturned by the courts, others would be upheld. And these developments are expected to have some effects on the nation’s socio-economic landscape in the long run.

Already, shortly after the February 25, 2023 Presidential elections that produced the candidate of the All Progressives Congress (APC), Bola Ahmed Tinubu as winner, two of the major contestants in the election, Atiku Abubakar of the Peoples Democratic Party and Labour Party’s Peter Obi have since rejected the results as announced by Independent National Electoral Commission (INEC), with each of them laying claim to winning the election and vowing to challenge the exercise in court.

Recall that INEC had in the early hours of March 1, 2023, declared Tinubu as the winner of the election. Tinubu defeated 17 other candidates who took part in the election.

The APC candidate polled 8,794,726 votes and won in 12 states, to defeat his closest rivals, Atiku who scored 6,984,520 votes, Obi who polled 6,101,533, and Rabiu Kwankwaso of the New Nigerian Peoples Party (NNPP) who garnered 1,496,687 votes.

The election is said to be the most competitive since the country’s return to democratic rule in 1999.

Atiku and Obi’s decision to challenge the outcome in court on the grounds that the presidential election was marred by irregularities, is arguably the first of the 2023 general election matters presented before the nation’s judiciary. But it won’t be the last. Some aggrieved candidates who partook in the national assembly elections are also expected to tow the legal path.

In addition to this, the March 18 governorship and State Houses of Assembly election is expected to produce many aggrieved candidates and parties who will also approach the court to contest the outcome of the polls and seek legal remedies.

Labour Party legal team meeting INEC chairman Mahmood Yakubu at INEC HQ, Abuja.

In all of these, INEC, the electoral body, which oversees elections in Nigeria, is always listed as a party in lawsuits instituted by those who feel cheated in the process.

Nevertheless, for many stakeholders, there are cost implications when political parties and politicians engage in endless court battles over compromised primaries and major elections.

It would be recalled that after the 2015 elections, INEC chairman, Prof. Mahmood Yakubu disclosed that the Commission was taken to court 680 times by litigants over the 2015 elections. He, however, explained that of the 680 court cases, 600 were dismissed while 80 were upheld.

Similarly, litigations after the 2019 elections were higher. About 1,689 court cases arose from the conduct of the 2019 general election, according to INEC.

While more than 890 of the cases were pre-election matters from conduct of political party primary elections, 799 were election petitions that went to various tribunals across the country.

For the 2023 elections, many Nigerians were shocked when on July 21, 2022, Yakubu announced that they were 334 post-primary cases in various courts across the country. Recall that political parties held their primaries between April and June, 2022.

About seven months later, Yakubu, while playing host to the delegation of the Nigerian Bar Association (NBA), led by their President, Yakubu Maikyau, at the commission’s headquarters in Abuja, declared that as at February 6, the commission had been joined in 1,241 intra-party lawsuits in different courts of law.

He said some of the cases have gone to the Federal High Court, while some are before the Court of Appeal, and others are before the Supreme Court.

“On pre-election litigation alone as at Monday, February 6, INEC has been joined in 1241 cases making us one of the most litigated against agencies in the country.

“These cases have nothing to do with elections conducted by INEC. They are primary elections conducted by political parties but each time they go to court, they join the commission and we have to engage either our own in-house lawyers or we transfer the cases out to external legal firms to represent the commission.

“Out of these 1241 cases, over 300 are right now before the Court of Appeal. And 155 before the Supreme Court as at Monday this week,” Yakubu stated.

The INEC chairman, therefore, sought the support of the NBA in handling its numerous pre-electoral cases in courts across the country.

It should be noted that aside the increasing burden of litigation faced by INEC, another issue which stakeholders have expressed concern is the large number of conflicting judgments at every election cycle.

Apart from the enormous cost implications of the conflicting judgments to the country, observers say the practice also creates a negative public perception for INEC.

The issue of conflicting judgments became more pronounced during the events leading to the Edo State governorship election in September 2021, to the extent that the commission had to publicly express reservation over the multiplicity of similar ex parte court orders, while it urged the NBA and the Judiciary to be above board in the discharge of their duties.

