This article by Festus Okoye discusses the process of taking election petitions to the Tribunals and Courts, and laments about the prevalence of the narrative that Courts and Election Tribunals displace voters’ decisions, due to a poor understanding of the adjudicatory role of Courts and Tribunals in electoral dispute resolution, which is ‘sui generis’. He explains the responsibilities of the different actors within the election petition stage, and emphasizes that this is the time for public education and sensitisation on elections to start, well in advance to get a good understanding, not when the 2027 election is upon us even unlawful, whether Government is simply trying to gag VDM and clamp down on freedom of expression

Introduction

A robust discussion is essential, for understanding the role of Election Tribunals in our electoral jurisprudence. This discussion should occur at least two years before the 2027 general election. Early discussion of the role of Election Tribunals may be free from partisan political considerations, emotions, or grandstanding. Delaying until close to the election may obscure the issues; lessons will not be learned, and nothing concrete or substantial will be achieved. 

The current narrative suggests that Election Tribunals are not part of Nigeria’s electoral jurisprudence, and disrupt the electoral process. It is argued that Election Tribunals impose candidates on the Nigerian people, and usurp the people’s mandate as the source of sovereignty. 

We must examine whether election tribunals are relevant and necessary for adjudicating electoral disputes, or if they complicate or distort the electoral choices made by the populace at polling stations. We must also consider whether the media and the Nigerian public, understand the election petition process. Additionally, we should assess the role of social media in accurately or inaccurately reporting the election petition process. Should the Judiciary permit live broadcasts or reporting of election petition tribunals? Has Nigeria and the legal profession, benefited from the “Nollywoodisation” of the election petition process? 

Although we are still years away from the 2027 general election, it is time to reflect on some fundamental challenges that emerged in previous Election Tribunals, particularly the Presidential Election Tribunal. These issues may not be relevant to the current electoral environment, but some will be pertinent for the 2027 general election. We must discuss these matters and understand how they impacted previous election petition proceedings, and their role in Nigeria’s electoral jurisprudence. This is the right time to have the conversation, not during the heat of elections, or when Election Tribunals are already in session. At that point, political partisan positions harden, and some individuals allow their emotions to dominate their reasoning. We must resolve the question of alternative methods or platforms, for addressing electoral disputes. Alternatively, we must redesign or recalibrate our electoral process, to avoid relying on Election Tribunals as arbiters of electoral disputes. 

The Legislative Powers of the Federation 

Nigerians must decide whether to continue engaging in the redundant argument, about whether the Courts and Tribunals are or should be part of the electoral process. This argument is redundant, because the legislative powers of the Federation are vested in both the National Assembly and the State Houses of Assembly for constitutional amendment. Nigerians can approach the National and State Assemblies to amend the Constitution and the Electoral Act, if issues and challenges arise with the electoral dispute resolution powers of the Courts and Tribunals. The Courts and the Election Tribunals, do not activate themselves. Election Tribunals dissolve if political parties and candidates, do not file election petitions. Election Tribunals assume jurisdiction only when approached, and can decline jurisdiction in certain circumstances. 

Election Tribunals 

Section 285 of the Constitution establishes Election Tribunals to resolve election disputes, and sets timelines for handling election petitions. It provides for the creation of one or more Election Tribunals in each State of the Federation and the Federal Capital Territory, which shall, to the exclusion of any Court or Tribunal, have original jurisdiction to hear and decide election petitions regarding whether any individual has been validly elected as a member of the National Assembly or a member of the State Assembly. It also requires the establishment in each State of the Federation of an Election Tribunal, referred to as the Governorship Election Tribunal, which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and adjudicate petitions concerning whether any person has been validly elected to the office of Governor or Deputy Governor of a State. Such election petitions must be filed, within 21 days of the declaration of the election results. An Election Tribunal is obligated to deliver its judgement in writing within 180 days from the date of filing the petition; any appeal from a decision of an Election Tribunal or the Court of Appeal in an election matter, must be heard and resolved within 60 days from the date of the tribunal’s or Court of Appeal’s judgement. 

Section 239 of the Constitution grants the Court of Appeal, to the exclusion of any other court in Nigeria, original jurisdiction to hear and determine any question regarding whether any person has been validly elected to the office of President or Vice-President under the Constitution, or whether the term of office of the President or Vice-President has ceased, or whether the office of the President or Vice-President has become vacant. 

