THE ROLE OF THE BENCH IN FOSTERING ETHICAL VALUES IN ELECTION MATTERS.1
BY
MUHAMMAD IBRAHIM SIRAJO, JCA
PREFACE
By dint of section 6 (1), (2), (3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the judicial powers of the Federation and of the States are vested in the Courts established under the Constitution or by an Act of the National Assembly or by Laws of the Houses of Assemblies of the States. The judicial powers conferred in the Courts, which includes all inherent powers and sanctions of a Court of law, “shall extend, to all matters between persons, or between Government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”2 Note the emphasis on “all persons” and to all actions and proceedings relating to the civil rights and obligations of the persons. The powers of the Courts are meant to be used to do justice to all manner of persons, so that whoever comes to the citadel of justice will receive the share due to him.
DEFINITIONS
With the foregoing prefatory remark, we shall start our examination of this topic with definition of key words and phrases that constitute the conceptual framework for this paper.
The Bench
The Bench in the present context simply refers to the Court or the Judge or Judges composing a Court. The Bench means the Judge or Judges of a particular Court. For example, a single Judge of the High Court sitting as a Court of first instance constitute the High Court Bench, while the Bench of the Court of Appeal and that of the Supreme Court is constituted by three and five Justices respectively. The Bench may also mean the Full Court, and in this sense, it is constituted in Nigeria by five Justices of the Court of Appeal and seven Justices of the Supreme Court.
Fostering – To nurture, to promote the growth and development of something.
Ethical Values
Being in accordance with the accepted principles of right and wrong that govern the conduct of a profession. It also means in accordance with principles, rules or standards of conduct that are considered correct, especially those of a given profession or group. The word “ethical” pertains to or deals with principle of morality.3 While values are different from person to person or group to group, ethics are consistent. For the purpose of this paper therefore, ethical values stand for that standard of behaviour that is considered not only important and desirable but necessary. The core ethical values of the legal profession in general shall include honesty, trustworthiness, transparency, discipline, respect, integrity, fairness, loyalty, confidentiality and objectivity.
Election Matters
Several judicial pronouncements have been made on the process of an election and the constituent elements of an election, and most of these pronouncements viewed election from a narrower perspective. This is understandable because at the time of the pronouncements, the Justices were mainly concerned with those narrow processes of election in determining whether or not the right person was declared the winner by the election umpire based on the materials before them. They defined election as the process of choosing by popular votes a candidate for political office in a democratic system of Government, and the process/constituent elements includes accreditation of voters, voting, counting of votes, collation at different levels, recording on all relevant INEC Forms and the declaration of results.4 This restrictive definition has confined the meaning of election to the series of events that took place on the polling day and shortly thereafter. Practically, election within the Nigerian context is the process of selecting a person to occupy a public office in the Executive or Legislative arm of Government either at the Local Government, State or Federal levels. The processes leading to the election covers series of preparations over several months preceding the actual date of voting. The Supreme Court has recognized this wider concept of the meaning of election in the case of Abubakar vs. Yar’adua5 when it held thus: “Election is a process spanning a period of time and comprises of series of actions from registration of voters to polling.” As part of the preparations for election, the Independent National Electoral Commission usually embark on registration of voters to update its Voters Registers and setting up Timelines of activities for compliance both by itself and by the registered political parties that wish to present candidates for the election. These activities will include the holding of congresses for the selection of political party leadership at the Ward, Local Government, State and National levels and the conduct of primary election for the selection of candidates either by direct or indirect primaries or through consensus. The conduct of congresses and primary election must all be in compliance with the provisions of the Electoral Act and the Constitution of the political party. The activities within the INEC Timeline also include the date of submission of names of candidates to the Commission, after the sitting of the Party’s Appeal Committee for the purpose of hearing complaints/petitions from aspirants that were aggrieved with the conduct of the parties’ primary election. Part of the process is the publication of the names of the candidates submitted to INEC by the participating political parties for claims and objections. All these events predate the actual date of voting, but they constitute the processes that made up an election, in a wider sense. In this wise, election matters encompasses both pre-election and post-election disputes that are submitted to the courts for adjudication. The end of the process of election is the issuance of certificate of return to the candidate that was declared the winner of the election.
DEMOCRACY, ELECTION AND GOOD GOVERNANCE
The most common and most popular form of government around the world today is democratic government. Monarchies also abound, especially in the Middle East and the Gulf Regions. There are also pseudo democratic/tyrannical governments that are paraded as democratic regimes. Yet in other democracies, some governmental powers, are ceded to the Monarchy, an unelected Head of Government. The closest example of such democracies is the United Kingdom, where the power to convene Parliament, to appoint the Prime Minister, to remove the Prime Minister, to declare war, to assent to laws promulgated by the Parliament, to issue passports, to regulate the civil service, to negotiate and ratify treaties and a host of other powers are reserved for the King, who only ascended the throne not through electoral process but by inheritance.
