This article by Festus Okoye examines the assertion by some, that the Courts and the Tribunals have usurped the right of the voters to determine the winners of elections; and responds that this contention is not true, because of the indispensable role of the courts, in safeguarding our electoral process. He concludes that the Judiciary remains a vital pillar in resolving electoral disputes, ensuring accountability, and upholding democratic principles, and therefore, the benefits of the involvement of the Judiciary in the electoral process, far outweighs the consequences of its absence
Mandate capture, mandate usurpation, electorate displacement, and judicial mandate conferment by the Courts and Tribunals, are now more forcefully embedded in the electoral lexicon of Nigeria. With every election since the return to civil democratic rule in 1999, aggrieved aspirants, candidates, and their political parties have utilised, resorted to, and or exploited the instrumentality of pre-election judicial processes and post-election electoral petitions to actualise or retrieve their mandates or express their grievances, gain political mileage or commercial gains. After the 2011 general election, aggrieved candidates filed 731 petitions before the various election petitions tribunals. In the 2015 general election, candidates in the election filed a total of 663 petitions and candidates filed a total of 807 petitions after the 2019 general election. In the 2023 general election, as of 19th October, 2023, out of 1,196 petitions decided by the Courts, 712 were dismissed and 179 were withdrawn.
Some of the suits and petitions filed in pre and post-election litigations are varied and variegated. A number of the suits and petitions succeeded on their merits, while a large number failed or collapsed on technical grounds. Some political parties and their candidates filed pre- or post-election matters, for pecuniary purposes or purposes of relevance and grandstanding. Some suits and petitions complained that their political parties submitted the names of aspirants who did not participate in, contest, or win party primaries to the Independent National Electoral Commission (INEC). Some candidates who failed in the election also decided to try their luck using the judicial process to snatch the mandate democratically conferred on others. Some celebrated what they referred to as the retrieval of their stolen mandate.
While Section 1 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) domiciles sovereignty with the people of Nigeria from whom governments through the Constitution derive their powers and authority, several Nigerians believe that the Courts/Tribunals have reduced the power of the vote to a mere theoretical construct and usurped the power of the people to determine who governs them. In the same vein, some political parties and their candidates, through brazen disregard of democratic norms and processes, seem to have reduced the efficacy of Section 1(1) & (2) of the Constitution that proclaims the supremacy of the Constitution over all authorities and persons throughout the Federal Republic of Nigeria.
It is axiomatic that the electoral space in Nigeria has experienced challenges of election malpractices resulting in the militarisation of the electoral environment, vote buying, intimidation of election officials, snatching of ballot papers and ballot boxes, unmitigated violence against the voters and a gradual disengagement of the Nigerian people from the electoral process.
Some political parties, party chieftains, and their foot soldiers believe that what is important in an election is being declared the winner, and the manner and tactics of winning are a product of competitive rigging and the ability to deploy superior firepower and violence. This has led to a deluge of pre-election and election-related matters, that sometimes end in a manner that confounds those learned in the law and the ordinary people of Nigeria. This deluge of cases has also led to a situation where the Courts and the Tribunals have increasingly assumed centrality in the election and election-related matters, and the renewed clamour for a recalibration of the electoral process to prevent the Courts and the Tribunals from usurping and taking over the mandate of the people and deciding the winners of the election.
The centrality of the Courts and Election Tribunals in our electoral jurisprudence, is constitutionally and legally domiciled. Although they have assumed greater prominence in electoral disputes, the Courts and the Tribunals remain dormant unless activated by Petitioners and Plaintiffs. The framers of the Constitution and the Electoral Act, vest the Courts and the Tribunals with specific powers and mandates in electoral disputes. Is it, therefore constitutionally, legally, and democratically right to assert that the Courts and the Tribunals have usurped the right of the voters to determine the winners of elections?
Increasingly, some Nigerians now believe that the various levels of Courts in Nigeria and the Election Petitions Tribunals are usurping the sovereign right of the Nigerian people to choose through competitive electoral means those that will govern them in total disregard of the Nigerian Constitution, the Electoral Act and the various regional and international electoral standards of which Nigeria is a signatory. Others believe that without the intervention of the Courts and the Tribunals, their “stolen” electoral mandate would have been appropriated by candidates and political parties that did not win elections. However, some Nigerians perceive the Courts and the Tribunals as enablers in the “subversion of electoral mandate.” This is hinged on available evidence indicating that some candidates and political parties see campaigns and rallies as a wasted effort and prefer to wait at the doorstep of the various courts and tribunals with bales of cash to corrupt the process and get favourable judgments that undermine the sovereign will of the Nigerian people.
