The 25th day of February, 2022 is often regarded as a memorable day in our electoral jurisprudence given that it is the day that ushered in the birth of the Electoral Act, 2022 which, according to some scholars, will aid in mitigating the hardship occasioned by the previous electoral act of 2010. This raised hopes amongst Nigerians and reposed confidence in the electoral system owing to the promises of the electoral chairman to conduct a free, fair and credible election in Nigeria.
With the outcome of the just concluded general elections in Nigeria, the microscopic hope Nigerians had on both the INEC and the judiciary were dashed as a large number of the populace felt that both INEC and the judiciary were compromised during and after the general elections.
Pathetically, the purported messiah Electoral Act of 2022 which many thought will nail all issues of electoral irregularities to the cross of Calvary have not addressed the issue of the impediments in proving an election petition in Nigeria.
Issues such as the 21 day’s conundrum, the refusal of INEC to release sensitive materials in other to enable the petitioners prove their case inter alia, are factors that hinders petitioners in proving an election petition in Nigeria.
In this paper, we shall critically appraise those salient and notable provisions of the 2022 Electoral Act and also highlight a few challenges that makes proving an election petition difficult in Nigeria and make possible recommendations on how these challenges can be dealt with.
SIGNIFICANT CHANGES OF THE ELECTORAL ACT, 2022
Before we begin by crucifying the Electoral Act of 2022 for placing a mountain of burden on the petitioners to prove their case in an election petition, let us applaud the Act for some notable changes it introduced to the Nigerian electoral atmosphere;
Firstly, the new Act unlike under the provision of Section 26 of the Electoral Act, 2010 (as amended) that gave the Commission power to postpone an election not yet commenced, Section 24(3) of the Electoral Act, 2022 gives the Commission additional power to suspend an election already commenced and appoint another date on ground of substantial disruption of election in a polling unit or Constituency due to threat to peace and security of electoral officials & materials.
Another important innovation has to do with the number of days within which the list of candidates is required to be submitted to the Commission after party primaries.
Under the Electoral Act, 2010 (as amended), political parties are by law under a duty to submit the list of their candidates that won their primaries to the Commission 60 days before the General Elections. However, Section 29 (1) of the Electoral Act, 2022 stipulates that political parties must conduct their primaries and submit the list of their candidates at least 180 days before the General Elections.
Furthermore, the provisions of Section 47 of the Electoral Act, 2022 has allowed for electronic voters accreditation through the use of smart card reader and other technological devices that may be deployed by INEC. This is to prevent multiple voting, and promote the transparency, accuracy and integrity of votes.
INEC has adopted the use of Bimodal Voter Verification Accreditation System (BVAS) Device to verify, confirm and authenticate particulars of voters. It should be noted that INEC had earlier taken the initiative to provide for the use of smart card reader in its regulations and guidelines for the conduct of previous elections.
However, in a number of decisions of the Supreme Court including Udom v. Umana (No. 1) (2016) 12 NWLR (Part 1526) 179 at pages 15-16 paras. B-B, Okereke v. Umahi (2016) 2-3 SC (Part 1) 1 and Nyesom v Peterside (2016) 7 NWLR (Part 1512) 452 wherein the Court stated to the effect that the card reader not being part of the Electoral Act, cannot be relied on in proof of over voting at an election.
The foregoing has now been substantially addressed by the Electoral Act, 2022 and has altered the process of accreditation to legitimize the use of technology. Thus, the decisions on how over voting will be proved have to be re-evaluated. Also, According to Section 50 of the Act, the Commission has the authority to decide whether election results are sent electronically or manually.
Lastly, Section 34 of the Act allows political parties to hold primary elections to replace a candidate who dies after the polls have begun but before the final results are announced and a winner declared.
In the case of legislative elections, the election will be re-run, and a bereaved political party can have a new primary election within 14 days to nominate a new candidate. Concerning presidential and governorship elections, the deceased candidate’s running mate will continue the election and select a running mate.
Having x-rayed some provisions of the Electoral Act which raised hopes of Nigerians high during the last general elections, we shall dive into the oceans of highlighting those impediments the petitioners encounter in proving an election petition in Nigeria which forms the substratum of our discussion.
THE IMPEDIMENTS OF PROVING AN ELECTION PETITION IN NIGERIA
Before we take off in addressing the nucleus of this paper, the point must be made clear that election petitions are sui generis meaning, they are in a class of their own. This means that the principles applicable in election petitions are not generally applicable in general civil law proceedings.
One of the striking features that makes election petitions distinct is that the grounds of a petition have statutory anointing. A Petition challenging an election can only be presented on three grounds, and those grounds are captured in section 134 (1) of the Electoral Act 2022
Section 134 (1) of the Act provides that:
134(1) An election may be questioned on any of the following grounds—
(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or
(c) the respondent was not duly elected by majority of lawful votes cast at the election
From the provisions of the Act (supra), particularly sub paragraphs (b) and (c), it is discernable that most petitioners will be required to plead facts and tender factual evidence to demonstrate that there was substantial non-compliance with the provisions of the Act or that the Respondent (winner of the election) did not score majority of lawful votes cast at the polls.
In adducing the required evidence, petitioners are saddled with the statutory responsibility of gathering material facts and evidence from all the polling units in which there was substantial irregularity as alleged.
