Speeches
By Professor Okechukwu Ibeanu
Introduction
ELECTION petition is a crucial constitutive element of Nigeria’s electoral process, sometimes looming very large for both positive and negative reasons. There has been a growing role of election petitions in determining electoral outcomes in Nigeria in recent times. Not only have the numbers of petitions been high, but also some of the decisions have raised deep concerns about the wisdom of a constitutional and legal framework that donates such enormous powers to the judiciary in determining elections.
The 2023 general election, like some of those preceding it since 1999, has seen a substantial traffic to the Election Petition Tribunals. According to KDI, a total of 1,209 petitions were filed in the aftermath of the general election. Five of them were for the Presidential election, 83 for Governorship, 148 for Senatorial Districts, 416 for Federal Constituencies, while 557 petitions were filed against the outcomes of State Constituency elections.1 Overall, there have been 5,279 post-election petitions in the ten-year period between 2003 and 2023.2 With the 1,209 petitions recorded for 2023, that general election accounted for about 23% of all the election petitions in the decade. The only general election with a higher number of election petitions was the much-maligned 2007 general election which recorded 1,290 petitions or 24% of the total (see Table 2). This has led some observers to suggest that the quality of the 2023 general election is at par with the 2007 general election, citing the number of election petitions.3 However, the quality of an election
1KDI Election Petition Tribunal Monitoring Dashboard https://eptdashboard.kdi.org.ng/analytics (accessed 19th October 2023).
2Ibid.
3See for instance the Guardian Newspaper report of 18th October 2023 titled “INEC’s credibility sinks as 94% contested posts await tribunal” https://guardian.ng/news/inecs-credibility-sinks-as-94-contested-posts awaits-tribunal/ (accessed 19th October 2023).
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cannot be judged solely on the number of election petitions, and the assumption that all election petitions arise from poor conduct of an election is not necessarily correct.
| Table 1: Post-election Petitions, 2023 | |||
| Constituencies Contested | Number of Petitions | Coefficient of Disputability (CoD) | |
| Presidential | 1 | 5 | 5.00 |
| Governorship | 28 | 83 | 2.96 |
| Senate | 109 | 148 | 1.36 |
| House of Representatives | 360 | 416 | 1.16 |
| State House of Assembly | 991 | 557 | 0.56 |
| Total | 1,489 | 1,209 | 0.81 |
| Source: KDI Election Petition Tribunal Monitoring Dashboard (https://eptdashboard.kdi.org.ng/analytics) |
Fig. 1: Election Petitions 2003 – 2023
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Source: KDI Election Petition Tribunal Monitoring Dashboard (https://eptdashboard.kdi.org.ng/analytics)
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| Table 2: Post-election Petitions 2003 – 2023 | |||
| Constituencies Contested | Number of Petitions | Coefficient of Disputability (CoD) | |
| 2003 | 1,497 | 560 | 0.37 |
| 2007 | 1,497 | 1,290 | 0.86 |
| 2011 | 1,496 | 732 | 0.49 |
| 2015 | 1,492 | 677 | 0.45 |
| 2019 | 1,490 | 811 | 0.54 |
| 2023 | 1,489 | 1,209 | 0.81 |
| Source: KDI Election Petition Tribunal Monitoring Dashboard (https://eptdashboard.kdi.org.ng/analytics) |
The Coefficient of Disputability (CoD) measures the propensity of an election to being disputed. It is the ratio of the number of petitions filed to the number of constituencies contested. The lower the coefficient the less the dispute propensity of the election. Table 1 clearly suggests electoral outcomes for Executive constituencies like the Presidency and Governorships are more prone to being challenged in an EPT. For the 2023 general election, the CoD for Presidential election is 5.0, while for Governorship it is 2.96. By contrast, CoD for Senatorial District is 1.36, it is 1.16 for Federal Constituency and only 0.54 for State Constituency. These numbers also suggest that the smaller the size of the constituency, the lower the disputability of the election. This is understandable as the constituencies tend to reflect the perquisites of office and therefore the value and stakes attached to the elections by contestants. In other words, the higher the stakes, the higher the disputability.
