The Nigerian Constitution
Election Petitions and the Courts
One of the most serious impediments to the system of democratic government in Nigeria is the unduly long time it takes to determine election petitions under the current Constitution. Undoubtedly, the earlier elected persons can, after an election, occupy the positions to which they have been elected, the healthier for the democratic system. This is not the case in Nigeria at present. To compound the situation, elections are conducted so close to the commencement of the tenure of the incoming president, state governors and members of the various legislatures that whenever the result of an election is challenged in court, the elected person cannot commence his tenure on the date he is scheduled to do so.
The elections that ushered in civilian rule in 1999 were conducted in February that year, nearly three months before the commencement of the new regime. By contrast, the first presidential election under this Constitution was conducted on 23rd April, 2003, a week after the governorship and legislative houses elections. And those elections were for the people due to commence their tenure barely five weeks later, on May 29.
It is clear then that the dates of the 2003 elections did not leave sufficient time for a proper and fair determination of potential election petitions if they were meant to be concluded before the commencement of the tenure of those elected. It took over two years for the petition of General Muhammadu Buhari against the re-election of Chief Olusegun Obasanjo as President to be concluded in the Supreme Court. At the State level, it was not until the middle of May 2006 that the Supreme Court finally pronounced on the judicial challenges to the election of Chief James Onenafe Ibori as Governor of Delta State. The Court held the allegation that Chief Ibori was an ex-convict not proved and, consequently, that his election was valid. While that outcome did not lead to an upheaval in government work, the long-drawn-out court challenges meant a long period of uncertainty about government and governmental actions.
In the case of Peter Obi vs. Dr Chris Ngige, flowing from the same 2003 elections, the final decision was only handed down by the Court of Appeal on 16th January 2006. From the above, it can be seen that the existing situation amounts in reality to a technical denial of the right of contenders to effectively challenge the results of elections they disagree with.
2. Consequences of Delayed Determination of Petitions.
The government run by Chris Ngige for nearly three years as the de facto Governor of Anambra State was uprooted. The change of government inevitably resulted in an upheaval in the political and administrative aspects of governance. As Obi and Ngige belonged to different political parties (APGA and PDP respectively), new State commissioners and members and chairmen of parastatals had to be appointed; several permanent secretaries shuffled around; and so forth.
Where an incumbent president or State governor is removed from office as a result of a long delayed election petition, lasting two or more years in the courts, how much of the four-year tenure is left for the winning candidate to occupy and perform the functions of the office? In a subsequent case (Peter Obi vs Chris Uba), the Supreme Court in interpreting section 180 (2) (a) of the Constitution ruled that Obis’s tenure of four years as the Governor of Anambra State commenced from the date he was sworn in as Governor. That provision goes as follows:
“(2) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of four years commencing from the date when –
(a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; and
(b) .. .. ”
Although the Supreme Court thus enabled Peter Obi to enjoy in full his allotted period of four years as Governor despite the long time it took to finally determine the case, there was no way the Court could have reversed the fact that Dr Ngige had, for nearly three years, governed the State without being duly elected to do so. In general, the consequence of these long delays is that the people’s choice in being governed by those they want is greatly weakened; they become frustrated and cynical about the democratic system
3. Constitutional Sources of the Problem
There are two sources of the problem of elected persons not being able to commence their tenure as and when due. Both sources derive from the current Constitution. One is that the elections are conducted too close to the commencement of the tenure of those to be elected while the other is that, as a result of a constitutional constraint on the Judiciary, it takes the courts too long to determine election petition cases.
In 2007, the Independent National Electoral Commission (INEC) planed to conduct the elections between the 7th and the 28th of April 2007 for those to commence their tenure on the 29th of the following month. The Commission was criticized for scheduling the election too close to the commencement of the next regime. The fact is, however, that under the Constitution, INEC had very little room in which to manoeuvre in the matter. The time table it announced was entirely in conformity with the Constitution.
The provisions of the Constitution prescribing the date for the election to the office of the President are contained in section 132 (1) and (2) of the Constitution while those relating to the election of State Governors are contained in section 178 (1) and (2). The two sets of provisions are couched in identical words. While sub-section (1) of section 132 empowers INEC to appoint the date for holding a presidential election, sub-section (2) of that section stipulates that:
“An election to the office of President shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the tenure of office of the last holder of that office.”
There are similar restrictions on the power of INEC to fix the dates of elections to the legislative houses. It is clear then that if election time-tables are to allow sufficient time for the filing and fair determination of election petitions, the above provisions of the Constitution will have to be amended to make for a longer period between the date of an election and the commencement of the tenure of those to be elected.
