ISSUES THAT MAY SHAPE 2019 ELECTION PETITION PROCEEDINGS

The process of dealing with complaints and resolving election disputes is critical to the survival of any democracy, particularly a fragile one like Nigeria. In addition to observing the voting process, attention must also be paid to the process of managing post-election disputes.

This has become very important in view of the glaring desperation of politicians across political parties in Nigeria.
The Election tribunals and courts are important to the whole democratic process because they represent the confidence of the people not only in the electoral process, but also in the rule of law.
The malfunctioning of the tribunals and courts will lead to the electorate and the political class settling political scores through resort to unconventional means. Even with the best conducted elections, disputes might arise.

What is important is how fair and speedily such disputes are disposed of and justice given to the deserving. This paper as the title indicates will highlight issues that may emanate from the 2019 election petitions process.

Access to vital materials by election petitioners
A common complaint that had dogged the sittings of the various election petition tribunals and by, implication, threatens the outcome of the whole exercise, is the difficulties being encountered by petitioners in assembling the much needed materials and evidence required for their petitions under the frontloading regime.

Under the Election Tribunal and Court Practice Direction, petitioners are compelled to frontload i.e. to file petitions alongside their list of witnesses, statement of oath and all accompanying documents to reduce delays.

Unfortunately, the materials and evidences that petitioners and respondents alike would rely on to build their cases or defenses are with agencies whose commitments the petitioners or respondents  cannot determine, there is the likely scenario in which justice could be denied  some of those entitled to it simply because those statutorily in custody  of those election materials such as the Independent National Electoral Commission (INEC), the police and other security agencies involved choose to be tardy and willfully uncooperative.

In 2015, this played out in several states across the country.  INEC refused to allow some Petitioners and Respondents access to materials used for elections even after the Courts had ordered that materials be made accessible.

The 2018 Electoral Act Amendment Bill tried to address this mischief by providing that any election officer who fails to obey a court or tribunal order with respect to inspection or production of materials shall be liable to imprisonment for 2 years without an option of fine. Regrettably, the 2018 Electoral Act Amendment Bill was not signed into law by the President.
 
Time limits for filing and conclusion of election petitions
The constitutional provision as to limitation of time within which election petitions and appeal therefrom must be filed and concluded has remained a dramatic change in the way and manner election petitions are conducted in Nigeria.

The Constitutional timeline for conclusion of election petition is a double edged sword, as it were. On the one hand it is a salutary reform that cured the mischief of prolonged election petition process that often enabled the beneficiaries of ‘stolen’ electoral mandate to hold political offices for several years before final judgment is secured nullifying their elections and sacking them from the offices they fraudulently secured.

On the other hand, the limitation of time prejudiced numerous meritorious election Petitions, which were unfortunately struck out for being choked by the time frame.
Section 285 (5 – 8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:
  1. An election petition shall be filed within 21 days after the date of declaration of results of the election;
  2. An election Tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition;
  3. An appeal from a decision of the election Tribunal or court shall be heard and disposed within 60 days from the date of the delivering of the judgment of the Tribunal;
  4. The Court in all appeals from election Tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.
The Supreme Court has leaned towards very strict interpretation of the above constitutional provisions – brooking no discretion whatsoever on the part of the Court to extend any of the time limits under any circumstance.

Thus, in the case of ANPP v. Goni  the Supreme Court, per Rhodes-Vivour, JSC, left no one in doubt about its attitude to the constitutional time line for  election petitions:
The period of 180 days is not limited to trials but also to de novo trials that may be ordered by an appeal court.

Once an election petition is not concluded within 180 days from the date the petition was filed by the petitioner, an election Tribunal no longer has jurisdiction to hear the petition and this applies to rehearing. The period of 180 days shall at all times be calculated from the date the petition was filed.

Still in the above case, the Supreme Court, per Onnoghen, JSC further opined and so held that:
Courts do not have the vires to extend the time assigned by the Constitution. The time cannot be extended, or expanded or elongated, or in any way enlarged. The time fixed by the Constitution is like the rock of Gibralter or Mount Zion which cannot be moved.

