Issues that may emanate from 2019 election petition proceedings

By Collins Okeke

The process of dealing with complaints and resolving election
disputes is critical to the survival of any democracy particularly
a fragile one like Nigeria. In addition to observing the voting
process, attention must also be paid to the process of managing
post-election disputes. This has become very important in view of
the glaring desperation of politicians across political parties in
Nigeria.

The Election tribunals and courts are important to the whole
democratic process because they represent the confidence of the
people not only in the electoral process but also in the rule of
law.

The malfunctioning of the tribunals and courts will lead to the
electorate and the political class settling political scores
through resort to unconventional means. Even with the
best-conducted elections, disputes might arise. What is important
is how fair and speedily such disputes are disposed of and justice
given to the deserving. This paper as the title indicates will
highlight issues that may emanate from the 2019 election petitions
process.

ACCESS TO VITAL MATERIALS BY ELECTION
PETITIONERS
A common complaint that had dogged the sittings of the various
election petition tribunals and by, implication, threatens the
outcome of the whole exercise, is the difficulties being
encountered by petitioners in assembling the much needed materials
and evidence required for their petitions under the frontloading
regime. Under the Election Tribunal and Court Practice Direction,
petitioners are compelled to frontload i.e. to file petitions
alongside their list of witnesses, statement of oath and all
accompanying documents to reduce delays. Unfortunately, the
materials and evidences that petitioners and respondents alike
would rely on to build their cases or defenses are with agencies
whose commitments the petitioners or respondents cannot determine,
there is the likely scenario in which justice could be denied some
of those entitled to it simply because those statutorily in custody
of those election materials such as the Independent National
Electoral Commission (INEC), the police and other security agencies
involved choose to be tardy and willfully uncooperative.

In 2015, this played out in several states across the country.
INEC refused to allow some Petitioners and Respondents access to
materials used for elections even after the Courts had ordered that
materials be made accessible. The 2018 Electoral Act Amendment Bill
tried to address this mischief by providing that any election
officer who fails to obey a court or tribunal order with respect to
inspection or production of materials shall be liable to
imprisonment for 2 years without an option of fine. Regrettably,
the President did not sign Electoral Act Amendment Bill 2018 into
law.

TIME LIMITS FOR FILING AND CONCLUSION OF ELECTION PETITIONS
The constitutional provision as to limitation of time within which
election petitions and appeal therefrom must be filed and concluded
has remained a dramatic change in the way and manner election
petitions are conducted in Nigeria. The Constitutional timeline for
conclusion of election petition is a double-edged sword, as it
were. On the one hand it is a salutary reform that cured the
mischief of prolonged election petition process that often enabled
the beneficiaries of ‘stolen’ electoral mandate to hold political
offices for several years before final judgment is secured
nullifying their elections and sacking them from the offices they
fraudulently secured. On the other hand, the limitation of time
prejudiced numerous meritorious election Petitions, which were
unfortunately struck out for being choked by the time frame.

Section 285 (5 – 8) of the Constitution of the Federal Republic
of Nigeria, 1999 (as amended) provides as follows: a. An election
petition shall be filed within 21 days after the date of
declaration of results of the election; b. An election Tribunal
shall deliver its judgment in writing within 180 days from the date
of the filing of the petition; c. An appeal from a decision of the
election Tribunal or court shall be heard and disposed within 60
days from the date of the delivering of the judgment of the
Tribunal; d. The Court in all appeals from election Tribunals may
adopt the practice of first giving its decision and reserving the
reasons thereto for the decision to a later date.

The Supreme Court has leaned towards very strict interpretation
of the above constitutional provisions – brooking no discretion
whatsoever on the part of the Court to extend any of the time
limits under any circumstance. Thus in the case of ANPP v. Goni the
Supreme Court, per Rhodes-Vivour, JSC, left no one in doubt about
its attitude to the constitutional time line for election
petitions:

The period of 180 days is not limited to trials but also to de
novo trials that may be ordered by an appeal court. Once an
election petition is not concluded within 180 days from the date
the petition was filed by the petitioner, an election Tribunal no
longer has jurisdiction to hear the petition and this applies to
rehearing. The period of 180 days shall at all times be calculated
from the date the petition was filed.

Still in the above case, the Supreme Court, per Onnoghen, JSC
further opined and so held that:Courts do not have the vires to
extend the time assigned by the Constitution. The time cannot be
extended, or expanded or elongated, or in any way enlarged. The
time fixed by the Constitution is like the rock of Gibralter or
Mount Zion, which cannot be moved. If what is to be done is not
done within the time so fixed, it lapses as the court is thereby
robbed of the jurisdiction to continue to entertain the matter.

It was the same cerebral Onnoghen, JSC, who in the case of Felix
Amadi & Anor. v. INEC & Ors also foreclosed any hope of
judicial magnanimity for enlargement of time in election petition
appeals. He categorically pronounced that the time limit of 60 days
for election petition appeals as provided in Section 285 (7) of the
Constitution was sacrosanct. He reasoned that the obvious
intendment of the Legislature in making that provision was to limit
time and not to extend it. According to the jurist, it would
therefore be inappropriate and indeed illegal to interpret the
provision to attain the effect of extending the time therein
allotted.