4. Delay in the Courts.
While it is true that there are indefensible delays in determining election petition cases by the Judiciary, yet it should be said that even with the best of intentions on all sides, the hearing and determination of election petitions necessarily require a considerable length of time in order to achieve proper and fair hearing. In practice, litigants deliberately slow up pre-trial processes and unduly prolong court proceedings whenever it suits their interest to do so. Bello, JSC (as he then was), observed in Paul Unongo vs. Aper Aku & 2 ors (1983) 9 SC and (1983) 11 SC 129 at page 155 as follows:
“It is a notorious fact that respondents resort to all sorts of dubious means in order to avoid service of the petition on them with a view to defending [ defeating?] the petitions by the passage of time under sections 129 (3) and 140 (2) [of the 1982 Electoral Act]”.
One solution to these delays that springs to mind is that the National Assembly should enact appropriate legislation to limit the time within which the courts must conclude the hearing and determination of election petition cases. This was, indeed, attempted in the Electoral Act of 1982 but it was struck down by the Supreme Court on the ground that the National Assembly had no constitutional power to make any such Law. The Act had prescribed a stringent time-table for the filing and service of processes, and the hearing and determination of election petition cases. Section 129(3) of the Act stipulated that
“Proceedings before a High Court in the case of a petition in respect of the office of President, Vice-President, Governor, Deputy Governor or in respect of any of the legislative houses shall be completed not later than 30 days of the election concerned.”
Furthermore, section 140(2) of the Act stipulated that
“any election petition not so disposed of shall be time-barred and such petition shall be deemed null and void.”
The shortcomings of these provisions were pointed out by Uwais, JSC (as he then was) in the lead judgment in Paul Unongo vs. Aper Aku & 2ors (supra) at 201 – 202 as follows:
“. . . where an election result gets to be known on the very day the election takes place, if all the actions to be taken by the parties to a petition under section 119(4) and 135 of the Electoral Act, 1982 were carried out on the last day allowed by the Act in each case and allowance were made for the mandatory 10 days under section 139 of the Act before the hearing of the petition; then the trial court must dispose of the petition on the very day that it was fixed for hearing. This is notwithstanding the number of witnesses the parties wish to call or the complexity of the petition. If the trial court is unable to hear all the evidence to be adduced and give its judgment on the same day, the petition lapses. On the other hand, where the result of the election was not known until a day or more after the election day, . . any prospective election petition in that respect would become statute-barred under section 140 (2) of the Act before it even gets filed in the court.”
In that case, the election had been held on 23rd August 1983. The pre-trial processes set out in the Electoral Act 1982 had, in fact, been quickly concluded and the petition set down for hearing. However, the High Court of Benue State accepted the contention that the 1st Respondent (whose election was being challenged) could not be sued on account of the immunity from court processes which, as a State governor, he enjoyed under section 267(1) of the 1979 Constitution. Consequently, the Court struck out his name from the petition and, for some other reasons, also struck out the name of the 2nd Respondent (the Chief Electoral Officer). The Federal Court of Appeal (now the Court of Appeal) quickly concluded its hearing of the appeal on the question of the Governor’s claim of immunity and the Supreme Court gave its judgment in the final appeal in the matter on 30th September 1983. Thus, all three levels of court had handled the case with remarkable dispatch. Yet the petition could not be disposed of within the period prescribed in the Act.
Although the Federal Court of Appeal held that the immunity from court processes enjoyed by a State Governor under section 267(1) of the 1979 Constitution did not extend to election petitions against him and, accordingly, held that the petition was competent against all three Respondents. However, the Court found it was unable to send the petition back to the High Court for a hearing on the merits because, by that date, the 30 days allowed for disposing of election petition cases by the High Court had elapsed. As a result of this, the case had become “time-barred”. This meant that the High Court had ceased to have jurisdiction to hear and determine the matter.
At the Supreme Court, the Petitioner challenged the constitutionality of the provisions of s. 139(3) and s. 140(2) of the Electoral Act in obedience to which the Court of Appeal had been unable to send the case back to the High Court for a determination on the merits. His counsel submitted that the National Assembly lacked the constitutional competence to enact the said provisions which, he argued, violated the principle of the separation of powers between the Judiciary and the Legislature in that those provisions controlled the exercise by the courts of their judicial function in the matter. The issue of a person’s right to fair hearing in the courts as enshrined in section 33(1) of the Constitution was also canvassed in both the Court of Appeal and in the Supreme Court.
After a comprehensive and thorough examination of the issues raised, the Supreme Court on 25 September 1983 held that those provisions of the Act, indeed, interfered with and impeded the Judiciary in the proper performance of its functions under the Constitution. The Court also held that those provisions violated the individual’s right to fair hearing. Consequently, the Court declared the provisions unconstitutional and sent the case back to the High Court for a hearing on the merits. It reserved its reasons for the decision to 25 November 1983. Meanwhile, on 31st December 1983, the Army struck and seized power in the country. That, in effect, suspended the country’s constitutional development for nearly sixteen years.
5 .Suggestions and Conclusion.
