Of jurists and election petitions: Reflections and recommendations, By Mike Ozekhome 

MY TAKE ON THE SALUTORY RECOMMENDATIONS MADE AT THE CAPACITY-BUILDING WORKSHOP FOR JURISTS OF THE COURT OF APPEAL AND MEMBERS OF ELECTION PETITION TRIBUNALS

Few days ago, the Court of Appeal held a capacity building workshop for Justices of the Court of Appeal and members of Election Petition Tribunals nation-wide. No doubt, the Nigerian Judiciary is a major player in holding any credible elections, being the third arm of government that resolves disputes and interprets the law. My Ozekpedia (modeled after Wikipedia, Legalpedia, Encyclopedia, Europedia, Glottopedia, Physiopedia, etc) once described the Judiciary’s recent role in election matters as  “Judocracy – form of government where presidents, governors, Senators, House of Representatives members, House of Assembly members, chairmen of local government, Councilors, etc., are incubated, midwifed and delivered in the hallowed courts of law rather than through the ballot box” (See https://www.premiumtimesng.com/opinion/603439-how-buharocracy-put-nigeria-in-throes-by-mike-ozekhome.html?tztc=1, June 9, 2023; https://independent.ng/2023-pept-pronouncement-a-judocracy-against-nigerians-ozekhome/, September 7, 2023). 

OBJECTIVES OF THE WORKSHOP

To attain pure and undiluted justice, there is the urgent need to take a second hard look at the Constitution and statutory provisions dealing with elections and electoral disputes in Nigeria. To inquire into building capacity for Judges via training on election-related matters and improve mechanisms for case management, the Policy and Legal Advocacy Centre (PLAC) headed by ace rights activist, Clement Nwankwo (we were in the trenches together in the 1980s and 1990s), in collaboration with the International Foundation for Electoral System (IFES) and the Court of Appeal, organized the capacity-building programme to support and strengthen the work and role of the Judiciary as it relates to election matters generally. The workshop aimed at promoting judicial excellence, electoral integrity and democratic governance. 

At the workshop, the intermediate court’s jurists discussed and made many far-reaching and salutary recommendations that will go a long way in sanitizing and deodorising our warped electoral process, after INEC had woefully failed in its duty to carry out free, fair, credible and transparent elections. The learned jurists should know better because they constituted the pivot and linchpin of adjudication during the 2023 electoral disputes era. Many judgements were applauded; but some were met with public anger, outcry and ruckus as a result of the perceived injustice and unfairness midwifed by such judgements.

The workshop which targeted Justices of the Court of Appeal and Judges/Members of the Election Petition Tribunal provided an avenue to build their skills on effective resolution of election disputes ahead of the upcoming 2027 General Elections, and to correct past errors. Also considering a new legal framework for elections in place, the Justices/Judges were trained on the application of the new Electoral Act, 2022, as well as on Practice and Procedure in Election Petition Tribunals. 

THE RECOMMENDATIONS AND MY HUMBLE PERSPECTIVES

I agree with many of the recommendations arrived at during the workshop as they aim to enhance the efficiency, fairness and transparency of the present warped electoral process which I had spoken so often about. (See https://newtelegraph.com/2023-general-elections-and-a-fractionalised-electoral-process-part-4/, July 10, 2022; https://www.tvcnews.tv/2017/03/nba-ozekhome-disagree-on-election-reform/, March 31, 2017).

However, I hold a differing opinion on some of the recommendations. For example, the recommendation that the Court of Appeal should be the final arbiter in governorship election disputes cannot be supported having regard to the sensitive nature of the gubernatorial seat. I will explain anon. Following are my humble thoughts on each point of the recommendations:

1. ELECTORAL DISPUTES SHOULD BE DECIDED BEFORE SWEARING-IN

I completely agree with this salutary and commendable recommendation. Ensuring that all post-election disputes are resolved before the winners take office would promote stability and ensure legitimacy in governance. It would also prevent situations where elected officials face multiple legal challenges and hurdles during their embryonic stages in office. These are invariably disruptive and serve as a major distraction to elected persons who bellyache as to whether or not they would eventually sail through. They lose concentration thereby and focus more on their court battles, all to the detriment of governance. 

