Daily Independent (Lagos)
Chimezie Elemuo
8 July 2009
opinion
Port-Harcourt — The recent charade that passed as election re-runs in Ekiti State has thrown up policy issues one of which is dispensing of election petitions by the election tribunals before the swearing in of elected officers. There are reasons for this, which are that it will prevent illegal occupying of elected offices. And at the same time prevent the extension of executive governance in the federation or in a state.
This may also help to save the states funds since none of these illegal sitting office holders will boldly claim that they don't fund election litigation with state funds. If Nigeria can get this right, then one of the greatest problems threatening our electoral process would have been solved. The Uwais Electoral Reform Commission recognised this when that august body recommended that election petitions be resolved within six months of election before inauguration of every elected political office holders. The question is how would an election petition that has been recognised to be sui generis be decided within six months of election with our cumbersome Electoral Act still in place? Uwais, a former Chief Justice of the Federation should know better. How long does it take to recover debt under the undefended list procedure where the defendant has join no issues with the claimant than in election petition where almost everybody is joined.
There is no doubt that every Nigerian would want an electoral process that will make it possible to end litigation before swearing in. The Judiciary has even lent its voice on this. In Agballah V. Nnamani (2004) 11 W.R.N. P.112 at 123, the Court of Appeal noted, "from all sectors, it is agreed that accelerated hearing of election petitions is a must. And the court added "and such cannot be realized by giving room for unnecessary interlocutory appeals." In P.R.P.V. INEC (2004) 4 W.R.N. P. 84, Ogbuagu JCA, noted, "if I may add, the peculiar nature of election petitions and the need to hear and dispose them off expeditiously, have been stated and restated in some decided cases...." In every litigation the role of the court is to ensure that justice is done at all cost. There is a truism that the wheel of justice grids slowly but steadily. There is no doubt that interlocutory appeals and amending of processes also play a role in preventing the expeditious dispensation of election petitions. It is the right of parties and all these are to ensure that justice is done to all and sundry. Oputa JSC, noted in Adekeye V. Akin-Olugbade (1987) 3 N.W.L.R. (Pt.60) 214 at 223 - 225 that "the court does not set a time limit to do justice and in the same vain it does not or perhaps also cannot set a time limit to grant an amendment designed to achieve justice between the parties."
Niki Tobi observed in Abubakar V. Yar'Adua (2008) ALL FWLR (Pt. 404) at P. 1450 that "I am in entire agreement with the Court of Appeal when the court held that full opportunity should be given parties in the interest of justice.... And what is more, election petitions are sui generis and should be treated in that domain or realm. If court of law are bound to do substantial justice in ordinary civil matters, how much less an election petition. I should take the question to another level or layer and it is this; if tribunals are bound to do substantial justice in elections, how much less a presidential election petition in which the whole country of Nigeria is one constituency. I do not think that the Court of Appeal was wrong in giving one extra kilometre to accommodate the 4th to 808th respondents. The court did a good job and I commend the justices." Did I hear you shout wao! Yes, that is the nature of our Electoral Act. 808 respondents joined! Of course, it will take several months to run this "one extra kilometre." So shall we scarify justice in the altar of time! The answer is no.
There are only two solutions to this quagmire and they are in two folds. One is that INEC must be truly an independent umpire. And the appointment of INEC Chairman must be done in such a way that the man will have free hands to work with. Only then can INEC conduct a free and credible election. If INEC can conduct free and credible elections in the country, that will reduce the number of election petitions that inundate the election tribunals. This will help in the speedy dispensation of cases. Unfortunately, the Federal Government threw away the vital recommendation of the Election Reform Committee on the aspect of appointment of INEC Chairman and the joining of INEC in election petition into the dustbin. Once INEC is joined in an election petition, it is no longer an umpire but an interested party who can alter, hide and deny the existence of documents just to win its case. This should not be the role of an umpire. Commenting on the role of INEC as an umpire and the need of men and women of integrity to man its affairs, the Court of Appeal in Enemuo V. Duru (2004) 39 W.R.N. P. 98, per Fabiyi. JCA, noted in his resounding words that "Perhaps, I should add, in rather subtle manner, that those charged with the responsibility of conducting elections in a democratic dispensation should appreciate that democracy can only thrive through election and not selection of people's representatives. They are looked upon as men and women of affairs whose opinions should be respected. They should be fearless and courageous. Above all, they should operate with due honesty of purpose if democracy in our land must take firm root and continue to germinate.
The second solution is to amend the Electoral Act to make it less cumbersome. The idea of joining 808 respondents is seven wonders of the world. Commenting on the cumbersome nature of the Electoral Act, 2002, Belgore JSC (as he then was) in Buhari V. Obasanjo (2005) 13 NWLR (Pt.941) held that "I wish next election will have a better, more civilised and considerably less cumbersome Electoral Act." That wish did not come true, may be, for the simple fact that elected officers never knew that some of the comments of our judges in their judgments are policy comments. Once the judgment is in their favour, they go on the spoil of office forgetting the inherent policy statements in the judgments that brought them to power.
Until these solutions are looked into with a view to correcting the wrongs in our electoral process, Nigeria will never conduct any credible election. And the petitions will continue to flood the election tribunals.
Elemuo is a Port Harcourt-based legal practitioner.
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