Introduction
The last part of this intervention focused on the following themes: judicial independence in electoral matters and the consequences of its failure on the fate of the 1st and 2nd Republics; challenges to electoral adjudication vis-à-vis the Evidence Act, 2011 and the number of witnesses required to secure victory in litigation. This week’s feature dwells on the ills of protracted litigation; the effect of literal applications of the standard of proof beyond reasonable doubt; INEC’s penchant for disobeying court orders (and its solution). It concludes with the challenge of inadequate infrastructure. Enjoy.
Evils of Protracted Litigation
The ramifications are twofold: it erodes public confidence in the electoral justice system by fostering a perception of procedural abuse and delays the equitable determination of electoral outcomes. Furthermore, protracted proceedings can be financially burdensome for petitioners, who may struggle to sustain lengthy legal battles, thereby discouraging legitimate challenges to electoral misconduct. While the rule permitting numerous witnesses is intended to safeguard a thorough presentation of evidence, its misuse by certain litigants underscores the necessity for more balanced procedural reforms to prevent undue delays and ensure expeditious and just outcomes in election-related cases.
Stringent Section 135, Evidence Act on Proof Beyond Reasonable Doubt
Another significant challenge encountered by the courts in adjudicating election petitions is the restrictive nature of Section 135 of the Evidence Act. This provision imposes a stringent standard of proof, requiring allegations of criminal conduct within an election petition to be established beyond a reasonable doubt. Furthermore, the Act stipulates that an allegation of crime attributed to an agent does not necessarily invalidate a candidate’s election unless it can be definitively proven that the agent was duly authorized and specifically tasked with the criminal act by the candidate. Many actions that give rise to election petitions in Nigeria are inherently criminal in nature, such as ballot snatching and result sheet forgery. However, election petitions, as affirmed in numerous judicial pronouncements, constitute a unique legal process distinct from conventional civil or criminal proceedings. An election petition tribunal is not a conventional criminal court, despite the potential gravity of the alleged criminal conduct. In a criminal trial, the accused individual is formally charged, tried and convicted based on the prosecution’s evidence which must be proof beyond reasonable doubt. In contrast, Section 135(1) of the Evidence Act, mandates petitioners to establish allegations of crime beyond a reasonable doubt; yet the tribunal lacks the constitutional authority to convict or sentence individuals for electoral offences. This jurisdiction is exclusively vested in regular criminal courts. In notable cases such as Atiku Abubakar & Ors v Umaru Yar’Adua & Ors (2008) 12 SC (Pt. 11)1 and Muhammadu Buhari v Independent National Electoral Commission (INEC) & Ors (2008) 12 SC (Pt. 1) 1, renowned legal scholar Professor Ben Nwabueze sharply criticised the Supreme Court for its “perverse and narrow legalism.” He sternly condemned the Court’s excessive reliance on “technical rules of evidence, practice, and procedure” and considerations of expediency, rather than nullifying the election that brought President Yar’Adua to power. There is an urgent need to reform and modernise our electoral legal framework to adequately address the distinctive characteristics of elections and election petitions. Such reforms should be aimed at rectifying the identified shortcomings and ensuring that the electoral process is conducted fairly, transparently, and justly.
This high standard of proof contradicts the core principles of reasonableness and proportionality, which are integral to the administration of justice. Reliefs sought in election petitions are typically declaratory and restorative, not punitive, and are not intended to secure the conviction of alleged offenders. The objective of election laws is to ensure the accurate reflection of voters’ intent, rather than the prosecution of electoral offences. As such, the elevated standard of proof beyond reasonable doubt is incongruous with the ultimate purpose of election petition proceedings. Moreover, petitioners lack the investigative and enforcement tools—such as powers to arrest, interrogate, or detain—that are available to prosecutors under criminal law, further highlighting the disparity between these processes.
INEC’s Crass Disobedience of Court Orders
Another pressing issue is INEC’s consistent disregard for court orders in election petition cases, often leading to delays in compliance. This pattern of behaviour has raised concerns about potential bias. In numerous instances, where courts have mandated INEC to permit parties to inspect election materials, the commission deliberately delayed compliance, citing trivial excuses that necessitated repeated court interventions for clarification. Furthermore, there have been cases where INEC had refused to issue certificates of return to litigants, as directed by court orders. Legislative bodies also bear some responsibility, as there have been instances where court orders declaring individuals as winners of legislative elections have been ignored, preventing them from assuming their seats, as exemplified in the case of Emordi v Igbeke (2011) JELR 49266 (SC). This behaviour may be prevalent due to the limited inherent authority of election tribunals to punish contempt, unless it occurs directly before them. To impose such sanctions, specific provisions within the Electoral Act are required.