What then is a democracy as a form of government? Simply defined, democracy is a form of government by the people, exercised either directly and collectively by them or through their elected representatives under a free and fair electoral system. It is a form of government in which sovereign power resides in the people and is exercised by them or by officers they elected to represent them.6 There are different types of democracies, most of which are determined by the way and manner they evolved. Direct democracy as a form of government is now hardly in voque in view of the growing population of most communities around the World. The most common form of democracy found across the World now is the representative democracy. Representative democracy is typically employed in larger countries where the sheer number of citizens involved would make direct democracy unmanageable. No matter the root of their evolution, however, the hallmarks of all democracies are the provision of equality of rights and priviledges, protection of fundamental human rights of all citizens and application of the rule of law equally to all citizens. Democracy also ensures active participation of the citizens in politics and civic life by affording them the opportunity of accepting or rejecting their leaders through periodic competitive electoral process.7 The type of democracy practiced in Nigeria is representative constitutional democracy, founded on the principles of rule of law and separation of powers between the three arms of government. The Constitution of the Federal Republic of Nigeria, 1999 (as altered) clearly spelt out the powers of government between the Executive, the Legislature and the Judiciary. By the doctrine of separation of powers, the Executive, Legislature and Judiciary have their respective roles constitutionally delineated. The Constitution also donate powers to the constituent States that made up the Federal Republic of Nigeria, specifying the division of powers between the three arms of government within the States, and also guaranteed the system of democratically elected Local Government Councils created thereunder. It is not within the purview of this paper to delve into the powers of the three arms of government at both the Federal and State levels, which we are all aware of. Let me conclude this aspect with eulogies from some famous proponents of democracy:
Abraham Lincoln - To give victory to the right, not bloody bullets, but peaceful ballots only, are necessary.8
Mahatma Ghandi - “My notion of democracy is that under it the weakest should have the same opportunity as the strongest.9
Plato - “Democracy…is a charming form of government, full of variety and disorder, and dispensing a sort of equality to equals and un-equals alike.10
John F. Kennedy - Democracy is the superior form of government, because it is based on a respect for man as a reasonable being.11
E.M. Forster - Two cheers for democracy: one because it admits variety and two because it permits criticism. Two cheers are quite enough: there is no occasion to give three.12
The conduct of periodic election by independent election body to select members of the Executive and Legislative arms of government is one of the fundamental attributes of representative democracy. That is the reason why representative democracy that we are practicing in Nigeria and the conduct of periodic election cannot be divorced, one from the other. There can be no representative democracy without periodic election. The absence of periodic election signifies the end of representative democracy. In the same vein, where democracy is not practiced, election will be an alien concept. Election and democracy are therefore intricately intertwined, one cannot be separated from the other. In Nigeria, the duty of conducting periodic election after every four years is that of the Independent National Electoral Commission, a creation of the Constitution.13
Good Governance
This is a new concept that evolved in the 1990’s through the activities of some organs of the United Nations. Governance refers to all processes of governing, the institutions, processes and practices through which issues of common concern are decided upon and regulated. Good governance adds a normative or evaluative attribute to the process of governing. From a human rights perspective it refers primarily to the process whereby public institutions conduct public affairs, manage public resources and guarantee the realisation of human rights.
While there is no internationally agreed definition of 'good governance', it may span the following topics: full respect of human rights, the rule of law, effective participation, multi-actor partnerships, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance.
In summary, good governance relates to the political and institutional processes and outcomes that are necessary to achieve the goals of development. The true test of 'good' governance is the degree to which it delivers on the promise of human rights as well as civil, cultural, economic, political and social rights.14
Wikipedia, the free encyclopedia, describes good governance as the process of measuring how public institutions conduct public affairs and manage public resources and guarantee the realization of human rights in a manner essentially free of abuse and corruption and with due regard for the rule of law. The concept of "good governance" thus emerges as a model to compare ineffective economies or political bodies with viable economies and political bodies. The concept centers on the responsibility of governments and governing bodies to meet the needs of the masses as opposed to select groups in society. Because countries often described as "most successful" are liberal democratic states, concentrated in Europe and the Americas, good governance standards often measure other state institutions against these states.
The above description of good governance by Wikipedia and the United Nations Office of the High Commissioner on Human Rights apart, it does not necessarily follow that democracy as a form of government is a sure guarantee for good governance. Practical experience has shown that good governance is a product of the calibre of individuals that are entrusted with the responsibility of governing a particular Nation State. Many countries practicing democracy in Africa, Latin America and some Asian countries have failed to accord their citizens the dividend of democracy by way of provision of good governance. Even the giant of Africa, with over 23 years of uninterrupted democratic practice, is unable to provide physical, social and economic security to its teeming populace, despite the promises by its elected representatives. I think possession of sound knowledge of political economy and intricacies of international politics backed by the desire for selfless service, foresight, integrity, honesty, dedication and the fear of God, are qualities required for a leadership that hopes to provide good governance to its citizenry. It does not matter whether the leadership is attained through democracy or other means. For example, it took commitment and foresight for Lee Kuan Yew to turn Singapore into an international financial centre. Though elected into government by popular vote, he has to force his people to forget laziness and get to work while he led them with knowledge, foresight and nationalism. The story of United Arab Emirates, a desert country at the fringes of the Arabian Peninsula, ruled by a Monarchy, which we have severally read about and watched on television sets, need no retelling in this paper. The complete transformation of that country, especially its two flagship towns of Dubai and Abu Dhabi, is the story of good governance in display. Their developmental strides were brought about by purposeful and insightful leadership, not by democracy. Democracy alone is not synonymous with good governance. The bottom line is that good governance is not the product of democracy or any form of government but the product of the calibre of men and women at the helm of affairs of any nation.
ELECTION AND DEMOCRATIC PRACTICE IN THE 4TH REPUBLIC – HOW HAS THE COURTS FARED?
With the return of Nigeria to civil rule in 1999, under a brand-new Constitution, the country started conducting periodic elections after every four years. In exercise of its mandate and functions, the Independent National Electoral Commission organized and conducted general elections to fill all elective positions in Nigeria in 1999, 2003, 2007, 2011, 2015 and 2019. The elections were for members of the State Houses of Assembly, State Governors, Members of the House of Representatives, Senators and President of the Federal Republic of Nigeria. Election of Chairmen and Councillors of Local Government Councils, other than those of the Federal Capital Territory Area Councils, are outside the constitutional and statutory mandate of the Independent National Electoral Commission. Another round of general elections would be conducted in the next three months.
