Amidst the popular clamour for electoral reform, one of the most recurrent issues of discourse is the question of the provision of a time-frame for the determination of electoral disputes.
It is not in dispute that most Nigerians would like a situation where all electoral disputes particularly those relating to the high office of Presidency and Governors are resolved before the holders of these Constitutional offices are sworn in and begin to discharge the duties of their office. Most are disgusted by the spectacle of Governors, Senators (and by extension the president) being sworn in, taking far reaching decisions, assenting to bills, spending public finds, earning jumbo salaries, appointing a retinue of Commissioners, Special Advisers, Special Assistants etc.; in short living the life of a Constitutional chief Executive for months and years only to be removed at times nearly 3 years after as has happened in several States such as Anambra, Edo, Ondo and Ekiti (though the jury is still out on the latter State in view of the re-run elections).
In fact the singular absence of a time-frame in the report of the Electoral reform Committee is enough reason for a cross-section of the populace to reject both the report and the government’s white paper thereon.
In principle, this desire of the Nigerian people cannot be faulted as it is most desirable that the people know the leaders they have chosen well before such leaders are sworn into office and begin to play the vital Constitutional roles which affect the lives of the people in a profound way. But this article will examine critically the practically and even legality? Yes, legality as this should not be assumed of a time frame for election petitions.
First the argument for a time-frame within which to conclude election petition: this is a very common argument that it bothers on criminality to allow election petitions to drag on for years while those with stolen mandates occupy public office and proceed to further loot the public treasury for a few years before they are thrown out. The conventional wisdom is that such a person should not only account for every sum collected but in fact be prosecuted and all his actions nullified. The reasoning here is that this is the best way to discourage people from electoral malpractices and stolen mandates.
Support for this opinion is found in electoral situations both at home and abroad. The 1979 Presidential election out of which the 122/3 States controversy which was resolved before the winner Alhaji Shehu Shagari was sworn in is cited as an example. On the foreign scene, the 2000 American Presidential Election which involved the Florida re-count debacle between Bush and Gore popularly called Bush V Gore which was also resolved by the United States Supreme Court provide ready ammunition for this school of thought. The group argues forcefully quoting Dr. Anthony Akinola in THE GUARDIAN of Thursday 19 March 2009 @ page 79 “someone who did not win an election should not, under any circumstances, be allowed to assume the position of President of the Federal Republic of Nigeria or governor of any State in the federation – even for just one day. The oath of office is sacred: it should not be administered when we are in doubt.”
Prima facie – at face value, this argument seems unassailable and admitting of no reasonable counter argument. But upon a calm and dispassionate evaluation of the situation if may be found that the matter is not as simple and straight forward as the advocates of a fixed period of time for the resolution of electoral disputes would seem to suggest.
In commencing a critical examination of the subject of time limitation for resolving electoral disputes it is important to stress, even at the expense of sounding pastoral, that there is nothing new under the sun. And as the Holy Book says “that which hath been is now; and that which is to be hath already been.”
The idea of time limit for the resolution of electoral disputes is not a such a new thing. As far back as 1982 in the 2nd Republic, The Electoral Act 1982 in Sections 129(3) and 140 (2) thereto provided for 30 (thirty) days for the resolution of electoral disputes either in relation to the Presidency, Governor, National Assembly and State Assembly posts. But the Supreme Court in the celebrated 2nd Republic case of Dr. Paul Unongo V Aper Aku (1983) 14 NSCC 563 held the issue of time limitation in the resolution of electoral disputes Unconstitutional.
A few years ago, a brilliant lawyer and potential silk in the person of A.J Owonikoko Esq. tried with all forensic advocacy at his disposal to get the Supreme Court to overrule the Unongo V Aku case in the equally celebrated case of Yusuf V Obasanjo (2003) 9-10 SC 53, but to no avail. The Supreme Court stuck firmly to her guns as held in Unongo V Aku’s case.
