Election Petitions: Case for Substantive Justice in 2023

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By Onikepo Braithwaite

The election season is upon us. And, in Nigeria, this season is synonymous with election petitions.

The stage is already being set, with various pre-election issues. To be clear, these present controversies do not qualify to constitute election petitions, as election petitions arise only after an election has been conducted; but, the confusion emanating from the various pre-election imbroglios, is a prelude to what may arise from the off-season Gubernatorial elections in Ekiti and Osun State which will hold on June 18 and July 16, 2022 respectively, and the general elections in 2023.

From the unending debates on the passing or non-passing of the Electoral Act (Amendment) Bill (EAMB); to which geographical area the two main political parties, APC and PDP are zoning the Presidency to, and why it should be or not be so; to the constitutionality or otherwise of zoning; to the debate about whether it is hypocritical to conveniently remember that zoning is unconstitutional now that it is the turn of the Southern zones to take the Presidency, according to the gentleman’s agreement that has been followed over the years versus the argument that where was the same gentleman’s agreement when President Jonathan from the South South zone ran for election in 2011 after completing late President Yar’Adua’s term, when it was still the turn of the North to produce a candidate to complete its quota; to disputes about who the authentic party flag bearers are for different elective positions, as we have already seen from the Anambra primaries that were conducted by the different political parties, and the Anambra State Gubernatorial election, which held towards the end of 2021; and the APC primaries that held recently in Ekiti State. These days, it is impossible to switch on the television or read any newspaper, without these issues being the topic of discussion. Meanwhile, the insecurity that has pervaded the country, and most other pressing matters, seem to have paled into insignificance, because of the coming of the 2023 general elections.

Elections

In Ojukwu v Obasanjo 2004 12 N.W.L.R. Part 886 Page 169 at 227 per Edozie JSC, the Supreme Court defined ‘election’ as “….the process of choosing by popular votes, a candidate for political office in a democratic system of government”. Elections in Nigeria are governed principally by the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Electoral Act 2010 (as amended), and INEC Guidelines. Sadly, since our return to democracy in 1999, how many times have Nigerians had the opportunity to truly ‘choose by popular vote’ their candidates for political offices, with all the election manipulation, rigging and malpractice that occur? Out of six elections so far, Nigeria can possibly only boast of two credible Presidential elections, 1999 and 2015 – two of out six – 33.3%. This is not a good score or report.

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Definition of Election Petition

An election petition is the only means provided by Section 133(1) of the EA, by which an election can be questioned or challenged at a Tribunal or Court of Law. In A.N.P.P. v INEC 2004 7 N.W.L.R. Part 871 Page 16 at 55-57, the Court of Appeal held inter alia that: “What constitutes an election petition therefore, is a complaint by the Petitioner against an undue election or return of a successful candidate at the election….it is only an election or return of a candidate that can be questioned by an election petition, in which the person elected or returned is joined as a party” – per Mohammed JCA.

Causes of Increase in Election Petitions

Instead of the electoral process to have improved with each successive election, it worsened; and this is partly responsible for the phenomenal increase in election petitions. Of course, rigging, vote buying, greed and corruption are all contributing factors responsible for untrustworthy, questionable elections, and consequently, this unwelcome increase in election petitions. Nigerian politicians being bad losers is another cause, their desperation to win at all costs, even if it is to raise frivolous petitions, yet another. After the 2019 elections, the then President of the Court of Appeal, stated that there were about 805 election petitions in total!

Elements of Election Petition

Election petitions are described as being ‘Sui Generis’, a latin phrase which means “of its own kind”. While some say they are neither ordinary civil or criminal proceedings, it has been decided in a plethora of cases, that election petitions are a different specie of civil proceedings. The online Law Dictionary defines the term ‘ Sui Generis’ as “of its own kind or class; that is, the only one of its own kind; peculiar”. In Orubu v NEC 1988 5 N.W.L.R. Part 94 Page 323, Uwais JSC (as he then was) observed that “an election petition is not the same as ordinary civil proceedings, it is a special proceedings, because of the peculiar nature of elections…”. In Buhari v Yusuf 2003 14 N.W.L.R. Part 841 Page 446 at 536 per Tobi JSC, the Supreme Court stated that, election petitions have no affinity with any action known to common law.

Technicalities v Substantive Justice in Deciding Election Petitions

The Supreme Court, in Jim Nwobodo v Onoh 1984 1 S.C.N.L.R. 1 Page 195 per Uwais JSC (as he then was) said about election petitions: “It is the duty of the courts to hear them without allowing technicalities to unduly fetter their jurisdiction”. The issue of shying away from technicalities in the hearing of election petitions was succinctly stated in Ikpeazu v Otti 2015 18 N.W.L.R. Part 1490 Page 47 at 71-72 per Oseji JCA (as he then was), that: “In all election matters, the use of technicalities merely helps to shut issues in controversy. Once it is agreed that election petitions are in a class of their own, the handling of the matter too must take a form devoid of legal technicalities, that tend to leave the litigants more confused”.

