IDEAs 31st March 2023 …
Ikeazor Akaraiwe Esq. SAN on Election Petitions
Chukwudi Ezugwu said that today’s programme would be looking at Election Petitions in general, and their role in upholding the Integrity of Elections.
Ayo Obe then introduced today’s guest, Ikeazor Akaraiwe SAN. She said that it was known that the Independent National Electoral Commission has extensive powers over elections and that indeed, Independence is part of its name. Section 65(1) of the Electoral Act even gives it the right to set aside any results declared within seven days if it determines that the declaration and return were not made voluntarily or were made contrary to the provisions of the law, regulations and guidelines, and manual for the election. If that is the case, what is the thinking behind the idea of allowing the courts or the Election Petition Tribunals to also review the decisions of INEC, whether in respect of results or any other decisions that it might take in the run up to elections or in conducting them?
Ike replied that the thinking behind this is to prevent arbitrariness. Human nature being what it is, it is necessary to have a layer of judicial authority to oversee INEC’s decisions. Also, very importantly it is necessary to assuage the feelings of the aggrieved – those who disagree with the decisions made by INEC should have a chance to air their grievances. If that was not done, there would be a feeling of injustice even where there was no injustice. The alternative could be chaos or self-help. So the thinking behind allowing the decisions of INEC to be reviewed by the courts is to prevent a breakdown of law and order. The candidate would have had his day in court and feel that even if they lost, they had had a chance to vent their grievances.
Ayo suggested that it wasn’t just about being able to air their grievances or have their say, there was also the chance of actually being heard, because it was one thing to be in a crowd of angry party agents all shouting at the Polling or Returning Officer; and another to be in the more structured set up in the Election Petition Tribunal where Counsel have the right to call witnesses and make their arguments about why a return or other decision ought to be set aside.
Ike agreed, saying that when a candidate had the opportunity to go to court it was possible that the candidate would be able to prove some arbitrariness and change the result. He said that the opportunity to go to court doused tension and that at the end of the day, this made for peace in society. He also agreed with Ayo that INEC has no power to refuse the nomination of a candidate on the ground of lack of qualification – that it was only the court that could set aside any nomination that was invalid by reason of lack of qualification.
Ayo then referred to Section 285(6) of the Constitution as altered, which sets time limits for the hearing and determination of election petitions. She noted that previous attempts to limit the time for election litigation had been struck down by the Supreme Court and asked Ike what the difference was now, and what were the limits that had been fixed?
Ike explained that the Supreme Court had struck down the previous time limits because although these were in the Electoral Act, they were considered unconstitutional because they limited fair hearing since every citizen should be able to have his case heard and not be circumscribed because of time. However, now that the Constitution itself had been amended and the time limits had been written into the Constitution, that made all the difference. He referred to section 285(5) of the Constitution which gives three weeks from the date of the declaration of the result to file an election petition, then 286(6) gives the Election Tribunal 180 days from the date of filing of the petition to deliver its decision, and then gives the Court of Appeal 60 days from the date of delivery of the decision to hear and dispose of the appeal.
Ayo sought clarification that since in a Presidential election petition, the Court of Appeal was the Election Petition Tribunal, it would have 180 days to hear the election petition, while any appeal would go to the Supreme Court which would have 60 days to hear that appeal?
Ike agreed, saying that the Court of Appeal sat as a court of first instance in the case of a presidential election petition, but that it was an appeal court with respect to all the other elections. The tribunal of first instance had 180 days, while the appeal court would have 60 days.
Ayo said that one thing that was worrying people, particularly in view of some of the delays that had been reported, was what would happen if an election petition was not heard and determined within the time limit? Since there is a time limit, can the Respondent to a Petition – particularly if they have won and been sworn into office – can they deliberately delay the hearing so that time runs out? She also asked Ike to consider how, the larger the constituency, the more difficult it was to prove a case that depended on evidence from individual polling units. She recalled that as a youngster she had been involved in election petition litigation involving State House of Assembly elections where agents from individual polling units had been called as witnesses, but as the constituency got bigger, it became harder even for governorship elections, not to talk about presidential elections where the whole country was the constituency. So what happens if the time runs out?
Ike said that he had been in situations where the time ran out, and that if the time runs out, then it has run out and the petition or the appeal becomes inchoate. In response to Ayo’s question about how the Respondent could be prevented from delaying the hearing, or allowing the time to run out, Ike said that this was where the judge has to be dominus litus – they have to have mastery over their court, to be in control if it. A judge should be able to stop time wasting, long-winding cross-examination and so on. Delays are more likely at first instance where witnesses have to be called, than at the appellate stage. At the end of the day, judges were going to be accused of all kinds of things, and in fact – as Ayo interjected – were already being accused. Ike expressed sympathy for judges because if cases were not concluded within the 180 days, Nigerians would be quick to lay the blame on them, but he felt that that should be sufficient motivation for any judge to be in control of his court – for example where Counsel insisted on calling a large number of witnesses on the same point.
Ayo said that although the advice that parties dissatisfied with results declared by INEC should ‘go to court’ had been met with derision in some quarters, it was a fact that there were some areas where the Election Tribunals would have to exercise some kind of discretion – especially when it comes to matters like determining whether any proven irregularities or non-compliance had substantially affected the result of the election. Wasn’t that a subjective decision left to the judges, or was there some objective criteria by which a judge could say that this non-compliance was substantial enough to affect the election?
Ike agreed that some of these matters were left to the discretion of the judges, but said that the discretion had to be exercised judicially and judiciously. For example, if a person lost by about 1,000 votes and a polling unit where 500 voters were registered was in issue, the court could say that if all those 500 votes were cast for the losing candidate, it would not change the result of the election. So there were some criteria, and they were quite obvious. If the difference was 3,500, and 5,000 votes were in contention, the judges would evaluate the evidence to see whether those votes were truly in contention, and if they were, that would be ground to set aside the decision of INEC. He said that while it’s not as if the criteria were black and white, they were nonetheless a matter of common sense.
However, Ike said that he did not know why some Nigerians were deriding the idea of going to court – even if it was said sarcastically – because the court was actually the final arbiter.
Ayo remarked that there was nowhere else to go, or – she asked – was there any other way of lawfully challenging results and getting them set aside?
Ike said that perhaps many Nigerians felt that those telling the aggrieved to go to court had the courts in their pockets, but that he would really implore Nigerians to be more respectful of the courts. There is a lot of bad news about the courts, but that these people are human beings and are doing their best. They are not nearly half as bad as is being portrayed. People think that because we call them “My Lord”, they are sitting on a mountain of gold, whereas they work under tough and onerous conditions and they are doing their best, so we should cut them some slack.
Ayo thanked Ike for that closing statement, noting that as he had said, there isn’t anywhere else to go. She urged listeners to try and follow the proceedings and hoped that there would be some really first-class judicial reporting from the election petition tribunals so that everyone could see what happened there. What’s your view? Are you one of those who think there’s no point in going to court, or do you think there is reason for candidates to put their trust in the courts? Join the discussion below and let us k