Why then would the apex court stick to this unpopular view”, which is now the cause of strange developments in which electoral matters are decided 18, 24 or 28 months after the wrong person has been sworn in and has benefited immensely at least from the lack of time frame in the determination of electoral disputes? No one other than the Supreme Court can best answer this question.
In Unongo V Aku’s case, the Supreme Court’s said “Any electoral enactment which specified a time constraint on the court to determine an election petition is to say the least very absurd and indeed defeats the intention of the constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election to seek redress in court.”
Also in Unongo V Aku’s case, the Supreme Court held that “there can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a court which ha an election petition ….. but such power cannot in view of the constitutional doctrine of separation of powers amongst the thrice arms of government, that is the Executive, Legislative and Judiciary, extend to the limitation of the time within which a case properly instituted in a court can be heard and determined. If the power were so to apply, as indeed applies under the Electoral Act, then it would, in my opinion, be ultra vires because. It amounts to unconstitutional interference with judicial functions.”
In the Yusuf V Obasanjo’s case the apex court held that “ it would appear to me that the decision in Unongo and a few others following, might have resulted in the most encouraging and assuring absence of the regimental fixation of time within which to determine an election petition in the present Electoral Act. That is a development for which the legislature receive my kudos. That is how it should be in a democracy.”
The court stated clearly that “it is certainly against all known principles of fair hearing as the court, by the provision (of time limit) is hemmed to a fixed date within which it must, as a matter of law, deliver judgment.” {Emphasis added}.
Thus, the Supreme Court based on the view that to fix time limit for the determination of election petitions will stifle or frustrate a parties right to fully ventilate his case, held that the 30 days period prescribed in the Unongo V Aku’s case was unconstitutional, and the 30 days period for bringing amendment under Section 132 of the Electoral Act 2002 of the Yusuf V Obasanjo’s case is unconstitutional.
Indeed, it is this desire to allow parties ample opportunity to present their case that prompted the apex court in the recent celebrated case on Interrogatories Abubakar V Yaradua (2008) 1SC (pt 1) 77 to allow the Appellant, Alhaji Atiku Abubakar to deliver interrogatories on Prof. Maurice Iwu even when the same was not front loaded with the Appellant’s petition as required by the Election Petition practice direction and to allow the Appellant’s appeal on the refusal to allow interrogatories by the lower court, which is an interlocutory appeal contrary to the provisions of the said Election practice direction which barred interlocutory appeals.
The overriding objective of all these decisions of the Supreme Court on election petitions was stated as being “the need to ensure that all relevant evidence is given to ensure that justice is seen to be done.” That the ends of justice ought not be sacrificed just because of the desirably to have the case disposed off speedily.” Most importantly because “courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing.
Thus on the strength of this welter of judicial opinion that the fair hearing of election petitions which entails granting all the parties, petitioners and respondents alike adequate opportunity to fully present their cases, which might take weeks, months and a few years, takes precedence over the desirability of speedy hearing of election petitions, does the clamour for time-limit to the determination of election petitions hold any water?
On a more practical in some level if some of the election petitions in some of the South-Western States had been more timely determined, would some of the petitioners had been able to call in the evidence of the British forensic Experts Adrian Forty, whose expertise exposed several instances of multiple thumb-printing of ballot boxes by the same voter/voters and various other electoral shenanigans that characterized the 2007 elections? At yet another level of comparative analysis, the comparison to 1979 Elections, 1983 elections, 1991-1993 elections or the 2000 American Presidential Elections are not always apt. there are certain fundamental differences between Nigerian elections post 1999 and all the above elections both locally and abroad.
