Tenure of Elected office Holders
One major fall out of the celebrated case of Peter Obi V. 1NEC, (2007) 7 S. C 268 where the fact that a public office particularly a governor's term can commence years into an original tenure and run deep, into another's tenure, as Governor Peter Obi could only claim his mandate on the 17th March 2006 almost 3 year into original mandate. Peter Obi's case was of course peculiar
Indeed the lead judgment of Aderemi JSC and die concurring Judgment of Katsina-Alu JSC contain the words "For the avoidance of any doubt, this judgment affects the office of the Governor or Anambra State alone" Peter Obi V INEC (Supra) @ 319 and 331.
But as usually happens several others who did not suffer the deprivations experienced by Governor Peter Obi have tried to take advantage of the "window of opportunity" the Peter Obi's case opened by seeking an extension of their tenure. Coming on the heels of the Peter Obi's case was the Ladoja V INEC (2007) 7 S. C. 99 where the former governor of Oyo State who almost 3 years into his tenure in office was illegally removed for about 11 months sought an extension of his tenure. The Supreme Court in rejecting the prayer for term of extension held that "The Constitution of the Federal Republic of Nigeria. 1999 did not grant this Court the power to grant an extension of tenure to a Governor who has been improperly impeached. To hold otherwise would amount to reading into the Constitution provisions that arc not there"
After the Ladoja case, other situations have arisen in Kogi, Adamawa and Cross River State, where a Governor was elected, removed by Election Petition Tribunal but won the Re-run Elections into their various state governorship offices. A very passionate debate has thus arisen among legal and political scholars as to when their terms of offices began, is it when they first took office under mandates that were nullified or when they won the Re-Run Elections? Sooner than later the courts will be called upon to pronounce on this constitutional conundrum.
Nomination and Substitution of candidates for Elections by Political Parties.
In line with the usual political disposition of our courts for a long time, the Courts refused to get themselves involved in the internal workings of political parties as to who or who not to present for elective office. This was held to be the excusive prerogative of each political party - political matters which were not justiciable in a Court of law.
Onuoha V. Okafor (1983) SCNLR 244 Palhatu V Turaki (2003) 6. S. C. I
However, the nation's political parties were very quick to observe this reluctance of the Court to delve into the internal affairs of a political party. They thus contrived certain very strange methods of seeking party flag bearers: In one instance where there was a party's primaries of 24 candidates, the concerned party the PDP went down the line to pick the 12th most successful candidate over and above the 1st candidate as its party Flag bearer. However the Court taking advantage of section 34 of the Electoral Act 2006, that requires a party to give "cogent and verifiable" reasons for substituting one candidate for the other, to nullify the substitution of the less deserving candidate over the more qualified one Ugwu V Araraume (2007) 6. S. C. (pt 1) 88.
This shenanigan of substituting a less deserving candidate for a worthy one in fact came to an head in the River State Gubernatorial case of - Amaechi V INEC (2008) 1 S. C. (pt 1) 36 where one Celstine Omehia who in fact did not take part
in the party's Primaries was substituted for the winner of the party's primaries, Chibuike Rotimi Amaechi. In an epochal judgment the Supreme Court not only nullified the illegal substitution but ordered the installation of Rotimi Amaechi who won the Primaries as Governor of Rivers State even though he did not take part in the April 2007 election. The second limb of the judgment has however been the subject of intense debates among legal scholars.
But that parties can no longer nominate or substitute candidates at will is now part of the Jurisprudence of the nation's electoral system.
Tribunal Judges and Corruption
In all democracies developed and undeveloped, there is an element of bitter rivalry amongst political parties for elective office. In Nigeria the rivalry is extreme and when the courts come as the unbiased umpire to adjudicate on the electoral dispute between parties, because of the level of partisanship involved the courts even with its best effort hardly escapes unscathed and its garment not smeared with political muck or coal tar. Thus even the most erudite and dispassionate decisions of the electoral tribunals attract great praises and virulent criticisms simultaneously depending on which party is favoured.
However, in several instances the criticism are often accompanied by allegations of corrupt practices by members of the tribunal some of whom are alleged to have been given large sums of money to deliver specially prepared judgment in favour of certain candidates and their party. At first these allegations appeared too shocking and incredible to be true of a legal system that is regarded as one of the best in the world having produced many jurist of global repute. But upon investigation some of these allegations were found to be sadly true.
However, the appropriate authorities promptly took the appropriate legal steps to discipline the erring judicial officers' dismissing them from service.
Yet allegations of corruption against judges serving on Election Tribunals persist with even more frequency such as the recent allegation of unlawful telephone communication between certain members of the Osun State Election Petitions Tribunal and some of the Counsel for one of the parties in the said petition. The matter is however, sub-judice and under investigation.
Thus not much can be said on the matter for now. However, every effort must be made to retain the confidence of the citizens in the integrity of the Court in the administration of justice in general and election petitions in particular.
