The gale of ‘dismissed for lack of merit’ cases tumbling out from election tribunals across the country is bewildering to every Nigerian concerned about the health of our fledgling democracy. The question: “do election tribunals have a role to play in nourishing our democracy?” should be a rhetorical one. If there were no inherent value to be derived from reviewing the conduct of elections by the tribunals, they would since have been abandoned in the course of our long history of political transitions. But to underscore the integral relevance of tribunals in the electoral progression, the system has been institutionalized to a constitutional provision. Consequently, Section 285 of the 1999 Constitution [as amended]states unambiguously: ‘There shall be established for the Federation one or more election tribunals…to hear and determine petitions as to whether any person has been validly elected…’
The wonder then is how the constitutional mandate to interrogate the freeness, fairness and correctness of election procedures and outcome can substantially be realized with a judicial ‘ideology ‘that subtly seeks to maintain the status quo. Reports indicate that about 97% of the over 500 election petitions arising from the March/April 2015 elections failed at the tribunals. On the face of it, this staggering statistics would suggest that the litigants had no case in the first place; that they were roundly defeated in the polls; or that they were messed up by their incompetent counsels. It would be a huge relief if matters were so simple and straightforward.
Has Nigeria’s political culture advanced overnight that political contests are no longer a ‘do or die affair?’ Here is the assessment of Nigerian politicians and elections by Attahiru Jega, immediate past INEC chairman as reported by The Nation, Friday, October 30, 2015. ‘They [politicians]generally tend to believe that political power through elections has to be “captured’’ and this has to be done by hook or by crook; and by any means necessary… INEC faced perhaps its greatest challenge in containing the predisposition and reckless mindset of Nigerian politicians. Any wonder then, that our political arena increasingly resembled a bloody battlefield, with maiming, killing, burning, and unimaginable destruction of lives and property.’
With such graphic picture of the political order painted by an authoritative person, does it not stand to reason that polls conducted in this context would most probably be problematic? Jega’s predecessor, Maurice Iwu, had also pleaded that the Nigerian environment did not allow for free and fair elections. Iwu, who received much bashing for his perceived subservience to the whims of the Olusegun Obasanjo presidency, was understood to be making a veiled reference to the electoral body’s lack of autonomy.
The unwillingness of the ruling elite to give effect to the brilliant recommendation by the Justice Mohammed Uwais committee divesting the Presidency of power to appoint the electoral body’s leadership has obvious implications. An electoral body constituted by agencies with partisan political interest to protect is, by the power of control, susceptible to the influence of the appointing authority. This is especially so in an underdeveloped society where state institutions are very weak as is the case with Nigeria. Desperation of politicians to win would come to naught without collaboration of other critical actors. Thus, flawed elections have their roots largely in the conduct of compromised electoral officers. The combined effect of these two factors, namely, the predisposition of the politician to cheat and the vulnerability of the supposed umpire to ruling party pressure, make the role of election tribunals invaluable.
It would run against the grain of common sense to insinuate that after decades of election tribunals, many Nigerian lawyers are still not versed with the demands of election petition.
While many of our electoral laws have justifiably been criticized for the odds stacked against the petitioner, the Supreme Court’s restated directive for focus on substantial justice rather than technicalities, offers a window for mediating the incongruities. For constitutional lawyer, Itse Sagay, the omnibus doctrine of proof beyond reasonable doubt should not be the criterion for successful election petition. The exercise is to ‘disregard the invalid votes, count the valid votes and declare the true winner.’
Notwithstanding the apex court’s pronouncement, a position derived from the imperative of social justice, the trend at tribunals since 1999 has been not to upset the apple cart. Although adjudged Nigeria’s worst general election, only six governorship elections were nullified in the 2006 contest. In Anambra State, only a financially – resourceful Peter Obi was able to retrieve his mandate in the 2003 general elections swept by APGA candidates. Again in 2015, we have seen only two governorship polls ordered for rerun with hundreds of national and state assembly petitions dismissed for lack of merit.
The verdict of substantial compliance with the extant electoral laws returned by the tribunals merely challenges our understanding of reality. In this prevailing distance between moral and legal truth, the APGA has been worse hit. When its Enugu State governorship candidate, Ugochukwu Agballa, widely believed to have won the 2003 poll was in the course of reclaiming his mandate, the courageous tribunal members were suddenly disbanded and a new team constituted. In 2007, APGA’s Martin Agbaso was leading comfortably in the Imo State governorship election when the exercise was inexplicably cancelled.
It was in this fluid situation where the universal concept of party stronghold loses its meaning that the APGA which won 27 of the 30 state assembly seats in the 2015 elections was unable to secure a single senatorial seat! It is telling enough that in the Anambra Central Senatorial election, the same INEC that had declared the APGA candidate loser with a difference of about sixty thousand votes, had at the tribunal now adopted a new result that put the victory margin at seven thousand votes.
The reign of arch conservatism in electoral adjudication in which the petitioner already faced with time limitation is required to enact the magic of getting INEC and the rival candidate give graphic evidence of the alleged rigging, loses sight of the civic and political nature of election petitions. If the trend of tossing out election petitions on the convenient bar of failure to prove beyond reasonable doubt persists, public faith in the election tribunals as a mechanism for resolution of electoral conflicts would sooner than later, tumble, and this with grave consequences for our democracy.
- Afuba writes from Nimo, Anambra State. (Source: Daily Sun)