The objectives of my reflections are twofold. In the first place, it is intended to locate some of what we know about election petitions in Nigeria within a conceptual framework. The essence of this is that data in themselves only tell a partial, sometimes incomprehensible story. There is therefore always the need to illuminate them by a conceptual scheme. The essence of studying election petitions must be to explain certain things about them that are not readily obvious. The reason being that if we can explain them, then we can predict them and therefore control them. That points to the second objective of my reflections, which is to make recommendations on how to ensure that election petitions continue to
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serve the course of improving Nigeria’s electoral process and consolidating our democracy.
Theorizing election petitions in Nigeria
Election petitions are a major aspect of Nigeria’s electoral process. Aside from the conduct of elections by the Independent National Electoral Commission (INEC), election adjudication is arguably the most important aspect of Nigerian elections. Indeed, many would argue that INEC does not really call elections. Instead, it is the judiciary that does, leading to what has been described as judicial interventionism and the usurpation of the rights of the electorate by Election Petition Tribunals (EPT)4(Omenma, Ibeanu and Onyishi, 2017: 30). This is not to suggest that electoral adjudication is necessarily pejorative. To the contrary, some election petitions have led to the restoration of purloined mandates. The point here is to underscore the janiform character of election adjudication and the need for public vigilance to ensure electoral and judicial accountability. This janiform character resolves into two distinct dialectical issues. The first has to do with judicial and electoral accountability. In other words, election tribunals could be mechanisms for promoting judicial and electoral accountability or for undermining them. Second, election petition tribunals could also be the source of democratic consolidation or deconsolidation.
Extant literature on electoral accountability, which is essentially Anglo-American in origin, assumes two things that are not necessarily universalized. The first is that elections constitute and effective way for the public to hold elected officials accountable. The second is that elections have integrity in the first place, which means that they truly represent citizens’ verdict on previously elected officials, whereby re-election is approval and defeat is disapproval. These demand-side dimensions of electoral accountability are not necessarily true in countries like Nigeria where both assumptions remain questionable. In first place, where elections are fought on communal basis and millions of voters are hardly interested in the track records of parties and candidates, but rather are compelled essentially by communal considerations, it remains debatable whether elections can
4 Omenma, J. T., Ibeanu, O. O. and Onyishi, I. E. “Disputed elections and the role of court in emerging democracies in Africa: The Nigerian Example”, Journal of Politics and Democratization, Vol. 2, No. 1, 2017, p. 30.
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function as mechanisms for holding officials accountable. Secondly, where the credibility of elections remains contested, then they lack a fundamental requirement necessary to hold officials accountable. Consequently, Jinadu and Ibeanu argue for greater attention to be paid to the supply-side dimensions of electoral accountability namely, holding those who conduct elections accountable for their actions in the first place.5The judiciary, through its role in election adjudication, plays a prominent role in this.
Democratic consolidation is an essential part of the democratization process, especially in younger liberal democracies like Nigeria. It refers to the avoidance of authoritarian relapses, the deepening of democratic practice though strengthening democratic institutions and the diffusion of democratic principles beyond political institutions to diverse aspects of social life, as well as peaceful alternations of power in line with the wishes of the electorate.6 Deconsolidation expresses the dialectical converse of consolidation. Where democratically elected governments are toppled by the army or democratic institutions are weakened by the malpractices of politicians, or where officials pay only lip service to democratic norms and practices and resist alternation of power through sit tight practices, tenure elongation, manipulation of elections or outright rejection of electoral defeat, democracy could be said to be experiencing deconsolidation.
It is within the conceptual categories of electoral accountability and democratic consolidation that we locate election petitions and electoral adjudication. We conceptualize it as a dialectical relation between the positive and negative election adjudication. Indeed, in elections, the judiciary is like Janus, the Roman God of beginnings and endings. Like Janus, the judiciary can commence one political career and end another. It presides over electoral war and peace, and it is ubiquitous in all electoral rituals. Like Janus, it has two faces, the positive face and the negative face. Thus, like Janus, the judiciary could play both positive and negative roles in the electoral process, either of which has far-reaching implications for electoral accountability and democratic consolidation.
