Last Monday, the Ekiti State Election Petition Tribunal which
sat in Abuja over the July 14th gubernatorial election
delivered its judgement. The three-man panel led by Justice Suleman
Belgore in a unanimous judgment affirmed the victory of the
incumbent governor Kayode Fayemi and dismissed the Petition of the
Petitioners─ Peoples Democratic Party (PDP) and its candidate,
Professor Olusola Eleka at that keenly contested poll. The PDP has
since indicated its position to challenge the decision at the
appellate courts from what one could infer from the statement of
its National Publicity Secretary, Kola Ologbondiyan in the wake of
the decision. Barring when they do that, what the judgment of the
tribunal has shown again, is that it is becoming increasingly
difficult, if not impossible for a candidate at an election to be
returned through an election petition. And the reason for this is
not hard to seek.
As much as the Electoral Act 2010 (as amended) operates as a
substantive and procedural legal framework for aggrieved candidates
at an election to challenge the outcome of same, a calm
consideration of the Act as well as the cases, will leave the
objective reader with the irresistible impression that it was never
the intendment of the draftsman of that legislation that our
electoral process be exposed to undue litigation before the actual
winner can be known. The smoking gun of this hypothesis is made
manifest in the sisyphean onus thrust on the shoulders of a
Petitioner at an Election Petition Tribunal before he or she can
prove to the required standard of proof that the entire proess of
the election was fraught with widespread irregularity and non
compliance with the extant laws; so material that it should
tantamount to the nullification of the entire election, or a return
in his favour
A very fine jurist PATS-ACHOLONU J.S.C (as he then was)
underscored the daunting task faced by a petitioner in challenging
election to the office of president or Governor in Nigeria in the
popular case of Buhari v Obasanjo [2005] 13 NWLR (Pt.941) 1 thus,
“The very big obstacle that anyone who seeks to have the
election of the president or Governor upturned is the very large
number of witnesses he must call due to the size of the respective
constitutency. In a Country like our own, he may have to call about
250,000-300,000 witnesses. By the time the court would have heard
from all of them with the way our present law is couched, the
incumbent would have long finished and left his office and even if
the petitioner finally wins, it will be an empty victory bereft of
substance”.
While time for the presenting and determination of election
petitions have been abridged by the subsequent amendments to the
Electoral Act between then and now, it has not taken away the
evidential obstacle faced by a petitioner, which as has been shown
in many cases is difficult to discharge in a way that would lead
the court to order a return of a petitioner.
I like to think that this evidential burden thrust on a
petitioner was purposely written into our laws, to discourage
candidates at an alection from challenging the process in the event
of a loss, in the same way the legal burden thrust on the
prosecution in criminal trials is purporsely written into the laws
to further cement the presumption of innocence enjoyed by an
accused person. Little wonder why the courts have in several cases
held that every election is presumed to have been conducted in full
compliance with the provisions of the Electoral Act and its
guidelines until proven to the contrary.This line of thought will
however beg the question: should candidates who participated at an
election be shut out or recused from contesting the result of the
polls especially in the face of wide spread irregularity or
evidence of rigging such as was alleged by the petitioners in the
recently conducted Osun and Ekiti State polls? This admittedly is
the crux of the matter.
Granted that there is no easy way of attempting and answer to
the legitimate poser; but when one factors the near impossibility
of winning back a perceived lost mandate through an election
petition given the current state of our laws, the need to imbibe
the values of equanimity becomes instructive.
Since the return to uninterrupted democracy in 1999, thousands
of election petitions have made it to election tribunals, with many
of them going up all the way to the Supreme Court, only to end up
in a debilitating defeat for a Petitioner as the attitude of the
courts is one that seldom likes to meddle in the choice of who
becomes the holder of an elective office. The tribunals as well as
the appellate Courts have betrayed these sentiments in a long chain
of cases with the incumbent president Muhamadu Buhari being a
serial ‘victim’. Except for the isolated cases of Adams Oshiohmole,
Olusegun Mimiko, Peter Obi and few others who at different times
were returned through an election Petition, several other petitions
have gone all the way to the apex Court without ending in a return
for the petitioners or a rerun.
