Election Tribunal: Lawyers Divided Over ‘Technicalities’

Though the elections are not over as the governorship and state House of Assembly election is scheduled for this Saturday, the need for election petitions to be decided on merit and on time have been an on-going campaign. Until the recent amendment of the Electoral Act, there was no time limit for the disposal of election petitions, as the inauguration of the victorious candidates comes immediately after election, but the campaign has been for the inauguration to only take place after the final determination of petitions, hence the limit in time frame for the conclusion of petitions. Even with the time limit, victorious candidates have used all sorts of antics to slow down the process, just to achieve an expiration of the mandatory 180 days, following which they will return to the tribunal to plead that time had elapsed. These among many other technicalities, advocates have called to be changed, to allow petitions to be decided on merit, also on time or in the alternative, for the swearing-in of the winners, only after the petitions have been decided. One of the simple argument is that if the winners know that their resumption of office is dependent on the conclusion of the petitions, they will not resort to technicalities to slow down the process. In this edition of Vanguard Law and Human Right, lawyers spoke on the relevance of technicalities in determining election petitions. Among those who shared their views are, former Lagos State Solicitor-General, Mr Lawal Pedro, SAN; rights activist and lawyer, Mr. Femi Falana, SAN; Mrs Titilayo Akinlawon, SAN; Publisher, Supreme Court Law Reports, Mr Layi Babatunde, SAN; Senior Law lecturer, Lagos State University, Mr Gbenga Ojo; Executive Director, Access to Justice, Mr Joseph Otteh and Convener, Voters’ Initiative, Mr. Wale Ogunade. Technicalities should be heard along with substantive petition- Pedro, SAN Pedro said: “Any technicality at the tribunal should be taken together in the substantive petition and any party dissatisfied with the decision of the Tribunal on either or both issues of technicality and substantive matter can appeal to the Appeal Tribunal. By the current position of the Constitution and Electoral Act, technicalities which tend to delay proceedings in election cases is ill-advised for a litigant that has a good case. “However, due to the time frame for prosecution of election petition, justice may be slaughtered on the altar of speed as sometimes some relevant facts and documents necessary to give merit to the case but not readily available may be excluded in the haste to file and conclude the petition within time. “There may also be circumstances beyond the control of counsel or the Tribunal that may likely cause delay and the 180 days would expire without judgment being delivered by the Tribunal. A grave injustice will be done to the petitioner if his petition should be dismissed or struck out for effluxion of time. Unfortunately, that is the law and no extraneous matter can change that. Technicalities create legal hurdles for petitioners-Falana, SAN Falana said: “The resort to technicalities in the resolution of election disputes by Nigerian courts has created insurmountable legal hurdles for petitioners in a presidential election petition. The legal impossibility of proving election petition in a presidential election was noted by the Supreme Court in the case of Buhari v Obasanjo in 2005. It was pointed out by the apex court that thousands of witnesses are required to impeach the validity of a presidential election. If a petitioner is able to assemble the many witnesses, time is not on his or her side as the court of appeal has only 180 days to prove the petition. “The law has imposed the onus of proving that an election was marred by malfeasance squarely on the petitioner. Since allegations of election malpractice are criminal in nature, they have to be proved beyond reasonable doubt. Apart from proving that an election was not conducted in substantial compliance with the law, the petitioner has to show that the non-compliance with the law has vitiated the election. On account of such technicalities, the courts have continued to dismiss weighty allegations of electoral malpractice.” Technicalities should be strictly enforced- Akinlawon, SAN Mrs Akinlawon said: “So what do we consider as technicalities? Could we be referring to the timelines in the 2nd Alteration to the Constitution that stipulates that election petitions should be filed within 21 days from the declaration of the election result? It similarly provides that an Election Tribunal shall deliver its judgment within 180 days from the date of filing of the petition while an appeal therefore should be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal. “The relevance of technicalities in determining election petition is as follows: For speedy dispensation of Justice; To weed out frivolous and useless, flimsy excuses or sometimes ridiculous reason; To dislodge incumbents by the courts due to protracted long cases which sometimes took two to three years for example in the OSUN & EKITI 2007 gubernatorial elections; Avoidance of conflicting judgments. “Until recently, there was no time limit to election petitions and inauguration of candidates came up before disposal of the case but politicians have used all sorts of means and tactics to frustrate the judicial process. In advanced