It is that time again when we as citizens perform our civic duty and exercise our right to vote for those who will represent us in the executive and legislative arms of government to ensure that we achieve our collective desires for Nigeria. It is also the time, for those of us who are not politicians, to sit back and watch the intrigues of ‘politricks’ in Nigeria. There are some clear indications that we have entered election season in Nigeria: the defections from one party to another; the suspension of members from their political parties; the intra and inter-party disputes; the formation of coalitions; and the declarations of intention to run for elected offices.
The stakes are very high for Nigerian politicians and citizens. The dawn of this democratic dispensation was quite bloody. I remember the assassinations of top level politicians and government officials in that period and although there have not been many high profile, political killings, it seems that politics in Nigeria is still a do-or-die affair. In these parts, there are never any free and fair elections, just as no person ever dies of natural causes. Survivors of the deceased will still point fingers at the witches and wizards even where the deceased, prior to his demise, was diagnosed with a terminal illness. So it is with elections. Even people who have no hope of winning majority votes in a family meeting will contest the results of an election that they participated in. And why not?
‘Shoot your shot’, as they say. I once met a man who was obviously suffering from some form of delusion. He had come to an office where I was visiting to seek financial assistance. It was election season and the discussions shifted to the upcoming elections. This is when he revealed to us that he was considering running for the office of President of Nigeria because his constituency just would not let him be. According to him, they are putting pressure on him to run. Now imagine that such a person contests and loses the election, he would feel robbed but he would have no other choice but to return to his constituency and lick his wounds because this man could barely feed himself, much less sustain an election petition.
But there are those with the same delusions and deeper pockets who will challenge the election results and file an election petition. I imagine that the Senior Advocates in Nigeria are preparing for what comes after Election Day. Somehow, it has become standard that only Senior Advocates are briefed in election petitions and from what I hear, they are handsomely rewarded. Election petitions are not cheap to prosecute. It is a technical area, with little room for concessions in procedure. Commencing an election is a race against time.
Election petitions are provided for in the Electoral Act 2010. Section 137 of the Act provides that either a candidate in an election or a political party which participated in the election may present an election petition. The parties who present the petition would be the petitioner. The respondents would be the alleged winner of the election complained of, and the Independent National Electoral Commission.
The grounds of petition are contained in section 138(1):
(1) An election may be questioned on any of the following grounds, that is to say:
That a 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 this 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.
Section 139 provides that certain defects of an election will not invalidate an election:
(1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.
(2) An election shall not be liable to questioned by reason of a defect in the title, or want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to conduct the election.
The qualifications for contesting in an election for different positions are contained in the 1999 Constitution of Nigeria – Presidential election (s137); Governorship elections (s182); National Assembly elections (s66); and House of Assembly elections (s107). Qualifications comprise citizenship requirements, minimum education requirement, and age.
As stated above, prosecuting an election petition is a race against time. An election petition must be filed within 21 days after the date of the declaration of results of the election. Unlike with other civil actions, there is no slack in this time. The court will not grant an extension of time within which to file an election petition. That means that failure to file a petition within the stipulated time means that a petitioner has lost their right to relief. You can imagine all the tricks that a respondent will employ to ensure that a petitioner does not come within the 21 days. I will leave that to your imagination – This is Nigeria! One can appreciate the huge fees attached to prosecuting an election petition just on sighting compiled petitions. The files are so big, they could anchor down a ship.
An election tribunal must deliver its judgment within 180 days from the date of the filing of the petition. An appeal from the decision of an election tribunal or the Court of Appeal shall be heard and decided within 60 days from the date of the delivery of the appealed judgment. Finally, where the Court of Appeal sits in its appellate jurisdiction over decisions from the National and State Houses of Assembly Election Tribunals, the decision of the Court of Appeal is final. However, petitions in governorship and presidential elections terminate at the Supreme Court.
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