The desperation of the political class to grab power by all means has ensured that the elections of 1999 and 2003 were characterized by thuggery, massive ballot box snatching, illegal thumbprinting of ballot papers, compromise or connivance by Adhoc staff of INEC and policemen on duty at polling stations, over voting and wide spread violence. Some of the mayhem witnessed during the elections were caused by the same policemen posted to oversee free and fair balloting at the polling centres. All these were perpetrated by or at the behest of our politicians whose only desire was to get power by hook or by crook, thereby jettisoning ethics, morality, decorum and the societal values of transparency, honesty and respect for the human person. Even though Muhammadu Buhari lost his appeal against the election of Chief Olusegun Obasanjo in 2003, the thuggery, manipulation, acts of terrorism, widespread violence and police brutality, among other vices that characterized that year’s Presidential election, did not go unnoticed, they did not escape the attention and scrutiny of the Bench. The Nigerian judicial oracle condemned the electoral offences that were committed during the said election and called for restraint and change of attitude by the politicians as well as massive education of the electorates, the electoral officers and policemen on duty during polls. The late revered jurist, Pats-Acholonu, JSC, (of blessed memory), lamented over the type of politicking and political culture our political class hope to pass down to the next generation and generations unborn, if the way politics was played is not changed. He likened the violence and acts of terrorism that bedeviled the 2003 Presidential election to the horrible and merciless killing of King Duncan in the Shakespeare’s Play “Macbeth”. His lordship observed in the case of Buhari & Anor vs. Obasanjo & Ors15
“While though the main appeal has failed due to what I ascribe as the impossibility of satisfactorily proving nation wide spread of ineptitude, violence, intimidation and other acts of terrorization as well as other barefaced acts that literally chill the bones and would as William Shakespeare said in Macbeth ("make the sitteth heart knock at my ribs against the use of nature") some of the revelations that is, where the few evidence was led and proved, are blood cuddling. That in this day and age in this country that has been independent for 45 years we can still witness horrendous acts by security officers who ought to dutifully ensure peace and tranquility in the election process suddenly turning themselves into agents of destruction, and introduced mayhem to what ordinarily would have been a civilized way of exercising franchise by the people who are sovereign, is regrettable. I ascribe the nefarious activities of thugs and the few security officers and party men to lack of understanding of the philosophy and ethics behind election in a democratic state and lack of understanding of the dynamics of election processes. It is scary to send policemen to election places when they have not been properly tutored that in the exercise of their duty to maintain law and order in election areas, their allegiance is to the Constitution. Some of the evidence elicited are so disquieting that one would wonder whether we have learnt or infact can learn a lesson. Such inordinate and impetuous acts are despicable. Such mania to traduce all known civilised practices by the supporters of the parties is reprehensible and condemnable. Some of the things that happened in 2003 election can be likened to what Macduff the Thane of Cowdar said when he saw the bloodied murdered King Duncan in Macbeth by William E. Shakespeare. "O horror, horror, horror! Tongue nor heart cannot conceive nor name Thee ... Confusion hath made his masterpiece.
Most sacrilegious murder hath broke open The Lord's anointed temple and stole thence The life of the building."
And when Lennox asked, "Mean you his Majesty" Macduff answered
"Approach the chamber and destroy your sight With a new Gorgon ...do not bid me speak See, and then speak yourself."
This country would not like to witness another Gorgon in an election.
To ensure the non-repeatal of what happened in some parts of the country in 2003, there must be massive education of the electoral officers who will take part in future elections. There must be statewide enlightenment programme educating the masses as to their tights as to how the citizens who are sovereign can exercise their franchise freely, unmolested and undisturbed. There must be de-emphasis on money. It is important to demonstrate to the citizenry what incalculable harm corruption has done in this country so that at election time they should learn to shun people who try to buy their votes. More importantly our security men should have a series of workshops to learn that their allegiance is to the Constitution and should learn to practice what Police in developed nations do. Politics in Nigeria should not be a do or die affair. Anyone without a profession except politics must have nothing to do with politics in whatever form. Above all, let budding politicians leave jobless people who now turn into thugs as supporters alone, so that more harm will not be done to electoral processes.”
These are words on marble, adequately descriptive of all the maladies besetting our electoral processes over time as being perpetrated by the political actors and their collaborators within the Election Umpire and the Security agencies. These golden words seem to have made impact on the relevant stakeholders concerned with the electoral process as the Electoral Act, 2002 was amended in 2006, barely a year after the Supreme Court’s decision. The 2006 Electoral Act has some marked improvements in its provision over the repealed 2002 Act, all thanks to the Apex Court for its bold and no-hold bared criticisms of the electoral process and the actors that participated in it. The boldness of the court in not just pointing but condemning what is wrong, compelled the National Assembly, the Independent National Electoral Commission and other stakeholders to get down to the drawing board and fashion out a new electoral law, an effort that gave birth to the Electoral Act, 2006.
During the preparation for the 2007 general elections, the politicians returned to the field, more determined to get their way through the party primaries. That was the notorious period of expulsion of party members who think differently from the National leadership of the party, the period of bizarre and ignoble substitution of candidates who won primary election by the ruling party, the PDP. Once again, the Courts did not shy away from their role in ensuring that ethical values and respect for the rule of law are maintained in all the processes of election. The Supreme Court, in particular, rose to the occasion to bring sanity into the electoral system. Discharging its role as the custodian of the Constitution and the bastion of the rule law, the Supreme Court served the Peoples’ Democratic Party bitter and unforgettable pills in Imo and Rivers States for the party’s recalcitrance to obey the provisions of the Electoral Act and its own constitution.16 We shall discuss the details of these events and others under ‘Election disputes and The Bench.’
Apart from the events preceding the 2007 general election, what took place during the actual election itself is not any different from the 2003 election. The enactment of a new Electoral Act in 2006 which was aimed at blocking loopholes and filling in lacunae in the previous legislation, did not change the narrative during the election proper because the actors and political gladiators remain the same. Rigging and criminality of all sorts marred the 2007 election, the result of which, the survival of our democracy and electoral system was threatened. As observed by Mejulu:17
“Measured one way, Nigeria’s democracy took a giant step backward in April 2007. The last general election displayed a disastrous mix of fraud and bungling. Even by Nigerian standards, the 2007 election was worse than the seriously marred elections of 2003 and 1999. The 2007 election many believed was the worst election anywhere in the world. The beneficiary of that monumental fraud and criminality, President Umaru Musa Yar’adua has acknowledged severally that the election was rigged which led to the setting up of the Election Reform Committee chaired by Hon. Justice Muhammadu Lawal Uwais (Rtd).”