It would seem that the Election Petition Tribunals, Petitioners
and their lawyers learnt a bitter lesson from the experience of
2011 election petitions whereby many petitions were asphyxiated by
the constrictions of constitutional timelines, as it were. Thus,
virtually all Petitions brought sequel to the 2015 elections were
disposed of on the merit and went through the appeal process within
the time limits prescribed by Section 285 of Constitution.

However, the issue reared its frightening ‘rock of Gibralter’
head in the case of Ikpeazu v. Otti & Ors in an offside manner.
The Appellant argued in one of his grounds of appeal at the Supreme
Court that the judgment of the Court of Appeal that nullified his
election as Governor of Abia State was dated December 31, 2015 but
was not certified until January 6, 2016. He therefore submitted
through his counsel that the signing of the enrolled and
certification of the judgment on that date lead to the conclusion
that the lower court disposed of the appeal on January 6, 2016 – 4
days outside the 60 days time line mandatorily stipulated by
the
Constitution.

In upholding the Respondents’ preliminary objection to this
ground of appeal and issue raised therefrom, the Supreme Court held
that “the fact that the Appellant could not obtain his copy of the
judgment until January 6, 2016 does not mean that other parties did
not get their own copies before that date”. The ground of appeal
and issue therefrom, the Supreme Court further held, were merely
attacks against what the Registry of the lower Court did after the
judgment had been delivered. Therefore the ground of appeal was
attacking the acts of certification, enrollment order and
availability of the judgment to the appellant before January 6,
2016, and there was nothing to show that the Appellant was
complaining about anything done by the Justices of the Court of
Appeal after delivery of the Judgment on December 31, 2015. The
Supreme Court therefore upheld the Respondent’s preliminary
objection and dismissed the Appellant’s ground of appeal and issue
raised therefrom challenging the competence of lower court’s
decision on grounds that it was delivered outside the
constitutional time limit.

It has been advocated that Section 285 of the 1999 Constitution
and Section 134 of the Electoral Act be amended to provide
exceptions to the election petition timelines, e.g., for days to
stop counting where there is a stay of proceedings, and for days to
start counting afresh where there is an order for de novo hearing
of an election petition. It will be interesting to see if the
courts will shift its position on the issue of timelines.

USE OF THE CARD READER
The Independent National Electoral Commission (INEC) is one of the
executive bodies created under section 153 of the Constitution of
the Federal Republic of Nigeria, 1999 (as amended). Section 160 (1)
of the said Constitution provides that any of such bodies may, with
the approval of the President, by rules or otherwise regulate its
own procedure or confer powers and impose duties on any officer or
authority for the purpose of discharging its functions. Pursuant to
the aforesaid powers conferred upon it by the Constitution, INEC
like in 2015 has issued ‘Regulation and Guidelines for the Conduct
Elections 2019’, which among other things provides that
“accreditation process shall comprise of verification of voters
using the Card Reader; checking of the Register of voters; and
inking of the cuticle of the specified finger”

The introduction of the Card Reader via the Approved Guidelines
is an innovative measure by INEC aimed at improving the
transparency and credibility of the electoral process. The use of
the Card Reader is a novel addendum to the accreditation and voting
procedure specified under Section 49 of the Electoral Act, 2010 (as
amended), which provides as follows: A person intending to vote
with his voter’s card, shall present himself to a Presiding Officer
at the polling unit in the constituency in which his name is
registered with his voter’s card. The Presiding Officer shall, on
being satisfied that the name of the person is on the Register of
Voters, issue him a ballot paper and indicate on the Register that
the person has voted.

However, INEC’s decision to use the Card Reader without the
National Assembly amending Section 49 of the Electoral Act, 2010
(as amended) may be a big issue in 2019. After the 2015 elections,
the Supreme Court in the case of Mahmud Aliyu Shinkafi v. Y.
Abdulazeez Abubakar Yari & 2 Ors. laid to rest the controversy
elicited from the divergent positions taken by the various election
tribunals and Court of Appeal on whether the card reader can be
relied upon in seeking to nullify an election. The Court pronounced
on the issue as follows:

My view on this is that the principle of law that is well
established cannot be abolished simply because an appellant failed
to prove his case in accordance with those principles. My
understanding of the function of the Card Reader Machine is to
authenticate the owner of a voter’s card and to prevent multiple
voting by a voter. I am not aware that the Card Reader Machine has
replaced the voters’ register or taken the place of Statement of
results.

In the appeal from the Abia State governorship election petition
– Okezie Victor Ikpeazu v. Alex Otti & 4 Ors – the Supreme
Court in stating the reasons for its judgment, reiterated
extensively the status and function of the Card Reader in the
scheme of our electoral process. Olabode Rhodes-Vivour, JSC,
concurring with the lead judgment, trenchantly captured the
attitude of the Court on the use of the Card Reader, when he
opined:

Culled from guardian