Being the Paper delivered by Femi Falana (SAN) at the National Stakeholders Forum on Electoral Reform, Abuja, Nigeria, held from January 28-29 2014
Introduction:
The 2007 General Election was declared “a do or die affair” by President Olusegun Obasanjo. The election was marred by violence, ballot snatching and ballot snuffing by political thugs. The armed forces and the police who were deployed to various parts of the country to maintain law and order unleashed unprovoked mayhem on the electorate. The Independent National Electoral Commission (INEC) engaged in false declaration of results of elections.
The official impunity which characterised the election was confirmed in many election petitions. In Buhari v. Yar’Adua (2005) 50 WRN 1, the Supreme Court established that the ballot papers distributed and used for the presidential election were not marked and serialised as required by law. By a narrow margin of 4-3 the apex court upheld the result of the controversial election on the ground that there was “substantial compliance” with the Electoral Act, 2006 by the INEC. However, the results of several legislative and governorship elections were annulled by the election petition tribunals. In order to douse political tension in the country, President Umaru Yaradua admitted that the election was highly flawed and set up an Electoral Reform Committee headed by a former Chief Justice of Nigeria, Justice Mohammed Uwais. At the end of investigation into the fraudulent election, the Committee recommended inter alia the conclusion of all election petitions before the inauguration of an elected government and the setting up of an electoral offences tribunal for the prosecution of electoral offenders. Both recommendations were rejected by the Federal Government and the National Assembly. Although Prof Maurice Iwu was replaced with Prof. Attahiru Jega as the INEC Chairman the machinery of rigging in INEC has remained intact. Convinced that the 2015 General Election will not be fair and free the organisers of this programme anticipate that there will be a deluge of election petitions filed by aggrieved candidates. In leading the discussion on fashioning tools for timely dispensation of electoral justice it is my submission that the current legal system promotes unending election litigation aided by judges and lawyers.
Inec and preparations for 2015 general election
From 2012-2014, the INEC conducted three gubernatorial elections in Edo, Ondo and Delta State. The woeful performance of INEC in the staggered elections in the three states has questioned the preparedness of INEC to conduct credible election in 2015. The Edo State governorship election of July 14, 2012 was almost marred by lack of adequate voting materials. In fact, one of the candidates was compelled to collect the telephone numbers of the top officials of the INEC who were in the State for the election, called them and threatened to set the people after them if any voter was disenfranchised. Shortly after the telephone encounter, the election materials surfaced in all the voting centres.
With respect to the Ondo State governorship election of October 20, 2012, the INEC was accused by both the ACN and PDP of manipulating the voters register in favour of the Labour Party. In dismissing the appeals filed by both parties against the verdict of the Court of Appeal which had upheld the election of Governor Olusegun Mimiko the Supreme Court held that the Appellants failed to prove how the alleged injection of the voters register with 100,000 voters used for the election affected the credibility of the election. The apex court further held that most of the complaints were criminal in nature which ought to have been referred to the security agents for action.(see Thisday newspaper of August 30, 2013).
In the case of Anambra State the INEC deliberately refused to make available election materials in many voting centres in the area where an opposition candidate was believed to be popular. The manipulation was so glaring that INEC had to conduct a supplementary election in certain polling units within 24 hours. Embarrassed by the involvement of the INEC in the subversion of the electoral process the INEC Chairman, Prof Attahiru Jega publicly admitted that an official of the INEC colluded with some dubious characters to compromise the credibility of the election. According to him, ”The Electoral Officer in charge of Idemili North for some inexplicable reasons messed up the distribution of electoral materials. We strongly believe that there was connivance between the Electoral Officer and unknown agents to subvert the electoral process”. (Daily Trust, November 19, 2013).
From the foregoing, it is indisputable that the INEC is not in a position to conduct credible general election between now and 2015. Notwithstanding the assurance of Prof. Jega that the costly mistakes of the recent past would not be repeated in 2015 the INEC has not been purged of the officials who have been indicted by several election petition tribunals and courts for involving themselves in electoral malpractice since 2013. Apart from allowing such criminal elements to subvert the democratic process the INEC has refused to comply with section 10 of the Electoral Act which requires it to compile and update the national voters’ register on a continuous basis. But in defiance of the law the INEC prefers to engage in periodic registration and review of voters register on the eve of elections.