Take the 1979 Elections for example. The problem that arose was not in relation to widespread electoral malpractices like ballot box stuffing, voter intimidation and the like. Rather the problem was in relation to the votes cast in (old) Kano State. Alhaji Shehu Shagari had secured ¼ of the votes cast in 12 States to Chief Awolowo’s ¼ of votes cast in 6States. But the legal question was whether Alhaji Shagari who secured less than ¼ of the votes cast in the 13th State of Kano, had satisfied the constitutional requirement of ¼ of votes cast in 2/3 of the 19 States of the Federation, which led to the hair-splitting argument as to whether a State could be divided into fractions or not. At the end of the day the supreme court had accepted the hair-splitting argument that a State could be split into fraction such that where a candidate secured ¼ of the votes cast in 2/3 of a State; that is 1/6 he could be declared a winner. This is of course not an occasion to determine whether the supreme court was right or not and volumes of books have been devoted to analyzing that celebrated case. What is important for this discourse was that the Awolowo V Shagari, 122/3 case was strictly a point of law issue which was decided in less than 3 months after the election and probably could be still so promptly decided, if that was the sole issue for determination. (1979) 6-9S.C 51.
Contrast that to the 2003 Presidential elections where allegation of malpractices were raised in 12 of 36 States namely: Adamawa, Kaduna, Enugu, Taraba, Ebonyi, Benue, Cross-River, Edo, Rivers, Bayelsa, Imo and Ogun State. And a total of 355 witnesses were called. In Buhari V Obasanjo (2005)7S.C (Pt1)1.
Still talking about the 2003 elections; in the Ngige V Obi’s case over 400 witnesses were called in relation to Gubernatorial election in a State (Anambra) with 21 Local Government Councils.
The 2003 presidential election, trial and appeal took 26 months while Anambra 2003 Gubernatorial elections, trial and appeal took almost 34 months to dispose off.
To cut down drastically on the spectacle of an election petition averaging two, three years to determine the President of the Court of Appeal issued Election Petitions practice Directions 1& 2 2007 aimed essentially at eliminating the calling off dozens of witnesses and long-winded lawyers speech. Reducing practically everything into paper-work, and the cross-examination of only the most vital witnesses. Thus after the 2007 elections, it was not unusually to see parties loaded the court with dozens of bags of fully loaded “Ghana-must-go” bags of documentary evidence and lawyers paperwork; petitions, motions, affidavits and written address. Already in existence of facilitate speedy hearing of these disputes and provisions of precedent to electoral matters over the common and general matters involving the common and ordinary man-section 148 of the Electoral Act. How many times have my ordinary Nigerian clients suffered adjournment of their cases because the presiding judge is away on an electoral tribunal or because the appellate courts are only able to attend election petitions? Extrapolate that by the number of practicing lawyers who do not have the good fortune of being on an election petition legal team and you have a fair idea of the effect on the system.
Yet with all these privileged status the election petitions still take an average of 20 months to get finally disposed off.
With regard to the American example the comparison is non-existent. The 2000 American Presidential debacle relates to disputes as to proper voting by the use of the voting machine – the notorious Chad; dimpled, hanging, pregnant, swinging door, tri etc in a handful of countries-equivalent of our local government area, certainly less than a dozen in the disputed State of Florida. Even then it took that great nation more than 5 weeks of earth –shaking political wrangling to deal with the situation before that nation’s Supreme Courts could bring the situation under control!
Would the famed American political machinery have survived if the dispute had been more widespread, say over 3 States? In any case, the 2000 debacle is child’s play to the controversy which usually surrounds a mere gubernatorial decisions in Nigeria. So the American system offers no useful comparison and assistance.
Finally, if as we have established it still takes an average of 20 months to resolve electoral disputes, with all our best efforts, how do advocates of time-limit propose that government be run in the interim by Senate Presidents or Speakers whose electoral mandates may be under judicial scrutiny? By caretaker committees of civil servants? Will that be democratic? I certainly hope not the usual mantra of by the courts! The judiciary must resist the popular clamour of being invited to get involved in the political terrain; no matter the pressure the courts must never be involved in politics administration lest she becomes like the proverbial elephant tricked into her doom by the deceitful praise singing. The courts are of course too wise to fall for such seductions.
At the end of day, the solution to stolen electoral mandates, long drawn electoral disputes, non-credible elections, is not constitutional amendment, electoral reforms, very stiff penalties for electoral offences, time-limit to settling electoral disputes. They all might help though. But the solution is a change of heart by all of us at every level to ensure free, fair and credible elections. Unfortunately the solution is not as easy as it appears; habits die hard!
