Judicial Application of Election Petition Laws at the 2017 Anambra State Governorship Election Tribunal

INTRODUCTION:

The Governorship election in Anambra State was held on 18th November, 2017. Some 37 political parties fielded candidates for the governorship election. At the end of the election, INEC returned the incumbent, Mr. Willie Obiano, as elected having polled the highest number of votes cast at the election. He was closely followed by Mr. Tony Nwoye of the All Progressive Congress (APC).
The Independent National Electoral Commission (INEC) declaring the result in Awka on Sunday 19th November, 2017 through the Returning Officer, Prof. Zana Akpagu, said Obiano polled 234, 071 votes to defeat his closest rival, Mr Tony Nwoye of All Progressives Congress (APC), who scored 98, 752 votes.
The Returning Officer, who is the Vice Chancellor of University of Calabar, said the candidate for the People’s Democratic Party (PDP), Mr Oseloka Obaze, came third with 70,293 votes. INEC further disclosed that the total valid votes cast at the poll were 422,314; after deducting 26,457 rejected votes from the 448,771 total votes cast at the election. The Resident Electoral Commissioner for the state, Dr. Nkwachukwu Orji, commended the people of the state for exhibiting good behaviour, confirming that no lives were lost during the election, and declaring that the election was largely free and fair. However, serious allegations of wide spread buying of votes by some of the parties including APGA belied INEC’s claim that the election was free and fair.

THE ELECTION PETITIONS:
Prior to the governorship election in Anambra State, on the 5th day of November, 2017 or thereabout the President of the Court of Appeal, Honourable Justice Zainab Bulkachuwa, in exercise of her Constitutional powers, [1]set up the Governorship Election Petition Tribunal to hear and determine any petitions that might ensue from the outcome of the election.[2] The Election Tribunal was comprised of the following members: Honourable Justice H. A. Olusiyi as Chairman, Honourable Justice A. O. Ayoola as member 1, and Honourable Justice A. Y. Birnin Kudu as member 2.
Expectations were rife that the major contenders at the election and their political parties would immediately challenge the outcome of the election by submitting Petitions at the Registry of the Tribunal in Awka. However, the candidate of the All Progressive Congress, Mr. Tony Nwoye, who came second at the election congratulated the victorious Governor Willie Obiano and openly declared his willingness to concede to the outcome of the election by not challenging same at the Tribunal. 

Similarly, the Chairman of the Peoples’ Democratic Party (PDP), Chief Ndubuisi Nwobu, declared in a press statement shortly after announcement of the election result by INEC that the party and their candidate, Mr. Oseloka Obaze, would not contest the victory of Governor Willie Obiano at the Tribunal. He revealed that instead, the party would rather give credible opposition to the administration.
According to the Chief Registrar of the Tribunal, Mr. Surajo Ahmed Gusau, Esq., at the end of the 21 days statutory time frame within which to file election Petition, only three Petitions had been filed at the Election Petition Tribunal. The 1st Petition was between African Peoples Party (APP) and Mr. Willie Obiano. Also joined by the Petitioner were the All Progressive Grand Alliance (APGA) and the Independent National Electoral Commission (INEC). The Petition was filed on 7th December, 2017 by Mr. Okerie Kingdom as Counsel for the Petitioner. This Petition was numbered EPT/AN/GOV/01/2017 and was predicated on grounds that the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act. The Petition further alleged that the 1st Respondent was not duly elected by majority of lawful valid votes cast at the election. The Petition prayed the Tribunal to nullify the election on grounds of substantial non-compliance with the Electoral Act or in the alternative, to declare the APP candidate the winner of the election. The APP at the time of filing the Petition through one of its State officials, claimed that it would lead evidence through some United States-based forensic experts led by one Joe Mckenzie, with a retinue of Senior Advocates of Nigeria (SANs) to prove their case.[3]
 
The second Petition was between Praise Okechukwu and her Party, the Mega Progressive Peoples Party (MPPP) against Mr. Willie Obiano. Joined in that Petition are the All Progressive Grand Alliance (APGA) and the Independent National Electoral Commission (INEC). The Petition was filed on the 9th day of December, 2017 by Prince Chris Nkem Ekweozoh as Counsel for the Petitioners. The Petition was numbered EPT/AN/GOV/02/2017, and alleged non-compliance with the provisions of the Electoral Act, 2011 (as amended), and that the election was marred by corrupt practices.
 
