Section 285 (6) of the 1999 Constitution was a bone of contention between Lagos State Governor Babatunde Fashola (SAN) and other Senior Advocates of Nigeria (SANs) yesterday.
They debated the need to 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 its ongoing 53rd Annual General Conference in Calabar, the Cross River State.
The session had the theme: 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 because not only does it unjustly limit the time for adjudicating cases but also creates the rush to their conclusion, often without the benefit of a full trial.
He relied on the experiences shared by former Lagos Attorney-General, Prof Yemi Osinbajo (SAN); Chief Niyi Akintola (SAN;, former Edo State Attorney-General, Charles Edosomwan (SAN) and Mr Ebun Sofunde (SAN). They all held the view that Section 285 (6) violated the principles of fair hearing enshrined in the same constitution.
But other SANs, including Chief Joe-Kyari Gadzama, Chief Emeka Ngige, Dr Alex Iziyon, Dr Onyekachi Ikpeazu, Ndukwu Nnawushi and Lanke Odogiyon said the section should be retained with further modifications to it.
Section 265 (6) provides that election petitions must be heard and determined within 180 days (six months), including appeals arising from it.
Fashola said the provision has made election riggers to believe that they can steal mandates, get into office and frustrate trial from being started and concluded within 180 days.
“What message are we sending out about peace and security when people are driven from justice?” Fashola asked.
According to him, while the delays in the determination of election petitions were inordinate and increased cost of judicial time, the question is whether the section is the right remedy.
He wondered whether it could have been that the party in the majority simply “bulldozed” its way through parliament in order to preserve further ‘losses’, or might have sought to prevent a retrieval of mandates that it had stolen at the polls.
Fashola said more fundamental questions should have been asked, such as what roles parties, lawyers and judges played in the delays, and whether the professionals involved in the trial were sufficiently prepared by training and experience for the tasks assigned them.
“Was there any assessment process within the institution of the Nigerian Bar and the judiciary to examine performances of lawyers and judges involved in the undertaking of this national project of monumental and life-changing impact?”
“How many adjournments were granted in those periods of delay as a result of lack of preparation by lawyers and judges or as a result of brinkmanship or indeed collusion to frustrate 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?
“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.”
NBA President Okay Wali (SAN) agreed with Fashola, saying the problem is what happens inside the court and not with amending the laws.
He said quick dispensation of cases largely depends on how well judges conduct proceedings, adding that if a judge is firmly in charge of their courts, no lawyer will appear before them unprepared or ask for frivolous adjournment.
But Gazama said the section should be retained because it makes petitions less expensive to prosecute; petitions are now more precise, and election winners or losers can be determined in a short time.
He, however, admitted that the section could be subject to abuse, as a respondent with a bad case can put a hurdle on the way, especially in high profile cases.
As a way out, Gadzama said the section should be further amended so there can be an extension of the 180 days if circumstances call for it.
Iziyon, who is Editor-in-Chief of Election Petition Reports and known as a leading election petition lawyer, said there is the need to fine-tune how to make the six months workable and practicable rather than deleting it.
He said lawyers handling such cases can engage more hands and not corner the briefs to themselves alone; briefs should be frontloaded so the judge does not need to write everything, and credible people should be employed to man the registry.
“If we want to add more months to the six months, we’ll go back to where we were before. It is like a pot of soup; so many things go into it. So we need to work out how it will succeed,” Iziyon said.
Nnawuchi suggested having more panels of an election tribunal; adoption of alternative dispute resolution for non-contentious petitions to pave way for only troublesome ones to go to trial.
Ngige said the sub-section is unjust, that there is need for an amendment, and that the provision should be amended to stop the 180 days from counting even when a case goes on appeal.
“Let it be amended in a way that if you go on appeal, you press the stop clock. When you go on appeal and come back, the clock continues,” he said.
Odogiyan said the sub-section should be amended so that in a situation of force majore (unexpected natural event), the time should not count.
