Electoral Justice in Kenya and Nigeria

 
Wed Sep 13th, 2017 - Edo
 

By Femi Falana, SAN

Continued from yesterday

WHILE reacting to the ruling of the Supreme Court, the IEBC said that the date of the fresh election would not be fixed until it has reviewed the considered judgment of the Supreme Court. Even though the Court has not made the judgment available to the parties, the IEBC has fixed October 17 for the fresh election. The IEBC has been accused of announcing the date based on alleged pressure from the government.

Falana

It is however difficult to dismiss the allegation of official pressure since the full judgment has not been released by the court. Having not read the judgment to know the full details and extent of the contraventions of the Electoral Act, the IEBC is likely to repeat the same irregularities and illegalities which led to the cancellation of the election results.

Annulment of election results by Nigerian courts: In 2007, the several questionable returns made by the Independent National Electoral Commission (INEC) were challenged in the courts. The results of the governorship elections in Ondo and Edo states were annulled by the election petition tribunals and the Court of Appeal. The seats of scores of legislators were declared vacant by the courts. In fact, in Buhari V INEC (2008) 4 NWLR (Pt 1078) 246, the Supreme Court almost quashed the result of the presidential election as only 4 out of the 7 Justices upheld it in favour of the respondent.

Dissenting judgment

In distancing themselves from the majority decision of the court, Adesola Oguntade and Aloma Muktar JJ.S.C. as well as Walter Onnoghen JSC (as he then was) annulled the election on the ground that it was not conducted in accordance with the Electoral Act. In the dissenting judgment it was found that the ballot papers used by the INEC were not marked and serialized as stipulated by law.

In 2011, the results of the elections of not less 5 governors were annulled by the courts which ordered fresh elections in the affected states. Many legislators also lost their seats on grounds of electoral malfeasance.

The INEC Chairman, Professor Mahmoud Yakubu has just disclosed that the courts including the Supreme Court have nullified the results of 117 elected officials who emerged in 2015 general elections due to illegal party primaries or fraudulent election results.

As no democratic country in the world has ever recorded a greater number of annulments of election results it is totally misleading to give the highly erroneous impression that Nigerian judges have always upheld the results of fraudulent elections.

Electoral Injustice in Nigeria: Although the petition against his election was dismissed by the Supreme Court, President Yar’adua said that the election was fraudulent and proceeded to set up the Mohammed Uwais-led panel to probe the conduct of the election and make appropriate recommendations. The panel recommended inter alia that appointment of the chairman and members of INEC should be by advertisement, setting up of electoral offences tribunal and conclusion of all petitions before the inauguration of elected governments. The Ahmed Lemu presidential panel set up by President Jonathan in 2011 made additional recommendations to guarantee credible elections. But the Peoples Democratic Party and the All Progressive Congress have refused to implement the recommendations of both panels.

However, amendments were made to the Constitution in 2010 and 2011 while a new Electoral Act was enacted in 2010 by the national assembly. The Electoral Act has been subjected to many amendments. Pursuant to section 52 of the Electoral (Amendment) Act 2015 the effect that “voting at an election shall be in accordance with the procedure determined by the Independent National Electoral Commission” INEC introduced the use of card readers for accreditation of voters. In spite of the opposition of the then ruling party, (the Peoples Democratic Party) the Attahiru Jega-led INEC conducted the 2015 General Elections with the aid of card readers. Manual accreditation of voters was however allowed if the card reader machine malfunctioned.

Accordingly, many tribunal and judicial divisions of the Court of Appeal nullified elections where voters deliberately ignored the use of card readers for accreditation. Curiously, the Supreme Court set aside the annulment of some governorship elections on the ground that INEC acted illegally by introducing the use of the card reader. In a critique of such judgments I was compelled to challenge the apex court for not making any reference to the relevant provision of the Electoral (Amendment) Act 2015 which had empowered INEC to determine the procedure of voting at an election. (See http://www.thisdaylive.com /index.php /2016/04/05/the-legality-of- card-reader)