5Jinadu, A. and Ibeanu, O. (eds) Electoral Accountability in Nigeria (forthcoming). 6 Omenma, Ibeanu and Onyishi, op. cit., pp. 31 – 32.
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In Figure 2, we portray this relationship as a bi-directional, double needle compass. One needle J+ is the positive side, while the opposite J- is the negative, and they move in opposite directions. When the positive needle moves from the origin in the negative direction, which is towards zero, the negative needle moves at the same rate in the positive direction, which is towards one. In other words, as positive electoral adjudication increases, negative adjudication decreases. More importantly, as J+ decreases in the direction of zero, the sector of electoral accountability (c) contracts as the sector of democratic consolidation (A) also contracts. Conversely, in that single movement, the sector of electoral impunity (D) expands, while the sector of democratic deconsolidation expands. The direct opposites of these manifestations occur when positive electoral adjudication moves in the positive direction, which is towards one.
Fig. 2: Bi-directional compass of electoral adjudication
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Framework and analysis
There are at least ten strands of analysis that I want to pursue from the foregoing conceptual scheme.
1. Conservatism and public trust – there will always be a trust deficit between a largely conservative judiciary and the public. The procedures for worshiping this Janus are
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excessively technicist, its supplicants are jargoneers, who speak mostly legalese that not many Nigerians understand (a form of speaking in tongues). And for added measure, they dress like medieval aristocrats. This portrays our courts as inaccessible and tedious. Surely, if the outcome of an election is determined only on the grounds that a matter was brought by way of “writ of summons” instead of “originating summons”, concepts that only less than 1% of Nigerians understand anyway, then the ordinary voter is not likely to believe in the process. In essence, there is a widespread belief that the conservatism of election adjudication in Nigeria underscores and accentuates the negative face of this Janus.
2. Processes of composition of Election Petition Tribunals – mostly concealed from the public scrutiny, raising accusations of favouritism, lack of consultation. The criteria are not made public and those appointed do not go through any evaluation to determine their suitability.
3. Pre-election matters distort the electoral process – they waste time, distract INEC, grossly misuse ex parte orders, are replete with contradictory judgments, especially from courts of coordinate jurisdictions, and some of them even continue long after elections have been concluded.
4. The irony of technicalities. Technicalities are meant to facilitate the expeditious delivery of justice, but they have become obstacles to justice. To dismiss cases without hearing the substantive grievances of petitioners is grave injustice.
5. Inadequate understanding of the electoral process by some EPT judges. Judges are not necessarily experts in elections. Even the lawyers who appear before them may not be. Yet, the conduct of elections is becoming increasingly complex as the election managers seek to put more and more checks in place to counter the sharp practices of politicians. This has been the case with the introduction of election technologies. It is important that judges understand these complexities for them to reach sound decisions. In fact, I think that it sometimes the limited understanding of the electoral process that encourages EPTs to gravitate more in the direction of technicalities and legalisms in determining petitions. In future, it may help to have election administration experts embedded in EPTs to support the judges.
6. Political pressures on judges – These take the form of surveillance by security agencies, night raids on the premises of judges, trumped up charges about their assets, and using their decisions in EPTs to determine the prospects of their progress to the higher bench. Not unrelated to this is the lingering problem of corruption in the EPTs. Hardly any day passes without stories of accusations of bribery or attempted bribery of EPTs, especially by politicians and even lawyers. All these erode public confidence in EPTs and undermine electoral accountability and democratic consolidation.
