ELECTORAL JUSTICE: This is the terminal end of the processes leading to the emergence of our leaders. Unlike other jurisdictions, particularly advanced democracies where election petitions are hardly filed, it is the fashion in Nigeria. This is explainable easily by the quality of our elections. Consequently, the role of judges in the determination of leaders has suddenly become a vital part of the Nigerian electoral process towards ensuring our elections are ‘credible.’ Fairness, transparency and legitimacy of elections now depend on the country’s electoral dispute mechanism.
There is, therefore, a general understanding that effective electoral dispute resolution and processes are sine qua non for free and fair elections. Thus, the opportunity for candidates and citizens seeking resolution of complaints and disputes relating to electoral process has not only assumed statutory pre-eminence but also commands attention in elections. However, to play that role effectively, the electoral dispute process/resolution must, among other things, uphold independence, impartiality and the rule of law. There are two types of electoral disputes: pre-election and election disputes. 
The former refers to all disputes arising from the nomination process prior to the conduct of a general election, while the latter refers to disputes emanating from the actual conduct of the general election. In pre-election matters, the disputes are expected to be determined before the actual election. Unfortunately, this has not worked and by the law today it can spill over beyond the election date. However, the commencement must be within the stipulated period prior to the general election, which is now 14 days from the holding of the primary election of a party, or the particular act complained about.
The implication of this is that any complaints arising after the conduct of the general election cannot constitute a grievance under pre-election disputes and is, therefore, barred from being litigated as such. The further implication of this is that the candidate can get away with such irregularity upon the conduct of the general election, except where it borders on qualification of such a candidate. Here again, I reinstate my earlier view that the power of INEC to disqualify candidates must be reinstated, subject to the checks by the law courts. While it is true that there must be an end to litigation, the question is, where such vitiating factor was discovered subsequent to the conduct of the election, should it then be that the law must close its eyes, no matter how vital or crucial such is to the detriment of the process or the advantage of the functionary? I think not.
I believe that the law must still permit the interrogation of such complaints, leaving the court to be the ultimate arbiter. The electoral dispute resolution mechanism could be judicial or extra-judicial. In Nigeria today, we strictly adopt the judicial, which entails litigation. This is a process by which one party files a case against another in the law court or the tribunal, as the case may be, complaining about certain inadequacies about the process leading to the election of a person. The verdict of the court/tribunal is then eventually binding and not advisory on the parties to the case.
However, both parties can appeal the judgment to the permissible limits. Judicial dispute resolution is typically adversarial in nature, for example, involving antagonistic parties or opposing interests seeking an outcome most favourable to their respective positions. In Nigeria, by virtue of the Constitution, only Election Tribunals and Courts are vested with the power to determine electoral disputes. A petition/complaint by the person contesting the outcome of an election into state Assembly, National Assembly, that is, Senate and House of Representatives, and governorship goes first to the election tribunal, while that involving the outcome of presidential election goes to the Court of Appeal first.
Appeal against the House of Assembly or National Assembly election petition judgments goes to the Court of Appeal and ends there, while those in the governorship and presidential elections end at the Supreme Court. The general perception of the judicial process is not great presently for several reasons, some of which we shall interrogate. The first challenge of the process is the limitation period, which many find to be unfair. In pre-election matters, complaints must be brought within 14 days from the occurrence of the event complained about and be determined within a period of 180 days from the date of filing of the suit.
Election petitions must be filed within 21 days from the declaration of results and determined within a period of 180 days. While the appeal arising from the election petition must be heard and decided within 60 days at either of the higher/appellate levels. To prove the case of the complainant, it is the expectation of the law that he must call witnesses from each of the polling booths/points upon which he premised his complaints. In practice, the complainant/petitioner is allocated maximum of 14 days out of the 180 days within which to prove his case.
This is a major constraint to giving credible evidence in such cases, as the number of witnesses to be called can never fit into such tight schedule. That explains why most complaints, even credible ones, never succeed. Another area inimical to the successful prosecution of such complaints is that which touches on what is known as pre-hearing notice. This is just a notice to be filed in court alerting all parties and the court that the petitioner is ready to commence preliminary hearing of the case. It is expected to be filed within seven days after all the parties have put before the court/tribunal all their respective positions. Where the petitioner/complainant fails to issue the said notice within the stipulated period of seven days, the complaint is deemed to have been abandoned forever.
Imagine the effect of this on the petitioner and the system, particularly where he is not a lawyer. It must be noted that the complaint of a petitioner is not only to determine the rights of the petitioner alone but also to determine the democratic rights and interests of the community or constituency to which the particular election is relevant. What happens to the constituency whose political future depends on the candidate actually elected when based on mere technicality a petition is dismissed or deemed abandoned?