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For instance, in the Adeleke v Oyetola Osun State Gubernatorial election case, the decision of the Tribunal giving Adeleke victory, was overturned by the Court of Appeal, and that of the Court of Appeal, upheld by the Supreme Court. In that case, the Supreme Court gave victory to Oyetola not on the merits of the case, but on a technicality – that Peter Obiora, one of the members of the Tribunal who delivered the lead judgement in the matter, did not sign the attendance sheet of the Tribunal proceedings on a specific day, meaning that he was absent from the proceedings on that particular day; on a day which it is said that, important evidence about the rerun election was heard.

Many, including my humble self, still hold the firm belief that since election petitions have their own characteristics, such technicalities should not be used to perpetrate injustice. As much as possible, the will of the people and the evidence before the tribunal/court (merits of the case) should take precedence over technicalities. See the case of Ajadi v Ajibola 2004 16 N.W.L.R. Part 898 Page 91 at 168. A crucial question which should have been interrogated in deciding the Adeleke case, was whether the effect of Obiora’s absence/non-compliance, was substantial or occasioned any miscarriage of justice vis-à-vis the Tribunal’s decision. Based on the weight of the evidence, was the Tribunal’s decision per incuriam? Would the decision have been different, if Peter Obiora had been present that day? If the answer to these questions were negative, then the judgement of the Tribunal should have been upheld. It seems that in the Adeleke case, technical justice was taken over substantive justice.

Technicalities must however, be distinguished from cases in which, the shortcomings are of a serious nature, for instance, where constitutional provisions have clearly not been met. For example, the ANDP Bayelsa Gubernatorial election case. The issue of not meeting the constitutional threshold of 35 years is not a technicality or irregularity that could be corrected. It was the root of the case. Not meeting the age requirement, vitiated their candidature. We, as Lawyers, also have our part to play as officers in the temple of justice, by advising our clients not to waste the time of the tribunals/courts with frivolous, unmeritorious election petitions, for instance, like this ANDP case.

INEC’s Resolve

Optimistically, this will not be the fate of upcoming elections, as a combination of innovations and technology being introduced by INEC this time around, and the passing of the EAMB into law with the electronic collation and transmission of results etc, should make our elections more credible and seamless; and hopefully, reduce the number of election petitions in the future. This time around, the Professor Yakubu-led INEC means business in their resolve to deliver stellar elections; so, who knows? The 2023 elections may end up being Nigeria’s best election, since the inception of the Fourth Republic.

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For one, the phasing out of the Card Reader and the manual Incidence Forms which were used upon the failure of the card reader, in favour of the Bimodal Voter Accreditation System (BVAS) is a step in the right direction, as the old Incidence Form system was one of the most famous parts of the electoral process used to rig elections. The new Automated Biometric Identification System (ABIS) will prevent people from doing multiple registrations, or using other people’s voter’s cards to vote. In the past, politicians would buy voter’s cards en masse, and have their people use them to vote for their preferred candidates.

Conclusion

As we go into the season of election petitions, aside from our hope that the improvement in the Electoral process will reduce the number of election petitions, it is imperative that the Election Petition Tribunals/Courts do justice to election petitions by deciding them on their merits, rather than on technical justice or other reasons.

Be that as it may, the truth of the matter is, it is unlikely that there will be any significant improvement in the lives of Nigerians, since to the best of our knowledge, our country’s system is still the same. How can you do things more or less the same way, and expect a different result? Millions of Nigerians who could not wait to see the back of the Jonathan administration (PDP), imagining that a new dawn of ‘Utopia’ would be ushered in by the Buhari administration (APC), were disappointed.

I hate to be the bearer of unwelcome news, but, come 2023, be it APC, PDP or XYZ, I don’t see too much of a silver lining behind the cloud for Nigerians. The entry point into elective positions remains extremely low (education up to secondary level), especially for this nuclear age that we are in, so much so that many of the decision/policy makers are ill-equipped for the tasks they have taken on. The other negative elements are still very much in existence – insecurity, Boko Haram, an inequitable system where for example, these same inadequately educated politicians (not all of them are poorly educated though) earn better salaries than well educated, overworked professionals like medical doctors and judicial officers; tribalism, shaky economy, corruption, pervasive poverty, unemployment, to mention but a few. However, nothing will make me happier, than for my conclusion to be proven wrong.

Thisday

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