Some Nigerians have also resigned to fate and are more or less disengaged from the electoral process as they believe that their votes do not count, hence, it is a useless venture to go out on Election Day to vote. Voting in the main they insist consists of using the voting preferences of the people in the determination of the winners of an election and cannot be equated with political parties, their candidates, and their political thugs and sometimes in connivance with poll officials and some security agents conniving to render their votes completely irrelevant and meaningless and turn around to use the Courts and the Tribunals to validate such electoral heist.
The Mandate and Powers of Election Petitions Tribunals
Sections 29, 84, Part V111, and other corresponding sections of the Electoral Act 2022 define the classes of individuals and the specific infractions that give aggrieved persons the Locus Standi to go to court and the courts with jurisdiction in pre-election matters. Section 285 of the Constitution also defines the category of cases classified as “Pre-election.” Section 285 of the Constitution also establishes various classes of Election Tribunals with the mandate to adjudicate petitions arising from the conduct of National and State Houses of Assembly elections, and Governorship election petitions. In terms of original jurisdiction, Section 239 of the Constitution confers on the Court of Appeal, to the exclusion of any other court of law original jurisdiction, to hear and determine any question as to whether any person has been validly elected to the office of President or Vice-President or the term of office of the President or Vice-President has ceased; or the office of President or Vice-President has become vacant.
Candidates and political parties aggrieved by the outcome of any of these elections can file a petition before the appropriate and competent election petition tribunal or court complaining of undue election or undue return in which the person elected or returned is joined as a party. An election petition may be presented by one or more of the following persons: (a) candidates in the election or political parties that participated in the election. Candidates and political parties aggrieved by the outcome of an election may question the said election on grounds that a person whose election is questioned was at the time of the election not qualified to contest the election, that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, that the respondent was not duly elected by the majority of lawful votes cast at the election; or that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election; that the person whose election was questioned had submitted to the Commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.
The Courts/Tribunals and Usurpation of Electoral Mandate
Constitutionally and democratically, the electoral mandate can only be conferred by registered voters, who out of their deliberate act and choice approach the polling units on election day and having satisfied the criteria for voting decide to cast their votes for the candidates who in their estimation possess qualities that marks them out as preferable to others. The Constitution and electoral rules do not envisage that any form of impediment should be placed on the path of the voters that may distort their deliberate choice.
However, the Constitution and the law recognise that human beings conduct elections and that people who are not ordinarily qualified to contest an election may evade the law and slip through the process, become candidates in an election, and proceed to contest an election and be declared as having won and returned as duly elected. The constitution and the law recognise that political parties may conduct opaque party primaries and submit the name of a candidate that did not meet the constitutional and legal threshold in party primaries as the aspirant that won the primaries. It recognises that the electoral management body may mistakenly declare a candidate who did not score the majority of lawful votes as the winner of an election.
Based on these realities, the framers of the Nigerian Constitution and the National Assembly that drew up the Electoral Act decided that a separate mechanism and arm of government should be empowered to adjudicate disputes arising from pre-election and post-election challenges. This is based on the fact that the Courts and Election Petition Tribunals are part of the electoral ecosystem and exercise the powers of the Federal Republic of Nigeria, and the harmonious working of the different components guarantees free and fair elections.
However, some persons and institutions believe that the Courts and the Tribunals should stay far from the electoral system and the conferment of electoral mandate.
Two cases heightened anxiety on the issue of mandate usurpation in the electoral process, and led to a flurry of activities in the Supreme Court of Nigeria. Two of the cases revolved around the conduct of party primaries and the display of the personal particulars of candidates and the challenges arising therefrom.
The first is the case of Kabiru Marafa and Sanusi Dan Alhaji in Zamfara State, a purely internal wrangling in the All Progressives Congress (APC) that made it difficult for the Party to conduct its party primaries within the period stipulated by the Independent National Electoral Commission. Before the conclusion of the pre-election matter, the National Assembly Elections took place and APC won all the seats.
However, the Supreme Court determined that all the votes recorded for the party were wasted votes, as they did not have valid candidates. The Supreme Court ruled that “The party that has no candidate, cannot be declared winner of the election. Therefore, all votes that are credited to such party are deemed as wasted votes. Candidates of parties with the highest number of valid votes cast with the required spread stands elected in Zamfara”.
