Election Archives - Centre for Social Justice

Determining the province of electoral dispute adjudication

Center for Social Justice — Mon, 13 Feb 2023 06:58:25 +0000

Recent decisions of the Supreme Court in pre-election matters have raised a lot of dust and controversies. The decisions have attracted a lot of comments from Nigerians- members and non-members of the legal profession. The central concern has been about decisions that resolved electoral disputes on the fulcrum of water-tight technicalities of the law.

This is not the first time that election disputes have been resolved on the crucible of technical rules of procedural or adjectival law which have not been in accord with the demands of substantial justice and the perception of the ordinary Nigerian on the justice of the case.

This discourse proceeds from a poser which seeks to determine the province, the overriding goal and principles of electoral dispute adjudication as a basis for propounding a way forward for the judicial resolution of electoral disputes.

The discourse narrows down to the quality of justice delivered by the election petition tribunals and the appellate courts. By dispassionately analysing the judgements and the core issues arising from the decided cases, it seeks an inquiry into the objective ultimate end(s) of electoral dispute adjudication and whether the courts through their decisions have been meeting this ultimate goal.
Like the categorical syllogism constructed from the premises, up the middle term and the conclusion, the poser is raised; what should the courts seek to do in electoral dispute adjudication? By establishing what the courts should do, an objective crucible to determine whether the judgements met the mark would have been erected. It is posited that electoral adjudication is part of a chain of events that starts with the registration of voters, voting, announcement of results and the challenge to the results based on a claim of the announced winner not being qualified, corruption or non-compliance with provisions of law or the respondent not duly elected by majority of the lawful votes.

Electoral dispute adjudication is part of the last value point in the electoral chain. A chain is as strong as its weakest point. It is posited that the goal of the electoral value chain is to make the vote count, to strengthen democracy so that the wish of the electorate is reflected in the occupancy of elective positions. Thus, the process from the registration of voters up to the legal challenge before the tribunals is geared to make the votes count.

All the laws, policies, rules, guides and forms that regulate electioneering and the work of the tribunals and courts are all procedures and processes meant to facilitate the achievement of the ultimate end.
This seems to be the mind of the Supreme Court when it held in Ikpeazu v Otti ([2016] 8 NWLR 39 at page 55)that: “Courts are enjoined to do substantial justice and to refrain from undue technicality. Nowhere else is the need to do substantial justice greater than in election petition, for the court is not only concerned with the rights of the parties interest but the wider interest and rights of the constituents who have exercised their franchise at the polls.”

But the same judgement above quickly qualified the statement with a position that an election petition is statutory and is unlike any other civil claim, where there is much latitude; “..no other process distinct from what has been specifically allowed can have any consequence.

This is because election petitions have certain peculiar features which make them sui generis. They stand on their own and bound by rules under the law prescribed thereto. Defects or irregularities which in other proceedings are not sufficient to effect the validity of a claim are not so in election petitions.
A slight defect in compliance with a procedural step would result in fatal consequences for the petition.”Thus, the Supreme Court states that the elbow room for manoeuvre to do substantial justice is limited.

The foregoing raises another poser; how can the courts resolve disputes based on the paradigm of substantial justice that reflects the wish of the electorate while mainstreaming technicalities that have nothing to do with the substance of the case? This is a practical impossibility. Essentially, the central challenge for electoral adjudication is the jurisprudential mindset of the courts which fixates on the sui generis concept as the reason to support the proposition that defects and irregularities which in other proceedings are not sufficient to affect the validity of a claim will prove fatal in an election petition. There is nothing in the 2022 Electoral Act or Constitution in support of this undue fatality view.

A retracing of this evidently misplaced position starting from the jurisprudence of the highest court in the land is the way to redirect the courts back to the ultimate end of electoral adjudication.

If the courts, from the election tribunals up to the Supreme Court had asked and answered the fundamental question about the goal of their adjudication exercise and correctly answered it in the province of ensuring that the votes count, then most of the decisions would have been different from the current stream of decisions.
Deciding cases where the central question is focused on who actually won a primary or an election on technical provisions of procedural law and re-couching the question(s) for determination to focus on other issues seem to be an exercise likened to where a student refused to answer the questions set by the legal and legitimate examiners and then goes ahead to set fresh questions for himself, answers his own set questions and claims he had passed the examination.

Why should the judiciary review its underlying electoral dispute adjudication philosophy? The answer to the poser is clear; technicalities have defeated the wishes of the electorate.

Persons who did not secure the majority of lawful votes or were generally unqualified have found their way through court decisions into elective positions. This cannot be the way to strengthen democracy. Judges are public servants like the members of the executive and legislature. They are therefore accountable to the populace they serve.

We may not demand accountability from them in the strict sense of the way we demand accountability from the executive and legislature. But the judiciary has a duty to reflect the demands of society – that persons who did not win primaries and elections are not allowed to occupy elective offices.

The judgement in an election dispute should not be a display of the abstruse technical intellectualism founded on mere atavism that adds nothing to the quality of life of the average Nigerian.

A judicial decision resolving an electoral dispute must restore the hope of the common person, and the persons who have been robbed by the high and mighty, who look up to their Lordships for reprieve. Anything less questions the basis for entrusting power to the judiciary for dispute resolution.

