Will litigants get justice at election tribunals?

After the elections, the Elections Petitions Tribunals become the forum for aggrieved candidates and their parties. Will the litigants get justice there? ADEBISI ONANUGA asks.

Election tribunals are special purpose vehicles for thrashing out poll disputes. They will soon become busy. Inaugurating in Abuja the tribuals which will handle disputes that arise from this year’s elections,  Acting Chief Justice of Nigeria (CJN) Justice Ibrahim Tanko Muhammad urged them to be above board.

No fewer than 250 judges were nominated to serve on the tribunals.

According to Justice Muhammad, the task of adjudicating on petitions would affect the judges’ conscience. He enjoined them to rise above temptations, do justice in accordance with the law and remain loyal to their oaths.

At a “Workshop on election petitions for judges’’ in Abuja where he was represented by the President of the Court of Appeal, Justice Zainab Bulkachuwa, Justice Muhammad said: “This is an enormous national assignment that will literally put the contents of your conscience to test. As judicial officers, you may have, one way or the other, trodden this somewhat dreaded terrain, but you must, against all odds, rise above the murky waters of failure and infamy.

“The onus is on you to keep aloft the banner of honesty and integrity that the judiciary has painstakingly hoisted over the years. Your appointment to serve in these tribunals is well conceived, thus, you should do everything within your ability to justify this confidence.

“There is no doubt that you will be exposed to different forms of temptations and even blackmails but you should know that all are aimed at testing your strength of character, honesty and integrity.”

The issues

In determining petitions, issues, such as delay in the dispensation of election disputes, fair hearing and justice and limitation of time set for hearing and dispensation of petitions have resulted in heated arguments and bogged down the tribunals.

Delays in disposing of petitions

Delays in the dispensation of electoral disputes has become a big issue in the electoral process as counsels deploy various tactics and file many frivolous applications to frustrate petitioners, leading to prolonged hearings. This is compounded when they seek order of the tribunal to inspect ballot papers and other materials used for the elections and INEC is not easily forthcoming

Fair hearing

The application of fair hearing has also created problems in the determination of electoral disputes. Despite that Section 36 (1) of the constitution guaranteed the right of every person to fair hearing, its application in resolving electoral disputes have created a lot of problems for election tribunals, which are expected to judge within a reasonable time in accordance with the principle of natural justice.

Period to file and dispose of petitions

Section 285 (5) of the 1999 Constitution (as amended) stipulates that an election petition must be brought within 21 days of the declaration of election results. While Section 285 (6) requires that an election tribunal must deliver its judgment within 180 days of filing a petition.

However, the issue as to whether a specific time should be stipulated for conclusion of election petitions has always generated heated debates among practitioners, judges and politicians alike.

Attempts to resolve the issue has always resulted in formulations of various legal positions leading to adjournments.

This is because access to relevant election documents and other materials by the candidates in the election for petition has been a challenge owing to high fees charged by the Independent Electoral Commission (INEC) before issuing certified true copies.

As the country sets for Presidential and National Assembly elections on Saturday and governorship and state assembly elections two weeks after, there is no telling the volume of petitions that would be filed by candidates and their respective political parties, challenging the outcome of the elections. The acrimonies and mudslinging that characterised the campaigns have prepared the ground for petitions.

But what manner of judges are to sit over the petitions. What are the expectations? What are the pitfalls to be avoided. What are the mistakes of the past that the tribunals must  avoid this time around and how best should they handle the assignment entrusted on them and make a success of it?

Lawyers’ expectations

Legal practitioners, particularly those versed in election petitions, lend their views on the matter. They include Ahmed Raji (SAN), law lecturer, Faculty of Law, University of Lagos (UNILAG), Akoka and Constitutional lawyer, Wahab Shittu, Constitutional lawyer, Ike Ofuokwu, member, Ogun State Judicial Service Commission, Abayomi Omoyinmi and  Committee for the Defence of Human Rights (CDHR) President, Malachy Ugwummadu.

Raji hoped that the election would be free, fair and credible, such that the various tribunals won’t have much to do as is the case world over. He however lamented the volume of petitions arising from elections over time.

He said: “I am yet to read of any democracy with our volume of election petitions. While other legal regimes are improving to make their legal regime business friendly, ours is bogged down with election related matters to the great detriment of important commercial cases.

“It is so bad that even the Constitution has given undue priority to even pre-election matters by giving time limit to the courts just like election petitions thus causing damaging delays in other matters.

“Not even matters concerning the only source of our revenue-(oil) enjoy any special attention from our courts thus discouraging some major investors or forcing them to settle for alternative dispute resolution outside Nigeria. It is very sad.”

Shittu noted that the https://mail.google.com/mail/u/0/images/cleardot.gif responsibilities entrusted into the hands of the tribunals are grave, challenging and patriotic in the realm of nation building and sustenance of the democratic traditions.