It is not in dispute that most Nigerians would like a situation where all electoral disputes particularly those relating to the high office of Presidency and Governors are resolved before the holders of these Constitutional offices are sworn in and begin to discharge the duties of their office. Most are disgusted by the spectacle of Governors, Senators (and by extension the president) being sworn in, taking far reaching decisions, assenting to bills, spending public finds, earning jumbo salaries, appointing a retinue of Commissioners, Special Advisers, Special Assistants etc.; in short living the life of a Constitutional chief Executive for months and years only to be removed at times nearly 3 years after as has happened in several States such as Anambra, Edo, Ondo and Ekiti (though the jury is still out on the latter State in view of the re-run elections).
In fact the singular absence of a time-frame in the report of the Electoral reform Committee is enough reason for a cross-section of the populace to reject both the report and the government’s white paper thereon.
In principle, this desire of the Nigerian people cannot be faulted as it is most desirable that the people know the leaders they have chosen well before such leaders are sworn into office and begin to play the vital Constitutional roles which affect the lives of the people in a profound way. But this article will examine critically the practically and even legality? Yes, legality as this should not be assumed of a time frame for election petitions.
First the argument for a time-frame within which to conclude election petition: this is a very common argument that it bothers on criminality to allow election petitions to drag on for years while those with stolen mandates occupy public office and proceed to further loot the public treasury for a few years before they are thrown out. The conventional wisdom is that such a person should not only account for every sum collected but in fact be prosecuted and all his actions nullified. The reasoning here is that this is the best way to discourage people from electoral malpractices and stolen mandates.
Support for this opinion is found in electoral situations both at home and abroad. The 1979 Presidential election out of which the 122/3 States controversy which was resolved before the winner Alhaji Shehu Shagari was sworn in is cited as an example. On the foreign scene, the 2000 American Presidential Election which involved the Florida re-count debacle between Bush and Gore popularly called Bush V Gore which was also resolved by the United States Supreme Court provide ready ammunition for this school of thought. The group argues forcefully quoting Dr. Anthony Akinola in THE GUARDIAN of Thursday 19 March 2009 @ page 79 “someone who did not win an election should not, under any circumstances, be allowed to assume the position of President of the Federal Republic of Nigeria or governor of any State in the federation – even for just one day. The oath of office is sacred: it should not be administered when we are in doubt.”
Prima facie – at face value, this argument seems unassailable and admitting of no reasonable counter argument. But upon a calm and dispassionate evaluation of the situation if may be found that the matter is not as simple and straight forward as the advocates of a fixed period of time for the resolution of electoral disputes would seem to suggest.
In commencing a critical examination of the subject of time limitation for resolving electoral disputes it is important to stress, even at the expense of sounding pastoral, that there is nothing new under the sun. And as the Holy Book says “that which hath been is now; and that which is to be hath already been.”
The idea of time limit for the resolution of electoral disputes is not a such a new thing. As far back as 1982 in the 2nd Republic, The Electoral Act 1982 in Sections 129(3) and 140 (2) thereto provided for 30 (thirty) days for the resolution of electoral disputes either in relation to the Presidency, Governor, National Assembly and State Assembly posts. But the Supreme Court in the celebrated 2nd Republic case of Dr. Paul Unongo V Aper Aku (1983) 14 NSCC 563 held the issue of time limitation in the resolution of electoral disputes Unconstitutional.
A few years ago, a brilliant lawyer and potential silk in the person of A.J Owonikoko Esq. tried with all forensic advocacy at his disposal to get the Supreme Court to overrule the Unongo V Aku case in the equally celebrated case of Yusuf V Obasanjo (2003) 9-10 SC 53, but to no avail. The Supreme Court stuck firmly to her guns as held in Unongo V Aku’s case.
Why then would the apex court stick to this unpopular view”, which is now the cause of strange developments in which electoral matters are decided 18, 24 or 28 months after the wrong person has been sworn in and has benefited immensely at least from the lack of time frame in the determination of electoral disputes? No one other than the Supreme Court can best answer this question.
