A New Electoral Regime

28 Jan 2013

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Professor Attahiru Jega

Olawale Olaleye, Ademola Adeyemo, Shola Oyeyipo, Anayo Okolie, Ayodele Opiah and Nkiruka Okoh, look at what might be responsible for the significant drop in the upturn of key electoral victories in the country since the 2011 general election

The 2011 general election was a major test case for the Independent National Electoral Commission (INEC) under the leadership of Professor Attahiru Jega. Before Jega came on board, the preceding era was characterised by electoral impunity that majority of Nigerians appeared to have accepted as a way of life. Many had also argued that nothing better could ever come out of the nation’s electoral system because as it then seemed, it had been seized by a cabal that controlled the nucleus of the formation and of course, determined its modus operandi.

The prevailing electoral system then encouraged many shady practices that fed abuses during election. Despite the self-acclaimed good work which Jega’s predecessor, Prof. Maurice Iwu, said he had done in conducting free and fair elections, many Nigerians knew that the results declared from such elections could not stand strict legal scrutiny. They were soon proved right when the judiciary began to upturn the results of some elections, especially those of 2007 that were challenged in court.

From Anambra to Rivers, Edo, Ondo, Ekiti, Osun, Cross River, Kebbi, Sokoto and Kogi States, governors in those states were literally on the edge as their fate rested in the hands of the unpredictable judges who wielded the powers to not only upturn electoral victories, but also did the arithmetic of the results to suit their judgment. Lawmakers both at the state and federal levels were not spared either.

In addition, the judiciary also had the grounds to indulge in what some observers described as off-the-brief activity since the electoral body had provided the platform for it. It was believed that if INEC then had lived up to its billings, perhaps, the story would have been different and indeed, the era of the new leadership would have been an added improvement to the situation on ground.

This aside, it is also believed that some of the governors whose elections were being challenged were in the habit of buying time by allowing the cases to drag till almost the end of their tenure before a ruling is given. At that point, it did not make any sense whether or not he was governor since he must have spent almost a complete term as an illegal administration.

As a result of some of the entrenched abnormality that symbolised the commission, Jega, in many ways, became a star of a sudden when he elected to deviate from the corrupt tradition that was the hallmark of the Iwu era. Not only was there a major decline in the number of petitions that often followed each general election, there was also a noticeable drop in the upturn of key election cases like the governorship stanza.

But of course, different reasons are already being advanced as responsible for the situation. While many would acknowledge efforts of the Jega-led INEC as a major factor, some observers believed it goes beyond that.

Apart from the fact that efforts of the electoral body to get it right may have paid off, there is a growing belief that politicians have also learnt their lessons as a result of the unpalatable experiences of the past and as such, devised means to cover up their tracks in the event of a recalcitrant challenger who might want to go through the rigorous stage of seeking redress as provided for by the laws of the land.

One of the theories already being propounded however identifies more with the reality that the electoral body may have also plugged loose ends but from a different perspective. For instance, it is believed that since in every electoral suit, INEC is usually joined as one of the respondents, a situation that ordinarily would cost the body several billions fighting to absolve itself of complicity as well as clear the name of its leadership.

There were allegations that the then leadership of INEC had an ulterior motive, bordering on pecuniary interest in its eagerness to be a joinder party in many cases challenging the outcome of elections.

Unfortunately, Jega is believed not to be interested in such a deal but instead, he had resolved to conduct free and fair elections to the best of his ability, putting in all that is required for a near hitch-free exercise. This scenario, observers argue, is responsible for the drop in the upturn of key election cases since it might be difficult to implicate INEC, especially when it must have been seen as having put in its best for a result-oriented exercise.

There is also the argument that the usual conspiracy between politicians and some staff of the electoral commission has also reduced because of the implications for both parties. INEC leadership has been reported to have sanctioned some of its staff on account of improper conduct that negates the stand of the commission.

The issue of time frame within which electoral cases should be dispensed with as stipulated in the new Electoral Act is yet another factor. The Electoral Act 2010, which governs the hearing and determination of all election petitions arising from the conduct of an election, stipulates that the aggrieved parties, from the date of declaration of results, have 21 days to file their petitions.

The time frame for the hearing of the election petition is therefore pegged at 180 days from the date of filing the petition. Any appeal that may arise from the decision of the Election Petition Tribunal must therefore be concluded within 60days from the date of delivery of the judgment of the tribunal. Section 134(1)-(4) provides for this.

Also, section 134(1) states that an election petition shall be filed within 21 days after the date of the declaration of results of the election while

Section 134(2) states that the election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition while section 134(3) notes that an appeal from the decision of an election tribunal or court shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal.

However, in 134(4), the Act states that the court in all appeals from the election tribunals may adopt the practice of first giving its decision and reserve the reasons thereto for the decision to a later date. The intention, regarding the time limit, was devised to avoid time wasting and to enable the parties concerned to know their fate and status on time through expeditious adjudication. The initiative was embraced to counter the situation where electoral cases dragged for as long as 43 months for various reasons, ranging from technical to legal.

