Will Litigants Get Justice At Election Tribunals?

After the elections, the Elections Petitions Tribunals become
the forum for aggrieved candidates and their parties. Will the
litigants get justice there? ADEBISI ONANUGA
asks.

Election tribunals are special purpose vehicles for thrashing
out poll disputes. They will soon become busy. Inaugurating in
Abuja the tribuals which will handle disputes that arise from this
year’s elections, Acting Chief Justice of Nigeria (CJN) Justice
Ibrahim Tanko Muhammad urged them to be above board.

No fewer than 250 judges were nominated to serve on the
tribunals.

According to Justice Muhammad, the task of adjudicating on
petitions would affect the judges’ conscience. He enjoined them to
rise above temptations, do justice in accordance with the law and
remain loyal to their oaths.

At a “Workshop on election petitions for judges’’ in Abuja where
he was represented by the President of the Court of Appeal, Justice
Zainab Bulkachuwa, Justice Muhammad said: “This is an enormous
national assignment that will literally put the contents of your
conscience to test. As judicial officers, you may have, one way or
the other, trodden this somewhat dreaded terrain, but you must,
against all odds, rise above the murky waters of failure and
infamy.

“The onus is on you to keep aloft the banner of honesty and
integrity that the judiciary has painstakingly hoisted over the
years. Your appointment to serve in these tribunals is well
conceived, thus, you should do everything within your ability to
justify this confidence.

“There is no doubt that you will be exposed to different forms
of temptations and even blackmails but you should know that all are
aimed at testing your strength of character, honesty and
integrity.”

The issues

In determining petitions, issues, such as delay in the
dispensation of election disputes, fair hearing and justice and
limitation of time set for hearing and dispensation of petitions
have resulted in heated arguments and bogged down the
tribunals.

Delays in disposing of petitions

Delays in the dispensation of electoral disputes has become a
big issue in the electoral process as counsels deploy various
tactics and file many frivolous applications to frustrate
petitioners, leading to prolonged hearings. This is compounded when
they seek order of the tribunal to inspect ballot papers and other
materials used for the elections and INEC is not easily
forthcoming

Fair hearing

The application of fair hearing has also created problems in the
determination of electoral disputes. Despite that Section 36 (1) of
the constitution guaranteed the right of every person to fair
hearing, its application in resolving electoral disputes have
created a lot of problems for election tribunals, which are
expected to judge within a reasonable time in accordance with the
principle of natural justice.

Period to file and dispose of petitions

Section 285 (5) of the 1999 Constitution (as amended) stipulates
that an election petition must be brought within 21 days of the
declaration of election results. While Section 285 (6) requires
that an election tribunal must deliver its judgment within 180 days
of filing a petition.

However, the issue as to whether a specific time should be
stipulated for conclusion of election petitions has always
generated heated debates among practitioners, judges and
politicians alike.

Attempts to resolve the issue has always resulted in
formulations of various legal positions leading to
adjournments.

This is because access to relevant election documents and other
materials by the candidates in the election for petition has been a
challenge owing to high fees charged by the Independent Electoral
Commission (INEC) before issuing certified true copies.

As the country sets for Presidential and National Assembly
elections on Saturday and governorship and state assembly elections
two weeks after, there is no telling the volume of petitions that
would be filed by candidates and their respective political
parties, challenging the outcome of the elections. The acrimonies
and mudslinging that characterised the campaigns have prepared the
ground for petitions.

But what manner of judges are to sit over the petitions. What
are the expectations? What are the pitfalls to be avoided. What are
the mistakes of the past that the tribunals must avoid this time
around and how best should they handle the assignment entrusted on
them and make a success of it?

Lawyers’ expectations

Legal practitioners, particularly those versed in election
petitions, lend their views on the matter. They include Ahmed Raji
(SAN), law lecturer, Faculty of Law, University of Lagos (UNILAG),
Akoka and Constitutional lawyer, Wahab Shittu, Constitutional
lawyer, Ike Ofuokwu, member, Ogun State Judicial Service
Commission, Abayomi Omoyinmi and Committee for the Defence of Human
Rights (CDHR) President, Malachy Ugwummadu.

Raji hoped that the election would be free, fair and credible,
such that the various tribunals won’t have much to do as is the
case world over. He however lamented the volume of petitions
arising from elections over time.

He said: “I am yet to read of any democracy with our volume of
election petitions. While other legal regimes are improving to make
their legal regime business friendly, ours is bogged down with
election related matters to the great detriment of important
commercial cases.

“It is so bad that even the Constitution has given undue
priority to even pre-election matters by giving time limit to the
courts just like election petitions thus causing damaging delays in
other matters.

“Not even matters concerning the only source of our
revenue-(oil) enjoy any special attention from our courts thus
discouraging some major investors or forcing them to settle for
alternative dispute resolution outside Nigeria. It is very
sad.”

Shittu noted that the
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responsibilities entrusted into the hands of the tribunals are
grave, challenging and patriotic in the realm of nation building
and sustenance of the democratic traditions.