Again, the law is that when a document is admitted, that is, allowed by the court to be used in the determination of a complaint, such document should be allowed to speak for itself. The implication is that every inscription on the document should attract the reasonable inference it deserves. However, in election cases, documents are said to no longer speak for themselves, notwithstanding that they have been tendered and admitted in evidence. Furthermore, you hear of such things as rejection of chart attached to the final written arguments of the complainant’s lawyer.
The chart often contains the analysis of the results of the election from the complainant’s perspective. Due to time constraint, the complainant will, as a matter of necessity, attempt through the chart, to summarize evidence backing up his complaints. How on earth can analysis by way of chart in a final written address regarding exhibits tendered before the court be regarded as taking the place of evidence and rejected?
Your guess is as good as mine. The technicality involved in the judicial process is so weighty that it cannot engender any electoral justice.
The general belief to which I equally subscribe is that the law is skewed against the complainant to the extent that hardly can any petition/complaint succeed through the process. I can replicate the technicalities as obtainable in multiple folds but suffice to cap it here in view of its complex nature. For any interested reader in the catalogue of these technical woes, you may visit the website www.mabandassociates.com or my publication in the Book Contemporary Issues in Nigerian Jurisprudence – Essays in Honour of Prince Bola AbdulJabbar Ajibola, SAN. In election cases, the rules ought to be more relaxed than in ordinary civil cases.
The truth is that except the mechanism for the resolution of electoral disputes is credible alongside all other processes leading to the conduct of the election; we will still be distant from our collective desire of credible leaders that can engender good governance. The pre-election, which follows the normal court procedure, does not fare better in terms of technicality. The extra-judicial means of electoral dispute resolution, on the other hand, includes arbitration, collaborative law, and mediation to resolve disputes amongst parties, premised upon the consent of the parties. This is expected to allay the fear of injustice and the growing disenchantment in the judicial system of resolution of electoral disputes. This, in my view, will work greatly in the pre-election cases where the court tries as much as possible to distant itself from the nomination process of political parties except where there is obvious violation of the laws or the party constitution.
However, in election petition, it might not be too valuable. The weaknesses in the informal system lie in the consent of parties and the willingness of the electorate to compromise their mandates, just as no declared winner will be willing to relinquish his mandate nor does the law allow the loser to take over. The possibility is withdrawal of the petition to reduce pressure on court and allow elected officials to concentrate on the business of governance. However, in view of the continuous loss of confidence in the judicial system, violence will continuously be promoted in the electoral field.
The moment there is no credible complaint machinery, politicians will go to any length in securing victory on the field. Failure of the judicial system as indicated above is that contestants will now have to slug it out by all means on the field knowing fully well that election petition is not an option. It is in this respect that the alternative election dispute resolution, otherwise known as the informal system, may play a supportive role, especially in situations in which the judicial process of election dispute resolution faces credibility challenges, financial problems or time constraints linked to political or institutional crises or to their inadequate design. It is in this regard that I advocate the adoption of the modified jury system with a view to resolving more election disputes in Nigeria.
This will assist greatly in the dispensation of electoral justice in terms of both efficiency and substantial justice. How would this work? Selection of the members of the panel that will sit and make findings of fact will be made from the data bank of national identity card system. They will be taken immediately thereafter to location of hearing without their knowledge of which case they are sitting over. The moment they are taken to the venue of hearing, nobody gains access to them again until the conclusion of their assignment. It is upon their findings of fact that the judge just applies the law. My experience is that most petitions/complaints are matters of fact substantially.
This will greatly reduce the alleged incidence of corruption, reduce the time consumed, eliminate the various technicalities and deliver substantial justice. I must readily admit that this suggestion may not be foolproof particularly in terms of insulation from partisanship and nomination. I probably will suggest the nominating body to be the President of the court of Appeal adopting random selection process. The alternative might be the court of Appeal president appointing the traditional judges as done under the present system but with the competence of making findings of fact only while the Court of Appeal panels applies the law.
The Apex court will then be the only appellate court. Let me state clearly that I welcome suggestions and thoughts on this issue as I cannot claim superiority of knowledge in this regard. The current electoral justice mechanism is not pure enough to engender justice and therefore, in my view, no option. Most importantly, what I seek to achieve is an independent facts findings panel devoid of legal technicalities.
By the time we are able to terminate these processes in a glorious manner, the likelihood of emergence of good and credible leaders will be enhanced. Once good leaders are in place, I believe most of the agitations and complaints we have today will start disappearing. A good leader will address infrastructural challenges, restructuring challenges, social challenges and others in a just and efficient manner. This, I believe, is the road to our prosperity as a nation. With this, we conclude the series of how we got it wrong as a nation.