By Raymond Nkannebe; Esq.
Last Monday, the Ekiti State Election Petition Tribunal which sat in Abuja over the July 14th gubernatorial election delivered its judgement. The three-man panel led by Justice Suleman Belgore in a unanimous judgment affirmed the victory of the incumbent governor Kayode Fayemi and dismissed the Petition of the Petitioners─ Peoples Democratic Party (PDP) and its candidate, Professor Olusola Eleka at that keenly contested poll. The PDP has since indicated its position to challenge the decision at the appellate courts from what one could infer from the statement of its National Publicity Secretary, Kola Ologbondiyan in the wake of the decision. Barring when they do that, what the judgment of the tribunal has shown again, is that it is becoming increasingly difficult, if not impossible for a candidate at an election to be returned through an election petition. And the reason for this is not hard to seek.
As much as the Electoral Act 2010 (as amended) operates as a substantive and procedural legal framework for aggrieved candidates at an election to challenge the outcome of same, a calm consideration of the Act as well as the cases, will leave the objective reader with the irresistible impression that it was never the intendment of the draftsman of that legislation that our electoral process be exposed to undue litigation before the actual winner can be known. The smoking gun of this hypothesis is made manifest in the sisyphean onus thrust on the shoulders of a Petitioner at an Election Petition Tribunal before he or she can prove to the required standard of proof that the entire proess of the election was fraught with widespread irregularity and non compliance with the extant laws; so material that it should tantamount to the nullification of the entire election, or a return in his favour
A very fine jurist PATS-ACHOLONU J.S.C (as he then was) underscored the daunting task faced by a petitioner in challenging election to the office of president or Governor in Nigeria in the popular case of Buhari v Obasanjo  13 NWLR (Pt.941) 1 thus, “The very big obstacle that anyone who seeks to have the election of the president or Governor upturned is the very large number of witnesses he must call due to the size of the respective constitutency. In a Country like our own, he may have to call about 250,000-300,000 witnesses. By the time the court would have heard from all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of substance”.
While time for the presenting and determination of election petitions have been abridged by the subsequent amendments to the Electoral Act between then and now, it has not taken away the evidential obstacle faced by a petitioner, which as has been shown in many cases is difficult to discharge in a way that would lead the court to order a return of a petitioner.
I like to think that this evidential burden thrust on a petitioner was purposely written into our laws, to discourage candidates at an alection from challenging the process in the event of a loss, in the same way the legal burden thrust on the prosecution in criminal trials is purporsely written into the laws to further cement the presumption of innocence enjoyed by an accused person. Little wonder why the courts have in several cases held that every election is presumed to have been conducted in full compliance with the provisions of the Electoral Act and its guidelines until proven to the contrary.This line of thought will however beg the question: should candidates who participated at an election be shut out or recused from contesting the result of the polls especially in the face of wide spread irregularity or evidence of rigging such as was alleged by the petitioners in the recently conducted Osun and Ekiti State polls? This admittedly is the crux of the matter.
Granted that there is no easy way of attempting and answer to the legitimate poser; but when one factors the near impossibility of winning back a perceived lost mandate through an election petition given the current state of our laws, the need to imbibe the values of equanimity becomes instructive.
Since the return to uninterrupted democracy in 1999, thousands of election petitions have made it to election tribunals, with many of them going up all the way to the Supreme Court, only to end up in a debilitating defeat for a Petitioner as the attitude of the courts is one that seldom likes to meddle in the choice of who becomes the holder of an elective office. The tribunals as well as the appellate Courts have betrayed these sentiments in a long chain of cases with the incumbent president Muhamadu Buhari being a serial ‘victim’.
Except for the isolated cases of Adams Oshiohmole, Olusegun Mimiko, Peter Obi and few others who at different times were returned through an election Petition, several other petitions have gone all the way to the apex Court without ending in a return for the petitioners or a rerun.
In order to institutionalize this judicial disposition to election petitions, the courts in their wisdom have devised several ingenious means within the ambit of the law, most of them tending to technicalities, to further shore up the presumption of regularity which every election enjoys to the detriment of Petitioners who allege fowl play. Anyone who appreciates the jurisprudence of election petitions will have no doubt that it is an exercise in undue legalese which in many cases edges off a petitioner no matter the grounds of the individual petition.
At the risk of sounding too hypothetical, some instances might sufice: It is a fashion for petitioners to make a criminal allegations against electoral officers at large in the body of the petition, but almost always fail to join them as parties to the Petition for obvious reasons; thereby leading to a striking out of the portions of the pleading alleging criminal wrongs against those persons in line with the extant position of the law. The apex Court in the popular case of Buhari v Obasano (supra) had reason to pronoune on this recurring procedural blunder thus: “allegations of the commission of a crime must be proved beyond reasonable doubt whenever they are made in an election petition. It is therefore inappropriate for a Court to infer that a particular candidate at an election was responsible for the violent acts committed during an election in the absence of evidence which shows beyond reasonable doubt that he was”.
But that is not all. It is also a fashion for petitioners to allege the compromise of security operatives on election day; an allegation which usually takes the form of emasculation and intimidation of supporters and party members as was the case in the ongoing Osun election petition, but always fail to make the indicted member(s) of the security operatives parties to the petition, understandably due to the near impossibility of identifying the particular officers who were involved in these alleged acts of intimidation and compromise. This procedural ommision at the instance of the petitioners almost always receive the backlash of the tribunal and a subsequent striking out of those portions of the petition in line with the extant law on pleadings and leading of evidence.