2. ALL PRE- AND POST-ELECTION DISPUTES SHOULD NOT TERMINATE AT THE COURT OF APPEAL:

While expediting the resolution process is important, I humbly suggest that governorship and Senatorial election matters should undergo an additional layer of scrutiny by the Supreme Court, the final court of the land. Given the significant impact of governorship and Senatorial elections on the various States and Senatorial zones in Nigeria, it is crucial for the highest court of the land to provide a final, definitive ruling on such matters, to ensure comprehensive justice and avoid premature stultification of litigation.

This my humble opinion is particularly relevant in the light of the recent 2023 elections, specifically the Plateau State Election Petitions, where the Court of Appeal invalidated the victories of more than 23 lawmakers from Plateau State, elected under the People’s Democratic Party (PDP). I had critiqued this. (See https://independent.ng/ozekhome-enumerates-reasons-acourt-should-have-reviewed-plateau-legislators-judgment/, March 2, 2024; https://dailypost.ng/2024/01/17/ozekhome-supreme-court-judgement-plateau-lawmakers-dilemma-reignites-calls-for-electoral-act-amendment/ , January 17, 2024; https://www.thisdaylive.com/index.php/2024/01/13/your-judgments-on-kano-plateau-zamfara-perverse-supreme-court-blasts-acourts-election-panels/, January 13, 2024). The nullifications were based on alleged irregularities in the nomination and sponsorship processes of the candidates by their political party (the PDP), which was said to “have no structures” (whatever that meant).

These decisions were perceived as unjust and legally untenable by both legal pundits and political observers for several reasons. Firstly, the Court of Appeal’s judgements appeared to have arbitrarily overturned settled judicial precedents regarding who has the locus standi to challenge alleged irregularities in a candidate’s emergence at a party’s primaries. Secondly, there was significant debate over whether such complaints could be cognized by an Election Petition Tribunal, given its narrow jurisdiction under Sections 285 (1) and (2) of the 1999 Constitution, as amended, especially as they are pre-election matters. 

Thirdly and more importantly, these decisions were seen as unjust and unfair because the Court of Appeal served as the final court in these matters, leaving the candidates without the opportunity to further appeal to the Supreme Court in their search for justice. The electors and voters’ preferences were jettisoned and substituted by the Court’s own preference. The votes were counted quite alright and the Legislators won. Oxymoronically, the same votes did not count; so the Legislators lost. It amounted to judicial disenfranchisement. This situation underscores the need for both governorship and senatorial election disputes to reach the Supreme Court, to ensure fairness and uphold democratic principles.

To prevent frivolous appeals and crowding of the apex court’s docket (the understandable fear of many), while maintaining the right to approach the Supreme Court review, a heavy non-refundable pre-filing deposit fee of 10 million Naira should be imposed on the Appellants. This measure would deter and heavily minimize, if not completely halt frivolous appeals and ensure that only serious constitutional cases get to the highest court. This balances the need for thorough judicial scrutiny with the necessity to streamline the legal process.

3. ADR MECHANISM FOR PRE-ELECTION MATTERS

This is a positive and commendable recommendation by the Workshop. Applying Alternative Dispute Resolution for pre-election matters as opposed to adversarial court litigation would help resolve disputes more quickly and amicably, thereby reducing the burden on the courts. This will foster a collaborative approach to resolving electoral conflicts.

4. AMENDMENT OF THE CONSTITUTION TO ENSURE DISQUALIFICATION OF A DEPUTY DOES NOT AFFECT THE GOVERNOR:

It is important to ensure that the candidacy of a governor is not unduly affected by issues relating to the deputy governorship candidate. I believe that this amendment would provide clarity and stability in the electoral process. An ugly scenario that played out in the 2019 governorship election in Bayelsa State must be avoided. David Lyon of the APC had been declared governor-elect. He won square. He celebrated. He was live on television practising how to take the salute on a mounted daise for his inauguration the following day when news filtered in that a 5-man panel of the apex court had sacked him. His offence was that his Deputy, Biobarakuma Degi-Eremienyo, had presented false information to INEC in aid of his qualification as Lyon’s running mate. Thus, Degi’s sin was visited on an innocent Lyon whose own qualification was unquestionable. In my humble opinion, the judgement may have been based on technical law, devoid of justice.