If what is to be done is not done within the time so fixed, it lapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter.

It was the same cerebral Onnoghen, JSC, who in the case of Felix Amadi & Anor. v. INEC & Ors  also foreclosed any hope of judicial magnanimity for enlargement of time in election petition appeals. He categorically pronounced that the time limit of 60 days for election petition appeals as provided in Section 285 (7) of the Constitution was sacrosanct.

He reasoned that the obvious intendment of the Legislature in making that provision was to limit time and not to extend it. According to the jurist, it would therefore be inappropriate and indeed illegal to interpret the provision to attain the effect of extending the time therein allotted.

It would seem that the Election Petition Tribunals, Petitioners and their lawyers learnt a bitter lesson from the experience of 2011 election petitions whereby many petitions were asphyxiated by the constrictions of constitutional timelines, as it were.

Thus, virtually all Petitions brought sequel to the 2015 elections were disposed of on the merit and went through the appeal process within the time limits prescribed by Section 285 of Constitution.
However, the issue reared its frightening ‘rock of Gibralter’ head in the case of Ikpeazu v. Otti & Ors  in an offside manner.

The appellant argued in one of his grounds of appeal at the Supreme Court that the judgment of the Court of Appeal that nullified his election as Governor of Abia State was dated 31st December, 2015 but was not certified until 6th January, 2016.

He, therefore, submitted through his counsel that the signing of the enrolled and certification of the judgment on that date lead to the conclusion that the lower court disposed of the appeal on 6th January, 2016 – 4 days outside the 60 days’ time line mandatorily stipulated by the Constitution.

In upholding the Respondents’ preliminary objection to this ground of appeal and issue raised therefrom, the Supreme Court held that “the fact that the Appellant could not obtain his copy of the judgment until 6th January, 2016 does not mean that other parties did not get their own copies before that date”.

The ground of appeal and issue therefrom, the Supreme Court further held, were merely attacks against what the Registry of the lower Court did after the judgment had been delivered.
Therefore, the ground of appeal was attacking the acts of certification, enrollment order and availability of the judgment to the appellant before 6th January, 2016, and there was nothing to show that the Appellant was complaining about anything done by the Justices of the Court of Appeal after delivery of the Judgment on 31st December, 2015.

The Supreme Court therefore upheld the Respondent’s preliminary objection and dismissed the Appellant’s ground of appeal and issue raised therefrom challenging the competence of lower court’s decision on grounds that it was delivered outside the constitutional time limit.

It has been advocated that Section 285 of the 1999 Constitution and Section 134 of the Electoral Act be amended to provide exceptions to the election petition timelines, e.g., for days to stop counting where there is a stay of proceedings, and for days to start counting afresh where there is an order for de novo hearing of an election petition. It will be interesting to see if the courts will shift its position on the issue of timelines.

Use of the card reader
The Independent National Electoral Commission (INEC) is one of the executive bodies created under Section 153 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 160 (1) of the said Constitution provides that any of such bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions.

Pursuant to the aforesaid powers conferred upon it by the Constitution, INEC like in 2015 has issued ‘Regulation and Guidelines for the Conduct Elections 2019’, which among other things provides that “accreditation process shall comprise of verification of voters using the Card Reader; checking of the Register of voters; and inking of the cuticle of the specified finger”

The introduction of the Card Reader via the Approved Guidelines is an innovative measure by INEC aimed at improving the transparency and credibility of the electoral process. The use of the Card Reader is a novel addendum to the accreditation and voting procedure specified under  Section 49 of the Electoral Act, 2010 (as amended), which provides as follows:

A person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card. The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.