In rejecting the result of the 2007 election, the Nigerian Bar Association embarked on a one-day symbolic boycott of all courts in Nigeria. While the politicians were busy trying to undermine and bring down our fledgling democracy in pursuit of their unethical and greedy struggle for political power, the courts have continued to exert their authority in the promotion and protection of democracy and rule of law, by using the law to suppress the use of force and the perpetration of fraud. A case in point was the bitter feud between then President Olusegun Obasanjo and his estranged Vice, Atiku Abubakar, where corruption charges lodged by an administrative panel (Code of Conduct Bureau) was used to bar Atiku Abubakar from contesting the 2007 Presidential election. The trial Federal High Court ruled in his favour by holding that the immunity of the Vice President under section 308 of the Constitution extends to proceedings before the Code of Conduct Tribunal. On appeal by the A.G. Federation, the Court of Appeal affirmed the decision of the Federal High Court on 5th April, 2007, thus paving way for Atiku Abubakar to contest the Presidential election on 21st April, 2007.18
The resolve of the Bench was also tested by the Federal Government when it decided to withhold statutory financial allocations meant for Local Government Councils in Lagos State on the ground that the State Government had created Local Council Development Areas without the input and/or participation of the National Assembly. This happened in April, 2004. The Lagos State Government invoked the original jurisdiction of the Supreme Court in a suit it filed against the Federal Government. The Supreme Court held that the President has no power under the Constitution to suspend or withhold the statutory allocation payable to Lagos State. The Court further held that the executive powers of the Federation vested in the President, which extend to the execution and maintenance of the Constitution does not extend to the President committing an illegality.19
The cases of impeachment of Governors Rasheed Ladoja of Oyo State, Joshua Dariye of Plateau State, Diepreye Alamieyeseigha of Bayelsa State, Ayo Fayose of Ekiti State and Peter Obi of Anambra State are some of the major constitutional breaches that threatened our democracy, but the courts rose to the occasion and competently deploy their power of judicial review to restore sanity to the polity. In those cases, the courts have proven to Nigerians and the world at large that the Judiciary is the fulcrum upon which Nigerian democracy and electoral system revolved. The details of these matters are outside the scope of this paper, however, the essence of referring to them was to highlight the important role played by the courts in stabilizing our polity, sustaining, nurturing and consolidating our experimentation of democratic practices and processes.
PRE-ELECTION DISPUTES AND THE BENCH: ANY LESSON FOR THE POLITICAL CLASS?
As the ultimate rights Arbiter and Guarantor, the role and responsibility of the Bench during elections is higher than all other Government Institutions, in that the actions or inactions of all such Institutions are subject to judicial review. Protecting people’s right to choose who will govern them and mitigating violence by timely resolution of election disputes through due process, are two of the most important roles of the Courts and Tribunals during the election process. As observed by Lord Denning M.R. in the English case of Wallestiener vs. Moir20
“It is the duty of a Judge to denounce wrong doing when it is established before him. The courts speak for all law-abiding citizens upholding the opinion of the good and shakes the confidence of the wicked.”
And if I may add a few words to the observation of the Master of the Rolls, “and shakes the confidence of the the persistently recalcitrant political actors.”
As postulated under the definition of terms, election disputes are classified into two broad groups: pre-election matters and post-election matters. As the name implies, pre-election matters are political disputes that arise in the course of preparation for the holding of election. They are matters that occur before the actual election and they include complaints about the conduct of party primaries, disqualification of aspirant, nomination of candidate by political party, disqualification of candidate, substitution of candidate, wrongful substitution of the name of a successful candidate, wrongful omission of the name of a candidate by the Electoral Body and false declaration on oath about the particulars of candidate.21 Hitherto, the Federal High Court, the High Court of a State and the High Court of the Federal Capital Territory have been vested with jurisdiction to hear and determine pre-election matters. With the recent promulgation of the Electoral Act, 2022, the legal regime has now changed. The jurisdiction to entertain pre-election matters is now vested only in the Federal High Court by dint of section 84 (14) of the Electoral Act, 2022.
Post-election matters on the other hand, are election disputes that flow from the actual conduct or holding of an election in which a complainant disputes the declaration and return of the winner of the election. A post-election grievance is usually ventilated through a petition submitted to the relevant Election Petition Tribunal established as a specialized court under the Constitution, mainly for the purpose of hearing and determination of election petitions. The proceeding before an Election Tribunal is sui generis, it is in a class of its own, distinct from the usual civil proceedings.
In recent years, there has been an upsurge in the number of pre-election litigations in Nigeria, due partly to amendments to the now repealed Electoral Act, 2010 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly the 4th alteration, which include the definition of pre-election matters in section 285 (14) thereof. The sub-section provides:
(14) For the purpose of this section, "pre-election matter" means any suit by-
(a) an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;
(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and
(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.
”Section 285 (14) of the Constitution recognizes three broad categories of pre-election matters; two by an naspirant and one by a political party. By virtue of section 29 (5) of the Electoral Act, 2022, only an aspirant who shows that he participated in the primary election of his party can validly challenge the outcome of that primary election. The law recognizes only primary election conducted by the National Executive Committee of the Political party, as primaries conducted by the State Executive Committee is null and void. Where there are parallel primaries, the valid primary is the one conducted by the National Executive Committee of the party.