Shittu said the tribunals have a duty to ensure that
pre-primary, primary, post primary as well as elections disputes
brought before them are promptly resolved within the time frame
allotted satisfactorily with the principles of justice and fair
play to all the sides involved in the disputes.

He said the tribunals should be conscious that resort to them is
anomalous. lf there is genuine internal democracy in the parties
and if elections are free, fair, peaceful and credible to the
satisfaction of all, recourse to the tribunals will of course be
unnecessary, consequently should note that they owe a duty to
uphold the popular will of the people in the decisions handed
down.

He advised: “Substantial justice as opposed to rigid adherence
to technicalities should be the rule rather than the exception in
the decisions of the tribunals. It is important that persons
appointed to serve as judges in the tribunals should be men of high
ethical and professional standards in terms of integrity,
competence, character, credibility and capacity with Zero tolerance
for corruption.

“Such persons must be highly knowledgeable with capacity to
control and effectively take charge of the proceedings having
regard to the time frame within which the Tribunals are set up to
adjudicate disputes brought before them”.

The law lecturer took into cognizance events of the past and
advised members of the tribunal on the pitfalls that must be
avoided for them to make a success of their assignment.

He advised them on the need to avoid undue delays of the
proceedings, reliance on undue technicalities at the expense of
substantial justice and to ensure zero tolerance for corruption and
avoiding likely compromise of the cases

Shittu further admonished the tribunal members to avoid the
antics and shenanigans of the political elite who are ever willing
to compromise the process. He stressed the need for them to ensure
that timelines for the resolution of the cases, mastery of the laws
– constitutional provisions, the electoral act provisions, the
constitutions of political parties and guidelines for the conduct
of primaries and elections

He urged them not to allow themselves to be misled by counsel
and pressures from politicians and ensuring that decisions are
promptly handed down and to avoid nocturnal meetings and telephone
conversations with counsel and litigants among others.

“One other mistake to be avoided include conflicting judicial
pronouncements as well as needless ex-parte orders that could
prejudice the merits of the elections and the conduct of credible
poll.

“Making a success of their assignments require integrity of the
process by all stakeholders – politicians, counsel and tribunal
members who must all be committed to the attainment of justice.
Attitude is everything.These stakeholders must be committed to
strengthening our democracy through ensuring a transparent
process.

“Dispassionate application of the extant laws- to the justice of
the cases will enthrone public confidence and strengthen the
popular will which are the hallmarks of the democratic
traditions.

“Above all, timelines and zero tolerance for corruption,
including attitude of counsel, would deliver effective and
efficient results that would meet the expectations of all”,
stressing, “the integrity and credibility of the work of the
tribunals should never be compromised”.

Ofuokwu added: “Despite the misgivings about the circumstances
that led to the suspension of the CJN, Walter Onnoghen, which seems
to cast aspersions and raise credibility issues over the integrity
of the tribunal members, we have very high expectations of them to
be fair, impartial and conscientious in the discharge of their
duties.

“This will restore the integrity of the judiciary which has been
badly battered of recent times.

“Otherwise, what is left of the judiciary’s integrity will be
totally obliterated.”

According to Omoyinmi, the various tribunals should be
synthesised of judges with high level of integrity, partinacious
and knowledgeable in election petition proceedings, because
election petition are sui- generis. I believe that such persons
should include mostly judges who sat in previous election
tribunals, who had experience in the day to day proceedings of the
hearing of election petition as it is often the case when hearing
in the petition commence.

Omoyinmi, however, said: “There should be restrictions as to the
number of supporters of the candidates/party that are allowed to
attend the tribunal sittings and even the venue, this is because
the huge number of supporters affect and distract proceedings
sometimes.

“The tribunal must adhere to time of sittings, even where
necessary petitions is heard on weekends as it’s often the case
sometimes.”

He said it is important that all parties involved have a
level-playing field with equal opportunities to present their
petitions regardless of the parties and or their counsel.

“There is this perception by litigants and their supporters that
counsels sometimes take advantage over others, especially where
very senior advocates are involved.

“Once the credibility of the election petition tribunal judges
is not in doubt, and they are seen to be above board and very firm
in control of their courts and proceedings, the decisions and
pronouncements of the tribunals will be credible and
acceptable.”

Ugwummadu said the judges appointed to serve in the election
tribunals, apart from being people of very high principles,
standards and integrity, must also be persons of sound knowledge of
the law, both procedural and substantive laws.

“They must be driven by a deep sense of justice and fairness
focused on the advancement of the society, which is the utmost
beneficiary of justice,” he said.

Ugwummadu advised that the tribunal must creatively find a way
to guarantee that the usual, but avoidable delays by petitioners in
accessing election materials for litigations should be removed to
secure easier access to justice. Besides, the law has not yet been
imposed on the election management body the responsibility to
justify their actions in the conduct of the election.

He said the notion and percentage of corruption in the judicial
system must be confronted and erased. The appointment of
ill-equipped judicial officers along ethnic line and for clear
nepotism should be discouraged.

He emphasized speed, diligence and effective control of the
proceedings of their tribunals as the diminius litus of their
court.