By J.S Okutepa, SAN
Section 285 of the 1999 Constitution establishes Election Petition Tribunals to adjudicate over electoral disputes for governorship, National and state Houses of Assembly elections in Nigeria. In the same way, the Electoral Act 2022, gives the Federal High Court the jurisdiction to decide pre-election matters. Appeals in all these matters both pre and post elections go in most cases to the Supreme Court except for post elections disputes where the appeals in National and State Houses of Assembly terminate at the Court of Appeal.
The reasons parliament gives jurisdiction to the judiciary to determine these electoral disputes are not far-fetched. It is believed and assumed rightly in my view that the judiciary being an unbiased arbiter will ensure that democracy is not truncated by political hoodlums and rascals. It will decide electoral disputes without fear or favour, affection or ill will. Judges are not politicians. Partialities are not parts of the attributes of judicial officers.
Parliament then reasoned rightly in my view that the judiciary is best suited to call political actors to order and will act as checks and ensure that the will of the people or the sovereignty of the people which is the basis of any legitimacy in electoral context is not undermined.
The judiciary was therefore expected to team up with the people in adjudications so that the mandates of the people are not snatched by processes that lacked legitimacy.
Unfortunately, the experiences over the years showed that despite these laudable legislative initiatives, political impositions and rascality, which are contrary to democratic norms always get the judicial stamp of legitimacy in most cases. It is observed with profound respect that despite the laudable legislative interventions to give justice to victims of electoral frauds and manipulations in Nigeria, the judiciary appears to have effectively blocked access to electoral justice by the kind of judgments it gives in most cases in electoral jurisprudence in Nigeria.
The roadblocks to justice in electoral jurisprudence are based on bad judicial precedents set, which precedents have enabled political actors to rig and bypass due process with audacity of arrogance and impunity. These precedents have enabled electoral rascality to thrive in the most barbaric manner in the Nigerian brand of democracy. These precedents acquired notoriety from 2003 and became more terrible under the 2015 to 2023 general elections in Nigeria.
The concepts of demonstration of documents, dumping of documents, calling of polling units by polling units agents, certified true copies of public documents must be tendered by the makers and to the now requirements that no subpoenaed witness can testified unless his or her frontloaded statements on oath are filed along with the petitions within 21 days allowed to file petitions are such judicial precedents that have effectively put spanners in the wheels of electoral justice in Nigeria.
As a lawyer who has consistently prosecuted election petition cases for “losers” over the years, my experience show me that no matter the volumes of evidence, the judiciary appears to have taken stand and seems to be siding with the people who have no regard and respect for the sovereignty of the people. This is clear in several decisions that emphasised more on arid anachronistic legal jargons and technicalities that are rooted in caricature justice.
No matter the best of efforts, by legal practitioners for the petitioners, most decisions hide under what the judiciary called sui generis, to cause havoc and deal terrible blows to democratic processes. Judiciary in most cases developed blind eyes to many fraudulent manipulations either because it is overwhelmed or there are some other considerations that are not truly visible for some of us outside the judicial system to comprehend.
For me, until the judiciary decides to see wrongs where wrongs are visible even for the blind to see, and then overrule or is prepared to depart from road-blocking precedents it has set as shown above, there is no need for anyone to waste time, resources and energy to file election petitions in Nigeria.
Let everyone who has what it takes to write results write it and then approach the compromised and commercialised institutions of INEC and security agencies to enter the results on the relevant forms and then announce the “winners.”
This way, there will be no need for judicial officers to be moved from their normal stations to Election Petition Tribunals. Judges will then be focused on their normal judicial cases. This will also reduce the waste of state resources to pay huge amounts of money to defend fraudulent electoral victories. There are some people who are experts in blocking access to electoral justice and are making huge money from petitions filed who don’t deserve this money.
It is therefore my proposal to all “losers” of elections in Nigeria not to waste time and resources to file election petitions because it is earlier for an elephant to go through the eyes of the needle than for anyone who was robbed of victories in our elections to get immediate remedies and electoral justice. Technicalities are now being used to aid and abet the fraudulent democratic processes in Nigeria. This is the reality of the matter.
