Challenging Election Outcome: Task before NASS, INEC

Whether or not all cases filed against winners of elections at the various tribunals should have been concluded before the swearing in date is becoming a subject of serious national debate. CHIJIOKE IREMEKA writes that some Senior Advocates of Nigeria (SANs) and politicians are craving a review of the relevant laws to extend the time required for election petition to be filed and the cases to be decided before the handover date to ensure fair hearing for the winners and the losers as contained in the 1999 Constitution of the Federal Republic of Nigeria.

Some Provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Electoral Act 2022 may be making it difficult for some candidates who have complaints against the conduct of polls and are seeking redress at election petition tribunal to get justice at the end of the day.
For instance, Section 285 (6) provides that “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”

It was observed that since the country’s nascent democracy started in 1999, no petitioner against the conduct of any presidential election has successfully pulled through this requirement at the election tribunal.

Observers are of the opinion that these requirements of the laws do not provide a fair and level playing grounds for the parties involved in election petitions as swearing in those declared winners pending the determination of the tribunal cases has often given the defendants undue advantage to use the state resources to fight their opponents at the tribunal.

Hence, some legal luminaries, political analysts, civil society organisations (CSOs) and other stakeholders across the country are making a case for adjustment of the country’s electoral processes in such a manner that every election petition case would be exhausted before swearing in the candidate declared winner, and to make the electoral process transparent to reduce the number of petitions filed against the conduct of polls.

The Electoral Act 2022 came with some innovations that would not only help in conducting free and fair elections but also help in having a good election petition.

Due to perceived fraud and lack of transparency, a lot of elections conducted in Nigeria end up at the election petition tribunal with the exception of the one conducted by the administration of former President Goodluck Jonathan, who conceded defeat without challenging the victory of Muhammadu Buhari as the presidential candidate of the All Progressives Congress (APC).

Consequently, some Senior Advocates of Nigeria, other lawyers and politicians are worried over the provision of Section 285 (6) of the 1999 Constitution as amended. The jurists are of the view that the Section 285 (6) is inimical to achieving fair hearing enshrined in the same Constitution. To them, setting 21-day time frame within which to file a petition challenging the conduct of elections in Nigeria is ridiculous.

They noted that challenging the conduct or outcome of a presidential election implies challenging the election conducted in 36 states of different sizes and the Federal Capital Territory (FCT). According to the legal experts, law that gives the petitioner 21 days to gather his materials and articulate his grievances in a form that can be presented before the tribunal within 21 days is not progressive, considering the fact that the same 21-day deadline was also given to opposition candidates to file their petitions for other categories of election held in smaller geographical areas like state, district and constituency.

The Guardian gathered that whether a candidate is challenging, for instance, the governorship election outcome in Kano State where you have about 44 local governments, or in Ebonyi State where you have less than 15 local governments, it is the same 21 days to file the petition. If you are challenging the victory of a candidate in Lagos State, where you have not less than 15 million people, it is also 21 days.

In the same manner for the National Assembly election, each state has three senators. A senatorial district is one third of a state. You also have 21 days to file petition against the conduct of election in the district. If you are looking at House of Representatives, the Constitution allows a minimum of eight representatives per state. The minimum is eight, no matter the size of the state. So, a constituency of the House of Representatives election is one eighth of the state and you also have 21 days to file petition.

National Assembly (NASS)

For House of Assembly seat, some constituencies cover just a local government. It is also 21 days. For chairmanship and councillorship elections at the local council level, it is also 21 days.

“I am doing this analysis deliberately to allow you come to the conclusion with me that there is no way one can justify a law that allows 21 days for the filing of presidential election and the same number of days for house of assembly election. I think the time limit is embarrassing and the imbalance must be corrected if we are to be seen as serious,” a professor of Law and the Managing Counsel, Awa U. Kalu (SAN) & Associates, Awa Kalu said in an interview with ThisDay.

“Similarly, the time limit for starting and finishing the presentation of an election petition is also limited to 180 days, irrespective of whether it is a presidential election or house of assembly election. I should also say that it is ridiculous,” the lawyer added.