7. INEC as party to electoral matters – The fact that INEC appears in EPTs as a party to election petitions often means that it stridently defends election results, which in the eyes of the public aligns it with the position of the winners of the elections, when it should only be an unbiased umpire. This stacks the odds against the losers of elections, who also bears the burden proof to establish that the elections were not in compliance to the law. It seems to me that INEC should have a redefined unique role in election petitions framed around the provision of required evidence, providing information about how it conducted the election and drawing the attention of EPTs to legal and administrative precedents that are relevant to the cases. However, if INEC must continue to be an interested party in election petitions, then the burden of proof in election cases should shift to the Commission. This was one of the recommendations of the Uwais Committee. According to the Committee, “… since the conduct of INEC as the umpire is the issue in many petitions, INEC should bear the burden of proving compliance with the Electoral Act”.
8. Inconsistencies, contradictions and outright perversion of justice by some EPTs – This is best illustrated by two cases in two Senatorial Districts in the 2019 general election. In one, the Returning Officer put the date of the election against his signature, rather than the date on which he made the return. The loser of the election challenged the result in court on the ground that the Returning Officer put a wrong date as the day he made the return. The Tribunal of course dismissed his petition agreeing with INEC that it was an error. He then proceeded on appeal and the Appeal Tribunal annulled the election and ordered a rerun. In the rerun, the original winner lost the election, obviously because of massive deployment of security forces and thugs to favour the original loser and the new winner. Now compared this with the second Senatorial District in a different State where the Returning Officer in the Form EC8E (the returning form) simply declared himself the “winner” of the election. In Form EC8E, the Returning Officer is expected to fill out the spaces to the effect that a candidate of a specific political party having scored the highest number of votes is declared the winner. In error, he wrote his name in place of the candidate’s and his university as the political party. The loser then challenged the result in the Tribunal on that ground and his petition was dismissed. Apart from such brazen miscarriages as in the example of the first Senatorial District, there are several cases where courts of coordinate jurisdiction have given contradictory judgment on the same matter, even at the level of the Court of Appeal. The most absurd case of this set of challenges is where lower courts have brazenly disregarded judgements of courts above, including the supreme court, or where a court practically sat in “appeal” over a judgment given by another court of coordinate jurisdiction. In short, electoral petition appears to bring out the very worse in our justice delivery system.
9. Tardiness in electoral adjudication – Election petitions tend to take too much time. While it may be true that the wheel of justice grinds slowly, it is probably as true that justice delayed is justice denied. The longstanding recommendation that all petitions should be finalized before a winner is sworn-in may solve this problem.
10. Poor culture of accepting electoral outcomes – Finally, many of these challenges arise from an electoral culture in which politicians refuse to accept electoral outcomes and would go to court on the most improbable grounds. Sometimes this is designed to give hope to their supporters that things might change at the EPT.
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But it seems to be a deep-seated mindset that it is possible to influence the judiciary if you have the power and the right connections.
Recommendations
1. Roots and branches overhaul of EPTs to increase the role of citizens, more transparency, continuing education of judges and lawyers on the electoral process and strengthening accountability mechanisms.
2. Review of the role of INEC in election petitions to remove it as a party to petitions. Otherwise, the burden of proof in election matters should shift to the Commission, as recommended by the Uwais Election Reform Committee.
3. Review of EPT procedures to make them less tardy, by introducing technology in filing processes, recording and managing proceedings, and in the delivery of judgments. This will also free more court time for the numerous other cases that have to be heard. In fact, our courts have become essentially electoral courts as elections are now held all year round.
4. Protection of judges from the pressures of the state and society. Underscoring the independence of judges and protecting them from being drawn into the fray by partisan interests.
5. Public education on the EPTs and their processes – continued education of members of the public on the work of the EPTs has become absolutely essential. The Court of Appeal should be open to having the procedures in EPTs covered by the media. This will further educate the public on what actually transpires in the EPTs rather than the second and doctored information available in social media. The decision of the Presidential Election Court not to accept media coverage of its proceedings, but allowed the telecast of its judgment is curious and bizarre.
The 2023 general election and the impact of post-election tribunal judgements: Reflections: Being a Paper presented by Professor Okechukwu Ibeanu, a Professor of Political Science University of Nigeria, Nsukka.
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-October 24, 2023 @ 15:07 GMT |
Tags: INEC Professor Okechukwu Ibeanu