Even though the INEC has admitted that the voters register is defective in many respects Professor Jega has said that it has the required integrity to be used for any election in the country. (Nigeria Tribune, December 9, 2013). Since the voters register has become a template for rigging elections Nigerians should compel the INEC to put in place a mechanism for continuous registration of voters.
Pre-election petition:
In order to stop the imposition of candidates by political god fathers and money bags, section 87 of the Electoral Act requires political parties to conduct primaries or elect candidates by consensus. But due to lack of internal democracy party leaders impose candidates or substitute them at will. Since candidates who have been so short changed have the right to challenge the decisions of their political parties not less than 300 pre-election cases were filed before the 2011 general election. Some of the cases are still pending in the appellate courts.
Prosecution of election petitions
Since 2003 Nigeria has continued to record the highest number of election petitions in the world. The number of petitions rose to about 1,500 in 2007. Based on the change of the leadership of the INEC in 2010, coupled with the compulsory deposit of N400,000 by petitioners, the number of petitioners was reduced to about 500 in 2011. Unlike other countries where election petitions are tried within days or weeks, they are allowed to drag on for years in Nigeria. There are indications that some of the petitions filed in 2011 are not going to be concluded before the 2015 general election. The reasons for the anomaly are not far-fetched. Contrary to section 159 of the Electoral Act, 2006 which requires the INEC to grant access to election materials to litigants the INEC is in the habit of frustrating the inspection of voting materials by petitioners. In the process, petitioners are forced to apply to election petition tribunals to compel INEC to comply with the law. Even where orders are granted for inspection they are treated with disdain by the INEC in a bid to cover up electoral malpractice. It is our submission that applications filed in courts for inspection of election materials are no longer necessary as it has become a criminal offence under the Electoral Act and Freedom of Information Act to deny access to official records. In 2011 not less than 360 judges drawn from the various high courts in the country were appointed chairmen and members of election petition tribunals. The thousand of cases being handled by them were adjourned sine die as they were said to be on a national assignment. At the Court of Appeal and the Supreme Court appeals which are not related to election petitions are equally adjourned indefinitely. I have argued that since there is equality before the law the undue preference given to election petitions and appeals arising therefrom is discriminatory and illegal. It is also a violation of the fundamental right of litigants not involved in election petitions to fair hearing. To obviate the incalculable injustice done to innocent litigants sitting judges should not be appointed members of election petition tribunals. Since we have a pool of retired judges who sit in judicial commissions of inquiry and arbitration panels they should be appointed as members of election petition tribunals and appellate judges.
On their own part judges manning election tribunals and appellate courts allow litigants and counsel to engage in dilatory tactics while the judicial system permits all kinds of interlocutory appeals, most of which are designed to frustrate the hearing of election petitions. Thus, in the skewed interpretation of section 285 of the Constitution the Supreme Court has decided that any petition not heard within 180 days on account of interlocutory appeals has lapsed. In other words, petition alleging serious electoral malfeasance is not likely to be heard and determined if the INEC and the other respondents (who may have rigged the election) decide to exercise their right of filing preliminary objections and interlocutory appeals.
The tribunals and the courts also apply undue technicalities in the resolution of election disputes. In the process the judiciary has continued to contribute to the subversion of the electoral process. In some instances, petitions alleging grave electoral malpractices riggers on the ground that the petitions were not proved beyond reasonable doubt. In other cases, election petitions were decided on the balance of probability or substantial compliance with the Electoral Act. The electoral process has been so discredited to the extent that decisions of courts are now substituted for the mandate of the electorate.
Another delay was corruptly introduced to the judicial system in 2011 when a handful of senior judges and lawyers decided to have a bite at the cherry. Before then, appeals arising from governorship election petitions, like legislative elections, terminated at the Court of Appeal. But under the pretext that the Court of Appeal had delivered some conflicting judgments on election related matters the Constitution was amended to allow appeals from governorship elections to terminate at the Supreme Court. Since then the Supreme Court has been congested with appeals arising from gubernatorial elections.