Political analysts believe that the numerous litigations faced by the commission is as a result of the growing impunity and lack of internal democracy within political parties.

For many analysts also, the prosecution of electoral offenders is another legal burden on INEC. While speaking at the meeting of the Inter-Agency Consultative Committee on Election Security (ICCES) in Abuja on Tuesday, March 14, 2023, INEC chairman vowed that the commission
will expedite the prosecution of cases of electoral offenders during the February 25 Presidential and National Assembly elections.

He said INEC was looking forward to receiving case files of electoral offenders in the just concluded polls as promised by the Inspector-General of Police, Alkali Baba, and that a legal team will be set up to commence prosecution forthwith.

But observers have argued that prosecution of electoral offenders shouldn’t be the responsibility of INEC as the commission is already overwhelmed with the duties of attending to election matters.

Perhaps, the NBA in its wisdom saw this limitation and was aware that the nation could be heading for a serious dilemma if the status quo is allowed to remain, hence the constitution of a legal team that would help INEC to prosecute electoral offenders.

Yakubu Maikyau PHOTO: Twitter

The legal body, through its President, Mr. Yakubu Maikyau, SAN, disclosed that over 300 legal practitioners have already declared their readiness to offer their service to the electoral body, free of charge.

For the 2023 general elections, how prepared is INEC to weather the storm as more legal fireworks knock at its door?

Speaking with The Guardian, Chief Press Secretary to the INEC chairman, Rotimi Oyekanmi, observed that the 1999 general elections that ushered Nigeria’s return to civil rule set a precedent for litigation in the Nigeria’s Electoral system, which he said has now become a way of life in the country.

According to Oyekanmi, from 1999 to 2023, only the outcome of the 2015 general election was not challenged in court.

Insisting that the commission is always prepared for litigation, Oyekanmi said it has become a ritual for participant in the electoral process to drag INEC to court not only over the outcome of an election, but also over the outcome of primary elections conducted by the political parties themselves.

Oyekanmi said the establishment of the Department of Litigation and Prosecution (DL&P) in the commission was a wise move to take care of its numerous court cases.

He said: “For instance, as of February 6, this year, INEC had been joined in over 1,200 intra-party lawsuits in different courts across the country. As you rightly observed, those who lost out in the 2023 Presidential election are already in court to contest the outcome, in line with tradition. It is, of course, within their rights to do so.

“The Commission is always prepared for litigation. It was for the purposes of strengthening our legal services team that the Commission in April 2021 created the Department of Litigation and Prosecution (DL&P) out of the former Department of Legal Services. It was indeed a wise decision.

Our competent hands are sometimes complemented by external counsels who handle cases assigned to them from time to time. We have three Senior Advocates of Nigeria (SANs) within our ranks. While we do not enjoy being dragged to court frequently as is the case most of the time, we have no option but to brace up for it.”

On whether the commission has the capacity to get through the challenges posed by the litigations, Oyekanmi pointed out that the Commission was established to conduct elections, among other responsibilities but not to be going to courts endlessly.

He expressed concerns that despite the enormous constitutional responsibilities bestowed on the commission, it had been joined in over 1,200 lawsuits.

Noting that persistent court cases are a huge distraction for the electoral umpire that it can do without, Oyekanmi added: “Indeed, conflicting court orders constitute some challenges which sometimes slow us down or even alter our plans. We cannot continue to endure endless litigations. There must be an end to litigation within a particular timeframe on all electoral matters.”

On the Commission seeking the assistance of the Nigerian Bar Association, Oyekanmi said: “NBA is one of the Commission’s important stakeholders. When we received the NBA delegation, led by its President, at the INEC headquarters recently, part of the discussion covered the need for collaboration and cooperation between the two entities. The discussion is continuing, and we are positive that something good will come out from it for both parties.”