Unfortunately, the Electoral Act 2022, like its predecessors, does not grant tribunals the power to punish contempt that occurs outside their immediate purview. If this trend persists unchecked, it casts doubt on the efficacy of Section 285(5)–(7) of the 1999 Constitution of the Federal Republic of Nigeria (CFRN) in addressing the issue by imposing time limits for the resolution of election petitions, particularly when parties fail to comply with court orders.
The iterative deployment of these tactics by stakeholders embroiled in election petitions engenders protracted delays in the resolution of electoral disputes. This, in turn, erodes the legitimacy of the electoral process and public confidence in democratic governance. INEC has been known to collaborate with winners to prevent a petitioner from accessing vital documents needed to prove his case. I have personally experienced this.
Solution
To mitigate this persistent challenge, it is imperative to undertake further amendments to the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2022. These amendments should ensure that all election petitions are adjudicated and definitively resolved prior to the inauguration of elected officials. In other words, no winner of an election petition should be sworn in until the disposal of a petition challenging his or her election. Such a reform would harmonise with historical precedents, as demonstrated during the 1979 general elections and the Third Republic, when electoral disputes at both state and federal levels were conclusively addressed before the inauguration of elected officials. To facilitate this objective, a practical approach would be to schedule elections at least six months before the expiration of the incumbent officials’ tenure.
This adjustment would create a sufficient timeframe for tribunals and courts to expeditiously handle and definitively resolve petitions without the duress of impending inaugurations. Furthermore, it would obviate scenarios where individuals assume office under contentious circumstances, thereby safeguarding the integrity of public offices and the sanctity of electoral mandates. It will also obviate the Senator Emordi scenario of securing a pyrrhic victory by being deprived of a hard-won victory. This adjustment to the electoral timeline would not only augment the efficiency of the adjudication process but also bolster public confidence in the impartiality and effectiveness of the judicial system in electoral matters.
Inadequate Infrastructure
Another significant challenge hindering the efficient operation of electoral tribunals and courts in Nigeria is inadequate infrastructure. Notably, there exists no permanent body designated to initially adjudicate election petitions, with the exception of presidential cases, which are initiated at the Court of Appeal. Due to the absence of a permanent institution, ad hoc tribunals must be established whenever elections are conducted to address subsequent petitions. These temporary tribunals often operate under makeshift arrangements, resulting in courtrooms and chambers that are frequently inadequate and uncomfortable, with limited space despite the significant crowds typically drawn to the proceedings. This situation undermines key conditions essential for courts to perform their functions effectively. One such requirement is that cases be heard and determined in public, a standard that is frequently compromised in these suboptimal conditions.
Additionally, the practice of appointing election petition tribunal members without due consideration of proven expertise in the field means that specialised knowledge in this area of adjudication is compromised and is not being intentionally cultivated. Developing such expertise would undoubtedly contribute to a more efficacious resolution of electoral disputes. Furthermore, essential court facilities such as automatic transcription machines and electronic tools that could facilitate the expeditious handling of cases are often unavailable. Consequently, tribunal members tasked with this demanding work are forced to manually record proceedings, leading to significant delays. This situation compromises essential conditions necessary for courts to carry out their duties efficiently. One such condition is the requirement for cases to be heard and resolved in public, a standard that is often compromised under these challenging circumstances.
The Nigerian judiciary as shown above faces numerous challenges in adjudicating electoral processes. These challenges are multifaceted, stemming from issues such as outdated legal frameworks, procedural complexities, and inadequate infrastructure. The Evidence Act, while recently amended, still requires further reform to adapt to the evolving technological landscape and the unique nature of election petitions. The high standard of proof imposed on petitioners, coupled with the restrictive interpretation of the Act, often hinders the pursuit of justice. Additionally, the lack of permanent electoral tribunals and the absence of specialised expertise among tribunal members contribute to delays and inconsistencies in adjudication thereby causing defaults in the role of the judiciary as the final arbiter of electoral outcomes and would definitely result in negative aberrations. (To be continued).
THOUGHT FOR THE WEEK
“The main reasons for the growth and institutionalisation of corruption are: a culture of secrecy with lack of transparency, and weak institutions for securing the accountability of public servants, such as the Vigilance bodies, the criminal investigative agencies and the judiciary”. (Prashant Bhushan)