5. INCORPORATING PARAGRAPH 25 (2) OF THE FIRST SCHEDULE TO THE ELECTORAL ACT INTO THE CONSTITUTION:

This ensures continuity in the hearing of election petitions even if the original presiding officer is unable to continue. It is a practical and necessary amendment to prevent delays and future challenges to the validity of judgements emanating from such tribunals.

6. AMENDMENTS TO SECTION 285(7) & (12) REGARDING THE TIMELINE FOR APPEALS:

Clarifying the timeline for when the 60-day period for appeals begins is crucial for ensuring timely justice. I believe that Section 285(7) & (12) of the Constitution should be amended to specify that the countdown starts “from the date an appeal is entered in the Court of Appeal or the Supreme Court.” This adjustment would streamline the process, providing a clear and unambiguous timeframe. It ensures that all parties involved have adequate time to present their arguments and that the courts can deliver their judgments efficiently and timeously. Remember that the Supreme Court has laid it down in Maku & Anor v. Sule & Ors (2019) LPELR-58513 (SC) that the requirement to file a petition within 21 days, relying on section 285 (5) of the 1999 Constitution, was a constitutional requirement and that the time frame was “just like the Rock of Gibralta or Mount Zion” which cannot be moved. Timeline in electoral matters, come nearer home, are like the Olumo Rock of Abeokuta and Zuma Rock of Abuja that cannot be moved.

7. REVIEWING THE STATE OF THE LAW ON THE TRANSMISSION OF RESULTS:

Revisiting and reviewing the laws on result transmission is crucial to prevent controversies such as we witnessed during the 2023 elections that put Nigerians on tension and tentacles as to whether or not there were “glitches” or breaks in transmission. Ensuring clear, transparent and reliable procedures for transmitting results will enhance the credibility of the electoral process. The difference between “transmit” and “transfer” and how they are exercised should be clearly defined and demarcated.

8. ALLOWING SUBPOENAED WITNESSES TO GIVE EVIDENCE:

This amendment would ensure that relevant testimonies are not excluded simply because they are not frontloaded with the petition itself, thereby supporting a thorough and fair examination of the facts in election disputes. How does a Petitioner frontload documents denied him by INEC even after a court or tribunal had granted permission for inspection and use of such electoral materials? What happens even if INEC releases them? The current position in law is that such evidence, having not been frontloaded, goes to no issue. This ugly spectre should be removed.

9. DELETION OF SECTION 137 OF THE ELECTORAL ACT, 2022:

Section 137 has not effectively altered the burden and standard of proof as defined in Sections 131-136 of the Evidence Act. The Evidence Act remains what it is – the law governing all evidential matters in any proceedings whether criminal, civil or electoral. Consequently, it is sensible to delete section 137 of the Electoral Act, so as to prevent confusion and maintain consistency with the established provisions of the Evidence Act of 2011 (now amended). This would ensure clarity in Electoral proceedings and uphold the integrity of the evidentiary standards already in place.

10. INCREASING THE NUMBER OF JUSTICES IN THE SUPREME COURT AND COURT OF APPEAL:

Increasing the number of Judges on the bench is a necessary step to making justice more accessible, and managing the workload more effectively. This measure would ensure timely resolution of cases by allowing more hands on deck to address the large backlog. By adding more judges, the judiciary can handle the volume of cases more efficiently, reducing delays and improving overall judicial performance. This improvement is crucial for maintaining public confidence in the legal system and ensuring that justice is delivered promptly.

CONCLUSION

In conclusion, while I support most of the recommendations arrived at during the Court of Appeal’s workshop, I firmly believe that governorship and senatorial election disputes should ultimately be reviewed by the Supreme Court, to ensure thorough and final adjudication. This would uphold the integrity of the electoral process and enhance public confidence in the judicial system.

•Prof Ozekhome is a constitutional lawyer and human rights activist based in Abuja.

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