Hon. Justice W.S. Nkanu Onnoghen GCON

Can the country ensure an electoral process devoid of litigation? Where that becomes impossible, how can the election litigation process be made just and fair to all? These and related issues engaged social rights advocates at a stakeholders’ meeting in Abuja, where participants examined challenges and proffered solutions. Eric Ikhilae reports

Since the reintroduction of democracy in the country in 1999, the general concern has been how to evolve an electoral system that will ensure that the choice of who emerge as a winner in electoral contest is entirely that of the electorate.

To this end, stakeholders have continued to work, not only to midwife a process that guarantee free and fair elections, but also to ensure that existing election dispute resolution mechanisms work for the benefit of all by ensuring justice always.

Much as efforts are made by relevant agencies to address identified challenges, new sets of issues continue to emerge that challenge the realisation of the hope of a process that guarantees free and fair elections, and just adjudication of election disputes.

The realisation of the need for continued reforms in the electoral process informed a gathering of some stakeholders in Abuja to suggest ways of reforming the nation’s election petition process to address some challenges experienced during the 2015 election litigation season.

The event, put together by a group – Human Rights Law Service (HURILAWS) – afforded participants the opportunity to rigorously examine the six key issues identified and suggested ways of addressing them before the next election litigation season.

The issues were: access to vital materials by election petitioners, relevance and admissibility of card reader evidence, time frame for conducting election petitions in the face of the provision in Section 285(6) of the Constitution, the burden and standard of proof in election petition, the category of people who can file election petition and the cost of election tribunal services.

HURILAWS’ Programme Officer, Collins Okeke, said the event was his organisation’s way of mobilising support for reform in the election litigation process.

He said HURILAWS, in contributing to the on-going efforts to review the electoral process by the Federal Government (through its Electoral Reform Committee) and the National Assembly (with its amendment of the 2010 Electoral Act), has produced a report and legislative proposals for the National Assembly to help address some of these challenges.

Okeke argued that the need to reform the nation’s process of post-election conflicts management was more important now in view of “the glaring desperation of politicians across political parties in Nigeria”.

Francis Moneke of the Human Rights and Empowerment Project, gave a broad picture of the issues for discussion.

Access to vital materials by election petitioners

As it stands, petitioners are virtually at the mercy of the Independent National Electoral Commission (INEC) in accessing election materials critical to prosecuting their petitions. Because INEC is always in custody of materials used for the conduct of the elections in dispute, a petitioner requires its permission to access these materials for the purpose of obtaining evidence to support his petition.

In most cases however, access to these vital materials are often frustrated by INEC and its officials, who in most cases, rather than being neutral, work in support of the party it returned as winner of the election.

Even where the petitioner gets an order of court mandating INEC to make such materials available, its officials still find a way of circumventing such an order. There is an example of a state in the South-south where, upon learning of an order compelling them to allow a petitioner inspect election materials, INEC officials allegedly poured water on the materials, thereby rendering it useless to the petitioner.

The Senate has however, taken steps to eliminate this hurdle by amending Section 151, in its Electoral Act Amendment Bill 2017, to provide that any INEC staff, who disobeys an order for inspection of election materials or frustrates such inspection, shall be imprisoned for two years without an option of fine.

Moneke and other participants suggested other ways of addressing this challenge. They suggested that election materials, being public documents, should be made accessible to all citizens upon an application under the Freedom of Information (FOI) Act, failing which INEC should be penalised as provided by the Act.

To Moneke, it would not be wrong if a further amendment to the Electoral Act would require INEC to deposit such election materials at the National Library in every state, where petitioners and other interested members of the public could easily access them.

A lawyer, Egobuokolobia Umukoro, stressed that access to election materials should be made a matter of right for candidates. He faulted that arrangement where candidates in election were left at the mercy of INECwhen the outcome of election was challenged.

AdebiyiAdetosoye, a lawyer, suggested the deployment of Information Communication Technology (ICT) to elections. He noted that where INEC is made to upload such election materials on its website for easy access by the public would eliminate such bottleneck

He argued that the deployment of ICT, where INEC is made to immediately upload election results on its web site will reduce incidents of manipulations.

Chinedu Obienu of the Nigerian Bar Association (NBA), Abuja branch, who moderated the discussion, however, expressed doubt about the success of ICT and the deposit of election materials in library, where poor power supply still persists and National Library is inexistent in many states.

Relevance and admissibility of card reader evidence

Participants agreed, applauding the Senate ‘s decision to enshrine the use of the card reader machine in the voter’s accreditation in the recently- passed amendment to Electoral Amendment Bill 2017.

They urged the House of Representatives to adopt the Senate’s position in its amendment of the Electoral Act, to effectively put to rest the concern over the status of the card reader in the country’s electoral process, despite the position of the Supreme Court that it was not a replacement for manual accreditation.

Time frame for conducting election petitions

The time frame for the conduct of election litigation is contained in Section 285(5 – 8) of the Constitution.

An election petition shall be filed within 21 days after the date of declaration of result of the election.
An election tribunal shall deliver its judgment in writing within 180 days from the date of filing the petition.
An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.
The court, in all final appeals from election tribunal may adopt the practice of first giving its decision and reserving the reasons therefore to a later date.
Participants saw nothing wrong with these constitutional provisions and the fact that the Supreme Court, in interpreting the provisions in several cases, has evinced its intention not to allow a departure. They urged petitioners to always work to stay within the provided time.

In addition, Christopher Eichie said the solution lies in the elimination of election malpractices. This, he said,could be achieved through enhanced electoral enlightenment to educate the electorate on the negative impact of their action and inaction on the electoral process.

He said: “If we get our electoral process right and let the votes of the people count, we would have solved all the problems and the nation will be better for it.”

The burden and standard of proof in election matters

It is difficult for a petitioner to prove allegations of non-compliance with Electoral Act, allegations of over-voting, corrupt practices, among others. This is because the standard set by the Supreme Court is difficult for a petitioner to readily meet.

Examining such standards as enunciated by the Supreme Court in the cases ofBuhari v. Obasanjo (2005) 13 NWLR pt. 941 pg. 1;Omisore and another v. Aregbesola and 2 others, (2015) 15 NWLRpt 1482 pg. 205; Ngige v. INEC (2015) 1 NWLR pt 1440 pg. 281 and Shinkafi v. AbubakarYari(2016) 65 NSCQR 1, Moneke argued that the requirement of “proof beyond reasonable doubt” was impossible in election matters.

Moneke said: “It is difficult to imagine how a petitioner, who is not a prosecutor or a law enforcement officer with investigative skills and powers, can successfully attain this very high standard of proof particularly considering the very limited time frame for election petitions.”

He suggested the reduction of the standard of proof to a balance of probability or preponderance of evidence, to the effect that where a petitioner successfully prove allegation of non-compliance or corrupt practices by preponderance of evidence, the onus should shift to the respondent to prove that the alleged malpractices did not affect the outcome of the election.

Kingsley Nnajaka, of the Centre for Social Justice; Okeke and Ayebode Fatiede (a politician) agreed that there was the need to lower the burden of proof, if justice was to be achieved in election litigation.

Nnajaka said: “The onus should be on INEC to prove that the election it conducted was free and fair, where it claimed so, instead of saddling the petitioner with the responsibility of proving electoral fraud beyond reasonable doubt.”


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