Re-Analyzing The Election Petition Procedure In Nigeria: Is The System Rigged Against The Petitioner? Part 1

By Emmanuel Jonathan

Periodically, Nigerians go to the polls to cast their votes in a plurality voting system to either elect or re-elect leaders. The offices to which citizens elect officials to include the office of the President and Vice President,109 Senators, 360 House of Representatives members, 36 Governors and diverse persons to occupy the various Houses of Assembly of each state of the federation.

Sometimes after rigorous campaigns, some candidates in the race lose out. The next available option opened to an aggrieved candidate or his/her political party as the case may be is recourse to the election petition tribunals and, in the case of the Presidential election, the Court of Appeal. The Aggrieved applicant/petitioner turns to these special tribunals via the mechanism of the election petition vehicle. Election petitions are not a common feature of our jurisprudence. They are special occasional spurts in our jurisprudential horizon. They are in the words of Ariwoola JSC, “Unique and peculiar, different from other civil matters.” Refer to the case of Ugba v. Suswan (2012) 4 NWLR (Pt. 1345) 427. It was also the opinion of Charles Dadi Onyeama JSC (as he then was) in Oyekan & Anor v. Akinjide & Anor (1965) LPELR-25250 (SC) who stated, reiterating the uniqueness of election petition, “The proceedings on an election petition are special proceedings for which special provisions are made in the constitution…”

Due to the special nature of election petitions, it is the only type of litigation that has a very clearly demarcated and well spelt out lifespan from beginning to end. The Constitution of the Federal Republic of Nigeria (hereinafter CFRN) in section 285 (6) clearly stipulated that the hearing and determination of an election petition shall not exceed 180 (one hundred and eighty) days from the date of filing of the petition to the dissipation of the issues in the petition. Subsection 5 of that same section 285 leaving no room for any form of indecision on the part of the potential petitioner stated that the petition must be brought within 21 days after the declaration of results.

The essence of this rapid quick timelines and time boundaries are to ensure a mandatory dissipation of issues and final determination of election matters and results so as to leave no room for chaos or uncertainty in the political spectrum of a state or the country.

This article will attempt to dissect the election petition backdrop with particular focus on the standard of proof required to obtain the blessings of the election tribunal or court. The major thrust of the article will be to analyze the issue of whether the election petition system is not rigged or judicially biased vis-à-vis the earmarked standards and hurdles seemingly arrayed against the petitioner? This becomes forceful especially when considered under the microscopic focal light of where there is an allegation of fraud or other criminal elements which usually raises the bar to proving the allegations beyond reasonable doubt. A fast fact check of the most recurring ground of petition is the allegation of noncompliance with the Electoral Act (hereinafter ‘The Act’) and acts of fraud. This ground automatically foists the additional requirement of proving the allegations beyond reasonable doubt which said acts of fraud and other criminal elements alleged most times occur under the most difficult to prove circumstances.

Secondly, this article will address head-on, the issue of cost in election petitions. The question will be raised, canvassed and addressed, in light of the provisions of the Electoral Act, whether the Election Petition procedure, the often voluminous and bulky collection of evidence and the financially intensive requirement are not heavy weight which unnecessarily weigh the petitioner’s shoulder grievously?

Thirdly, this article will address critically the 180 days’ timeline mark. But more, the fulcrum of attention will revolve around the automatic and enshrined helplessness of the petitioner who for no fault of his/her may lose out on a well-articulated and presented case, only because the tribunal or the Court as the case may be was either deliberately or not deliberately hamstrung from crossing the finish line before the 180 days’ mark. In this regard, pertinent suggestions will be highlighted and novel recommendations will be proposed which if implemented may, together with the other issues raised rejig and revolve our election petition process towards a more modern judicial practice.

Finally, the article will draw on election petition practices and procedure in the United States of America (hereinafter the “United States” or “USA”). This nexus while marrying seemingly divergent jurisdictions is rather apt as the USA and Nigeria both operate a Republican system and have a similar judicial and litigation system structure, albeit slightly different in hierarchical structure. The positive and glittering highlights of the American election petition system, with particular focus on the Bush- Gore election adjudication will be highlighted, then the article will close on the possible and potential positive points which could be extracted from the US and similar jurisdictions to completely revolutionize our election petition process. The essence will be to show that while we have a working and workable election petition system, that we could still have a better election petition system.