In a bid to appreciate this point better, the presidential elections in 2023 were conducted in over 176,000 polling units, consequently, the Petitioners were saddled with the responsibility of alleging facts in their petition and adducing evidence to demonstrate that there was substantial irregularity in tens of thousands of the polling units.
The practical implication of the foregoing is that the petitioners are placed with an arduous responsibility of gathering all material facts and evidence before filing the petition challenging the outcome of an election within 21 days.
In Maku & Anor v Sule & Ors (2019) LPELR-58513 (SC), the Supreme Court of Nigeria in relying on the provision of Section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) held that a petitioner must file his petition within 21 days of the declaration of the result. Because the requirement to file the petition within 21 days is a constitutional requirement, the apex court held that the time frame is “just like the rock of Gibraltar or Mount Zion” which cannot be moved.
In a nutshell, a petitioner challenging a presidential election will be bound to gather facts from tens of thousands of polling units and scrutinize those facts and evidence obtained and all these findings must be chronicled in the petition which must be filed within 21 days.
This 21-day rule becomes more impracticable because no significant amendment is permitted after the petition has been filed, even where new facts are discovered by the petitioner.
This is because by the express provisions of Paragraph 14(2) of the First Schedule to the Electoral Act, 2022, any amendment that seeks to introduce any fact that will change the nature of a petition will not be permitted. See the case of INEC v Yusuff & Ors (2019) LPELR-48890 (SC)
Furthermore, another crucial factor that have aggravated the hindrance of proving an election petition in Nigeria is the attitude of respondent counsel in deliberately trying to forestall the case of the petitioners within the limited time frame by inflicting the petition with litany of technicalities.
For instance, making deliberate efforts to frustrate inspection of document sorting of and recount of ballot, sorting of documentary evidence and raising unnecessary objections fall within this category.
Some Respondents also take undue advantages of the provisions of the First Schedule requiring the petition to be served personally on the respondent by evading service even when his political party served with the Petition has filed a response.
Even when a Petitioner brings an application for substituted service of the Petition, there is no guarantee the Tribunal or Court will speedily determine the application because members of the Tribunal or Court are drawn from various parts of the Country and difficulties may arise as to assembling and constituting a quorum to hear the application. In some Petitions, the first 90 days or more are dissipated in resolving preliminary issues on service and settlement of Pleadings.
In the end, this severely limits the time available for the Tribunal to hear and determine election petitions as substantial time would have been lost in resolving these preliminary issues.
Lastly, the refusal of INEC to release sensitive materials to the petitioners to enable them prove their case in an election petition is a pivotal factor affecting election petitions in Nigeria.
When INEC refuses to release sensitive materials in an election petition, it creates a significant hurdle for the petitioners in proving their case. These materials, like ballot papers, voter’s registers, and result sheets, are crucial for gathering evidence and demonstrating any irregularities that may have occurred during the election. Without access to these materials, petitioners may struggle to provide concrete proof of their claims, making it harder to establish the validity of their petition.
Having critically examined the practicality of the herculean task bestowed on every petitioner, it is submitted that it is impracticable to gather, and scrutinize relevant facts and evidence from thousands of polling units across the federation within 21 days after election results are declared particularly the presidential elections.
Perhaps this explains why none of the runners up in the various presidential elections in our current democratic dispensation had successfully been seen to have established the numerous allegations of irregularity at the elections.
Hence, it is recommended that we need a major constitutional adjustment. That is to say firstly, nobody must be sworn in as anything whether President or Governor or Law makers until the election petition has been fully exhausted; and secondly, that everything about time limitation should be adjusted or extended further to give the petitioners more time to file their petitions and gather all the evidences across the various polling units and wards.
It is further recommended that the issue of technicalities should be done away with when it concerns matters of election petitions; that is to say, the courts should pay deaf ears to technical issues raised by the respondent counsel and dispense justice based on the merits of the case.
Also, our electoral laws should be amended in such a way to provide sanctions to INEC for failure to release sensitive materials to petitioners to enable them prove their case in a petition.
In closing the curtains in this article, we must also admit that these recommendations specifically calls for a constitutional amendment which may not be as elementary as it sounds, however, we believe that if these suggestions are considered and indeed implemented by the 10th National Assembly, the candidates will have a better shot at challenging results declared by INEC and ultimately the electorates will have a better sense of satisfaction in the outcomes of judgments delivered by Election Petition Tribunals and their respective appellate courts.
In this article, we have embarked on a journey through the notable provisions of the 2022 Electoral Act, even though hastily, with a view to shedding light and addressing some of the issues and challenges a petitioner will likely face in proving an election petition in Nigeria.
This journey has revealed that an election petition is unarguably one of the most, if not the most vast and technical areas of law and also one of the most difficult in proving particularly for the petitioners considering the ridiculous time frame as required by law to file a petition.
Therefore, recommendations such as the adjustment of the time frame to a larger time, paying deaf ears to technical attempts by lawyers to forestall the case of the petitioners inter alia if adopted by both the lawmakers and judges will serve as bulldozer to clear the legal ground and make it easier for the petitioners to prove their case in an election petition in Nigeria.
About the Author:
Greatness Eyonsa Essien is a 300 level law student, University of Calabar and is currently serving as the Attorney General Law Students Association of Nigeria, Southern League. He has an unwavering passion for writing, reading and court room advocacy and this is evidenced in his participation in about ten national moot court competitions in Nigeria and made him clinch the award of Best Advocate, South South Lawsan and a “moot god”. He is concerned with his personal development.
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