Nigeria's first female Chief Justice, Mariam Aloma Mukhtar
The 2007 general election was declared “a
do-or-die affair” by former President Olusegun Obasanjo. The election
was marred by violence, ballot snatching and ballot stuffing by
political thugs. The armed forces and the police, who were deployed in
various parts of the country to maintain law and order unleashed
unprovoked mayhem on the electorate. The Independent National Electoral
Commission 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
Justices, 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 Yar’Adua 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
conducted into the fraudulent election, the committee recommended inter
alia that all election petitions be concluded 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 the 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. Hence, participants are enjoined to
cross-fertilise ideas on the management of election petitions. 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
governorship elections in Edo, Ondo and Delta states. 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 particular, voting
materials were deliberately not supplied to many polling units. 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 Action Congress of Nigeria and Peoples Democratic Party 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.
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 shameful development, Jega publicly admitted that an
official of the INEC had 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 EO 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 the 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 current voters register is defective in many respects, Prof. 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 in accordance with the provisions of the law.
Prosecution of election petitions
In order to stop the imposition of
candidates by political godfathers and moneybags, 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 and substitute them at will. Since candidates
who have been so short changed have the right to challenge the decisions
of their political parties in the High Court, 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.
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. However, 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
“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 from them 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 and appellate judges of election petition
tribunals. In the alternative, the High Courts in each of the states
should handle election petitions as was the case during the Second
Republic
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
is incompetent. 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
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