But as it is, politicians appeared to be exploiting the lacuna in this laudable provision as good cases now expire within the time frame provided for needless reasons. This way, it attempts to preclude petitioners from sufficiently arguing their cases. This latest twist appears the in-thing as many cases had been shutdown on the basis of time lapse.

Suffice it to say that the improvement notwithstanding, the new regime has also witnessed a few cases of election results being upturned. For instance, two senators and eight members of the House of Representatives elected on the platform of the Congress for Progressive Change (CPC) in Katsina State were on December 16 of 2011, sacked by the Supreme Court which declared that they were unlawfully elected.

The affected senators were Abdu Umar ‘Yandoma and Ahmad Sani Storeswhile their House counterparts were Musa Salisu, Aminu Ashiru, Murtala Isah, Muntari Dandutse, Umar K, Umar Abdu Dankama, Tasiu Doguru and Mohammed Tukur. The apex court held that they ought not to have been recognised by INEC because they were not the authentic candidates of the CPC for that election and were not validly nominated ab initio.

A seven-man panel led by Justice Tanko Mohammed Mahmoud, unanimously, upheld an earlier verdict of the Abuja Division of the Court of Appeal, which had on April 20 declared the primary elections that produced the sacked lawmakers illegal, null and void going by the express provisions of the Electoral Act 2010 and the 1999 Constitution, as amended. The court, subsequently, ordered the National Assembly leadership to swear-in the bonafide candidates of the party and winners of the primary election. Those affected in this category were Mr Sadiq Yar’Adua, (Katsina central Senatorial District) and Hadi A Sirika, (Katsina North).

The two sacked senators later described as misplaced, the judgment that sacked them and subsequently approached a Federal High Court challenging INEC’s withdrawal of their certificates of return. In an originating summon filed by their lawyer, Alex Izinyon (SAN), they also asked the court to declare that it was not in INEC’s place to withdraw their  certificates as it lacked the power to review their return by virtue of Section 68(1) of the Electoral Act 2010 as amended.

In a dramatic turn, the Federal High Court presided over by Justice G.K Olotu on January 11, ordered that the sacked legislators be reinstated.

“The sealed certificates of return issued to the plaintiffs upon their winning election into the National Assembly to represent their various federal constituencies and senatorial districts of Katsina State are still valid and that the plaintiffs are entitled to immediately repossess their seats in the National Assembly without let or hindrance from INEC and the leadership of the National Assembly.”

But there is a stalemate now as the leadership of the National Assembly, presumably acting on the order of the Supreme Court and the certificates of return issued to Senator Yar’Adua and others, has refused to reinstate the plaintiffs as ordered by Justice Olotu.

In Kogi for instance, whilst the Governor, Captain Idris Wada is still in court defending his victory, there was a shake-up in one of the senatorial seats. After an election was conducted into Kogi East senatorial district, INEC declared the Peoples Democratic Party (PDP) candidate, Mr. Dangana Ocheje, winner of the April election. But this was followed by protests to INEC secretariat by the All Nigeria Peoples Party (ANPP) candidate, Hon. Atai Aidoko, who maintained that he won the election.

Aidoko, who was a PDP House of Representatives member but defected to ANPP over alleged manipulation of the party’s primary headed for tribunal where Ocheja’s election was upheld by the Justice Seline Nweke-led Governorship and National Assembly Election Tribunal, and threw out Aidoko’s petition. Not satisfied, Aidoko proceeded to the Federal Court of Appeal where he was eventually declared winner of the senatorial election. The Appeal Court reversed the tribunal’s judgment and declared Aidoko winner of the election. He has since remained an ANPP senator.

In the same Kogi, former PDP House of Representatives member for Kabba/Bunu/Ijumu Federal Constituency, Hon. Dino Melaye’s comeback bid was quashed. Melaye who did not secure PDP ticket had crossed to the Action Congress of Nigeria (ACN) on whose platform he contested the election but lost.

The tribunal threw out his case on technical ground. Immediately after the election, the lawmaker led a large crowd of protesters to INEC secretariat alleging massive misconduct he tagged ‘scientific rigging’. Again, his quest to pursue his return to the House ended at the tribunal. But many believed there was more to Melaye’s loss, the more reason his case attracted attention. 

Also in the Anambra senatorial election which held amongst the three major political parties in state- the PDP, ACN and All Progressive Grand Alliance (APGA) ended in legal fireworks. In Anambra North, Senator Alphonsus Igbeke, Prince John Emeka and Lady Margery Chuba-Okadigbo- all members of PDP- had claimed to be the authentic candidate of the party in the election. As a result of the controversy that followed, the Senate opted to leave the seat vacant until the highest court gave a final judgment on the matter.

In a unanimous judgment delivered by Justice M.U. Muktar, who led the three-member panel of judges, upheld the primary election conducted by Senator Joseph Waku, which in turn produced Lady Margery Chuba-Okadigbo.

