Litigating election disputes is contentious, complex and excessively technical. The technicality of electoral dispute litigation is fueled by the strict requirements of the Electoral Act, coupled with judicial attitudes over the years. The complex and technical nature of election petitions is largely responsible for the failure of election tribunals and courts to address grievances of litigants despite efforts at resolving such disputes. As expected, political attention is shifting to the courts as aggrieved candidates and political parties that contested the elections are approaching the courts to challenge the outcomes of the polls. The polling unit was the arena of electoral competition a few weeks ago, but the courts have displaced the polling unit as the new arena for electoral contest. As it stands, the courts will determine the final vote in all election disputes, raising further concerns about the apparent excessive judicialisation of the electoral process.
The process of registering a complaint or challenging the outcome of the election is called an election petition. Election tribunals or the courts address grievances with election results ventilated by litigants. Unlike other cases, election petitions are special cases in a class of their own. Due to their special nature, the procedures, courts and timelines for filing documents are unique. Some technical defects or irregularities considered immaterial in other proceedings could be fatal to proceedings in election petitions. In addition, election petition tribunals and courts have adopted a strict constructionist approach which admits no extension to the timelines provided in the legal framework.
Let’s consider five critical components of Nigeria’s election adjudication process:
- Not all persons can be parties to an election dispute
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Different categories of persons participate in an election, but not all possess the right to challenge or question the result of the election. Section 133 of the Electoral Act 2022 defines persons entitled to present an election petition. They include candidates in an election and a political party that participated in the election. On the other hand, parties also include a person whose election is questioned is a party to an election petition. Where the complaint is against a permanent or ad hoc official of the Independent National Electoral Commission (INEC), INEC will be listed as a party due to its role in the administration of elections. Nigeria’s electoral law considers these persons necessary parties in an election petition. An election petition will suffer an ill fate if these parties are excluded.
The person(s) or political party that initiates or files an election petition is referred to as the petitioner, while the person or party the petition is made against is called the respondent. In most cases, the petitioner will seek to establish that the candidate INEC declared the winner was not validly elected or that they are entitled to be declared the winner. The respondents will include the person or party declared the election winner. A tribunal or court would not entertain any petition that questions an election result or a winner declared by INEC unless the person announced as a winner is joined as a party. This is logical as the outcome of the petition affects the said winner declared by INEC. The winner’s joinder affords him/her an opportunity to defend his victory in line with the long-established principle of fair hearing.
- Special tribunals and courts resolve election disputes
A distinctive feature of election petitions lies in the courts and tribunals with judicial powers to resolve election disputes. Election petitions are determined by election tribunals or courts vested with the authority to hear and determine cases within their jurisdictional competencies. The Constitution of the Federal Republic of Nigeria, 1999 (as altered) and the Electoral Act, 2022, establish the following tribunals and courts to resolve election disputes:
- National Assembly and Houses of Assembly Election Tribunals for each state of the federation and the FCT with authority to entertain petitions on National Assembly and Houses of Assembly elections – Section 285 (1) of the 1999 constitution.
- Governorship Election Tribunal to hear and determine petitions for governorship elections (Section 285(2).
iii. Court of Appeal to adjudicate petitions against presidential elections (Section 239(1).
- Area Council Election Tribunal to resolve disputes related to the elections into the office of the chairman and councilors within the FCT. Section 131(1) of the Electoral Act, 2022.
As a matter of law, election petition tribunals are constituted not later than 30 days before an election is held. The tribunal is required to open a registry for business seven days before the election. These tribunals and courts can only resolve an election dispute if the law gives them the authority to do so. Without the legal power, any proceeding conducted by these tribunals or courts will be an exercise in futility. An election tribunal or court must fulfill certain conditions before it assumes jurisdiction to resolve an election dispute.
Firstly, a tribunal or court must be properly constituted. Members of the panel should be duly qualified as prescribed by law.
Secondly, the subject matter of the case is within the defined scope or powers of the tribunal or court. Lastly, due process is followed in initiating the case before a court, and all pre-conditions have been satisfied.
- Timeframes are sacrosanct
The constitution and the Electoral Act make explicit provisions on the timeframe within which an aggrieved person can institute a legal case challenging the result of an election. The law also provides a timeline for the courts to determine an election petition. The court will only entertain an election petition if the petition is filed within the timeframe prescribed by law. The petitioner intending to challenge an election result must file their petition within 21 days after the declaration of the election result. Filing a petition outside the fixed period renders it incompetent and strips the tribunal of the jurisdiction to hear and determine the petition.
Concluded on www.dailytrust.com
Itodo is the Executive Director of Yiaga Africa
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