It is to be noted that sub-section (9) of section 285 of the Constitution provides for limitation of time within which pre-election matters shall be commenced. It provides that pre-election matter shall be filed within 14 days from the date of the occurrence of the event, decision or action complained of. Any pre-election matter filed more than 14 days after the accrual of the cause of action would be statute barred. The section also provides for timelines for the conclusion of pre-election cases before the trial Court, the Court of Appeal and the Supreme Court.
It should ne noted that the definition of pre-election matter in the constitution is by no means exhaustive. It is submitted most humbly that pre-election matters can emanate from other provisions of the Constitution other than section 285 and other statutory provisions, notably, the Electoral Act. This is so considering that pre-election matters enumerated in section 285 (14) of the Constitution are for the purpose of that section only, in that the provision open with the Phrase “For the purpose of this section…”. One of the instances that can give rise to the institution of pre-election matter can be found at section 29 (5) of the Electoral Act, 2022, which provides:
“Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”
It can be seen that under the new legal regime, apart from the right of a political party to challenge the actions, decisions or activities of the Independent National Electoral Commission under section 285 (14) (C) of the Constitution, only aspirant of a party for a particular office is clothed with locus standi to institute pre-election matter both under the Constitution and the Electoral Act, 2022. Busy bodies have now been constitutionally and statutorily barred from inundating the Courts with frivolous matters that do not personally concern them.
Whether or not the Bench has been able to discharge its role and instill discipline in the electoral process can be determined from some selected pre-election matters that were decided by the Courts, which I now turn to.
In the case of Ugwu & Anor vs. Ararume & Anor22, the 1st Appellant and the 1st Respondent were among the aspirants that contested the Imo State Governorship primary election of their political party, the Peoples’ Democratic Party (PDP). At the conclusion of the primary election, the first Respondent, Ifeanyi Ararume was declared the winner, having polled the highest votes of 2,061, and his name was submitted to the Independent National Electoral Commission as the candidate of the party for the 2007 Governorship election in Imo State. The 1st Appellant, Charles Ugwu, scored 36 votes. The party afterwards substituted the name of Ifeanyi Ararume with that of Charles Ugwu as its Governorship candidate. Ararume challenged his substitution in court. The Supreme Court, in interpreting section 34 (2) of the Electoral Act, 2006, held that there was no cogent and verifiable reason for the party and INEC to change or entertain the change of the name of Ifeanyi Ararume as the candidate of the party. That the party did not comply with the provision of the Electoral Act mandating it to provide cogent and verifiable reason for substitution of any candidate. His name was restored on the ballot by the order of the court. What happened thereafter is history, but the court has discharged its duty of upholding the rule of law, as opposed to the whims and caprices of the party leadership, and safeguarding our nascent democracy. In that case, Muhammad, JSC (as he then was), sounded a strong admonition to the political actors by expressing the disenchantment of the court with their attitude, in the following words:
“My lords, if we want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and everyone of us. Although credit may not always have its rightful place in politics, we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade! Let us not give a dog bad name in order to hang it.
The 2007 political imbroglio in Rivers State present yet another attempt by the Bench to compel politicians to play politics according to the rules of the game and extant laws. Like in the case of Ararume, Chibuike Rotimi Amaechi emerged as the candidate of the PDP for Rivers State following the Governorship primaries conducted by the party. The result of the primaries shows that Amaechi polled 6,527 votes out of a total of 6,575 votes and his name was submitted by PDP to INEC as its candidate for the Rivers State Governorship election. on 2nd February, 2007, the PDP sent the name of Celestine Omehia to INEC as its gubernatorial candidate in substitution for Amaechi, and INEC effected the substitution. The reason given by the party was that the earlier submission of Amaechi’s name was done in error. Of note is the fact that Celestine Omehia did not contest the primary election. The Supreme Court held that the reason of error given by the PDP for the substitution of Omehia for Amaechi was patently untrue, certainly unverifiable and therefore illegal. In his lead judgment, Oguntade JSC concluded thusly:
“Having held as I did that the name of Amaechi was not substituted as provided by law, the consequences is that he was the candidate of the PDP for whom the party campaigned in the April 2007 elections not Omehia and since PDP was declared to have won the said elections, Amaechi must be deemed the candidate that won the election for the PDP. In the eyes of the law, Omehia was never a candidate in the election much less a winner… I accordingly declare Amaechi as the person entitled to be the Governor of Rivers State.”23
One can see from these two judgments, all delivered in 2007, that the Bench has been trying, through its pronouncements and orders, to imbibe into the political class the ethics of politics without rancour and the values of internal democracy as well as respect for the rule of law. The courts have exhibited independence and impartiality in dispensing even-handed justice. Whether the politicians are prepared to embrace those cherish values for the development of our democracy, is left to be seen. Those who are wont to criticize the judgment in Amaechi’s case, will do well to situate the judgment within the facts that gave rise to same. Just imagine an aspirant that scored well over 90% of the total votes cast at the primary election being substituted and replaced by someone who has not participated in the primaries at all. The “mischief” created by that case and the anger and discontent it caused to the political class led to the repeal of the Electoral Act, 2006 and the promulgation of the Electoral Act, 2010, which later underwent five amendments and lasted for twelve years before it was overwritten and replaced by the 2022 Act. Both the repealed Electoral Act, 2010 and the Electoral Act, 2022 contains provision to the effect that a person who did not participate in all the processes of the election cannot be declared winner of the election and returned elected.