Analyzing the election petition system, structure, practice and procedure in Nigeria

Before we delve headfirst into the election petition system, structure, practice and procedure, it is imperative to state that our discussion will flow from the following headings:

1. The available grounds for election petition
2. Who are the defined persons and entities capable of bringing an election petition?
3. The statutory content of an election petition and accompanying documents
4. The available election petition tribunals, and;
5. An election petition: How it works, practice and procedure.

After discussing the above issues, we will close in on the thorny subject of the different standards of proof in the predominantly civil suit. The discussion on the appeal process and procedure for enforcing election petition tribunal decisions will be a discussion for a different subsequent article.

In discussing the above outlined subheads, the drafters of the Constitution did not leave the question unanswered as to when an election petition may be brought after an election or who could validly bring the petition. It would have been a dangerous situation if no clearly marked principles were established in this regard. There would have been a floodgate of suits at various times distracting the performance and smooth running of governance. But even more worrisome, it would have led to a situation where meddlesome interlopers who have neither business nor gain in the electoral process would have entered the race to distract the sitting successful candidate. Kindly see the case of Senator Abraham Ade Adesanya v. President of the Federal Republic of Nigeria & Anor 1981 LPELR-SC. 1/1981 where the Supreme Court held that for any person to bring an action, such a person has to show his locus standi or sufficient interest to bring such a suit. The drafters of the Constitution and the Electoral Act, in delimiting the range of persons and the timeline in which a petition can be brought entrenched some useful criteria.

Hence to prevent a situation where the successful candidate was to be left in a perpetual state of abeyance, the drafters of the Constitution as discussed in the introductory paragraph earmarked a ‘living’ period of oxygenated timespan within which a petition could be brought.

The drafters of the Constitution in their wisdom restricted the timeline opened to an aggrieved participant in the election to a 21 (twenty-one) days span.  See 285 (5) of the Constitution of the Federal Republic of Nigeria (hereinafter CFRN). Once this period has lapsed, no force above or beneath can resuscitate the right to action. In the very interesting case of Oyekunle Gbenga v. All Progressives Congress & Ors LOR (06/09/2019) SC, the claimant brought an action challenging the declaration of another candidate as the APC flag bearer in the House of Representative election for the Offa/Ifelodun/Oyun constituency after the party primaries. By virtue of Section 285 (9) of the CFRN, all pre-election matters are to be brought within 14 days of the complained action or decision. Mr. Gbenga had waited for a period spanning almost 20 days before bringing the action. The matter had been struck out at the trial court as being statute barred. Upon appeal to the Appeal Court and subsequent appeal to the Supreme Court, the appellate Courts had reaffirmed the decision of the trial Court to dismiss the appeal holding that once the constitutionally sanctioned timeline lapses, that the matter becomes a dead on arrival suit for which no amount of resuscitation can revive.

Hence, any election petition must be commenced within 21 days of the declaration of the results. Failure for same to be commenced within the stipulated timeline will result in the matter being declared statute barred. Kindly see the cases of Maigari v. Malle (2019) 16 NWLR (Pt. 1697) 69], Zayyad Ibrahim v. APC (2019) 16 NWLR (Pt. 1699) 469]. Nigerian Ports Authority Plc v. Lotus Plastics Limited & Anor. (2005) 19 NWLR (Pt. 959) 158 and National Revenue Mobilization Allocation & Fiscal Commission& ors. v. Ajibola Johnson & Ors (2019) 2 NWLR (Pt. 1656) 247.

The Electoral Act going further delimited the factual grounds of what might inspire or ground an election petition to just four grounds. In other words, if the claims or gravamen of the Petitioner cannot be squared into any of the stipulated grounds, then the petitioner could as well bid farewell to any challenge of the election.