Senior Research Fellow, Centre for Democracy and Development (CDD), Professor Adele Jinadu told The Guardian that there had been an increase in election cases in court despite efforts to improve the nation’s electoral system.

He said though there might be some cost implications, the move by aggrieved candidates or parties to seek legal redress instead of violence is a good development.

The professor of Political Science stated: “The last election in 2019, it went up whereas between 2011 and 2015, it went down, but now it’s going up. I think it is a good thing because it shows that people want to contest elections, which they regard as fraudulent and I think that the fact that they chose the legal way to seek redress not violence, is something Nigerians should be happy about.

“But the second part which is not too good is that the more cases in court, the more the court get involved in politics and we may have a situation where people will be loosing faith in the judiciary because they may give decisions that are unpopular, but mainly based on technicalities, rather than the substance of the case.

According to him, the pre-election cases where INEC is always a party, can be distracting to the commission. He added: “The pre-election cases can distract INEC. I think it’s also good for INEC because it means INEC will have to sit tight.

“Primary elections, for example, doesn’t really have to involve INEC because it can distract the commission. INEC have to appear in court and file papers and things like that.

“Look at what happened recently regarding the appeal of the presidential election. INEC had to go to court and say, look that judgment on BVAS might affect the governorship election and they sought the permission of the court to give them go ahead to reconfigure BVAS.”

Chairman, of Transitioning Monitoring Group (TMG), Auwal Musa Rafsanjani, however, disagreed that the numerous litigations arising from the conduct of elections was a good omen for the country.

He blamed the development on the failure of political parties and candidates to abide by the rules of the election either at the party level or general elections stage.

He stated: “It is not good that election outcomes end up in tribunals all the times and this is because of the failure of the political parties and the candidates and the politicians generally to abide by the rules of the election either at the party level or general election level. Some of these problems happen as a result of the failure of the political parties to comply with their own guidelines in conducting party primaries.

“So that is why many people had no option than to go to court. The failure of the political parties to conduct themselves in line with the rules that they set up for themselves is also part of the problem. Now, the inability of the politician generally, during the election, to comply with the rules of the games is also what is now given the judiciary the opportunity to now decide our elected officials.”

According to Rafsanjani, the court shouldn’t be deciding who becomes the winner of an election if everything goes very well.

He added: “If the internal democracy within the political parties is respected, we should not end up in court except where there is a clear conflict, then, we resort to judiciary. But it is not always nice that people voted somebody and then the Judiciary will be the one to award the position to somebody else. That concept defeats popular participation and popular aspiration of candidates and political parties.”

He stressed the need for stakeholders in the electoral process, especially the umpire, to do the right thing, and follow the rules. “If we follow the rules, we will not be here today. In the United States of America, how many times do you hear politicians going to court after party primaries? This is because there is internal party process. Here, it is cash and carry. Let’s look at the case of Rivers State. The primary election that produced the current PDP gubernatorial candidate is a sham.

They are currently in Supreme Court. The lady that is supposed to be the candidate was deprived by the governor of Rivers State, Nyesom Wike, and from what I am seeing, we might be having a repeat of the Rotimi Amaechi saga,” he said.

Executive Director, Yiaga Africa, Samson Itodo said though the polling unit was the arena of electoral competition a few weeks ago, the courts have displaced the polling units as the new arena for electoral contests.

According to him, as it stands, the courts will determine the final vote in all election disputes it entertains.

Itodo however observed that while the recourse to an unelected body of judges to resolve election disputes signals increasing faith in the judicial process, it also exposes the desperation of politicians to exploit the litigation process to clinch electoral victory.

He stated: “Litigating election disputes is contentious, complex, and excessively technical. This accounts for the reason election tribunals and courts make efforts to resolve election disputes but often fail to address the grievances of litigants.

“As expected, political attention is shifting to the courts as aggrieved candidates and political parties that contested in Nigeria’s 2023 general elections are approaching the courts to challenge the outcome of the polls and seeking legal remedies

“Without good judges, the aspiration of advancing electoral justice and political legitimacy may be thwarted.”

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