Election Petitions: Judiciary's Score-Card
Recognising the critical role of the judiciary in the resolution of election disputes, the Legal Defence Centre (LDC), a Non Governmental Organisation sent out monitors to observe the activities of the various election tribunals that sat over the 2003 election appeals to ascertain their level of justice delivery. George Oji writes on the findings of the exercise presented at a recent seminar in Abuja
Often times, election preparations have concentrated on pre-election activities, leaving out an equally more critical aspect of post-election events. One of such post-election activities is election appeals. The truth of the matter is that resolution of election appeals is equally as important to the free, fair and just outcome of any election.
The appeal process is further reinforced by the penchant by politicians to contest the outcome of every election at election tribunals.
Why this is so may be difficult to explain. While some political analysts blamed this on the nation's election procedures, which they claim contains inherent flaws that make it difficult for clear and generally acceptable winners to emerge, others say it has to do with our politicians' unyielding attitude to reject every election result once declared.
Any election exercise therefore that discountenances the activities of the judiciary in the resolution of disputes arising from elections would have, as observed by an analyst, " done the job only in half." Here then lies the importance of the judiciary in the election process.
It was perhaps in realisation of this important role of the judiciary in the electoral process, that the Legal Defence Centre, LDC, in collaboration with the International Foundation for Election System (IFES) sent out monitors to observe the activities of the major players of the election tribunals that sat over the 2003 election appeals throughout the country.
That done, participants were gathered recently at Chelsea Hotel, Abuja, to share information on their field experiences.
Executive Director of LDC, Mr. Basil Ugochukwu told THISDAY that the project, out of which the seminar arose initially commenced in November, 2002 with the training of some lawyers on "Monitoring Judicial Performances in the Handling of Election Cases," at Kogi Hotel, Lokoja.
After the 2003 elections, Ugochukwu said those trained and were deployed to gather information on election petitions filed in their reports.
He said the seminar was first designed to offer opportunity to lawyers and judges that participated in the work of the tribunals to evaluate what they did and whether or not the tribunals delivered justice. Secondly, he said the seminar was to propose amendments to current election appeals procedures, particularly to the 2002 Electoral Act, so that the recommendations would be forwarded to the National Assembly ahead of discussions on the new Act.
Already, the Federal Government has admitted that the Electoral Act requires fundamental review to take care of the complaints that trailed the 2003 elections.
The Independent National Electoral Commission (INEC) has in realisation of this shortcoming, organised two seminars on the review of the same electoral law.
Ugochukwu said as "specialists in the area of election tribunals, the seminar was our contribution to the on-going review exercise."
One major observation made by most of the field observers as well as the other participants at the seminar was the almost endless period for the sitting of the election tribunals.
For instance, Chairman of the House of Representatives Committee on Electoral Matters, Honourable Hamisu Shira, in an address, stressed the importance of, not only the timely disposal of election petitions by the tribunals, but also the need for such petitions to be dealt with impartially.
According to him, "a situation where cases linger at the tribunals while parties against whom they were filed are sworn-in and are far into their tenure, not only defeats the purpose of setting up of the tribunals as against regular courts, but derails the cause of justice."
He expressed the determination of the National Assembly to amend the Electoral Act to make it mandatory for election petitions to be disposed of possibly within two months after results are announced.
Attorney General of the Federation and the Minister of Justice, Chief Akin Olujimi SAN, in a keynote address presented on his behalf by the Permanent Secretary of the ministry, Professor Ignatius Ayua, said government was not unaware of the criticisms of the election tribunals, particularly the undue long time it took to conclude the cases, inordinate technical and procedural rules and the lack of integrity among some members of the tribunals.
He stressed the importance of the public reposing confidence in the court's capability in resolving electoral disputes fairly and correctly, otherwise the recourse to violence becomes inevitable.
The minister, who noted the high rate of election petitions, said the trend underscored the critical role that the judiciary must play in the consolidation of democracy in the country.
He further stated that the trend shows that "the judiciary has a crucial role to play in legitimizing election results and thereby strengthening the legitimacy of the democratic system of government."
"This role," the minister said, "demands utmost responsibility and discretion in its exercise."
Olujimi noted that although election petitions are not quite different from the handling of other major legal disputes in the society, they (election petitions) require an unusual level of sensitivity and maturity in order to ensure that the outcomes are fair and in line with the preferences of the electorate.
The minister regretted that in dealing with election matters, the position of the judiciary is often misunderstood. As a result of this, he observed that, "it is imperative that the procedural standards for receiving complaints, conducting the desired judicial enquiry and arriving at decisions must not only be seen to be fair, credible and objective, but must also be seen to be clearly so. "
"Such standards," Olujimi also noted, "must not grant undue advantage to any of the disputing parties and must ensure that all complaints are dealt with on their merits."
Participants at the seminar engaged in comprehensive discussions and reflections on their experiences in fighting election petitions. Also, weaknesses in the laws and procedures were identified, at the end of which the following recommendations were made.
The first was that nominations to serve on the election tribunals should not be undertaken by the state chief judge alone. It was suggested that the Nigeria Bar Association (NBA) should also participate in the nomination process. In addition to this measure, all appointments made in this wise should be subjected to objections and public scrutiny.
It was also suggested that the judiciary should take care of all the logistics requirements of the election tribunals. Members of the tribunals, the seminar participants suggested, are to be provided for adequately through a credible and transparent funding mechanism for the tribunals. The building of judicial Guest Houses across the country was also suggested. The essence of this is to discourage excessive cordiality between the tribunals and their host governments that can hinder justice delivery.
Also, it was recommended that the custody of the election documents be re-examined, whether they are left with INEC or taken to the National Archives. "Clear lines of responsibility have to be established to safeguard the documents from mutilation and destruction," the report suggested.
It said in cases of proven corruption against tribunal members, the judgment of such a tribunal should stand nullified while the givers and takers of bribe be prosecuted. If governors are involved, they should have no immunity against criminal prosecution.
It urged that the filing fees of petitions be reduced and sustained at a level that balances access to justice and avoidance of frivolous litigations. And that petitioners should not be required to join everyone mentioned in an election petition but institutions for which the named officials work.
On the appeal process, the participants recommended that all zones of the Court of Appeal must ensure consistency in their pronouncements and that contrary decisions on similar facts impugn the credibility of the process. Also that the law should be amended to allow appeals to the Supreme Court if an election judgment by the Court of Appeal is nullified.
On the very contentious issue of timelessness, the participants recommended that time limits be restored to election petitions but with safeguards against litigants stalling proceedings until the time limit lapses so that they could be determined speedily.
Specifically, it suggested that, "sufficient interval, at least three months, should be allowed in between an election and the inauguration of elected officials. The interval should be used to conclusively resolve all election petitions. The country may wish to consider not concentrating all elections within the same period so that the courts are not swamped with petitions."
It also said "where political pressures prevent an attorney-general from initiating a prosecution, the law should allow for private prosecution."
It also recommended alternative to election tribunals to insulate the courts from election petitions. In this wise, it said a special court, perhaps a constitutional court, should be vested with this responsibility rather than the ad-hoc tribunals.
Finally, the participants enjoined candidates for political offices to show practical support for transparency by circulating copies of their election papers to the media and the Code of Conduct Bureau.
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