The third Petition was between Dr. Paul Chukwudi Obianaso against Mr. Willie Obiano. The Independent National Electoral Commission (INEC) was joined as Co-Respondent to the Petition. This Petition was numbered EPT/AN/GOV/03/2017, and alleged that the 1st Respondent was not duly elected by majority of lawful valid votes cast at the election. This Petition alleged that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
 
PERTINENT ISSUES:
  1. TIME WITHIN WHICH TO FILE ELECTION PETITION:
The Constitution stipulates in section 285 (5) that an election petition must be brought within 21 days from the declaration of the election results. The results of the 2017 Anambra State Governorship election were announced on 19th December, 2017. Therefore Petitions in respect of the election needed to be brought on or before 9th January, 2018. The three petitions that were filed obviously complied with this requirement.
 
  1. COST OF FILING PETITION:
Filing of election Petition at the Tribunal attracted filing fees as assessed by the Registrar and security for costs of N400,000. This high cost of filing election Petition and prosecuting it might have discouraged some potential petitioners, given the large number of candidates that stood for the 2017 governorship election in Anambra State. Candidates, having expended so much during the election campaign were usually in very tight financial circumstances at the stage of election petition, so unless such candidates have huge financial muscles, they would really be discouraged from venturing into the capital intensive project of election Petition.
 
One of the candidates in the election who also filed an election Petition had cause to write a petition to the National Judicial Council (NJC) complaining among other things that the said N400, 000 demanded from Petitioners as security for cost was asked to be paid into the personal account of the Tribunal’s Registrar, Mr. Surajo Gusau, Esq. and that no receipts were issued for the payment of such huge sum of money.[4]
  1. ACCESS TO ELECTION MATERIALS:
Access to relevant election materials or documents by candidates in the election for purposes of election petition continued to be a challenge with the Independent National Electoral Commission levying very exorbitant fees for issuance of certified true copies of the election results and other election documents to candidates. Petitioners at the Anambra State election Petition Tribunal had to pay application fees in the range of N1,000,000 to N1,500, 000 to access such documents. The huge financial cost attendant to procuring election materials and documents from INEC for purposes of Election Petition might have contributed in dissuading potential Petitioners from challenging the outcome of the November 18 , 2017 Anambra State governorship election. 
  1. TIME WITHIN WHICH TO DISPOSE OF PETITION:
The Section 285 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) requires that an election Tribunal must deliver its judgment in writing within 180 days from the date of filing of the Petition. Effectively, this means that the hearing and determination of an election petition will last no longer than a period of 6 months. In the case of the 2017 Anambra Governorship election, going by the time the petitions were filed, it is expected that this time limit will elapse sometime around early July, 2018. There were delays during the preliminary stages of the Petition process in Anambra due to the inability of members of the Tribunal to all assemble. However, the Tribunal though with the constant absence of its member 2, was eventually able to conclude hearing and delivered judgments in respect of two out of the three Petitions on Tuesday, 5th day of June, 2018 one having been dismissed earlier for want of diligent prosecution by failure to file application for issuance of Pre-Hearing Forms. It is worthy of note that the Anambra Election Petition Tribunal for the 2017 Governorship election did not witness a deluge of witnesses and documentary evidence that normally characterize election petition tribunals. This is also a key factor that facilitated the expedited hearing and determination of the Petitions filed.
 
It deserves to be pointed out that one of the Petitioners challenging the Election, Dr. Paul Obianaso, actually petitioned to the NJC[5] over what seemed a lethargic activation of proceedings by the Tribunal, and called for the Tribunal to be disbanded and a fresh one constituted.[6] Shortly thereafter, proceedings before the Tribunal commenced in earnest. There is no knowing whether the said complaint sent to NJC facilitated the triggering of the Tribunal. Delay indeed was dangerous in election Petition matters given the abbreviated time lines constitutionally allowed for hearing and determination of Petitions.
 