Timely dispensation of election petitions
Since it is crystal clear that the INEC cannot conduct fair and free elections in the foreseeable future election petitions have become an integral part of our dysfunctional electoral system. In the circumstance, all relevant stakeholders ought to consider the following suggestions:
1. The INEC has just released the timetable for the 2015 general election. According to the timetable the presidential, governorship and legislative elections are scheduled to hold on February 14 and 28, 2015. Since the INEC is required by section 25 of the Electoral Act to appoint a date not earlier than 150 days and not later than 30 days to the expiration of the tenure of office holders the national assembly should amend the Electoral Act to enable the INEC to conduct the elections in December, 2014.
If the amendment is effected there will be a period of 180 days to deal with election petitions. However,if the law is not amended the timetable should be reviewed to allow all the elections to hold in one day during the first week of January 2015. If that is done there will be not less than 4 months to prosecute petitions arising from the elections.
2. As election petitions are said to be sui generis there is no basis for equating them with criminal cases where the prosecution is required to prove the case against a defendant beyond reasonable doubt. Since electoral justice is aimed at confirming the candidates elected by the people the proof of election petitions should be based on the balance of probability.
3. The onus of proving that valid and lawful election has been conducted should be discharged by the INEC. In other words, once a petitioner shows that elections were marred by irregularities, violence, inadequacies of election materials. In Buhari v. Obasanjo (2005) 19 WRN 1 at 166 Tabai JCA (as he then was) held “In this situation someone has to do more to show the veracity of his position. In my view, the party to do more to show the veracity of his position, should be the one who tried to show that election was held in accordance with the laws”.
4.Appeals arising from governorship election petitions should terminate at the Court of Appeal as was the practice before 2011. Furthermore, interlocutory appeals should be abolished in election related cases. Preliminary objections should be taken together with the substantive petitions. No petition should be struck out on technical grounds unless they challenge the jurisdiction of the tribunal or the qualification of the judges.
5. Election Petitions and appeals arising therefrom should be heard day by day until they are concluded. On no account should adjournments be allowed as a result of absence of counsel. Leading lawyers handling election petitions should be compelled to work with other colleagues who can hold their brief in their absence.
6. In addition to the Practice Directions issued by the President of the Court of Appeal for the management of election petitions the Nigerian Bar Association should produce guidelines for the activities of lawyers who handle election cases. The proposed rules of behavior should cover professional fees as some senior lawyers have recently been accused of serving as agents for some corrupt judges and promoters of money laundering for politicians.
7. Although INEC undertaken to commence continuous voter registration in 2014 the commission should stop comply with the law without any further delay. This will stop the crisis of supplying political parties and candidates with defective voters’ registers on the eve of elections.
8. I am not unaware that candidates returned by the INEC shall remain in office pending the determination of election.
Petitions they should be made to refund al salaries and allowances collected by them if they are ordered to vacate office on account of electoral fraud. On no account should criminals be rewarded for subverting the democratic process.
Electoral Offences Tribunal:
It is indisputable that electoral malfeasance is on the increase because of the culture of impunity in the land. The recommendation of the Justice Mohammed Uwais-led Electoral Reform Committee for the establishment of an electoral offences tribunal to prosecute electoral offenders was rejected by the Federal Government. However, the INEC has been vested with the prosecution of electoral offenders by virtue of section 157 of the Electoral Act. As the legal department of the INEC is not equipped to carry out the prosecution of electoral offenders the Federal Government should be prevailed upon to set up an electoral offences tribunal without any further delay.
This suggestion is in line with the White Paper issued by the Federal Government on the Sheikh Ahmed Lemu Presidential Panel Political Violence in some Northern States in April 2011 wherein the Attorney-General of the Federation and Minister of Justice has been directed “to take necessary action to establish this Tribunal”. Apart from investigating and prosecuting persons involved in political thuggery, electoral fraud, political terrorism and other electoral offences the Tribunal should be empowered to try political party leaders who impose or substitute candidates through undemocratic methods.
Conclusion
From the foregoing, it is undoubtedly clear that if credible elections are conducted by the INEC, there will be no basis for setting up election petition tribunals. Recent experience in Nigeria has shown that candidates who are defeated in credible elections do not hesitate to congratulate the winners. Such candidates and their political parties do not dissipate energies and resources in filing election petitions. Instead of designing tools for the speedy determination of election petitions, the organisers of this programme should liaise with other stakeholders with a view to ensuring that the INEC is repositioned to conduct fair and free elections.
