AN APPRAISAL OF THE REQUIREMENTS OF PROOF IN THE HEARING AND DETERMINATION OF ELECTION PETITION IN NIGERIA
CHAPTER ONE
GENERAL INTRODUCTION
1.1 INTRODUCTION
Elections generally are guided by statutory provisions. Not only must the body to take charge of the conduct of the election be established by law, the regulation of the conduct of the election inter alia the registration of voters, the procedure at an election and act that constitute electoral offences as well as determination of election petition arising from election must be matters for which specific provisions are made. Section 153 of the Constitution of the Federal Republic of Nigeria, 1999 as amended establishes the Independent National Electoral Commission (INEC) while the Electoral Act 2010 as amended, in the main, regulates the conduct of Federal, States and Federal Capital Territory Area Council Elections.
Generally, a law to regulate conduct of election must anticipate complaints arising thereof and institutions for investigation and determination of the complaints. The final determination of any complaint arising from an election closes the election process. It is in this latter aspect that this research intends to focus.
It is interesting to note that the procedure for questioning an election is clearly stated in section
133 (1) of the Electoral Act[1], herein reproduce thus:
No election and return at an election under this Act shall be questioned in any manner other than by 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 or of this Act and in which the person elected or joined as a party.
The term election petition as used in the above section refers to an originating process by which an unsuccessful candidate in an election or political party or any other person vested with statutory locus, seeks to question the return of a successful candidate at an election as undue either as a result of non-compliance with the electoral law or that the person who has been returned was at the time of the election not qualified to stand for the election or that a substantial number of votes by virtue of which the winner was declared were invalid or because the petitioner was validly nominated to run for the election but was unlawfully excluded from the election[2]. The fundamental issue in election petition is to question the election of a candidate as a victor and as such, it must be shown that the purported election or return was void or that the winner was not returned by a majority of lawful votes[3].
The grounds forming the basis of an election petition must be one of those recognized under the Electoral Act or the Constitution and must be related to or must have arisen out of acts or omissions that were contemporaneous with the conduct of the election. It is now axiomatic and trite law that election tribunal has no power to investigate matters which took place before the conduct of election[4].
The grounds under which an election may be questioned are statutorily articulated in section 138
(1) of the Electoral Act[5]viz:
That the person whose election is questioned was at the time of the election not qualified to contest the election;
That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;
That the respondent was not duly elected by majority of lawful votes cast at the election; or
That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
The 1999 Constitution as amended has established various institutions and invested them with powers to determine election petition. The constitution also provides for a system of appeal. S. 239 of the Constitution for example has vested into the Court of Appeal the original jurisdiction to the exclusion of any other court in Nigeria with power to hear and determine any question as to whether:
Any person has been validly elected to the office of the president or vice-president
The term of office of the president or vice-president has ceased or
The office of the president or vice-president has become vacant.
The Constitution also established a clear appeal mechanism for offices of the President and Vice President. Section 233 (1) of the 1999 Constitution as amended provides that petitions shall lie as of right from the court of appeal to the Supreme Court in all matters emanating from the election.
The National Assembly Election Tribunal has the sole original jurisdiction to determine petitions as to whether any person has been duly elected as a member of the National Assembly, the term of office of any person has ceased, the seat of a member of the senate or a member of the House of Representatives has become vacant and any question or petition brought before it[6]
Election Tribunals play important roles in the determination of electoral disputes in Nigeria. Since independence the Courts/Election Tribunals have continued to be the major, if not the sole organs tasked with the responsibility of resolving election disputes in Nigeria. The roles of these
Courts/Election Tribunals are indeed crucial for the survival of democracy and the rule of law in Nigeria. The Courts/Election Tribunals determine the electoral disputes which cannot be concluded through the ballot boxes. Any person that is dissatisfied with the results at the poll as declared by the Independent Electoral Commission (INEC) relies on these election dispute resolution institutions for redress. The Courts/Election Tribunals are the last hope of such contestants. The judgments of Courts/Election Tribunals are therefore important for restoration of hope in the electoral and democratic process and the rule of law[7].
It is important to bear in mind that election petition can only be resolved by calling witnesses and leading evidence at the hearing. It is axiomatic that the onus of proof is always on the petitioner to establish his complaint or petition upon the balance of probabilities or beyond reasonable doubt where the petition borders on irregularities that have criminal elements in nature. The question is, while the task appears to be simple to accomplish has it been so in practice?
Jurists and legal luminaries have continued to question the yard stick or standard used by election tribunal judges in arriving at most of its judgments and rulings[8]. The reason for the general outcry is not far-fetched. It appears the Electoral Act and/the Election Tribunals have made the requirements of proof of electoral irregularities to be a near impossibility. The spillover effect of this is that, it has made elections to be a do or die affair because once returned it is an uphill and heculaneous task to dislodge.
In this research, the author has attempted to dissect and discuss critically the various statutory grounds under which an election petition may be brought; the requirements of proof of each ground and an in-depth analysis of the various tests and standards evolved by Election Tribunals vis-a-vis the reasoning and rationale behind those yard sticks.
1.2 STATEMENT OF THE PROBLEM
Nigerian electorates have continued to wonder why in spite of the apparent and manifest cases of electoral malpractices and non-compliances; the courts/ election tribunals have continued to throw out election petition cases for want of proof. While some electorates and stake holders attribute the sorry state of the petitioners to the almost impossible requirements of proof evolved by the courts and the Electoral Act others view it as the problem of legal practitioners who have poor appreciation of the dynamics of proof in election petition particularly the extent of proof and evidential burden.
This trend of event now gaining grounds if not checked is capable of threatening our nascent democratic institutions and eroding the confidence of the electorates in the post-election judicial process. The recent unrest in some parts of Northern Nigeria following the announcement of the winner of the presidential election should serve as a gauging point for our electoral and judicial managers. There is no gainsaying that the resultant consequence(s) of this will be anarchy and lawlessness.
In this research, attempt has been made to appraise the extent of proof in election petition with a view to ascertaining why it is a near impossibility to prove some electoral malpractices and possibly highlight some grey areas as well as proffer some recommendations thereon. Emphasis would also be given to the naughty issues of standard and burden of proof in election petition
1.3 SCOPE OF THE RESEARCH
This research is confined to appreciating on a general note what election petition in Nigeria is all about. It tries to study those preliminary items that need to be settled before a competent petition is said to be filed and therefore liable to proof.
The study also engages on a in depth examination of the four (4) statutory grounds under which an election petition may be filled under the Electoral Act 2010 as amended and other previous legislation
The research critically assessed the twin evidential principles of burden and standard of proof and other yardsticks/requirements evolved by the Courts/Tribunals in proof each ground and the difficulty (ies) inherent in each of them if any. The efficacy and effectiveness of the standards/requirements of proof of the statutory grounds are identified; suggestions and recommendations for reforms are proffered.
[1] Electoral (Amendment) Act, 2010
[2] Aderemi O (2006) Electoral Law & Practice in Nigeria, AderemiOlatubira& Co. Akure P. 84
[3] Id
[4]Id
[5] 138 (1) Electoral (Amendment) Act, 2010
[6] S 285 (1) of the Constitution of the FRN 1999 as amended
[7] LADAN M. T. AND KIRU A. I, (2005) Election Violence in Nigeria, Afstrag – Nigeria P. 20
[8] id