Intra-party conflicts and problem of party internal democracy in the Nigeria’s political firmament seems to have reached its zenith in Zamfara and Rivers States preparatory to the 2019 general elections. This time around, the All Progressives’ Congress (APC) is the culprit. These conflicts signify the desperate quest for political positions among politicians, leading sometimes to violence, bloodshed and at all times to intractable pre-election litigations. The conflicts often emanate from internal management crises of political parties and disputes over nomination of members or aspirants to be fielded as candidates for elections. Intra-party conflicts, if not well managed can negatively affect the fortunes of political parties in their primary quests to gain political power, as it did to the APC in 2019. The party was totally excluded from fielding candidates for election in Rivers State, while votes cast for its candidates in all elections in Zamfara State, save the Presidential election, were nullified and regarded as wasted votes. Intra-party crisis and the absence of internal democracy within the APC was the genesis. At this juncture, it is worthwhile to state the facts of the conflicts in Rivers and Zamfara States. The State Congress of the APC in Rivers State resulted in a dispute as two factions emerged. Meanwhile, before the congress was held, one of the factions had approached the High Court of Rivers State seeking a number of reliefs including an injunction to restrain the holding of the congress. The High Court granted the injunction. Nonetheless, the party proceeded with the congress and subsequently used the list of delegates submitted by the state executive committee that emerged to conduct the primaries for nomination of candidates to be fielded by the party in the 2019 general elections. When the dispute eventually went before the Supreme Court, the court set aside the decision of the Court of Appeal and restored that of the High Court of Rivers State nullifying the state congress and all other actions taken by the factional state executive committee
which emerged from the congress, including nullifying the nomination of the party's candidates for the 2019 general elections.
The major plank of the Supreme Court decision is that the party proceeded to conduct the state congress in defiance of the injunctive order of the High Court of Rivers State restraining it from conducting the said congress. This was a decision on the preliminary issue of conducting the state congress despite the restraining injunctive order. On the substantive issue of the validity of the congress itself, the High Court of Rivers State had nullified the state congress, which decision was set aside by the Court of Appeal. When the matter was further appealed to the Supreme Court, the court again set aside the decision of the Court of Appeal and restored that of the High Court on the sole ground that the dispute being a pre-election litigation, the appeal against the decision of the High Court ought to have been filed within 14 days as required by section 285 (11) of the Constitution (as altered), which was not done by the Respondent.
Like Rivers State, the congress to elect new Executive Committee members for the APC in Zamfara State remained disputed in the run up to the primary elections for the 2109 general election. Amidst the conflict, the national executive committee of the party made arrangements to conduct primary elections in the state. The primary elections were disputed due to factional conflicts. Efforts by the National Executive to hold fresh primary elections within the deadline fixed by INEC for conduct of primary elections were frustrated because of the factional crisis. INEC subsequently declared that the party was ineligible to field candidates for the 2019 general elections for all elective offices in the state as there was no primary election as prescribed by section 87 of the Electoral Act. This decision became subject of conflicting judgments of the courts following separate pre-election litigations filed by the disputing parties. Although INEC later listed the party's candidates submitted by the National Executive Committee following the ruling of the Court of Appeal sitting in Abuja, the Court of Appeal sitting in Sokoto, which also presided over another pre-election litigation on the disputed nomination exercise, subsequently annulled the purported primary election on which the list was based.The latter court declared that "the nullification of the purported nomination exercise was to serve as a bitter lesson for political parties as they ought to follow legitimate guidelines and rules.” The court further emphasized that "domestic affairs of political parties must (be done) within the confines of the law in dealing with party members and elections." The protracted conflict later shifted to the Supreme Court for final decision. In a unanimous decision, the Supreme Court nullified the primary elections held by the party and declared the votes cast for APC in all positions contested in the state in the general elections (except the presidential election) as "wasted" because the party failed to conduct primaries in accordance with its own rules and as required by law. The court then ordered INEC to return all candidates who were declared runners up in the general election.
The 2023 general election, just around the corner, would be the determinant of whether or not the political class have learnt any lesson on how to minimize intra-party conflict, instill discipline, maintain internal democracy and generally, play politics by the rules, in view of the losses suffered by the PDP in 2007 and the APC in 2019. The Bench has done its part and has remained consistent and unshaken. However, feelers from the political environment and the current experience of the Bench in some pre-election matters, shows that the leopard does not change its spots. Notwithstanding, the court has, and will continue to implore all political players to imbibe the ethical values of tolerance, compromise, restraint, moderation and respect for the rule of law in the conduct of party affairs, as was done by the Court of Appeal in the recent case of Victor Enoghama & ors vs. Hon. Monday Iyore Osagie & Ors24, where my learned brother, Adah, JCA, admonished in the following words:
"Before drawing the curtain on this appeal, it is necessary from the arguments generated in this appeal particularly by the learned counsel for the 10th respondent that the Electoral Act 2022 has brought with it a lot of revolution. The political parties have to wake up in enhancing internal democracy in the political parties. It is no longer going to be business as usual for leaders of the political parties to run the affairs of the parties according to sentiments or their whims and caprices. One of the pragmatic steps in promoting the internal democracy of the political parties is the expansive powers of INEC to attend Conventions and Congresses of the political parties and to monitor their activities. This is the essence of Sections 82, 83 and 84 of the Electoral Act……. The Electoral Act, from Section 82(3) and 84(8) appears to impose a duty on political parties to follow democratic procedure for electing delegates for indirect primaries and for other elections and other activities of the political parties. If a duty is imposed by a statute, there is an obligation on those concerned to carry out the required duties they are obligated to carry out."
Earlier, in the case of APC vs. Karfi & Ors25, the Supreme Court, per Okoro, JSC, held:
"The issue here is, even if I am to repeat myself, political parties must obey their constitution, guidelines and regulations. The era of recklessness and impunity by political parties is over. It is an aspect of corruption for a political party to disobey its Constitution and guidelines in order to impose candidates on the electorate. This Court has taken a firm stand that this must stop. It is in the interest of our nation that political parties observe internal democracy for the smooth running of our democratic processes."
In his concurring judgment in the case of Mato vs. Hember & Ors26, Kekere-Ekun, JSC, expressed the same concern:
“The only way our democratic dispensation can work effectively is where every aspirant for political office, who is qualified to contest an election, is given an even playing field. The failure of internal democracy within our political parties right from the grassroots level eventually leads to instability in the entire political system. The failure of internal democracy is one of the reasons why the Courts' dockets are congested with pre-election disputes.”