[1]  Section 2 (3) of the 6th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 ( as amended)
[2]  See ‘Appeal Court sets up Election Petition Tribunal for Anambra’ by: Zovoe  Jonathan. Punch Newspaper of 8th November, 2017
[3]  ‘APP Seeks Nullification of Obiano’s Victory’ by Leo Sobechi Guardian Newspaper 18/12/2017
[4]  ‘ADC candidate petitions NJC over non-sitting of Anambra Tribunal’ by: Pamela Eboh - New Telegraph 8/2/2018
[5]  National Judicial Council
[6] ‘ADC candidate petitions NJC over non-sitting of Anambra Tribunal’ by: Pamela Eboh - New Telegraph 8/2/2018
ANTI-TORTURE ACT 2017 - ISSUES AND IMPLICATION FOR POLICE OFFICERS[1].

INTRODUCTION

The Anti-Torture Act 2017 was passed by the 8th National Assembly and signed into law by President Mohammadu Buhari on 29th December 2017.  Prior to the coming into effect of the Act, there was no law in Nigeria whose sole objective is the prohibition and punishment of torture and other forms of cruel, inhuman or degrading treatment. Although Section 34 of the Constitution provides that (1) every individual is entitled to respect for the dignity of his person, and accordingly (a) No person shall be subject to torture or to inhuman or degrading treatment; the Constitution did not explicitly state that the freedom from torture, cruel and inhuman treatment is a non-derogable right. This perhaps explains the acceptance and continued use of torture, cruel, inhuman and degrading treatment by law enforcement officers. The Anti-torture Act 2017 fills the existing legislative gaps by explicitly making the right to freedom from torture, cruel, inhuman and degrading treatment a non-derogable right, criminalizing torture and protecting victims and witnesses of torture.

FRAMEWORK OF THE ANTI -TORTURE ACT 2017

The Anti-Torture Act 2017 is a very concise legislation. It has a title, explanatory memorandum and 13 sections. 
Section 1 of the Act titled  ‘Duty of Government’ imposes an obligation on government to ensure that all persons, including suspects, detainees and prisoners are respected at all times and that no person under investigation or held in custody is subjected to any form of physical/mental torture. It admonishes government to adhere to domestic and international standards on absolute condemnation and prohibition of torture.  

Section 2 titled ‘Acts of Torture’ defines what amounts to torture. It states that ‘(1) torture is deemed committed when an act by which pain and suffering, whether physical or mental, is intentionally inflicted on a person to – (a) obtain information or confession from him or a third person; (b) punish him for an act he or a third person has committed or suspected of having committed; or (c) intimidate or coerce him or third person for any reason based on discrimination of any kind’. It goes on to suggest Torture does not include pain or suffering in compliance with lawful sanctions. It then lists what constitutes torture, some examples in the Act include:
  1. Systematic beatings, head-banging, punching, kicking, striking with rifle butts and jumping on the stomach
  2. Food deprivation or forcible feeding with spoiled food, animal or human excreta or other food not normally eaten,
  3. Electric shocks
  4. Cigarette burning, burning by electric heated rods, hot oil, acid, by the rubbing of pepper or other chemical substances on mucous membranes, or acids or spices directly on the wounds
  5. The submersion of head in water or water polluted with excrement urine, vomit or blood
  6. Blindfolding
  7. Threatening a person or such persons related or known to him with bodily harm, execution or other wrongful acts,
  8. Confinement in solitary cells put up in public places
  9. Confinement in solitary cells against their will or without prejudice to their security
  10. Prolonged interrogation to deny normal length of sleep or rest
  11. Causing unscheduled transfer of a person from one place to another, creating the belief that he shall be summarily executed etc.
Section 3 titled ‘No justification for torture’ is the stand out provision of the Act. It states that no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It prohibits secret detention facilities, solitary confinement, incommunicado detentions where torture may be carried out. It makes it very clear that evidence obtained from torture is inadmissible in any court except for use against a person accused of torture.

Section 4 titled ‘Right to complain’ allows a person alleging that torture has been committed, whether the person is the victim of the offence or not, a right to complain to the police, National Human Rights Commission or any other relevant institution or body having jurisdiction over the offence. It provides that the victim and complainant must be protected.
Section 5 titled ‘Assistance to filing complains’ provides that a person who has suffered torture or any interested party on his behalf may seek legal assistance in the proper handling and filing of the complaint from the Human Rights Commission/NGOs/Private persons.

Section 6 titled ‘Right to examination’ expands the Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.  