The story is also the same for allegations in a petition taking criminal coloration such as one, that an electoral officer was involved in the mutilation of results, forgery or wrongful balloting to confer advantage to a particular candidate. This specie of allegations being criminal in nature, are almost always not proved as Petitioners often find themselves unable to do so to the required evidential standard, which is ‘proof beyond reasonable doubt’. By practice, these collateral and recurring procedural misteps, takes the shine off the petition thus earning it an order of strking out, irrespective of what might have played out at the polling units on election day.
It is this rather convoluted nature of our electoral jurisprudence that has aggregated to put the resolution of electoral disputes out of the reach of petitioners. Yet, for candidates at any election to be able to cultivate the habit of accepting the result of the process since only one candidate can emerge victorious at a time, it goes without saying that they must be convinced that the entire process of the election conformed with the minimum requirements of the electoral laws and its guidelines without inteference from any quarters.
Many candidates that have queued up to contest one elective office or the other in the forthcoming general elections have said as much. For instance, when Professor Kingsley Moghalu of the Young Progressives Party (YPP) was asked recently whether he’d contest the result of the presidential election if he loses, his simple response to the interviewer, was that if the entire process is free and fair, he’ll of course accept the result. From this response, one could easily infer the workings of the minds of other candidates in the forthcoming election on the issue of acceptance of the result of the polls.
Which brings us to the role of the Independent National Electoral Commission (INEC) and the security agencies in the scheme of things. While one must commend the INEC for its efforts thus far in cleaning up and enhancing the integrity of our elections, the fact of the matter remains that there is still a lot of work to be done. What the recent elections in Ekiti and Osun States respectively show, is that there are still missing links here and there in its internal processes which operate to cast doubt on the state of its aloofness in the conduct of elections. The forthcoming elections it is expected, will be another test of its capacity to midwife an election that will be accepted by all and sundry without the imperatives of contest before any election tribunal. If they fail to live up to this billing, it’ll leave aggrieved candidates with no option but to challenge the results without giving any considerations to the possibilities (however slim) of a return through the tortious runway of election petitions.
On the part of security agencies, their roles in the conduct of elections have been anything but complimentary. By deploying acts of intimidation of voters and taking sides when they ought to be neutral, they give away their compromised stance. And needless to say, when opponents at an election perceive the police and other security agencies to be doing a yeo man’s job for a particular candidate (usually the incumbent), it does not augur well for their confidence in the entire process.
A very eminent but retired justice of the Court of Appeal (now Nigeria’s Amabssador to the United States) Per. S.A Nsofor painted graphically the unprofessional performance of the Nigerian police in the 2003 presidential election in his dissenting opinion in the notorious case of Buhari v Obasanjo  2 N.W.L.R (Pt. 910) CA 241 thus: “And there was a patent demonstration of connivance, “bias” on the part of the police against the petitioners and in favour of the 1st and 2nd Respondents. They turned blind eyes to the attrocities being inflicted on the innocent Nigerian citizens; by the army and the police. And INEC was passive. See the evidence by Dr. Okilo (PW. 69), D.W 23 (Lt. Col. Sotunde Aina Songonuga). In Bayelsa state there was evidence galore of violence, which i believed. See P.W. 52, 53 and 54. Dr. Okilo (PW. 69). In Rivers State evidence abound and I accepted it, (see P.W. 32), that there were armed gangs shooting at random intimidating the Petitioners and their supporters in the face of the police. And the Police did nothing and said nothing…” Some 13 years after this very profound findings by the erudite jurist, the Nigeria police and other security agencies are yet to turn a new leaf from what one can gather from their performance in recent polls.
For elections to be adjudged free and fair, they must not be fraught with any form of intimidation on the part of security agencies whose role at elections is delimited by the provisions of the Electoral Act; the extant legal framework for the conduct of elections. Consequently, the security agencies must not only be neutral, but manifestly seen to be neutral in all their engagements with the electoral process. Given the woeful conduct of the Nigerian police force particularly, under the leadership of the former Police Chief, Idris Kpotum, one can only but expect that the force under its new leadership will turn a new leaf and use the opportunity of the forthcoming elections to assert its professionalism.
Whichever way one looks at it, it is not in the best interest of our democracy for our periodic elections to be contested at election tribunals especially with a disturbing frequency, so much that it has become a part of the electoral process, if not the definitive part. Per Abdullahi PCA (as he then was now rtd.) voiced his reprehension for this anomaly in a notable pronouncement in the Buhari v Obasanjo case (supra), “I think it is appropriate at this juncture to make some observations. I believe the time has come in our learning process to establish the culture of democratic rule in this Country to strive to do the right thing, particularly when it comes to dealing with electoral process, which is in my view is one of the pillars of democracy”. This couldnt have been said any better.
Election petitions are energy sapping, time sensitive, and financially tasking when one considers all that goes into its prosecution both for the Petitioners and the Respondents. For the Petitioners, it is another long walk to a destination that may not be reached. And for the Respondents, it is a needless distraction from the business of governance. But more than anything else, it is the opportunity it offers the courts to be the ultimate decider of who is the actual winner at an election against the democratic principle of franchise that highlights its undemocratic contours.
Flowing from the above, I do not envy his Excellency Kayode Fayemi despite his victory at the tribunal and I have nothing but sympathy for his opponent, Professor Olusola Eleka. Both men are in my considered opinion, victims of an electoral process that urgently needs an overhaul. No democratic state should be at the mercy of election tribunals at periodic elections to decide the colouration of its leaderhip.
Raymond Nkannebe is a Legal Practitioner and Public Affairs Analyst. Comments and reactions to firstname.lastname@example.org.