One of the suggestions that have been put forward is the appointment of retired judges to serve on election petitions tribunal. But this suggestion is easily countered by others who maintain that it might not be so easy to discipline retired judges. If a retired Judge were to be appointed a member or even head of a election petition as Chairman, will he readily take directions from a Chairman who was his junior whilst in service or even as Chairman take orders from even the Chief Justice of the Federation who was probably a junior judicial officer who served under him while he was in service? Even more importantly the opponents of the idea argue than the fear or dismissal loss of terminal benefits by serving judges was a greater incentive for restricting appointment of Election Petition judges to serving Judicial officers.
Burden of proof in Election Petition Case.
By virtue of Section 145 of the Electoral Act 2006, the Petitioner to succeed in an election must prove substantial non-compliance with both the Constitution and the Electoral Act in the election of the declared winner of electoral offences such as ballot box snatching, multiple thumb printing, violence and intimidation of voters, wrongful statement of results, Bribery etc And he must prove these allegations beyond reasonable doubt.
Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 Nwobodo V Onoh (1984) 7 SCNLR 1 Omoboriowo V Ajasin (1984) 1 SCNLR 108 Ojukwu V Onwudiwe (1984) ISCNLR 247 Buhari V Obasanjo (2007) 7 SC (Pt 1) 1
Many Petitioners over the years have found the hurdle of non-substantial compliance too high to scale, with many coming away empty-handed.
This feeling of frustration has led to the call by many for a reversal of the burden of proof so that the declared winner will have the burden of proving that his Victory was in compliance with the Electoral Act.
Attractive as this argument, it has certain limitations; it runs contrary to the fundamental philosophy of our jurisprudence that the burden of proof is on the person who asserts.
Furthermore, if this jurisprudential shift is effected, is the declared winner to prove the validity of his election to as many Petitioners that challenge his electoral victory. That seems unduly burdensome if not altogether impracticable. Whilst the frustrations of would-be petitioners is appreciated particularly where the Electoral umpire such as the Independent National Electoral Commission INEC usually collaborates with a would-be winner to frustrate the success of the Petitioner nevertheless it is submitted that the solution does not lie in the radical shift in the jurisprudence of Election Petitions but instead in the electoral process.
The jurisprudence of Election Petition only deals with the after effect of the electoral process. Thus if the electoral process including the activities of the electoral umpire is flawed, then the best juridical system with the best jurisprudence will achieve nothing. As the late sage Chief Obafemi Awolowo SAN once said "you deal with causes and not effects". It is thus submitted that the problem is not with the election petition system as presently constituted but the electoral process from which the election petitions arise. In that regard the on going efforts to revise the nation's electoral system is most opportune.
The Court of Appeal as the Final Court of Appeal for all electoral disputes except the Presidential Elections.
The Constitutional Provisions which makes the Court of Appeal as the Final Court of Appeal in all Election Petitions except the office of the President have been upheld in such cases as:
Onuaguluchi V Ndu (2001) 7 NWLR (Pt 712) 309 Awuse V Odili (2003) 18 NWLR (pt 851) 116.
Umannah V Attah (2006) 9 S. C. 151.
Where the Supreme Court upheld Section 246 (1) and (3) of the 1999 Constitution. In spite of the finality of the Supreme Court decisions there is growing agitation for a constitutional amendment for all election Petitions to terminate at the Supreme Court. The unique case of Peter Obi V INEC (supra) where jurisdictional limitations could not prevent the Court from declaring
(1). That there was no vacancy in the Anambra State Governor's office in April
2007.
(2). That the Gubernatorial election in Anambra State in April 2007 was a nullity; is used as justification for the need for the Supreme Court to be able to make a final pronouncement on election petition related matter.
This is however a moot point as the desirability of having the Supreme Court to pronounce on all electoral issues has to be weighed against: first, the need for all electoral disputes to be determined on tune in view of the limited 4-year tenure of most elective offices. Even without the intervention of the Supreme Court the average duration of most electoral disputes is 18 months almost half of the 4 year term of elective offices, adding one more level of appeal is not likely to improve the situation. Secondly, adding to the Supreme Court's jurisdiction is likely to add to the already heavy work - load of the apex Court. Some Constitutional Scholars have argued in support of the proposition that all electoral disputes should end in the Supreme Court that the Apex Court should in fact be a Constitutional Court in the manner of the U. S. Supreme Court which deals essentially with Constitutional matters. The result of this suggestion is that the usual final jurisdiction of the Supreme Court to attend to the various sundry matters that affects the proverbial common-man: criminal cases, land matters, labour disputes, contracts, Succession, libel/Islander, Negligence will be sacrificed- If this were to be done will the Supreme Court as the apex Court retain its position as "the last hope of the common man" your guess is as good as mine!
CONCLUSION
This Essay is not by any means an exhaustive exposition of the Nigerian Jurisprudence of Election Petitions, to attempt such effort nothing short of a standard text will do. All that is been done here is to highlight certain critical aspects of the law and practice of Election Petition in recent times that have generated much public interest and debate and calls for appropriate legislative even constitutional reforms!
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