Section 285 of the Constitution creates Election Tribunals and grants them original jurisdiction over National and State Assembly elections. They are to hear and determine petitions to the exclusion of any Court or Tribunal, regarding whether any person has been validly elected as a member of the National Assembly or the House of Assembly of a State. The same applies to the office of the Governor or Deputy Governor of a State. 

Powers of the Federal Republic of Nigeria 

The Courts and Election Tribunals exercise the powers of the Federal Republic of Nigeria; that is why they are sometimes referred to as “the last hope of the common man” and “the guardian of the Constitution”. No part of the constitutional framework, grants the Courts and Election Tribunals the authority to override the people’s right to choose. The powers of the Election Petitions Court and Election Tribunal in post-election litigation, are clearly defined and delineated. It is academic to pontificate and rave about the usurpation of the power of the voters, without a concomitant approach to the National Assembly to do the needful. This means approaching the National Assembly, and urging them to strip the Courts and Election Tribunals of their jurisdiction to hear and determine election petitions. In so doing, we must be sure that we have alternatives. This is because when people are aggrieved and have no avenue to vent their grievances, they may resort to self-help. It is better to accept the Courts and the Tribunals as part of the democratic heritage and propose ways and means of making them better, and getting them to remain within the bounds of their constitutional and electoral remit.  

Application of Legal Principles 

In 1984, the late Hon. Justice Sowemimo, in the case of Nwobodo v Onoh 1984 SCNLR 1, addressed the question of the role of the Courts in election petitions. He stated that: “What the courts are called upon to deal with, is the application of legal principles to the different election petitions filed before them. It is only academic to conclude that such decisions displace voters’ decisions”. The persistence of the narrative that Courts and Election Tribunals displace voters’ decisions, shows a poor understanding of the adjudicatory role of Courts and Tribunals in electoral dispute resolution, or that the Courts and Tribunals are not doing the right thing. Unfortunately, the Tribunals are supposed to be apolitical and aloof, and cannot canvass or present a case for the Petitioner or the Respondent. As Hon. Justice Tobi pointed out in the case of Abubakar v Yar’Adua (2008) 19 NWLR PART 1120, 175-177, a court of law is not a political soup box where parties freely trade insults. On the contrary, a court of law is a serious legal institution, where parties place their case in the corridors of the law for adjudication and decision. 

Some persons with poor knowledge of the workings of Election Tribunals run commentaries on a case in court, and use their knowledge of ordinary civil matters to denigrate the Judiciary on constitutional, electoral, and procedural matters. The reality is that civil matters and election petitions, are two different matters. The Supreme Court of Nigeria has consistently pointed out that “An election petition is sui generis. That is to say, in a class by itself. It is different from common law civil action” (Abubakar v Yar’ Adua (Supra). The Supreme Court emphasised this point in the case of Buhari v INEC (2008)19 NWLR Part 1120, where it asserted that the whole concept of election petitions being sui generis is to project the peculiarity of the petition in terms of the reliefs sought, the time element and the peculiar procedure adopted for the hearing of the petition and all that. The Practice Directions, 2007, is a classic example of referring to election petitions as sui generis. No section of the Act or paragraph of the Schedule to the Act, can qualify for the term sui generis. It is the total jurisprudence of election that is sui generis, not a section of the Act or schedule to the Act. 

Unfortunately, some of our people, without sufficient knowledge of the workings of the Courts and Election Tribunals, buy into the argument that election Tribunals have replaced the voters and are conferring mandates on those who won and those who did not win elections, and challenge the independence and impartiality of the Judiciary in the determination of election disputes. The Nigerian Bar Association, civil society groups and organisations, and political parties must brace up and educate Nigerians on the role of the Courts and Tribunals in election petitions. The leaders must imbue themselves with sufficient knowledge of how Election Tribunals work; if they do not, they become part of the problems and challenges of miseducation. This education and sensitisation must be done before the 2027 general election, and all the critical stakeholders must be on the same page. 