In order to institutionalize this judicial disposition to
election petitions, the courts in their wisdom have devised several
ingenious means within the ambit of the law, most of them tending
to technicalities, to further shore up the presumption of
regularity which every election enjoys to the detriment of
Petitioners who allege fowl play. Anyone who appreciates the
jurisprudence of election petitions will have no doubt that it is
an exercise in undue legalese which in many cases edges off a
petitioner no matter the grounds of the individual petition.
At the risk of sounding too hypothetical, some instances might
sufice: It is a fashion for petitioners to make a criminal
allegations against electoral officers at large in the body of the
petition, but almost always fail to join them as parties to the
Petition for obvious reasons; thereby leading to a striking out of
the portions of the pleading alleging criminal wrongs against those
persons in line with the extant position of the law. The apex Court
in the popular case of Buhari v Obasano (supra) had reason to
pronoune on this recurring procedural blunder thus: “allegations of
the commission of a crime must be proved beyond reasonable doubt
whenever they are made in an election petition. It is therefore
inappropriate for a Court to infer that a particular candidate at
an election was responsible for the violent acts committed during
an election in the absence of evidence which shows beyond
reasonable doubt that he was”.
But that is not all. It is also a fashion for petitioners to
allege the compromise of security operatives on election day; an
allegation which usually takes the form of emasculation and
intimidation of supporters and party members as was the case in the
ongoing Osun election petition, but always fail to make the
indicted member(s) of the security operatives parties to the
petition, understandably due to the near impossibility of
identifying the particular officers who were involved in these
alleged acts of intimidation and compromise. This procedural
ommision at the instance of the petitioners almost always receive
the backlash of the tribunal and a subsequent striking out of those
portions of the petition in line with the extant law on pleadings
and leading of evidence.
The story is also the same for allegations in a petition taking
criminal coloration such as one, that an electoral officer was
involved in the mutilation of results, forgery or wrongful
balloting to confer advantage to a particular candidate. This
specie of allegations being criminal in nature, are almost always
not proved as Petitioners often find themselves unable to do so to
the required evidential standard, which is ‘proof beyond reasonable
doubt’. By practice, these collateral and recurring procedural
misteps, takes the shine off the petition thus earning it an order
of strking out, irrespective of what might have played out at the
polling units on election day.
It is this rather convoluted nature of our electoral
jurisprudence that has aggregated to put the resolution of
electoral disputes out of the reach of petitioners. Yet, for
candidates at any election to be able to cultivate the habit of
accepting the result of the process since only one candidate can
emerge victorious at a time, it goes without saying that they must
be convinced that the entire process of the election conformed with
the minimum requirements of the electoral laws and its guidelines
without inteference from any quarters. Many candidates that have
queued up to contest one elective office or the other in the
forthcoming general elections have said as much. For instance, when
Professor Kingsley Moghalu of the Young Progressives Party (YPP)
was asked recently whether he’d contest the result of the
presidential election if he loses, his simple response to the
interviewer, was that if the entire process is free and fair, he’ll
of course accept the result. From this response, one could
easily infer the workings of the minds of other candidates in the
forthcoming election on the issue of acceptance of the result of
the polls.
Which brings us to the role of the Independent National
Electoral Commission (INEC) and the security agencies in the scheme
of things. While one must commend the INEC for its efforts thus far
in cleaning up and enhancing the integrity of our elections, the
fact of the matter remains that there is still a lot of work to be
done. What the recent elections in Ekiti and Osun States
respectively show, is that there are still missing links here and
there in its internal processes which operate to cast doubt on the
state of its aloofness in the conduct of elections. The forthcoming
elections it is expected, will be another test of its capacity to
midwife an election that will be accepted by all and sundry without
the imperatives of contest before any election tribunal. If they
fail to live up to this billing, it’ll leave aggrieved candidates
with no option but to challenge the results without giving any
considerations to the possibilities (however slim) of a return
through the tortious runway of election petitions.