The decision of the Supreme Court on an appeal arising from presidential election petition by Gen. Muhammadu Buhari against the election of Gen. Olusegun Obasanjo as president in 2003 further buttressed the preposterousness of the controversial sections as regards getting justice through election petition in the country.

The Supreme Court, The Guardian learnt, says a petitioner challenging an outcome of a presidential election would need a minimum of 250, 000 and 300, 000 witnesses to establish a case of non-compliance with the rules in the conduct of presidential election, the constituency of which is the entire 36 states of the Federation and the Federal Capital Territory (FCT), and prove the ingredients of successful election petition.

On the possibility of the court examining 300, 000 witnesses in an election petition proceedings, the judgment of which must be delivered within 180 days, assuming it is possible to file witness’ statements on oath within the 21 days, Kalu stated that it is not possible to file 250, 000 witness’ statements on oath within 21 days. He described it as a mountain-climbing task.

“Even if you can file, which is not possible anyway, you know lawyers, by nature, they know how to utilise opportunities provided by the law either for good or for bad. The present procedure for election presentation is that for a witness, all you are expected to do is to file a witness statement on oath, then his examination in chief is limited to adopting the witness statement on oath and usually, the tribunal would limit time for cross-examination. But the time for cross-examination differs from tribunal to tribunal.

“For instance, if a witness is a star witness, say the petitioner, they allow more time for adopting the witness statement on oath, adoption of tons of documents and at the same time for cross-examination. That is to say that tribunals at trial level are more generous towards witnesses in terms of time. But what you find in practice is that the onus is for the petitioner to prove substantial non-compliance.

“It is usually a mountain-climbing experience. That is always what it is for a petitioner to prove malpractices that will result in election being upturned. To answer your question, it is not possible to file 300, 000 witness statements on oath within the allotted time. I can tell you that it is not possible. Even if you are a magician, you can’t file 30, 000 witness statements on oath in 21 days. It is not just possible.

“This is because you are proving what has been explained to form part of the requirements for election malpractice. What the Supreme Court and other courts that deal with election matters explain is that for a challenge to show noncompliance, you have to start in a pyramidal way, which is what the Electoral Act contemplates.

“You look at the units’ results. That is where the compilation of the results starts. The results are transferred to the ward level. From ward level to the local government level, then to the state. For presidential election, from states to Abuja. So, each step has to justify whatever case you have. If it is the unit level, looking at the totality of the units that make up the totality of Nigeria, you will discover that it is a big task.

“At some state level, you have 3, 000 or more. That means, like 3000 multiplied by 36, you see where the problem is. That is why the Supreme Court says a minimum of 300, 000 witnesses would be needed to prove a petition seeking to upturn presidential electoral victory.

President Muhammadu Buhari welcoming former president Olusegun Obasanjo to his office at the State House Abuja on Thursday, PHOTO: Philip Ojisua

“This is exactly what the late Hon. Justice Pat Acholonu said in Buhari versus Obasanjo case, which was decided in February 2005: The very big obstacle which anybody who seeks to have the election of somebody that wins presidential election upturned faces is the very large witnesses he must call due to the size of different constituencies.

“In a country like our own, he will need to call about 250, 000 to 300, 000 witnesses. By the time the court would have heard from all of them with the way our law is couched, the incumbent would have long finished and left office. And even if the petitioner eventually wins at the Supreme Court, it will be an empty victory bereft of no substance,” the senior advocate explained.

Recently, the Section 285 (6) of the 1999 Constitution was a bone of contention between the former Lagos State governor and current Minister for Works, Babatunde Fashola (SAN) and other senior lawyers. They debated the need to either delete or retain the sub-section in the constitution.

The question of whether or not it violates fair hearing and denies petitioners justice became the subject of a passionate debate at a programme organised by the Section on Legal Practice (SLP) of the Nigerian Bar Association (NBA) at the 53rd annual general conference of the association in Calabar, the Cross River State capital.