But it is pertinent to point out that while election petition tribunals and the Court of Appeal have not hesitated to quash the results of elections conducted in contravention of the Electoral Act the Supreme Court has consistently upheld the results of controversial presidential elections since 1979. While conceding that such elections were not properly conducted the court has always validated them by relying on the doctrines of substantial compliance with the enabling law or failure of election petitioners to prove allegations of electoral fraud beyond reasonable doubt. At the Commonwealth Lawyers Conference held in Lagos in 1981, the late Graham Douglas SAN who was the nation’s Attorney-General during the 1979 general election revealed that the Supreme Court had no choice but to dismiss the case of Awolowo v Shagari (1979) 6-9 S.C 37 as the Obasanjo military regime had concluded the handing over of power to the President-elect, Alhaji Shehu Shagari.

But since 1999, election petitions have always been determined a year or two after a general election. Thus, at the time the judgment in an election petition is delivered the elected President would have had the first budget passed, represented the country in international fora and announced major decisions which may include the approval of the appointments of federal judges and performed other presidential functions. Therefore, election petitions which are determined in the middle of the term of sitting Presidents are usually thrown out on grounds of public policy. Indeed, if the election petition is upheld and the result is annulled on grounds of electoral malpractice the apex court is likely to be accused of deliberately promoting political instability in the country!

Unlike the Kenyan Constitution which provides that election petitions shall be determined within 14 days section 285 of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides for 180 days for the trial of petitions at the election petition tribunals and 120 days at the appellate courts. Whereas presidential and legislative election petitions are determined by two courts those arising from governorship elections alone are determined by three courts. Pre-election matters have no time limit. Hence, over two years after the 2015 general elections some pre-election matters are still pending in the appellate courts!

Although high court judges are competent to hear pre-election matters filed in the courts manned by them they are disqualified from hearing election petitions filed in the same courts on the ground that they could be influenced by local political interest groups. Therefore they are posted to other states for 180 days in an election year while other cases being handled by such judges are adjourned sine die. The Electoral Act favours elected persons whose returns are being challenged in court. Having taken oaths of office, the respondents usually frustrate expeditious determination of election petitions.

The respondents also collude with INEC to make it impossible for petitioners to prove electoral malpractice as they are denied access to election materials. In the circumstance, they are compelled to apply to election petition tribunals for permission to inspect election materials. Other dilatory tactics designed to prolong the hearing of election petitions are employed by the respondents’ lawyers.

Conclusion: From the foregoing, it is undoubtedly clear that the Supreme Court of Kenya has freed itself from the dangerous influence of Nigerian courts by jettisoning the doctrines of substantial compliance and proof of election petitions beyond reasonable doubt. In line with the provisions of the Electoral Act 2016 it has also embraced technology to facilitate the hearing and determination of election petitions within 14 days.

Electoral offenders

Instead of blaming Nigerian judges for our outdated and unjust electoral justice system the national assembly should be prevailed upon to take advantage of the ongoing review of the Constitution and the Electoral Act to make provisions for electronic voting, speedy determination of election petitions, appointment of electoral umpires through advertisement in the media, prosecution of electoral offenders and live coverage of the hearing of election petitions by the media.

However, in the Raila Odinga’s case it was established that even though the election was properly conducted, the electoral fraud was committed in the transmission of election results by the IEBC. On the basis of such finding and in view of the fact two leading professional bodies in Nigeria which have adopted e-voting to elect their officers are currently in court to challenge the alleged e-rigging of elections the National Assembly should impose a duty on INEC to acquire the vital technology to prevent hacking of computers and manipulation of election results via technology.

In 2013, the Supreme Court of Ghana dismissed the election petition filed against the re-election of President John Mahama. The proceedings of the court were broadcast live by the media. In upholding the validity of the election the court placed reliance on Nigerian cases. (See Nana-Addo Akufo v John Mahama, Writ No 31/6/1). Embarrassed by the filing of the election petition the Electoral Commission (EC) decided to improve on its performance. The EC kept its promise and conducted a credible general election in December 2016.

The lesson from Ghana is that if credible elections are conducted by INEC the filing of election petitions will be totally unnecessary. And if a few election petitions are filed in court the judges will be in a position to decide them with the aid of technology as the Kenyan Supreme Court has just done.

 
 

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source: Vanguard