The second is the case of the People’s Democratic Party & Ors v Biobarakuma Degi-Eremienyo & Ors, (2020) LPELR-49734(SC). The issues revolved around a pre-election matter, that dovetailed to the post-election period. In the said matter, the 2nd respondent (DAVID LYON) won the nomination to contest the Governorship election in Bayelsa State on the platform of the A.P.C. He, in turn, nominated the 1st respondent (Biobarakuma Degi-Eremienyo) as his running mate. “The APC submitted the names, personal information and particulars of the 1st and 2nd Respondent to the Independent National Electoral Commission (INEC), and the same, contained in INEC Form CF001, for each of the 1st and 2nd Respondent. The 1st Respondent’s Form CF001 duly sworn to by him was published. Pursuant to Section 31(5) of the Electoral Act, the appellants approached the Federal High Court, claiming that the information contained therein were false.”
The trial Federal High Court, which was presided over by I. E. Ekwo J., agreed with the Appellants and invoked Section 31(6) of the Electoral Act to disqualify the 1st Respondent, and consequentially the 2nd Respondent, from contesting the Governorship election in Bayelsa State. The Court of Appeal set aside the judgement of the Federal High Court, and made it possible for the 1st and 2nd Respondent to contest the Governorship election in Bayelsa State. The matter subsequently went to the Supreme Court, and before the Supreme Court could hear the matter, elections took place and the Independent National Electoral Commission returned the 1st and 2nd Respindent as duly elected.
The Supreme Court heard the appeal, set aside the judgement of the Court of Appeal, and affirmed the judgement of the Federal High Court. The Court held that the “sanction for presenting to INEC Form CF001 containing false facts about the personal particulars or information of the candidate, by Section 31 (6) of the Electoral Act, is an order issued by the High Court, disqualifying such candidate from contesting the election.’
Mandate Subversion: Myth or Reality?
The Superior Courts of Record that entertain and adjudicate on pre-election matters are a creation of the Constitution, and the same thing applies to Election Petitions Tribunals that adjudicate on post-election matters. The Constitution and the Electoral Act vest these courts and the tribunals with specific jurisdiction to entertain matters with electoral flavour. The Courts and the Tribunals are dormant and do not activate themselves. Election Courts and Tribunals are disbanded if plaintiffs and petitioners do not approach them. They are like the famous Imo River that flows and minds its business. Those who get into trouble with the Imo River use two legs to test its depth.
The expectation is that political parties will screen their candidates following the constitution, the Electoral Act, and their party constitution. When this is done professionally, ethically, and constitutionally, the issue of fielding unqualified candidates will not arise. The Courts have repeatedly and in numerous decisions made it clear that it is within the domestic realm of political parties to screen and pre-qualify their candidates and the decision on who is sponsored is not a justiciable grievance so long as they comply with the law and the regulations and guidelines of their parties.
Political parties are also expected to comply with the provisions of section 87 of the Electoral Act and their Regulations and Guidelines in the conduct of their party primaries. Unfortunately, the bulk of pre-election litigation arises from the skewed conduct of primaries by some of the political parties. The Courts will not literally “buy the case” of political parties that do the right thing or follow the right procedure in the conduct of primaries and nomination of candidates. The Courts and Tribunals will be dormant and will not serve as an “alternative electorate” if political parties and their candidates conduct their affairs in the manner provided by the law and their rules and regulations.
Political parties are aware of the procedure for primaries and the nomination of candidates. They know that the law is settled on how a candidate and a political party can get on the ballot. It is inconceivable that a political party and its candidates will attempt to get on the ballot without conducting primaries to nominate candidates or conducting primaries known to law. It is axiomatic that “aspirants” remain aspirants and can only transmute to candidates known to section 29 of the Electoral Act if they emerge from properly conducted primaries. In the case of Obazee & Anor v Ekhosuehi & Anor the name of a duly nominated candidate was substituted by his party without his knowledge. When the matter got to the Supreme Court, the Hon. Justice Kumai Aka’ahs lamented that the case “has again brought to the fore the unwillingness of politicians to abide by the tenets of democracy, where the will of the electorate is subverted to favour preferred candidates”.