In Unongo V Aku’s case, the Supreme Court’s said “Any electoral enactment which specified a time constraint on the court to determine an election petition is to say the least very absurd and indeed defeats the intention of the constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election to seek redress in court.”
Also in Unongo V Aku’s case, the Supreme Court held that “there can be no doubt that it is within the province of the National Assembly to prescribe the practice and procedure to be followed by a court which ha an election petition ….. but such power cannot in view of the constitutional doctrine of separation of powers amongst the thrice arms of government, that is the Executive, Legislative and Judiciary, extend to the limitation of the time within which a case properly instituted in a court can be heard and determined. If the power were so to apply, as indeed applies under the Electoral Act, then it would, in my opinion, be ultra vires because. It amounts to unconstitutional interference with judicial functions.”
In the Yusuf V Obasanjo’s case the apex court held that “ it would appear to me that the decision in Unongo and a few others following, might have resulted in the most encouraging and assuring absence of the regimental fixation of time within which to determine an election petition in the present Electoral Act. That is a development for which the legislature receive my kudos. That is how it should be in a democracy.”
The court stated clearly that “it is certainly against all known principles of fair hearing as the court, by the provision (of time limit) is hemmed to a fixed date within which it must, as a matter of law, deliver judgment.” {Emphasis added}.
Thus, the Supreme Court based on the view that to fix time limit for the determination of election petitions will stifle or frustrate a parties right to fully ventilate his case, held that the 30 days period prescribed in the Unongo V Aku’s case was unconstitutional, and the 30 days period for bringing amendment under Section 132 of the Electoral Act 2002 of the Yusuf V Obasanjo’s case is unconstitutional.
Indeed, it is this desire to allow parties ample opportunity to present their case that prompted the apex court in the recent celebrated case on Interrogatories Abubakar V Yaradua (2008) 1SC (pt 1) 77 to allow the Appellant, Alhaji Atiku Abubakar to deliver interrogatories on Prof. Maurice Iwu even when the same was not front loaded with the Appellant’s petition as required by the Election Petition practice direction and to allow the Appellant’s appeal on the refusal to allow interrogatories by the lower court, which is an interlocutory appeal contrary to the provisions of the said Election practice direction which barred interlocutory appeals.
The overriding objective of all these decisions of the Supreme Court on election petitions was stated as being “the need to ensure that all relevant evidence is given to ensure that justice is seen to be done.” That the ends of justice ought not be sacrificed just because of the desirably to have the case disposed off speedily.” Most importantly because “courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing.
Thus on the strength of this welter of judicial opinion that the fair hearing of election petitions which entails granting all the parties, petitioners and respondents alike adequate opportunity to fully present their cases, which might take weeks, months and a few years, takes precedence over the desirability of speedy hearing of election petitions, does the clamour for time-limit to the determination of election petitions hold any water?
On a more practical in some level if some of the election petitions in some of the South-Western States had been more timely determined, would some of the petitioners had been able to call in the evidence of the British forensic Experts Adrian Forty, whose expertise exposed several instances of multiple thumb-printing of ballot boxes by the same voter/voters and various other electoral shenanigans that characterized the 2007 elections? At yet another level of comparative analysis, the comparison to 1979 Elections, 1983 elections, 1991-1993 elections or the 2000 American Presidential Elections are not always apt. there are certain fundamental differences between Nigerian elections post 1999 and all the above elections both locally and abroad.
Take the 1979 Elections for example. The problem that arose was not in relation to widespread electoral malpractices like ballot box stuffing, voter intimidation and the like. Rather the problem was in relation to the votes cast in (old) Kano State. Alhaji Shehu Shagari had secured ¼ of the votes cast in 12 States to Chief Awolowo’s ¼ of votes cast in 6States. But the legal question was whether Alhaji Shagari who secured less than ¼ of the votes cast in the 13th State of Kano, had satisfied the constitutional requirement of ¼ of votes cast in 2/3 of the 19 States of the Federation, which led to the hair-splitting argument as to whether a State could be divided into fractions or not. At the end of the day the supreme court had accepted the hair-splitting argument that a State could be split into fraction such that where a candidate secured ¼ of the votes cast in 2/3 of a State; that is 1/6 he could be declared a winner. This is of course not an occasion to determine whether the supreme court was right or not and volumes of books have been devoted to analyzing that celebrated case. What is important for this discourse was that the Awolowo V Shagari, 122/3 case was strictly a point of law issue which was decided in less than 3 months after the election and probably could be still so promptly decided, if that was the sole issue for determination. (1979) 6-9S.C 51.