On the part of security agencies, their roles in the conduct of
elections have been anything but complimentary. By deploying acts
of intimidation of voters and taking sides when they ought to be
neutral, they give away their compromised stance. And needless to
say, when opponents at an election perceive the police and other
security agencies to be doing a yeo man’s job for a particular
candidate (usually the incumbent), it does not augur well for their
confidence in the entire process.
A very eminent but retired justice of the Court of Appeal (now
Nigeria’s Amabssador to the United States) Per. S.A Nsofor
painted graphically the unprofessional performance of the Nigerian
police in the 2003 presidential election in his dissenting opinion
in the notorious case of Buhari v Obasanjo [2005] 2 N.W.L.R (Pt.
910) CA 241 thus: “And there was a patent demonstration of
connivance, “bias” on the part of the police against the
petitioners and in favour of the 1st and 2nd
Respondents. They turned blind eyes to the attrocities being
inflicted on the innocent Nigerian citizens; by the army and the
police. And INEC was passive. See the evidence by Dr. Okilo
(PW. 69), D.W 23 (Lt. Col. Sotunde Aina Songonuga). In Bayelsa
state there was evidence galore of violence, which i believed. See
P.W. 52, 53 and 54. Dr. Okilo (PW. 69). In Rivers State evidence
abound and I accepted it, (see P.W. 32), that there were armed
gangs shooting at random intimidating the Petitioners and their
supporters in the face of the police. And the Police did nothing
and said nothing…” Some 13 years after this very
profound findings by the erudite jurist, the Nigeria police
and other security agencies are yet to turn a new leaf from what
one can gather from their performance in recent polls.
For elections to be adjudged free and fair, they must not be
fraught with any form of intimidation on the part of security
agencies whose role at elections is delimited by the provisions of
the Electoral Act; the extant legal framework for the conduct
of elections. Consequently, the security agencies must not only be
neutral, but manifestly seen to be neutral in all their engagements
with the electoral process. Given the woeful conduct of the
Nigerian police force particularly, under the leadership of the
former Police Chief, Idris Kpotum, one can only but expect that the
force under its new leadership will turn a new leaf and use the
opportunity of the forthcoming elections to assert its
professionalism.
Whichever way one looks at it, it is not in the best interest of
our democracy for our periodic elections to be contested at
election tribunals especially with a disturbing frequency, so much
that it has become a part of the electoral process, if not the
definitive part. Per Abdullahi PCA (as he then was now rtd.) voiced
his reprehension for this anomaly in a notable pronouncement in the
Buhari v Obasanjo case (supra), “I think it is appropriate at
this juncture to make some observations. I believe the time has
come in our learning process to establish the culture of democratic
rule in this Country to strive to do the right thing, particularly
when it comes to dealing with electoral process, which is in my
view is one of the pillars of democracy”. This couldnt have
been said any better.
Election petitions are energy sapping, time sensitive, and
financially tasking when one considers all that goes into its
prosecution both for the Petitioners and the Respondents. For the
Petitioners, it is another long walk to a destination that may not
be reached. And for the Respondents, it is a needless distraction
from the business of governance. But more than anything else, it is
the opportunity it offers the courts to be the ultimate decider of
who is the actual winner at an election against the democratic
principle of franchise that highlights its undemocratic
contours.
Flowing from the above, I do not envy his Excellency Kayode
Fayemi despite his victory at the tribunal and I have nothing but
sympathy for his opponent, Professor Olusola Eleka. Both men are in
my considered opinion, victims of an electoral process that
urgently needs an overhaul. No democratic state should be at the
mercy of election tribunals at periodic elections to decide the
colouration of its leaderhip.
Raymond Nkannebe is a Legal Practitioner and
Public Affairs Analyst. Comments and reactions to
raymondnkannebe@gmail.com.
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