However, INEC’s decision to use the Card Reader without the National Assembly amending Section 49 of the Electoral Act, 2010 (as amended) may be a big issue in 2019.  After the 2015 elections, the Supreme Court in the case of Mahmud Aliyu Shinkafi v. Y. Abdulazeez Abubakar Yari & 2 Ors laid to rest the controversy elicited from the divergent positions taken by the various election Tribunals and Court of Appeal on whether the card reader can be relied upon in seeking to nullify an election. The Court pronounced on the issue as follows:

My view on this is that the principle of law that is well established cannot be abolished simply because an appellant failed to prove his case in accordance with those principles. My understanding of the function of the Card Reader Machine is to authenticate the owner of a voter’s card and to prevent multiple voting by a voter. I am not aware that the Card Reader Machine has replaced the voters register or taken the place of Statement of results.

In the appeal from the Abia State governorship election petition–Okezie Victor Ikpeazu v. Alex Otti & 4 Ors–the Supreme Court in stating the reasons for its judgment, reiterated extensively the status and function of the Card Reader in the scheme of our electoral process. Olabode Rhodes-Vivour, JSC, concurring with the lead judgment, trenchantly captured the attitude of the Court on the use of the Card Reader, when he opined:

Where a petitioner seeks to prove that there was over voting in the election in which he participated, he would succeed if he is able to show that the number of votes exceeds the number of would be voters in the voter register.

If the petitioner decides to rely on Card reader Reports as in this case to show that the number of votes exceeds the number of voters recorded by the card reader but less than would be voters on the voters register, he would fail.

That explains the plight of the petitioner in this petition/appeal. The card reader may be the only authentic document if and only if the National Assembly amends the Electoral Act to provide for card readers. It is only then that card readers would be relevant for nullifying elections.

The implication of the Supreme Court decision is that the Approved Guidelines and Regulations for the Conduct of Elections made by INEC pursuant to powers conferred on it by Section 160 (1) of the Constitution of the Federal Republic of Nigeria, 1999, cannot supersede the provisions of the Electoral Act, 2011 (as amended).

The Court firmly placed its stamp of authority on the position that the legally recognized mode of accreditation of voters is as provided under Section 49 of the Electoral Act, and accordingly any allegation of over-voting or similar malpractices must be proved by having recourse to and tendering the Register of Voters.

The Supreme Court did not really discountenance evidence of the Card Reader reports as irrelevant, neither did it designate the use of the Card Reader as amounting to electronic voting contrary Section 52 (2) of the Electoral Act; instead the Court held that a Petitioner cannot rely on the Card Reader to establish such allegation up until it is legally recognized by incorporation into the Electoral Act by the National Assembly. The question then is, of what use is the card reader if it has no probative value at the election tribunal?

Conclusion
The 2019 General Elections, if campaigns are anything to go by, is going to be competitiveness. There is the likelihood that election petition tribunals and courts will be inundated with petitions.
The President of Nigeria would have tremendously assisted the election petitions process if he had signed into law the 2018 Electoral Act Amendment Bill which addressed some of the election petition issues highlighted in this paper.

Unfortunately, the President did not sign the 2018 Electoral Act Amendment Bill into law. It will, therefore, be interesting to see how the courts/tribunals will navigate some of the difficult issues that will arise after the 2019 elections.


THE ROLE OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT IN THE SPEEDY DISPENSATION OF JUSTICE IN NIGERIA

The Administration of Criminal Justice Act (ACJA) was signed into law in 2015 in a bid to revolutionize the administration of criminal justice in Nigeria. It repealed the Criminal Procedure Act (CPA) and Criminal Procedure Code (CPC) of Southern and Northern Nigeria respectively.

The purpose of the Act is to ensure that the system of Administration of Criminal Justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of society from crime and protection of the rights and interests of the suspect, defendant, and victim.

As noted above, one of the purposes of the Act is the enhancement of speedy administration of criminal justice. According to the Chief Justice of Nigeria Hon. Justice Walter Onnoghen, delay in the administration of justice is a major challenge facing the Nigerian Judiciary (Vanguard Newspaper 24th July, 2017). Delay has over the years no doubt been a major impediment to effective and speedy dispensation of criminal justice in Nigeria. The Act was therefore enacted to address this concern amongst others.