Shittu said the tribunals have a duty to ensure that pre-primary, primary, post primary as well as elections disputes brought before them are promptly resolved within the time frame allotted satisfactorily with the principles of justice and fair play to all the sides involved in the disputes.

He said the tribunals should be conscious  that resort to them is anomalous. lf there is genuine internal democracy in the parties and if elections are free, fair, peaceful and credible to the satisfaction of all, recourse to the tribunals will of course be unnecessary, consequently should note that they owe a duty to uphold the popular will of the people in the decisions handed down.

He advised: “Substantial justice as opposed to rigid adherence to technicalities should be the rule rather than the exception in the decisions of the tribunals.  It is important that persons appointed  to serve as judges in the tribunals should be men of high ethical and professional standards in terms of integrity, competence, character, credibility and capacity with Zero tolerance for corruption.

“Such persons must be highly knowledgeable with capacity to control and effectively take charge of the proceedings having regard to the time frame within which the Tribunals are set up to adjudicate disputes brought before them”.

The law lecturer took into cognizance events of the past  and advised members of the tribunal on the pitfalls that must be avoided for them to make a success of their assignment.

He advised them on the need to avoid undue delays of the proceedings, reliance on undue technicalities at the expense of substantial justice and to ensure zero tolerance for corruption and avoiding likely compromise of the cases

Shittu further admonished the tribunal members to avoid the antics and shenanigans of the political elite who are ever willing to compromise the process. He stressed the need for them to ensure that timelines for the  resolution of the cases, mastery of the laws – constitutional provisions, the electoral act provisions, the constitutions of political parties and guidelines for the conduct of primaries and elections

He urged them not to allow themselves to be misled by counsel and pressures from politicians and ensuring that decisions are promptly handed down and to avoid nocturnal meetings and telephone conversations with counsel and litigants among others.

“One other mistake to be avoided include conflicting judicial pronouncements as well as needless ex-parte orders that could prejudice the merits of the elections and the conduct of credible poll.

“Making a success of their assignments require integrity of the process by all stakeholders – politicians, counsel and tribunal members who must all be committed to the attainment of justice. Attitude is everything.These stakeholders must be committed to strengthening our democracy through ensuring a transparent process.

“Dispassionate application of the extant laws- to the justice of the cases will enthrone public confidence and strengthen the popular will which are the hallmarks of the democratic traditions.

“Above all, timelines and zero tolerance for corruption, including attitude of counsel, would deliver effective and efficient results that would meet the expectations of all”, stressing, “the integrity and credibility of the work of the tribunals should never be compromised”.

Ofuokwu added: “Despite the misgivings about the circumstances that led to the suspension of the CJN, Walter Onnoghen, which seems to cast aspersions and raise credibility issues over the integrity of the tribunal members, we have very high expectations of them to be fair, impartial and conscientious in the discharge of their duties.

“This will restore the integrity of the judiciary which has been badly battered of recent times.

“Otherwise, what is left of the judiciary’s integrity will be totally obliterated.”

According to Omoyinmi, the various tribunals should be synthesised of judges with high level of integrity, partinacious and knowledgeable in election petition proceedings, because election petition are sui- generis. I believe that such persons should include mostly judges who sat in previous election tribunals, who had experience in the day to day proceedings of the hearing of election petition as it is often the case when hearing in the petition commence.

Omoyinmi, however, said: “There should be restrictions as to the number of supporters of the candidates/party that are allowed to attend the tribunal sittings and even the venue, this is because the huge number of supporters affect and distract proceedings sometimes.

“The tribunal must adhere to time of sittings, even where necessary petitions is heard on weekends as it’s often the case sometimes.”

He said it is important that all parties involved have a level-playing field with equal opportunities to present their petitions regardless of the parties and or their counsel.

“There is this perception by litigants and their supporters that counsels sometimes take advantage over others, especially where very senior advocates are involved.

“Once the credibility of the election petition tribunal judges is not in doubt, and they are seen to be above board and very firm in control of their courts and proceedings, the decisions and pronouncements of the tribunals will be credible and acceptable.”

Ugwummadu said the judges appointed to serve in the election tribunals, apart from being people of very high principles, standards and integrity, must also be persons of sound knowledge of the law, both procedural and substantive laws.

“They must be driven by a deep sense of justice and fairness focused on the advancement of the society, which is the utmost beneficiary of justice,” he said.

Ugwummadu advised that the tribunal must creatively find a way to guarantee that the usual, but avoidable delays by petitioners in accessing election materials for litigations should be removed to secure easier access to justice. Besides, the law has not yet been imposed on the election management body the responsibility to justify their actions in the conduct of the election.

He said the notion and percentage of corruption in the judicial system must be confronted and erased. The appointment of ill-equipped judicial officers along ethnic line and for clear nepotism should be discouraged.

He emphasized speed, diligence and effective control of the proceedings of their tribunals  as the diminius litus of their court.