On Rethinking the Provisions of Section 285 (6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on Election Petitions for a Stable Constitutional Democracy, Fashola urged the National Assembly to remove the section from the constitution as it does not only unjustly limit the time for adjudicating cases, but also creates the rush to their conclusion, often without the benefit of a full trial.

According to Fashola, the embattled section should be deleted because it violates the principles of fair hearing contained in the Constitution.

The speech reads in part: “As you probably know I have been in government for exactly 11 years and 10 days of an unbroken period of public service in two different capacities as Chief of Staff and later governor, except for the period of November 6, 2006 when I resigned to contest election, to May 29, 2007 when I was sworn in as governor.

“This has made it difficult for me to experience in practice the impact of the constitutional provisions of Section 285 (6) of the 1999 Constitution which provides that ‘An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.’

“To fill the gap of my lack of practical experience, I have consulted some lawyers and requested them to kindly give me the benefit of their practical experience in the process of trying the cases of their clients under the provisions of Section 285 (6) of the Constitution or similar provisions.

“The lawyers I spoke to, who I list in no particular order, are Messrs Ebun Olusegun Sofunde (SAN), Charles Edosomwan (SAN), Niyi Akintola (SAN) and Yemi Osinbajo (SAN). I told them that I would be sharing their experiences with my audience.

“They were unanimous in their views that the provision of Sections 285 (6) was a derogation from the principles of fair hearing enshrined in the same Constitution. They were unanimous in their view that it has not enriched our electoral process or our democracy. They all called for a rethink by the National Assembly in one way or the other.

“What is undebatable in the election petition cases successfully decided is that some commendable levels of good governance, elevation of the quality of life and improvement of the human development indices of the people have taken place since all these Governors were finally able to retrieve their stolen mandates.

“Do we know then many Amaechis, Oshiomholes, Fayemis, Mimikos and Aregbesolas we have lost in Nigeria, in all those petitions that were filed after the 2011 elections and which were never decided on their merits simply because we enacted Section 285 (6) into our Constitution and chose to limit time and rush petitions to conclusions often without the benefit of full trial?

“Are we truly helpless in the face of such conduct or are we prepared to change what we do not accept or are we going to pursue quick fixes like Section 285 (6) which compounds the problem? The unspoken statement that is coming out of the experiences of the lawyers who have assisted me about the disposition of parties to an election is this: ‘It is better to rig and get into office because I can frustrate trial from being started and concluded in 180 days.’

“We have not heard the unspoken statement of those who have been at the receiving end of such unjust treatment in the run up to the 2015 elections. I can only hazard a guess that it may not sound good unless we get our legislators to re-think and remove Section 285 (6); because if the hunter has learnt to shoot without missing, the bird that seeks to survive must learn to fly without perching.”

To surmount these challenges, Fashola recommended: “I do not believe that the problem lies only with law and I therefore will not advocate that we must amend the provisions of Section 285 (6) as some people have suggested. My recommendation is simple. Section 285 (6) of the Constitution must be deleted for no other reason than the fact that it has proven to have no utilitarian value in improving the electoral process and the fact that it compromises justice and the right to a fair hearing.

“Following from this first recommendation, I must reiterate that the constitution of election tribunals and the trial of election petitions are not stand alone process or procedures. They are part of the entire electoral process starting with the voters’ registration, actual voting, collation and announcement of results, swearing in of elected officials and the resolution of election disputes, which is what Section 285 (6) is all about.

“Therefore, the biggest hurdle we have to cross must be to ensure credibility of the processes that precede the resolution of election conflicts. In other words, our voters’ registration processes, our voting processes and result collation and announcement must be open and transparent, not merely by our saying so, but by the experience of those who interact with it.

“We must get to the situation where, even before the formal announcement by the electoral umpire, the results are already known and accepted by those who participated, so that the umpire’s declaration only ratifies what is already known and accepted. In this way, we will first be reducing the number of disputed elections and petitions and enriching our electoral processes and institutions.