One major resultant effect of these delays is the overcrowding of prisons across the country. A report of the National Bureau of Statistics states that Awaiting Trial Persons (ATPs) account for a staggering 73% of the total prison population in the country.

The ACJA made some innovative provisions aimed at solving the problem of delays in criminal trials. These provisions have been put in place to ensure amongst others, speedy trial and quick disposal of criminal cases in the interest and as a right of a suspect, the defendant, the victim and in fact the society at large.


Image Source: cleen.org 


A PEEP INTO SOME OF THE INNOVATIVE SECTIONS AIMED AT ENSURING SPEEDY DISPENSATION OF CRIMINAL CASES IN THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

In total, The ACJ Act has 495 Sections through which its tentacles spread across every major aspect of criminal justice system.

Section 110 ACJA provides for a timeline in which criminal trials must be commenced and concluded in Magistrates’ Courts. The Act requires that trial must commence within thirty days of filing and concluded within a reasonable time.

It further provides that where trial is not commenced within stipulated time (30 days) and concluded within a hundred and eighty days of arraignment, the particulars of the charge shall be forwarded to the Chief Judge with reasons for failure to commence or conclude the trial. It therefore follows that according to the Act, reasonable time means not more than one hundred and eighty days of arraignment

Section 396 (4), provided that the interval between each adjournment shall not exceed 14 working days. Where it becomes impracticable to conclude the trial after both parties have exhausted five adjournments each, section 396 (5) is to the effect that the interval between further adjournments shall not exceed seven days inclusive of weekends. The court is also mandated to award reasonable costs pursuant to section 396 (6), this is aimed at discouraging frivolous adjournments.

Another important factor that has also hindered the speedy conclusion of criminal trials over the years is the situation where cases have to be tried de novo because the presiding judge has been elevated to a superior court. Such circumstances have received consideration under the ACJA. Section 396 (7) allows a Judge of the High Court who has been elevated to the Court of Appeal to preside as a High Court judge for the purpose of concluding a criminal case pending before the judge at the time of the elevation. The case shall however be concluded within a reasonable time.

However as regards the above, there have been arguments that the section is ultra-varies the Constitution of the Federal Republic of Nigeria 1999 (as amended), as the Constitution does not make provision for such instances.  Section 1(1) and (3) of the Constitution provides thus;

1(1) The Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

(3) If any other law is inconsistent with the provisions of the Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”

Another novel provision in the ACJA aimed at speeding up criminal trials is section 111 which makes it mandatory for the Controller-General of Prisons to make returns (every 90 days) of all persons held in prison custody for more than 180 days after the date of arraignment. The contents of the returns include the name of the suspect, passport photograph, date of arraignment or remand, date of admission to custody, particulars of the offence charged, court of arraignment, name of prosecuting agency and any other relevant information. These returns shall be made to the following persons:

  • The Chief Judge of the Federal High Court;
  • Chief Judge of the Federal Capital Territory;
  • President of the National Industrial Court;
  • Chief Judge of the State in which the prison is situated and;
  • The Attorney-General of the Federation.

CONCLUSION

The biggest criticism of the criminal justice system in Nigeria is the snail pace with which criminal justice is dispensed.

Following the introduction of the Act, a number of innovations emerged which not only improved the human rights in Nigeria by virtue of its laws, but also served as major breakthroughs to the problems of prolonged trials in federal courts.

The ACJA 2015, most especially the provisions discussed above are deliberate measures aimed at addressing this problem of unnecessarily prolonged criminal trials. Consequently, if implemented properly, the Act will no doubt restore the confidence of people in the criminal justice system.  

18 out of the states in the country have adopted the Act as the Administration of Criminal Justice Law (ACJL). It is important for other states to follow in that direction to ensure speedy and efficient criminal justice delivery and uniformity in criminal justice administration across the board.


