As the 2019 (presidential and legislative) elections draws to an end, a study by the Human Rights Law Services (HURILAWS) reveals that both access to and high cost of procuring relevant election documents are two major factors in the swift resolution of election petitions in Nigeria. This process can be ameliorated if the Independent National Electoral Commission (INEC) upon the announcement the result of an election — make available at no cost — certified copies of all relevant election documents to all the political parties to facilitate fair challenges against the election outcome.
Similarly Obra Foundation (dedicated to the formation and development of legal practitioners) reiterates the purifying effect of the electioneering system as lawyers employ their best skill with decorum and a sense of responsibility in prosecuting election cases.
What is a Petition?
A petition is a written request signed by many people demanding a specific action from an authority or government. It could also mean a pleading in a civil action by which the plaintiff sets down the cause of action and invokes the court’s jurisdiction. An election petition refers to the procedure for challenging the result of a federal, state or local government election. Section 133 (1) of the Nigerian Electoral Act 2010 underscores the imperative for election tribunals and the procedure for questioning the return of a candidate as duly elected after an election. This Section states as follows:
No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the constitution of this Act…
Who can present a Petition?
An election petition may be presented by one or more of the following persons:
- A candidate at an election
- A political party which participated at the election. (See S. 137(1) of the Electoral Act).
The person whose election is complained of shall be the Respondent. Where the petition complains about the conduct of an election, the Electoral Officer, Presiding Officer, Returning Officer or such officer whose conduct is complained of shall be a Respondent and a necessary party to the petition. See Buhari v. Yusuf (2003) 14 NWLR (pt. 841) 446 at 504 where it was held that a candidate who contested the election and lost cannot be made respondent to a petition.
When a petition is raised against an election, there are 4 possible outcomes:
- The election is declared void. The result is quashed and a fresh election is held.
- The election is held to have been unduly conducted: the original election is quashed and another candidate is declared to have been elected.
- The election is upheld and the member returned is found to have been duly elected.
- The petition is withdrawn. This may occur when the petitioner fails to attend a hearing or withdraws his his/her petition.
A petition is presented when it is filed in the appropriate court or tribunal prescribed by law. That is, the papers are presented to the Court Registrar, payment of the prescribed fees made and receipts issued. This was as decided in the cases of Ogbolumani v. Okobi (1959) WNLR 11 and Ngoli v. Ndoka & Anor (1960) 5 FSC 90 at 92. The very laws that makes room for periodic elections into 1,695 elective public offices in Nigeria, which the Independent National Electoral Commission (INEC) is empowered to conduct, also gives room for Election Petition Tribunals (equivalent of the Nigerian High Courts) to handle judicial petitions arising from the conduct of such polls, with a view to determining the authenticity or otherwise of such polls.
“The importance of election tribunals in Nigeria’s democratic process cannot be overemphasized. This means that that these tribunals are not only legally functional but that the delivery of justice is unquestionable. It then means that lawyers should desist from bringing frivolous petitions, mischievous claims and counter claims. Judges must also be seen to uphold the law without fear or favor.”
Grounds of the Petition
The petition must state the grounds on which the election is being challenged and the facts relied on. An election can be challenged on the following grounds:
- That the person whose election is questioned was, at the time of the election not qualified to be elected.
- That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the electoral law under which the election was held.
- That the respondent was at the time of the election not duly elected by majority of lawful votes.
- That the petitioner was validly nominated but was unlawfully excluded from the election. Section 138 of the Electoral Act 2010.
The Constitution provides in Section 285(1) that:
There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether, any person has been validly elected as a member of the National Assembly; the term of office of any person under this Constitution has ceased; the seat of a member of the Senate or a member of the House of Representatives has become vacant; and a question or petition brought before the election tribunal has been properly or improperly brought.
Sub section (2) also states:
There shall be established in each State of the Federation one or more Election Tribunals, which shall to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative House.
For subsection (3) and (4), “The composition of the National Assembly Election Tribunals, Governorship and Legislative Houses Election Tribunals shall be as set out in the Sixth schedule to this Constitution. The quorum of an election tribunal established under this section shall be the Chairman and two other members.”
In each case, the Chairman of the tribunal shall be a Judge of a High Court and the four other members shall be appointed from among judges of the High Court, Kadis of a Sharia Court of Appeal, Judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. The various tribunals are to be set up pursuant to Section 285 of the 1999 Constitution, to deal with grievances arising from the Governorship, National Assembly and State Assembly Elections.
Time within which to present a Petition
Petitions ought to be filed within 21 days after elections and to this effect, Section 133 of 2010 Electoral Act, sheds more light on election petitions. It states that:
No election and return at an election under this Bill shall be questioned in any manner other than by a petition complaining of an undue election or undue return. The election tribunals shall be constituted not later than 14 days before the election; and when constituted, open their registries for business 7 days before the election. An election petition shall be filed within 21 days after the date of the declaration of results of the elections.
Presentation of petition must be done within the time prescribed by the electoral law (Section 143 of the Electoral Act). Note that most electoral laws do not normally allow extension of time within which to file a petition. This is because by way of public policy, complaints arising from elections are to be dealt with expeditiously. See the case of Kurrah v. Iyodo (1959) WNLR 20. The petition must state the grounds on which the election is being challenged and the facts relied on.
Section 134 of the 2010 Electoral Act provides the stipulated duration for election petitions. The Act states that:
An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. An appeal from a decision of an election tribunal or court shall be heard and disposed of within 90 days from the date of the delivery of judgment of the tribunal.
The importance of election tribunals in Nigeria’s democratic process cannot be overemphasized. Getting the workings and processes of tribunals is also extremely important. This means that all hands must be on deck to make sure that these tribunals are not only legally functional but that the delivery of justice is unquestionable. It then means that lawyers should desist from bringing frivolous petitions, mischievous claims and counter claims. Judges must also be seen to uphold the law without fear or favor. With every passing election, we can only hold our breaths and hope that the election tribunals are well equipped and able to handle the petitions that will inevitably come their way.