Contrast that to the 2003 Presidential elections where allegation of malpractices were raised in 12 of 36 States namely: Adamawa, Kaduna, Enugu, Taraba, Ebonyi, Benue, Cross-River, Edo, Rivers, Bayelsa, Imo and Ogun State. And a total of 355 witnesses were called. In Buhari V Obasanjo (2005)7S.C (Pt1)1.
Still talking about the 2003 elections; in the Ngige V Obi’s case over 400 witnesses were called in relation to Gubernatorial election in a State (Anambra) with 21 Local Government Councils.
The 2003 presidential election, trial and appeal took 26 months while Anambra 2003 Gubernatorial elections, trial and appeal took almost 34 months to dispose off.
To cut down drastically on the spectacle of an election petition averaging two, three years to determine the President of the Court of Appeal issued Election Petitions practice Directions 1& 2 2007 aimed essentially at eliminating the calling off dozens of witnesses and long-winded lawyers speech. Reducing practically everything into paper-work, and the cross-examination of only the most vital witnesses. Thus after the 2007 elections, it was not unusually to see parties loaded the court with dozens of bags of fully loaded “Ghana-must-go” bags of documentary evidence and lawyers paperwork; petitions, motions, affidavits and written address. Already in existence of facilitate speedy hearing of these disputes and provisions of precedent to electoral matters over the common and general matters involving the common and ordinary man-section 148 of the Electoral Act. How many times have my ordinary Nigerian clients suffered adjournment of their cases because the presiding judge is away on an electoral tribunal or because the appellate courts are only able to attend election petitions? Extrapolate that by the number of practicing lawyers who do not have the good fortune of being on an election petition legal team and you have a fair idea of the effect on the system.
Yet with all these privileged status the election petitions still take an average of 20 months to get finally disposed off.
With regard to the American example the comparison is non-existent. The 2000 American Presidential debacle relates to disputes as to proper voting by the use of the voting machine – the notorious Chad; dimpled, hanging, pregnant, swinging door, tri etc in a handful of countries-equivalent of our local government area, certainly less than a dozen in the disputed State of Florida. Even then it took that great nation more than 5 weeks of earth –shaking political wrangling to deal with the situation before that nation’s Supreme Courts could bring the situation under control!
Would the famed American political machinery have survived if the dispute had been more widespread, say over 3 States? In any case, the 2000 debacle is child’s play to the controversy which usually surrounds a mere gubernatorial decisions in Nigeria. So the American system offers no useful comparison and assistance.
Finally, if as we have established it still takes an average of 20 months to resolve electoral disputes, with all our best efforts, how do advocates of time-limit propose that government be run in the interim by Senate Presidents or Speakers whose electoral mandates may be under judicial scrutiny? By caretaker committees of civil servants? Will that be democratic? I certainly hope not the usual mantra of by the courts! The judiciary must resist the popular clamour of being invited to get involved in the political terrain; no matter the pressure the courts must never be involved in politics administration lest she becomes like the proverbial elephant tricked into her doom by the deceitful praise singing. The courts are of course too wise to fall for such seductions.
At the end of day, the solution to stolen electoral mandates, long drawn electoral disputes, non-credible elections, is not constitutional amendment, electoral reforms, very stiff penalties for electoral offences, time-limit to settling electoral disputes. They all might help though. But the solution is a change of heart by all of us at every level to ensure free, fair and credible elections. Unfortunately the solution is not as easy as it appears; habits die hard!
