Ahead of the 2019 general elections, former Nigeria Bar As-sociation president Dr. Olisa Agbakoba (SAN) has expressed concern about the high cost of handling election petitions.
Agbakoba stated this at the public presentation of a report titled: “Judicial Application of Election Petitions at the 2017 Anambra State Governorship Election Tribunal”.
He was represented at the event by the Senior Legal/Programmes Officer of The Human Rights Law Service (HURILAWS).
Agbakoba, who is the Senior Counsel, HURILAWS, decried the high cost of filing and procuring relevant documents at election petitions tribunals.
He 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.
“In furtherance of this, HURILAWS has developed the practice of observing proceedings at the election tribunals to identify problem patterns and issues with the court system and propose potential solutions as well as hold the justice system accountable.
“HURILAWS believes that in addition to observing/monitoring the voting process attention must also be paid to the process of managing pre and post-election disputes because the tribunals/courts represent the confidence of the people not only in the electoral process but also in the rule of law and the non-existence or malfunctioning of the tribunals/courts will lead to the electorate and the political class settling political scores through unconventional means.”
According to him, the process of dealing with complaints and resolving election disputes is critical to the survival of any democracy particularly a fragile one like Nigeria.
He used 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, lamenting that this high fee could discourage potential petitioners ahead of the 2019 polls.
He disclosed that out of the 37 candidates that participated in the November 18, 2017 governorship elections, only three candidates filed petitions before the Election Tribunal adding that the candidates at the election, who came second and third were expected to have had some fighting chances at the Tribunal given the reasonable number of votes they garnered, but chose not to challenge the outcome of the election.
He said the candidates who presented petitions were those that secured insignificant number of votes, and by virtue of that fact it was ab initio a herculean task for them to upset the presumption of regularity and substantial compliance.
The report stated that it was cumbersome for the three petitioners who filed complaints 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.”
The report noted that the three petitions that were filed and complied with section 285 (5) of the Constitution which stipulates that an election petition must be brought within 21 days from the declaration of the election results.
It however lamented the cost of filing of the petitions, noting: “Filing of election Petition at the Tribunal attracted filing fees as assessed by the Registrar and security for costs of N400,000.
“This high cost of filing election Petition and prosecuting it might have discouraged some potential petitioners, given the large number of candidates (36) that stood for the 2017 governorship election in Anambra State.
“Candidates, having expended so much during the election campaign were usually in very tight financial circumstances at the stage of election petition, so unless such candidates have huge financial muscles as an incumbent, they would really be discouraged from venturing into the capital intensive project of election Petition”.
Although the Constitution stipulates that election petitions must be disposed of within 180 days of filing, the report observed that there were delays during the preliminary stages of the petition process in Anambra due to the inability of members of the Tribunal to all assemble.
However, the Tribunal, though with the absence of its second member, was eventually able to conclude hearing and delivered judgments in respect of two out of the three petitions on June 5, 2018, one having been dismissed earlier for want of diligent prosecution by failure to file application for issuance of Pre-Hearing Forms.
It noted: “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.”
Although the judgments of the Tribunal on the petitions exhibited high level of erudition, the report noted that they were “emasculated by the obvious lack of reasonable input by the two other members of the Tribunal. One member was absent throughout the hearing and determination of the petitions and the member present along with the Chairman was largely passive.”
The report suggested investigating the source of funding of an election petition process by a respondent who is an incumbent and has access to state resources.
“It puts the petitioner at a serious disadvantage where the respondent can draw from state resources to retain the best of legal minds or advocates to defend a petition while the petitioner with his or her very limited personal funds struggles to retain a relatively inexperienced lawyer to prosecute the petition with the humongous weight of burden or onus of proof the petitioner is expected to discharge.
“This unfortunate disparity or imbalance of capacity played out very evidently in the just concluded Anambra state election petition process. The retinue of Senior Advocates of Nigeria unleashed on the tribunal by the governor, the principal respondent in the three petitions, sufficiently overawed the tribunal, as it were, with their profound legal clout and sagacity, so much so that the petitions were virtually dead on arrival.”
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 counselled 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”.
The report noted that the main tenable ground against the election was the allegation of corrupt practices in the form of votes or ballot buying and that ”the standard of proof beyond reasonable doubt where a petitioner is challenging an election on grounds of corrupt practices again proved to be a very cumbersome burden to place on a petitioner as manifested in the two petitions above decided on the merit’’.
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.
“In this case the onus can shift to the respondent where a petitioner has volunteered reasonable evidence that warrant rebuttal evidence by the respondent.
“The cost of litigating or prosecuting an election petition is usually heinous, starting from the procurement of relevant election documents to use as documentary evidence to the hiring of competent legal representation. The petitioners herein obviously could not afford the cost of securing the CTC of the election documents to support their petitions,” it added.