The Bench will not shy away from its duty of ensuring that political parties must, in the conduct of their affairs, obey the Constitution of the Country, the Electoral Act and their own Constitution, regulations and guidelines. So far, the Bench has been faithful and will continue to be. It is only hoped that the political actors will eschew the show of force, influence and reliance on sentiments by obeying all relevant rules in the conduct of their congresses and primary elections so as to minimize frictions and conflicts, which in turn will decongest the dockets of the courts that are filled with needless pre-election disputes. Let me conclude by saying that pre-election matter is not extinguished by the conclusion of election and swearing in of the person returned as the winner of the election. PDP & Ors vs. Degi-Eremienyo & Ors27 is a case in point. In that case, just a few hours to the swearing in of David Lyon Pereworimin and Degi-Eremienyo of the APC, as Governor and Deputy Governor respectively of Bayelsa State, the Supreme Court, in a judgment over a pending pre-election matter, invalidated their election on the ground that their joint ticket was vitiated by the disqualification of the Deputy Governorship candidate, and ordered that Senator Douye Diri of the PDP who came a distant second in the election, be sworn in as the Governor of Bayelsa State.
POST-ELECTION DISPUTES – ROLE OF JUDGES
Election petition is a product of democratic election. it comes about after balloting, counting of ballots, collation, entering the figures in the relevant forms and declaration of result. It is then that an aggrieved candidate will file a petition. The bulk of the election matters handled by the Bench emanate from the actual conduct of elections and declarations of results. Under part 1 of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Independent National Electoral Commission, established under section 153 of the Constitution, is vested with the power and responsibility inter alia; to organize, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, membership of the Senate and House of Representatives and the House of Assembly of each State of the Federation. Disputes arising from the conduct of all the elections listed above (save the Presidential election), are taken before the Election Petition Tribunals specifically established for that purpose, by way of a petition complaining of undue election or undue return.28 For the hearing and determination of election petition, the Constitution of the Federal Republic of Nigeria, 1999, (as altered), created two Election Petition Tribunals, one for the Governorship and the other for the Legislative Houses, under section 285 thereof. The provisions states:
(1) There shall be established for each State of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) any person has been validly elected as a member of the National Assembly; or
(b) any person has been validly elected as member of the House of Assembly of a State.
(2) There shall be established in each State of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.
The two Tribunals have their powers and duties clearly carved out for them by the Constitution, thereby eliminating fear of overlapping. In the case of Presidential election, section 239 of the Constitution conferred on the Court of Appeal original jurisdiction to hear and determine petitions arising from the conduct of the said election, sitting as a court of first instance.
The Constitution expressly provides that the Chairman and Members of the Election Tribunals shall be appointed by the President of the Court of Appeal.29 It is also provided that election petition shall be filed within 21 days after the date of declaration of result, and disposed-off in a written judgment within 180 days of filing. Appeal from the decision of Election Petition Tribunal or Court, in an election matter, must be heard and determined within 60 days from the date of the Judgment.30
The category of persons that can sue in an election petition as spelt out in the Electoral Act, are - (a) a candidate that contested the election or (b) a political party that took part in the election. The person(s) against whom election petition is filed is/are referred to as the Respondent(s).
Election petitions are special proceedings (sui generis) that require expeditious determination, hence the constitutional provisions specifying when they shall be filed and determined before both the Tribunals and the appellate courts. In Buhari vs. Yusuf, election petition was described as -
“…a proceeding which is sui generis, as it is of its own kind, possessing an individualistic character, unique or like only to itself. It is distinct from ordinary civil proceedings. It is not particularly related to ordinary rights and obligations of the parties concerned. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the petition"31
In the words of Uwaifo, JSC:
"The jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case…. It is plain that the proceedings are special for which special provisions are made under the Constitution…. Election petitions are distinct from the ordinary civil proceedings….. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition…. So an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It can be regarded as a proceeding sui generis."32
In the same case, Kalgo, JSC, stated at 45:
“There is no doubt that an election petition is a proceeding which is sui generis and is not to be treated as a normal civil proceeding. It is conducted under the peculiar provisions of the relevant electoral law and is not particularly related to the ordinary rights and obligations of the parties concerned”33
Still on the characterization of election petition, Niki Tobi, JSC, had this to say in Buhari vs. INEC at 96-97
"The whole concept of Election Petitions being sui generis, in my view, is to project the peculiarity of the petition in terms of the reliefs sought, the time element and the peculiar procedure adopted for the hearing of the petition and all that. The Practice Directions, 2007, is a classic example of referring to Election Petitions as sui generis. No single Section of the Act or paragraph of the Schedule to the Act can qualify for the latinism, sui generis. It is the total jurisprudence of election that is sui generis, not a Section of the Act or schedule to the Act."34
Everything about election petition is provided for in a statute, ranging from who is a petitioner and a respondent, the grounds for questioning an election, content of election petition and reply, and the rules of procedure. All these are expressly provided for in the Electoral Act and the Schedule thereto. Even the reliefs a petitioner shall claim before the Tribunal must be in line with the Electoral Act. When you add all of these matters to the timelines provided for filing election petition, for pre-hearing conference, for prosecution and defence of the petition, for determination of the petition and the appeal(s) emanating therefrom, the sui generis nature of election petition become glaringly clear. I know of no cause of action either in civil proceeding or criminal proceeding that is so gagged and controlled strictly by statutory rules, without freedom to the parties to even choose their own words in couching say, a relief, as in election petition. These are the peculiar characteristics of election petition that set it apart from other known cases and procedures, civil or criminal. Election petition is neither of them, it is a proceeding sui generis, in a separate class of its own.
Proof in election petition.