Section 7 titled ‘Liability’ provides that a person who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal; the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates. It makes clear that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.

Section 8 titled ‘Penalties’ provides that a person who commits torture shall be liable on conviction to imprisonment to a term of 25 years. If death occurs as a result of the torture, the person involved will be charged with murder. It goes on to say that this does not in any way take way the victim’s right to civil claim in court for damages or compensation for the torture.

Sections 9, 10 and 11, titled ‘Regulatory Agency, Education Campaign, Rules and Regulations’ respectively empowers the Attorney General of the Federation and other law enforcement agencies to ensure effective implementation of the Act. This includes training and education of personnel involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. It also empowers the Attorney General of the Federation with the approval of the President to makes rules and regulation for the effective implementation of the Act.
Section 12 and 13 are ‘Repeal and Citation’ sections.

SIGNIFICANT FEATURES OF THE ANTI-TORTURE ACT 2017
  • The Anti- Torture Act 2017 provides a comprehensive definition of torture. It goes on to give elaborate instances of what constitutes torture.
  • The Act criminalizes torture. It prescribes offences and penalties for any person who commits torture or aids, abets, counsels or procures any person to commit torture.
  • It makes freedom from torture a non-derogable right. It states clearly no exceptional circumstances whatsoever, a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture. It states further that an order from a superior officer or from a superior in the office or public authority shall not be invoked as a justification for torture.
  • It expands Miranda rights by further imposing an obligation on the police to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation.
  • The Act protects victims and witnesses of torture.
  •  The Act allows for personal civil action in damages and compensation for torture.  
EFFECT OF THE ANTI - TORTURE ACT ON THE POLICE
Before the enactment of the Anti-torture Act 2017, torture by the police was seen more as a civil wrong except when death occurs. The police and other law enforcement officers having custodial powers could get away with torture as the law against torture was not clear and punitive enough.  The coming into effect of the Anti-torture Act 2017 has fundamentally changed this.  Torture is now officially a crime. A police officer can be prosecuted for torture; aiding, abetting or procuring any person to commit torture.  A police officer and or any other law enforcement officer can no longer rely on emergency powers or ‘orders from above’ as justification for using torture to obtain information or extract a confessional statement.

The criminal liability of police officers under the Anti-Torture Act 2017 is specific to the individual persons connected to the act of torture.  This liability could be direct or indirect.
According to Section 7(1) of the Act  “a  person”  who participates in the infliction of torture or who is present during the commission of the act is liable as the principal; (2) a superior military police or law enforcement officer or senior government official who issues an order to a lower ranking personnel to torture a victim for whatever purpose is equally liable as the principal (4) the immediate commanding officer of the unit concerned of the security or law enforcement agencies is held liable as an accessory to the crime for any act or omission or negligence on his part that may have led to the commission of torture by his subordinates.  

The Anti-Torture Act 2017 has also expanded Miranda rights to include the right to examination. A Police officer is now obligated to inform a person arrested, detained or under custodial investigation of his right to demand a physical and psychological examination by an independent and competent doctor of his choice after interrogation. 

CONCLUSION

The Anti-torture Act 2017 is an unsung legislation with far reaching implications for law enforcement in Nigeria.  The National Assembly by passing the Anti-torture Act 2017 has dealt a serious blow to the practice of torture.  The challenge however will be enforcement.  We are hopeful that the Attorney General of the Federation and other relevant stakeholders will work together to put in place mechanisms to ensure compliance so that torture can be eliminated in Nigeria.  


[1]
Paper presented by Collins Okeke, Senior Programmes Officer, The Human Rights Law Service (HURILAWS) at the Training of Trainers on Torture Prevention Strategies at Area E Police Station, Festac, Lagos. A LEDAP/UNDEF/NCOT partnership project titled: “Community Mobilization against Torture in Nigeria”.


The 6th World Congress against the Death Penalty was held 21-23 June 2016 in Oslo, Norway at the Opera House. I was privileged to participate in the congress. It was exciting meeting with, debating and sharing knowledge and experience with hundreds of abolitionists from different parts of the world. The two day event was packed full with two plenary sessions, six roundtables, six workshops and nine side events. I was able to participate in discussions on the following topics: Progress and setbacks in Asia lessons learnt; The political use of the death penalty in counter terrorism; Legal, social, and medical perspectives on protecting individuals with mental disorders from the death penalty; The importance of National Human Rights Institutions to the abolitionist cause; The Draft Protocol to the African Charter on Human and Peoples Rights on Abolition of the Death Penalty in Africa; Facing the Challenges of alternatives to the Death Penalty.