The grounds, pursuant to Section 138 (1) (a) – (e) of the Electoral Act are:

1. That the person whose election is contested was at the time of the election not qualified to contest the election. We shall briefly discuss this rather crisp ground with all its attendant implications.
2. That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. This ground will bear the weight of our subsequent discussion in this article.
3. That the Respondent was not duly elected by majority of the votes cast at the election.
4. That the Petitioner or its candidate (where the petitioner is a political party) was validly nominated but was unlawfully (note the term ‘unlawfully’) excluded from the election.
5. That the person whose election is questioned had submitted to the Commission (INEC) affidavit containing false information of a fundamental nature in aid of his qualification for the election. It will be recalled that one of the grounds against the election of Governor Godwin Obaseki of Edo state in the recently concluded Edo State Governorship election petition tribunal had been the allegation that the Governor had forged and or falsified his school certificate to INEC. Kindly see the petition in Action Democratic Party & Anor v. INEC & 2 Ors (2021)LCN/15169(CA).

Where an aggrieved candidate or political party in an election cannot ventilate his grievance under any of the above grounds, he may as well bid the petition goodbye.

On the first ground enlisted in Section 138 (1) (a) of the Electoral Act (hereinafter the “EA” or the “Act”) it is clear that what is intended here is that the successful candidate /Respondent was not at the time of the election qualified to contest. It is important here to drag one’s attention to the phrase, “as at the time of the election.” So the principle at equity that equity holds as done that which ought to be done will not avail a Respondent here. It is immaterial that perhaps, after the election the successful candidate/Respondent did become qualified. What matters for all time material is that for the large timespan going backward from the time of the election, the candidate was not qualified.

This directly leads to the question: what determines the qualification of a candidate in an election? In other words, what are the feasible things/facts which a candidate must be seised of before he/she can validly contest an election?

While the different contestable electoral offices carry different criteria for eligibility, yet a common threshold can be gleaned from the relevant provisions of the CFRN stipulating the eligibility criteria which include sections 131 and 137 (which provides qualifications for the office of the President), 177 and 182 (which provides qualifications for office of the Governor of a state), 65 and 66 (which stipulates qualifications for the office of the National Assembly) and sections 106 and 107 (which outline eligibility for House of Assembly contestants). Collectively, any candidate for the above mentioned offices must satisfy the following criteria:

1. The candidate must be a Nigerian citizen by birth. For the office of the president, he/she must have attained the age of 35 (thirty-five) at least, the office of the governor, he/she must have attained the age of 35 (thirty-five) at least, for the office of the Senate, he/she must have attained the age of 35 (thirty-five) at least, for the House of Representatives, he/she must have attained the age of 25 (twenty-five) at least. Also for the House of Assembly of a state, he/she should have attained at least 25 (twenty-five) years.
2. The candidate must be educated up to at least school certificate level or its equivalent. The outcry has been there and the present researcher also is of the opinion that the barest minimum educational qualification for the above mentioned elective posts ought to be a University degree.
3. The candidate must be a member of a political party and must be sponsored by that party.
4. He must not be adjudged to be a lunatic or of unsound mind.
5. The candidate must not be under any sentence of death or imprisonment for an offence involving dishonesty or fraud (or by whatever name called) or any other offence, imposed on him by any court or tribunal or substituted by a competent authority of any sentence imposed on him by such a court or tribunal.
6. Within at least 10 (ten) years, prior to the date of the election, the candidate should not have been convicted and sentenced for an offence involving dishonesty or should not have been found to be guilty of contravening the code of conduct.
7. The candidate must not be a member of a secret society.
8. Where the candidate is in the employ of the civil or public service of the federation or a state as the case may be, he shall have resigned, withdrawn or retired at least 30 (thirty) days before the date of the election.
9. Such a candidate must not be an undischarged bankrupt.

The other requirements for the office of the President as gleaned from section 137 (3) is to the effect that where the candidate succeeded a previous President so as to complete his tenure, that the candidate can only be entitled to a further term of just four years and no more. While the beauty and the timeliness of this provision is apt, especially in the light of the saga that trailed the candidacy of the President Goodluck Jonathan’s declaration to contest the 2015 elections, yet it is the position of the present researcher that this position is stiflingly restrictive and unconstitutional.