“Perhaps more importantly, we must punish electoral offenders by demonstrating our resolve to stand up against what undermines our collective national development and has killed many dreams and aspirations before now and threatens to do more havoc unless it is decisively dealt with.

“I assert with every authority that I can muster, that our level of under development is not unconnected with our political inefficiencies. In a nation where there are so many lawyers and where many election petitions have been successful, and hitherto valid returns have been nullified, I find it strange that the records do not reveal one single trial for electoral fraud or offences, not to talk of a conviction in the history of our nation’s electoral experience dating back to the 1950s.”

More so, the Country Director of a civil society organisation, Equity International Initiative (EII), Chris Iyama, charged the Nigerian judiciary not to pervert justice based on technicalities, saying that the average Nigerian citizens’ trust quotient towards the judicial arm of the government is low.

The EII boss said Nigerians are condemned to trust in the judiciary’s abilities to deliver justice based on material evidence, saying that the common man on the street expects that the Presidential Elections Tribunal would deal justly and equitably, and must be seen to give fair hearing to all parties who have filed in their petitions.

“Nigerians expect that petitions filed by parties, hinging their arguments on the extant provisions of the Constitution, the Electoral Act 2022 and INEC’s manual for the conduct of the 2023 polls would be dealt with on their merits, and that the decisions of the Presidential Elections Petition Tribunal would be in line with the law, and the wishes and yearnings of Nigerians.

“Over the years, we have seen the judiciary truncate the hope of the electorate based on what they called technicalities. We hope they will not pervert justice this time around.”

Also, the Executive Director, Transparency Advocacy For Development Initiative (TADI), Amb. Yomi Davids, in his recommendation, called on the judiciary to reactivate and restore the hope and prayers of the Nigerian masses in the courts as the last hope of the common man.

He urged the judiciary to do the needful by ensuring that no stone is left unturned while justice is served with a sense of openness and responsibility to whoever deserves it.

“The Initiative therefore uses this medium to pass a vote of confidence on the leadership of the Judiciary in Nigeria with utmost belief that it would reactivate and restore the hope and prayers of the Nigerian masses in the courts as the last hope of the common man while justice and equity prevails.”

In his recommendations, Barrister Charles Ndukwe said, the best way to strengthen the country’s electoral process is to ensure that nobody is sworn in as anything, whether president or governor or lawmakers until the petition has been exhausted.

According to him, Nigeria election should be adjusted in such a way that all petitions should be concluded before May 29, Democracy Day.

“The timelines for the election should be tailored or pulled back to make allowance for the 180 days required at the tribunal and the 60 days required at the Supreme Court would have been exhausted before the swearing-in day,” he said.

The former Attorney-General and Commissioner for Justice in Abia State, and a former lecturer in the Faculty of Law at the University of Lagos, Uma Kalu, recommended: “I have said in different places that my private view is that we need a major constitutional adjustment. That adjustment is that nobody must be sworn in as anything whether president or governor or lawmakers until the petition has been exhausted.

“This means if you have an election say in 2019, you begin the election process much earlier. So, you are not executing an electoral process that is free from error. But if the error is such as should be accepted, not the kind of daylight robbery we are seeing, in our own situation. I’m sorry to call it robbery but that is what it is in some cases.

“We have to think very seriously and be generous with ourselves in acknowledging that if we need to move forward, preserve some democratic legacies, then the process ought to be transparent. I think that the 21 days is sufficient for filing of petitions challenging elections into the House of Assembly and the House of Representatives even for the senate. But there is no way you can allow 21 days for governorship or for the presidency.

“So, a strategic adjustment is what is needed, possibly, for the presidency, 45 days because we have 36 states plus the FCT and the states are of different sizes. For the governorship, 35 days is okay. You will also need to enlarge the 180 days sequentially.

“You can’t have 180 days for presidential, governorship, senatorial, House of Reps, state assembly, local council and chairmanship. It does not make mathematical sense or even common sense. And my level of Mathematics is enough for me to know that the limit is not enough to prove substantial non-compliance.”