countries, delays in disposing electoral disputes are not acceptable or condoned. Accordingly, it is required to cure the mischief of protracted litigation in election petition. In as much as they are constitutional, I do not consider them as technicalities in the strict sense of the word. They constitute the law, which must be complied with. Most of the grounds by which election results can be challenged are quite subjective, thus the technicalities are to be checks to prevent abuse of process. “Furthermore, if those technicalities and time lines are absent, then it would be possible for an impostor to hold office for a number of years before the courts would be able to remove him. I honestly believe that the technicalities are there to curb several mischief and those provisions (technicalities) should be strictly enforced.” Technicalities leave everyone wondering- Babatunde, SAN Babatunde said: On this issue of technicalities, I cannot do better than what the Supreme Court said in MAERSK LINE v. ADDIDE INVESTMENT LTD ( 2002) 4 SC (pt II ) 157 that ‘the judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated to go from technicality to technicality and thrive on technicalities. That is why, at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system. Those who approach the Tribunals do so in search of truth and justice. Both the petitioners and those dragged before the tribunals, deserve nothing less, in accordance with the law. Also, beyond the parties before the tribunals or court as the case may be, those who trooped to the polls to cast their votes deserve to know the true outcome of every poll as opposed to sheer technicalities which leave everyone wondering. May justice roll down like waters. May our country thrive in justice, brotherly love, peace and progress.” Nigerians look forward to electoral justice, not legalistic justice- Otteh Otteh said: “This round of election disputes adjudication comes at a very perilous time in Nigeria’s history, given the clear and unprecedented attempts to exert pernicious influence and strategic control over the leadership of Nigeria’s judiciary. Nigerians are watching these events closely, with palpable apprehensions, disbelief and fear about how the hardly veiled efforts to reconfigure the leadership of the third arm of government at this momentous time will impact the adjudication of election cases. “For a lot of people therefore, it is not just election disputes that will go to trial; the Judiciary will itself be on trial. How the Judiciary manages to both decide those election disputes as well as allay the concerns of its credibility, independence and fairness will define how Nigerians relate to it, going forward. At this time, public confidence in our institutions of justice is not reading positively and well. “In spite of this, Nigerians look forward to electoral justice, not technical or legalistic ‘justice’ in the adjudication of election cases. Electoral tribunals have a duty to ensure that they are truly vehicles that help to revalidate democratic choices made by voters, and that they cannot afford to delegitimize those authentic democratic voices of the people. There have been many complaints of rigging, falsifications, violence and disenfranchisement during the last elections. It is now the responsibility of the Judiciary to decide whether we can, as a country whose Constitution says is founded on the ideals of Freedom, Equality and Justice, live on less than our Constitution guarantees.” Tribunal should extend time in special circumstances – Ojo Ojo said: “The main issue that is ridiculous is running of time to take steps in election. Granted that time should be of the essence but the way it is now, is not good at all. If the last date to file election petition falls on Saturday, Sunday or any public holiday, when the registry of the Tribunal does not open for business, time runs and the election petition filed on the next working day is statute barred. I think that, the Tribunal should be empowered to extend time in special circumstances. Many petitions were struck on this basis. Where is the fair hearing? Furthermore, this point can be raised on appeal. Meaning that, a respondent that lost a case at the Tribunal will raise the issue on appeal that the case was statute barred. Appeal in many cases were allowed. The effect of this is that a respondent that lost because he did not win the election will become the “winner” by Courtney of the court. This is an area that needs to be addressed very well otherwise, a person that lost the election and so found by the Tribunal will retain the victory. Justice should not be delayed. It also should not be stampeded. Tribunals thrive on technicalities- Ogunade Ogunade said: “Election Tribunals thrive on technicalities. In fact, technicalities are hallmark of Election Tribunals. We should note that Election Tribunals are special courts and as such, have a special way of carrying out their businesses, such as time within which to file the response, how to commence the proceedings and the proceedings itself. Failure in taking a step appropriately is fatal to the Petition, that’s why Election matters are handled by Lawyers who have that special experience. Having stated the importance of Election Tribunals, it will be difficult to remove technicalities from its operation because that is what the Tribunals thrive on since it’s not a common court. Culled from vanguardngr]]>