For Anambra South, where PDP presented two candidates in the election, Senator Andy Uba and Nicholas Ukachukwu, against APGA’s Hon Chukwumaeze Nzeribe, Appeal Court nullified the election and ordered a re-run.

However, in the Central district where Professor Dora Akunyili (APGA) claimed to have won, the court declared that sacked former governor, Chris Ngige, was the winner of the election.

Explaining from a legal point of view what could be responsible for the prevailing situation, a lawyer, Mr. Fred Agbaje, noted that the reduction in electoral litigation is an artificial creation that does not imply that many people are not aggrieved with election results but that the prevailing constitutional provisions do not guarantee victory for aggrieved persons seeking redress. 

The interpretation as well as the amendment to the Electoral Act, he said, had debilitating effects on the rights of the aggrieved to seek redress in the court. “If you look at Section 87 of the new Electoral Act, as amended, which states that all matter must end in six months; with this kind of obnoxious constitutional provision, an aggrieved candidate either governorship or senatorial, would feel threatened.

“How does he meet this ungodly factor, an inhibiting factor? Those ungodly amendments to the constitution of the Electoral Act are affronts to the fullest enjoyment of the access to court. The reason given is that electoral cases are dragging too long in the courts and that they needed surgical operation to reduce the time it takes to finish the cases. But in reality, they have done more harm than good.

“Though, there has been reduction in the number of electoral cases; that does not mean all is well. It is better to allow an aggrieved person to go court. Otherwise, it makes mockery of our democracy when you cannot challenge fraudulent election results. And by extension, a violation of the principle of fair hearing, which is a major adjunct of democracy. They want us to pretend that all is well and with such a case, pretenders and electoral fraudsters will be holding electoral offices.

“The position of the interpretation of some of the existing electoral law, particularly with recent amendment to the Electoral Act (2011), the Supreme Court seems to have held now that when it comes to the choice of candidates, it is the political party that has the prerogative on who its candidate is, and that it is the candidate that is endorsed by the party that will be recognised. In other word, if ‘A’ wins and is shortchanged and substituted for ‘B’, it is ‘B’ that will be recognised. How does that support democracy?

“In the Eyibo vs INEC case where the political party, PDP, fraudulently substituted a candidate that won the primary with somebody else; the winner challenged it, the earlier court allowed but the appellate court said the choice of candidate is a “domestic matter” of the party and that the court should not interfere. With such development, in the future, party can set aside their constitution, electoral guidelines and impose their preferred candidate on the popular candidate of the party and if he goes to court, he would lose on the authority of Eyibo vs. INEC, a recent judgment.

“The judgment will lead to further drop in electoral disputes as we are now promoting fraud as part of electoral process. It will also allow for the reign of godfathers since the era of godfathers has now been given judicial approval. And yet, we are talking of democracy – where choices of candidates are not democratic but that of godfathers and ungodly acts to the detriment of genuine and popular candidates of the party,” he said.

On his part, former chairman Nigeria Bar Association (NBA), Lokoja branch, Mr. Williams Aliwo, argued that the reduction is as a result of growing sanity in the democratic practices, particularly, the electoral system.

“Since Professor Attahiru Jega came into office, there has been an improvement. The grounds of going to court are where there are electoral malpractices but the introduced sanity has reduced the number of those challenging elections. Some may also look at it from disenchantment in judicial practices, where people feel that they cannot get any result if they filed any petition on electoral matter. But the first seem to explain it better.

When referring to the case of Eyibo vs INEC, Aliwo said, it is unfortunate that our courts are refusing to recognise that political parties have constitutions which they should subject themselves to and that by refusing to interfere, it will create intra-party problems. I don’t think the nomination of candidates should be sacrosanct, the courts should be able to look into it and enforce party’s constitution,” he said, adding that otherwise, there will be pre-election chaos “and I’m not sure that is good for our democracy.”

Mr. Joseph Nwabike, a Senior Advocate of Nigeria (SAN), said since Jega came into office, the electoral process had presented a degree of transparency which has instilled some confidence in the electorate and the fact that majority of those who contested election also accepted the result in good faith.

He also said Nigerians have realised that to win an election has to by the ballot and not gamble with the election tribunals. “After all, you see what happened in Edo State where the will of the people prevailed. Now, we have realised that the elections are credible and the entire process are justifiable.”

Mr. Babatunde Aturu, also a lawyer, was of the view that Nigerians have lost confidence in the courts because the courts have always been technical because some cases that were overturned were due to the technicality, while others are not.

With Jega as INEC boss, he believed he had put in place some measures to take care of difficulties in the election during the election, adding that the elections conducted under Jega are better than those of Iwu. He also believed that some of the politicians had probably run out of cash to pursue some of the cases. So, when you look at these factors, you’ll see why we have low tribunal cases.”

Tags: Nigeria, Featured, Politics, Electoral Regime, Attahiru Jega

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