On May 29, 1999, the country returned to civil rule. Now that we are back in another era of democratic government and constitutional development, we need to find a way out of this constriction in the smooth running of the democratic processes. To start with, it is clear that if election time-tables are to allow sufficient time for the filing and determination of elections petitions, the provisions of the Constitution relating to the dates of elections will have to be amended. Moreover, the constitution should also be amended either to directly curtail the period it takes to determine election petition cases or, preferably, to enable the National Assembly to pass the appropriate legislation.
However, any amendment to the Constitution or any legislation enacted to cure the ills of the present system must avoid the extremism of the pre-trial and trial time-tables set out in the 1982 Act. The provisions of that Act were clearly inconsistent with the principle of fair hearing. Therefore there is the need to find a balance between statutory provisions that will allow the Judiciary to perform its functions properly as stipulated in the Constitution and, at the same time, eliminate the problem of the long-drawn-out proceedings in the courts. While enunciating the effect of the principle of the separation of powers under a written constitution, Bello JSC (as he then was) observed in his judgment in the Paul Unongo case (supra) at pages 146 and 147 as follows:
“In the United States of America, it is trite rule of constitutional law that in consequence of the separation of governmental powers embodied in the Constitution of the United States and of the several States any statute by which the legislature attempts to hamper judicial functions of the courts or to interfere with the discharge of judicial duties or to unduly burden the exercise of judicial functions is unconstitutional and void unless the Constitution of a State so permits” (underlining is added by me for emphasis).
Thus, we see that the issue of the unconstitutionality of the provisions of an Act of the National Assembly can be resolved by appropriately amending the Constitution to permit the desired provisions. As is clearly implied by Bello, JSC, in the passage quoted above, in the United States of America, a State legislature has the competence, where the constitution of the State so permits, “to hamper judicial functions of the courts or to interfere with the discharge of judicial duties or to unduly burden the exercise of judicial functions.” This is logical as whatever is prescribed in, or permitted by, the Constitution itself cannot be unconstitutional. Therefore, since it is the Nigerian Constitution that enshrines the principle of the separation of powers in the governance of the country, the same Constitution can, and should, modify that principle in the overall interest of ensuring that the country’s system of government works properly.
The ideal aim of the electoral system should be to have all election disputes finally resolved well in advance of the date fixed for the commencement of the tenure of those elected. The time-table for the holding of elections as set out in the current Constitution makes it impossible to achieve this ideal. It is therefore suggested that the Constitution should be amended to make for the holding of these elections not earlier than 180 days and not later than 150 days before the commencement of the tenure of those elected.
As for the time it takes to determine election disputes, a reasonable balance must be struck between the present situation where the cases may go on for years before final determination on the one hand and, on the other, unduly constricting the individual’s right to fair hearing. In contrast to the Electoral Act of 1982 which stipulated only 30 days for the conclusion of trials at the High Court and 7 days for the determination of appeals by the Court of Appeal and 7 days by the Supreme Court, a maximum period of 120 days should be prescribed either in the Constitution itself or in an Act of the National Assembly to be enacted in accordance with the Constitution
This will enable the ideal to be achieved of finally resolving all election disputes at least ten days before the commencement of the tenure of those elected. A period of 120 days would also give the parties sufficient time to adequately present their cases and for the courts to give sufficient consideration to those cases. The legislation will have to guard against respondents who might try to cause unnecessary delays. Fortunately, under the current Constitution, unlike the 1979 Constitution, there is only one appeal in election disputes. Even where judicial challenges, such as those in the Ibori case, make it necessary to go through two appeal stages, 120 days should nevertheless be sufficient for the complete and final resolution of an election petition.
Despite the efforts of the President of the Court of Appeal who drew up stringent rules of procedure for the trial of the petitions arising out of the April 2007 elections, it may take a whole year before some of them can be finally resolved, allowing for the time it will take to conduct fresh elections where ordered by the Courts. There ought to be more Panels of the Election Petition Tribunals wherever necessary. This need ought to be considered and anticipated as soon as the Panels are set up in the first place. Under section 141 of the Electoral Act 2006, 30 days is allowed for the filing of election petitions while 21 days is given under subsections (1) and (2) of section 149 of the Act for the filing of appeals from the decisions of Election Petition Tribunals. In my opinion, these periods are unnecessarily long. I would suggest 18 days for the filing of petitions in presidential elections, 14 days in governorship elections and ten days in elections to the legislative houses. As for appeals from the decisions of the Tribunals, the same number of days, respectively, should be allowed. The period given to INEC to re-run voided elections should be, respectively, 30 days, 18 days and 14 days from the date of the decision of the Tribunal or of the decision on appeal, whichever is later.
Because of the seriousness of the potential danger which inordinate delays in the determination of election disputes pose to the political stability of the country, the suggested constitutional amendments and the appropriate legislative provisions should be considered seriously. Indeed, if Nigeria is to operate a meaningful and workable electoral system, these amendments are mandatory. We can well imagine what could happen where an election petition goes against an incumbent president who has been in office for two or more years and have therefore had a lot of time in which to entrench himself in that office. Obviously, the process of removing and replacing him with another person may lead to a major political crisis, if not worse.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.