Therefore, it is incongruous to posit that and or talk of usurpation of electoral mandate, when a supposed candidate was never a candidate in the first place. Fidelity to the electoral process, involves following the different stages of elections and the timelines prescribed therein. A candidate and his party cannot subvert the law and the Constitution, wangle their way to the ballot and turn around to claim mandate usurpation when they were never and should never have been on the ballot in the first place. Section 87(1) of the Electoral Act, 2010(as amended) (now Section 84 of the Electoral Act, 2022) is mandatory. A political party wishing to sponsor candidates in an election must conduct direct or indirect primaries or choose their candidate through the consensus option. Party members in such primaries are called aspirants and transmute to candidates on winning primaries through lawful means, and their names are forwarded to the electoral management body.
A political party doesn’t need to field candidates in all elections. A political party doesn’t need to conduct primaries, if it has no intention of fielding candidates in an election. In such situations, they are not obliged to inform the electoral management body of the conduct of primaries. The danger here is that, the party becomes vulnerable to de- registration under Section 225A of the Constitution.
It is not the business of Election Courts and Tribunals whether a political party has zoned its offices, or whether the political party is interested in sponsoring someone from an ethnic or religious denomination. A party may decide to field a Governorship candidate from a Senatorial District with more registered voters, or more Local Government Areas. It may settle for a candidate from a particular religious denomination based on their numerical strength. It may also decide to field a candidate with deep pockets who can finance his campaign. These are matters within the exclusive domain of a political party. The Law insists that a political party cannot unilaterally set aside its Party Nomination Guidelines, derived from or embedded in the Party Constitution. That is the law, and the law is a product of the experiences of various political parties in the conduct of their party primaries. The Courts did not design the amendments to the Electoral Act. The political parties and Nigerians insisted that they wanted clean primaries, and that the votes of the members and delegates must count in the nomination of candidates. Even with the new Electoral Act, the nation still witnessed brazen and irresponsible disregard for the law and the Constitution.
Mandate Usurpation and Legitimisation of Skewed Mandate
Adjudication is based on facts and evidence properly laid before Election Courts and Tribunals. Political parties and candidates in elections approach election courts and tribunals for various reasons. Some of the reasons are noble, and some are based on subterfuge. There are instances where some political parties and their candidates held Collation and Returning Officers, hostage, got results declared under duress and/or compromised Returning Officers, and ran to the Courts to seek refuge under Sections 68 and 75 of the Electoral Act. There are instances where the decisions of the Courts and Tribunals, have left Nigerians wondering whether justice has truly been served. There are instances where political parties and their candidates won their cases on television and social media, and did not present any evidence worthy of consideration before the Tribunals.
Conclusion
The Courts are not primed to confer a mandate on those seeking to govern, as that is exclusively reserved for the electorates whose sovereign right is to confer a mandate. A legitimate mandate occurs, when the ingredients of a valid election are met.
The Courts and the Tribunals wield the powers of the Federal Republic of Nigeria, and are set up to adjudicate on legitimate issues in the electoral process. They are mandated to ensure that mandates legitimately conferred are not brazenly through subterfuge, undue influence, or genuine mistakes, taken away. They are mandated to ensure that, political parties and candidates emerge from political party primaries through due process of law. They have the jurisdiction and mandate to ensure that only candidates who score the majority of lawful votes, are declared winners.
However, a few decisions of election courts and tribunals defy logic and the law, and can only be decisions procured through underhand methods. In such situations, the professional bodies and the Nigerian people must approach the regulatory bodies for sanction. Petitions must be based on concrete facts and evidence, and not on speculation. Unfortunately, some cases are tried on social media by those who know next to nothing about how election tribunals operate.
While the perception of judicial usurpation of electoral mandate stems from observations and personal biases often shared by those who feel disenfranchised by judicial outcomes, it is crucial to recognise that these opinions are not universal. Those who have had their mandates restored by the election tribunals and courts of law do not share the same sentiment, as they view the Judiciary as a protector of justice and democracy. It is important to recognise the indispensable role of the courts, in safeguarding our electoral process. Despite its perceived shortcomings, the Judiciary remains a vital pillar in resolving electoral disputes, ensuring accountability, and upholding democratic principles. The benefits of the Judiciary’s involvement far outweighs the consequences of its absence, as a robust legal framework is essential for fostering trust and stability in our democracy. Without this system, our democracy would be vulnerable to unchecked abuses, and public confidence in the process would erode. It is, therefore, imperative that we protect and strengthen the role of the courts, while also advocating for reforms that ensure transparency and fairness. A balance must be struck to preserve the legitimacy of our electoral process and maintain faith in the democratic institutions that bind our nation together.
Festus Okoye, Former National Commissioner, Independent National Electoral Commission (INEC)