The Dramatisation of Election Tribunal Proceedings 

The advent of social media and the increasing technological sophistication of the Nigerian media, have led to greater interest in election petition proceedings. More Nigerians can access and follow the Election Tribunal proceedings. Unfortunately, social media has portrayed the Judiciary negatively, through the adverse coverage of the Election Tribunal proceedings. The “breaking news syndrome, ” cloud chasing, and efforts to attract traffic to their websites have caused significant damage to Election Tribunals. Some individuals on social media lack a journalism background and have no regard for ethics; their only qualification for being journalists is owning a smartphone. As pointed out, election petitions are complicated. The Judges and Lawyers struggle with the constitutional, legal, and procedural issues in election petitions. Trained journalists seek assistance in unpacking the processes, procedures, and challenges in the election petition process. Social media warriors and tigers with little or no knowledge of the Constitution, the law, and the processes of election petitions, jump into the fray and start reporting. 

Sometimes, elections are won on social media, and any attempt to challenge the outcome of such an election is met with social media mob action. Sometimes, elections are won on social media, and the electoral management body declares a different result. In such situations, social media warriors will not brood on any verdict, other than a judgement for their social media winner. The dangerous dimension is that, some social media warriors purport to file petitions on social media. They argue the petitions and deliver their brand of judgements. Some of them do not understand the election petition process. Some do not understand the concept of an independent Judiciary, and the Judiciary as the Guardian of the Constitution. In other words, some do not know the workings of the Judiciary and the principles that inform judicial decisions. But, they take centre stage and revel in breaking news, and people follow and believe them. We must find ways and means of putting social media to good use. Those who know must devise ways of inundating social media with the correct information, rather than thinking that those with negative ideas about democracy will easily change their stance. 

The “Nollywoodisation” of Election Tribunal Proceedings 

Real-life Election Tribunal proceedings are based on the Constitution, the Law, and Practice Directions. Court proceedings in Nollywood and Hollywood Court movies, are make-believe.  In real-life situations, Election Tribunal proceedings are conducted under strict timelines. The layperson may not easily comprehend what goes on, in the hallowed chamber of the courtroom. Based on this, some Lawyers conduct their matters, come out of the Tribunal, remove their wigs, and explain to reporters some of the intricate and complex issues that arose during proceedings. This is done to enrich their record, and prevent misrepresentation of court proceedings. 

The 2023 general election changed the dynamics of the Lawyer as a friend of journalists, who assists them in understanding the issues in court and preventing misrepresentation and inaccurate reporting.  Unfortunately, the importation of Nollywood theatrics into the legal profession, to an extent, changed the reporting of court proceedings. Some resorted to arguing their matters in the court premises, before television cameras and other journalists. Sometimes, a matter would be going on, and they would be pontificating and making their submissions outside the Courtroom. It is a trend that must be stopped, and the Judiciary and its leadership must play a leading role in this respect, and the same thing applies to the leadership of the Nigerian Bar Association. 

Running Down the Judiciary 

Election Petition practitioners must do their homework, before accepting election petition briefs. Expertise in other branches of the law, does not automatically translate to expertise in election petitions. Election petitions have their own strict rules of procedure. Sometimes, Lawyers handling civil cases, will fall foul of the strict timelines in election proceedings. Some import the Interpretation Act into the timelines for filing election petitions, and misinterpret the place of Saturdays, Sundays, and public holidays in calculating days. For instance, Section 15 of the Interpretation Act provides that whereby an enactment, any act is authorised or required to be done on a particular day and it is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a public holiday. A holiday is defined as a Sunday or a public holiday. Such do not have a place, in the election petitions process. 

When some election petitions are dismissed due to failure to file petitions within the prescribed period or deviations from the procedures outlined in the Constitution or the Electoral Act, some of our colleagues deliberately disparage the Judiciary on social media in front of individuals who do not understand how the Election Petitions process functions. Legal practitioners need to conduct their research, before accepting an election petition brief. When Section 285 of the Constitution states that election petitions must be filed within 21 days of the election, it is precisely 21 days as determined mathematically. 

Following the Money

Lawyers must have the courage, to advise their clients honestly and courageously. A client must be told whether there is a case in the first place, before the issue of whether the case is fileable can arise. Some people follow the money in election petitions, and concoct things that do not make sense as election petitions. Some Lawyers write briefs on matters not yet in court, and persuade reluctant candidates to approach the Election Tribunal. Some file improbable cases, because they want to make Silk. These things dent the image of the profession, and that of the Courts. The Judges must have the courage, to recommend sanctioning those who bring the Judiciary to disrepute.  