Written by: Kikelomo Lamidi  and Collins Okeke - The Human Rights Law Service 




BACKGROUND OF THE FREEDOM OF INFORMATION REQUEST IN NIGERIA

Nigeria’s Freedom of Information (FOI) Act was passed into law on May 28 2011 by President Goodluck Jonathan, after the longest legislative (11years) debate in the history of Nigeria.

The Freedom of Information Act gives everyone the right to request information, whether or not contained in any written form which is in the custody or possession of any public official, agency or institution howsoever described. The person requesting the information does not need to show any specific interest in the information or justify his/her reasons for making the request.

WHAT INFORMATION CAN BE REQUESTED?

The Freedom of Information Act provides that individuals have a right to request any recorded information held by a public authority. Recorded information isn’t restricted to information that is in written form, but also information or records that do not exist in print but can by regulation be produced from a machine.

WHO CAN YOU MAKE A REQUEST TO?

Sections 1 and 2 of the FOI Act establish the right of any person to apply for information or Records in the possession of a public institution.

You may request the information or record from any public official, agency or institution. The FOI Act does not ordinarily apply to private bodies (e.g. private companies, NGOs, etc.)

ARE THEIR INFORMATION THAT ARE EXEMPTED FROM THE PUBLIC?

 YES. These Exemptions under the Act are covered by Sections 11-19, (excluding section 13). These Exemptions cover:-

  • International Affairs and Defense
  • Law Enforcement and Investigation
  • Personal Information
  • Professional and Others
  • Course or Research materials

HOW CAN I MAKE A REQUEST?

You can either request an FOI request orally or in writing.

Orally- An applicant may make an oral request to an authorized official of a government or public institution, who must then reduce the application into writing and provide a copy of the written application to the applicant.

In writing- It can be through a 3rd part. For Illiterate or disabled applicants who by virtue of their illiteracy or disability are unable to make an application for access to information or, they may make their application through a third party.

 IS A REQUEST FREE OF CHARGE?

The only charges for a request are limited to standard charges for document duplication and Fees transcription where necessary.

WHAT HAPPENS AFTER A REQUEST IS MADE?

The Law provides that the public institution must make the information available within 7 days of receiving the request. Failure to give access to the information requested for, within the timelines provided by the Act is deemed as a refusal of access.

WHEN CAN MY APPLICATION BE REFUSED?

A refusal can only be valid when the information requested for falls under the information exempted from the public.

However, an application for information shall not be denied where the public interest in disclosing the information outweighs whatever injury that disclosure would cause.

Also, Section 20 of the Act provides for judicial review where information is denied

WHAT HAPPENS IF MY REQUEST IS REFUSED?

Any applicant, who has been denied access to information, or a part thereof, may apply to the Court for a review of the matter within 30 days after the public institution denies or is deemed to have denied the application.

The applications to the court are heard summarily. This is to ensure the prompt and expeditious disposal of the case. If the court finds that the request should not have been denied, the defaulting officer or institution commits an offence and is liable on conviction to a fine of N500, 000. Further, the court will order that the information be released as per the request.

It is also a criminal offence punishable on conviction by the Court with a minimum of 1 year imprisonment for any officer or head of any government or public institution to which this Act applies to willfully destroy any records kept in his custody or attempt to doctor or otherwise alter same before releasing the information.

CHALLENGES SO FAR?

The cardinal challenge lies in implementation. Different tiers of Nigerian government are known for making good laws and policies without implementation. Other challenges include:

  • Entrenched Culture of Secrecy
  • Poor record keeping practices and infrastructure.
  • Low level of implementation and public awareness of the FOI Act
  • Inadequate public knowledge of the FOI Act
  • Absence of a Federal Information Commissioner.
Written by: Kikelomo Lamidi  - The Human Rights Law Service 

CLICK HERE TO VIEW THE FOI ACT

CLICK HERE FOR SAMPLE OF AN FOI REQUEST

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