It was encouraging to hear at the Congress that China is reforming by reducing crimes to which the death penalty applies. They amended their criminal laws removing 9 crimes punishable by death including: smuggling weapons, ammunition, nuclear materials or counterfeit currency; counterfeiting currency; raising funds by means of fraud; arranging for or forcing another person to engage in prostitution; obstructing a police officer or a person on duty from performing his duties; and fabricating rumors to mislead others during wartime. It is the second time China has reduced the number of crimes punishable by death over the past 5 years.
Some countries in Africa (including Nigeria) and the Middle East appear to be doing the opposite by extending crimes to which the death penalty applies in the guise of fighting violent terrorism, even when there is no proof that the death penalty can stop terrorism. I was not surprised to hear complaints of how Egypt misuses the fight against terrorism to silence the opposition, criminalize human rights related activities and more generally violate human rights.  The best way to solve crime is to prevent it or at best apprehend the offender. When a criminal justice system is too weak to resolve crimes and apprehend offenders, the penalties, no matter how severe will have no deterrent effect.

The session that generated so much interest amongst African participants was the session on the Protocol to the African Charter on Human and Peoples Rights on the Abolition of the Death Penalty. The draft protocol was introduced during the first conference on the death penalty in Africa organized by the African Commission in collaboration with Benin Republic in Cotonou, sometime in July 2014; it was supported by many representatives of AU Member States, Members of Parliament, National Human Rights Institutions and Civil society Organizations. The African Commission on Human and Peoples Rights (ACHPR) officially adopted the draft protocol at its 56thordinary session in April 2015 and submitted it to the AU for adoption.

It requires member states to commit to protecting the right to life and abolishing the death penalty while respecting their sovereignty. This protocol is unique because it is indigenous to Africa. It shows the will of African governments to openly deal with the question of death penalty and prove the importance of this issue on the continent. The general trend in Africa is to abolish the death penalty. As of 1 January 2016, the majority of African Union’s Member States have legally abolished the death penalty (19) or apply a de facto moratorium on capital punishment (18); only a minority retains the death penalty (17). Our Federal Government as a matter of fact needs to change course by ratifying this protocol.

The session on mental illness and intellectual disability highlights gaps in most criminal justice systems, especially the distinction between Mental illness (what we call insanity) and intellectual disability. Nigerian law for instance recognizes insanity when proved as an exemption to criminal liability for capital offenses. However, it is unclear on other forms of mental health problems like intellectual disability (often referred to as mental retardation or learning disability) and personality disorders.  Mental retardation is a condition in which a person’s mental capacity has not developed during childhood and adolescence leaving the person less able to adapt to independent life and decision making. Personality disorder is not a mental illness that can be treated with drugs or therapy but rather constitutes a behavioral condition in which the affected person can lack empathy and understanding of others and can disregard social and legal conventions.
In its 2014 moratorium resolution, the UN General Assembly, called on states not to impose the death penalty on individuals with mental or intellectual disabilities. The General Assembly’s resolution reinforced long standing principles prohibiting such executions under international law. Nevertheless, few countries have enacted sufficient protections for persons with mental illness or intellectual disability. Lawmakers, judges, lawyers also lack awareness of the varied symptoms of mental illness, and fail to understand the different between mental illness and other disorders.

I was excited to hear that our National Human Rights Commission has taken interest in the campaign for abolition of the death penalty in Nigeria. The question of abolition and related issues such as the right to fair trial and conditions of detention are entirely related to what they do. It is important to engage even further this often neglected player and rally new and often reluctant institutions to the abolitionist cause. Finally, there is urgent need to think very deeply about alternatives to the death penalty. When the death penalty is abolished, what next? The solution cannot simply be life sentence without parole; it should take cognizance of the victims of crime and give hope to condemned persons. My general assessment is that great progress has been made around the world but a lot more needs to be done. It is my hope that at the next congress a lot of the challenges identified would have been resolved and a lot more countries would have abolished the death penalty.

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