Live Broadcast of Election Petition Proceedings 

During the 2023 Presidential Election proceedings, the electronic transmission of the Presidential Election Tribunal proceedings took centre stage. Some Lawyers representing the parties in the petition, requested that broadcast journalists be permitted to cover the proceedings at the Court of First Instance (The Court of Appeal) and the Supreme Court. The PDP and its candidate in the 2023 general election, and the Labour Party candidate, insisted on a live transmission of the proceedings, arguing that this was “a matter of national concern and public interest”. They maintained that Nigerians in the 36 States of the Federation and the Federal Capital Territory, Abuja, along with the international community, are interested in the issues surrounding Nigeria’s electoral process. In a Motion dated May 5, 2023, the PDP and its candidate asserted that, “An integral part of the constitutional duty of the Court to hold proceedings in public, is a discretion to allow public access to proceedings either physically or by electronic means. With the huge and tremendous technological advances and developments in Nigeria and beyond, including the current trend by this Honourable Court towards embracing electronic procedures, virtual hearing, and electronic filing, a departure from the Rules to allow a regulated televising of the proceedings in this matter, aligns with the maxim that justice must not only be done but must be seen to be done.” 

On May 22, 2023, the Presidential Election Petition Court in Abuja rejected the applications for a live broadcast of the proceedings of the Court. It stated that a fair hearing of court proceedings “does not amount to conducting court sittings on television or in a stadium. The request (for a live broadcast of the court proceedings) has no utilitarian value. Live broadcast of court proceedings, has no provisions in our statutory books. There is nowhere in the Constitution or the Electoral ,Act that allows for televising court sittings. We cannot permit a procedure that dramatises the court’s proceedings”.

The insistence on live transmission of election petition proceedings, will take centre stage after the 2027 Presidential elections. It is better to debate the issues, and take a position. Those in favour have ample time and opportunity to approach the National Assembly, to amend the law to allow for live transmission of proceedings. They can also approach the President of the Court of Appeal and the Chief Justice of Nigeria to amend the rules of procedure, to enable the electronic transmission of election petition proceedings. 

Judges Must be Above Board 

The Judges, especially those presiding over Election Tribunals, must ask the critical questions. Why are Nigerians losing faith in electoral dispute resolution? Are the Judges not doing the right thing, or is the law weighted heavily against Petitioners? There is something wrong, and the Judiciary must conduct its self-examination. Judges must read and understand the constitutional provisions guiding election petitions. Judges must comprehend the special procedures in election petitions. Judges must be aware of the sensitive nature of election petitions. Judges must recognise that, they are called to higher duties. An ignorant Judge is a danger to society, and the democratic process. A corrupt Judge, is a danger to the survival of electoral democracy. The Judiciary must consistently conduct peer reviews, and respect precedents. The National Judicial Council must be bold, and sanction Judges whose judgements defy common sense and logic. 

Production of Documents by INEC

Election petition practitioners, must not engage in a fishing expedition or abandonment. They must define their client’s case, and apply for the documents that support the petition they intend to file.  They must not apply for all the polling unit forms (Form ECA), the Registration Area Collation Forms (EC8B), the Local Government Collation Forms (Form EC8C), and all forms used in the conduct of elections. They must be deliberate and strategic. They cannot apply for volumes of forms, and abandon them after staff have spent days and nights producing them. They must submit their applications on time, and to the correct unit or department. These forms are in the Registration Areas, Local Governments, and the States, and must be gathered, processed, copied, and made available to the Petitioners and Respondents. Sometimes, over 10 political parties and 10 candidates want the same forms. Sometimes, the duplicate original of the forms is in the hands of polling and collation agents, and serves the same purpose as those with the Commission. The Commission must also be above board, in making documents available to litigants. The Commission must be above the political fray, and act fairly and impartially. 

Conclusion

The political parties and the candidates in the election, must allow the votes to count. When voters access the polling units unmolested, they will have confidence in the electoral process. When people vote and their votes are not tampered with, they will have faith in the electoral process. When candidates and political parties lose an election fairly, they may not approach the Election Tribunal for redress. But, we must accept that Election Tribunals are part of the electoral process, and wield the powers of the Federal Republic of Nigeria. There must be an agency of government that can correct honest mistakes, and right wrongs where there are obvious infractions of the Constitution and the law. We must engage in honest conversation on what to do away with, what to adjust, and what has worked. 

• Festus Okoye, Legal Practitioner; former National Commissioner and Chairman, Information and Voter Education Committee, INEC
• Culled from THISDAY LAWYER