The post Determining the province of electoral dispute adjudication appeared first on Centre for Social Justice .

2023: Abuse of human and administrative resources

Center for Social Justice — Mon, 30 Jan 2023 07:35:28 +0000

State Administrative Resources are public resources at the disposal of the three tiers of government for the day-to-day performance of state duties and functions. These resources could be financial, administrative/institutional, media, regulatory, coercive, legislative, etc.

For financial resources, public funds secured through kickbacks and over-invoicing of contracts can be used to finance the campaign of the incumbents. Public funds directly stolen from the budget can also be used to fund campaigns. Institutional resources, including human and material resources, could be cornered by the incumbents for their use. Government-owned media can dedicate more time to incumbents while disparaging the opposition in abuse of media resources. Law enforcement agencies can intimidate the opposition and their supporters, unduly or maliciously prosecute them while regulation of the opposition may become more strict and more demanding than usually required of incumbent parties and candidates. The legislature’s power of law-making and oversight can be abused to frustrate the opposition.

By S.95 of the Electoral Act, 2022, it is provided that, “(1): A candidate and his or her party shall campaign for the elections in accordance with such rules and regulations as may be determined by the commission. (2) State apparatus including the media shall not be employed to the advantage or disadvantage of any political party or candidate at any election.” Furthermore, the 2013 Political Parties Code of Conduct had provided that, “All parties shall discourage their members in government from using their power of incumbency to the disadvantage of other parties or their candidates during campaigns.”The earlier 2011 Political Parties Code of Conduct in paragraph 9 stated that all political parties shall separate party business from government business. As such, political parties shall not utilise public resources for any party activity and shall not permit any of its sponsored candidates holding public office to use public resources for the purpose of political campaigning in elections.

The underlying jurisprudence on safeguarding SAR and prohibiting their deployment to elections is to create a level playing field for all candidates and parties. Deploying SAR in favour of incumbents will undermine democracy by creating an uneven playing field in favour of incumbents and their parties. Furthermore, this will undermine the constitutional non-discrimination provisions found in the Fundamental Rights chapter. In addition, putting public assets at the incumbent party’s disposal in its drive for re-election negatively influences the quality of governance, since the diversion of resources incurs financial costs for the institutions involved and may reduce the quantity or quality of services provided to the public.

However, the rule against the deployment of SAR seems to be one of those sections of the Electoral Act, 2022 more obeyed in the breach. Candidates and political parties seem not to properly understand the context of this provision. A few examples of key abuses of SAR since the 2023 campaigns started will be listed to demonstrate the violations.

In August 2022, the Minister of State for Labour and Employment, Festus Keyamo, was appointed as the official spokesperson of the All Progressives Congress Presidential Campaign Organisation. He has been most visible in that capacity throughout the electioneering period to the detriment of his official duties. Festus Keyamo is paid at the tax-payer’s expense as a minister. He is expected under the law to dedicate 100 per cent of his time to the issues and challenges facing the ministry. A minister is not a part-time job that can be combined with other assignments. The fact of being paid with public funds disqualifies him from dedicating his time for partisan purposes and if he must do so, he should be seen to be speaking for all registered political parties. Thus, instead of the APC spending its resources to hire a spokesperson, the treasury was compelled to pay for the party whilst other parties paid from their private resources. This is an abuse of federal human resources.

The use of official vehicles and aircraft by the incumbent APC candidate during campaigns has been very visible. On October 24, 2022, the Punch newspaper reported that Senator Remi Tinubu, the wife of APC presidential candidate Bola Tinubu; and Nana Shettima, wife of Tinubu’s running mate, Kashim Shetttima, on Monday, arrived in Makurdi, Benue State, aboard a Nigerian Airforce aircraft to commiserate with flood victims in the state. The duo had no business with the presidential aircraft and this was done in abuse of the law.

On November 16, 2022 the President, Major General Muhammadu Buhari(retd.), and his team flew at least four state aircraft to the presidential campaign inauguration of Tinubu and Shettima in Jos, Plateau State. Some of the aircraft in the Presidential Air Fleet were PAF Boeing 737 with registration number 5N-FGT, PAF Nigerian Air Force helicopter with registration number HIPO04. Also on the ground at the airport was PAF helicopter with registration number 5N-FGI, NAF aircraft F900 with registration number NGR961. Findings show that the airport lacks adequate parking space for the high number of aircraft arriving in the state capital. As such, some of the aircraft were forced to fly to Abuja to park, which is about 30 minutes flight from Plateau. It made it easier for the pilots of the VIP jets to return to pick up their passengers.

Political campaign finance rules dictate that state resources like aircraft and other administrative resources should not be deployed to advance the interest of the ruling party. The use of state-owned aircraft by the president and his team for the campaign in Jos tips the balance in their favour even when they are already advantaged in the contest by their incumbency.

This is not an exhaustive list of abuse of SAR towards the 2023 elections. Subsequent articles will bring out more facts. In the final analysis, it is imperative that parties and candidates stop the abuse of SAR while the Independent National Electoral Commission is called upon to issue cease orders to parties indulging in this mischief.

The post 2023: Abuse of human and administrative resources appeared first on Centre for Social Justice .