The evidential principle of ‘he who affirms must proof’, applies, mutatis mutandis, in election petition as it is in other proceedings in which the Evidence Act applies. With this in mind, we shall now randomly, but briefly, examine some aspects of proof in election petition in no particular order.
An election petition must state the ground(s) upon which the petitioner relies. Where a petitioner fails to specifically state the grounds of his petition, the fact that his pleading narrated facts showing the ground(s) for questioning the election will not cure that defect and save the petition, as same would be deemed incompetent.35 Similar fate will befall a petition in which the name of the person returned as the winner of the election is not stated.36 Where a petitioner complains of non-compliance with the provisions of the Evidence Act, he has a duty to prove that allegation polling unit by polling unit and ward by ward. He must show that the substantiality of the non-compliance has substantially affected the result of the election.37 Again, where disenfranchisement of voters is alleged, the only method of proof is by calling at least one disenfranchised registered voter polling unit by polling unit.38 A petitioner who challenges the authenticity of the result declared by INEC must plead and tender two set of results – the authentic and the falsified results, otherwise his allegation will fail. Where allegation of crime is made in an election petition, for instance, allegation of corrupt practices and falsification of results, the standard of proof is beyond reasonable doubt, not on the balance of probabilities.39 Election tribunal cannot conduct a private investigation on documents tendered before it when the purpose of tendering the documents has not been properly demonstrated in open court, as doing so will amount to a breach of the principle of fair hearing.40 To prove over-voting, a petitioner must tender the register of voters, the result forms, and show that the figure representing the over-voting if removed would result in victory to the petitioner.41
I cannot end my discussion of this sub-head without observing, in passing, that some provisions of the Electoral Act relating to proof of election petition are unfairly discriminatory against the petitioners, making it rather difficult to successfully prosecute an election petition. But since I am not here to prejudge, I have resisted the serious temptation, fueled and saturated by a paper presented by Peter Oyin Affen, J.42 (as he then was), to make a critique of those provisions, as it is outside the scope of this paper. That critique must wait for another time and another forum.
Role of the Tribunal Judges
There is no doubt that the conduct of credible election sustains the growth of democracy by inculcating democratic values not only among the active political players but also among the electorates, guarantees the rule of law and arguably, good governance. The sustenance of those democratic ideals, however, depend very much on how the Bench discharges its duties and responsibilities. The role of Judges not only in election matters, but in other matters generally, is to administer justice to the parties according to law. A judge is an umpire who dispassionately and impartiality determine disputes brought before him for judicial adjudication without any inkling of sentiment or bias. In delineating the role of a Judge, Lord Denning, M.R. said:
“My root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all he legitimately ca to avoid to avoid that rule – or even change it – so as to do justice in the instant case before him. He need not wait for the Legislature to intervene; because that can never be of any help in the instant case. I would emphasize, however, the word “legitimately’; the Judge is himself subject to the law and must abide by it.”43
Also, talking about the duty of the Tribunal Judges, the Supreme Court stated:
“The duty lies on the court to determine whether or not an election was conducted substantially in accordance with the Constitution and the Electoral Act…The court will look at circumstance of the case including the state of pleadings, especially the creditability of the petitioner’s position and the nature and substance of the complaint of the petitioner, the attitude of the functionaries charged with the conduct of the election and whether the omissions complained of by the petitioner even if proved, affected the conduct of the election.”44
In the discharge of this duty, the Tribunal/Judges are to be guided by the Constitution, the Electoral Act and the rule of procedure contained in the First Schedule thereto, as well as the Evidence Act. Tribunal Judges must ensure they keep to and observe the timelines set by the Electoral Act without compromise. The doctrine of stare decisis which has been firmly entrenched in our electoral jurisprudence and the entire legal system must be strictly adhered to in the determination of election matters. Furthermore, in view of the sensitive nature of election cases, parties shall be accorded all opportunities allowed by law to ventilate their grievances without hindrance, save where they are limited by law. This will stem the tide of accusations of bias or any form of impropriety by desperate political players who are locked in the struggle for power and influence, and would, in the process, never mind sacrificing the hard-earned reputation of Judges in pursuit of their desperate and unrestrained ambitions. As the stakes are high in election matters, Judges must eschew all forms of impropriety and the appearance of impropriety; and in my humble view, the sure way to achieve that is to constantly remember and be guided by the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.
CONCLUSION
For democracy to thrive, it must be founded on the rule of law and separation of powers. It is the occasional breaches of these two pillars of democracy that brings to the fore the role and importance of the judicial arm of government in fostering, sustaining, strengthening and deepening democracy and democratic institutions. The Bench bears the particular responsibility of ensuring that all branches of government – the Executive, the Legislature and the Judiciary itself conform to the principle of the rule of law by their fearless and courageous decisions. There is no doubt that the Bench has, over the years, endeavoured to reshape the unwholesome political terrain in the country with some measure of success, and will continue to do so tirelessly. The proactive intervention by the courts in the area of pre-election matters has begun to yield dividend in that, our political parties have started appreciating the importance of internal democracy in the conduct of their affairs, and it is hoped that the courts will continue to impress that upon them.
In the course of this paper, we have seen how the courts instills discipline and promotes growth in the electoral process through their judgments. It remains to query whether those legally correct judgments from the appellate courts have given the electorates value for the discharge of their civic duty by queuing up under the scorching sun or under the rains to cast their votes. In other words, have the judgments given the voters electoral justice by upholding their rights to freely choose their leaders through the ballot? What happened in Zamfara State in 2019, Rivers State in 2007 and Bayelsa State in 2020 amount, in my view, to legal justice, the antithesis to electoral justice. The electorates were denied electoral justice partly because the Electoral Act did not recognize them as parties to an election petition, and partly because the philosophy of the Electoral Act is geared towards the attainment of legal justice to the candidates only.
Thank you all for giving me the attention to share my thoughts with you. It is hoped that the paper will elicit robust discussion.
END NOTES
