Prosecuton of Offenders and Election Petition Procedure

PROSECUTON OF OFFENDERS AND ELECTION PETITION PROCEDURE

UNDER THE ELECTORAL ACT 2006 BEING THE PRESENTATION AT

CAPACITY BUILDING WORKSHOP ON ELECTORAL ACT 2006 AT HALAL

FOUNTAIN HOTEL KADUNA BY T.B. DAUDU SAN

INTRODUCTION

This exercise calls for the enhancement of our capacity to understand the electoral process as it stands in Nigeria - Circa 2006. There is nothing academic in this exercise and we are urged to approach it from a practical and realistic point of view.

The twin purpose of this workshop, speaking at least from this speaker's perspective is an understanding of the electoral process in Nigeria with particular emphasis on prosecution of offenders and election petition procedure. To the uninitiated, this may sound like 'Greek' to them. To those who understand the process, they are drawn into the melee of debate as to whether the current legislation suitable permits the prosecution of offenders and the ventilation of pent-up electoral disputes, which arise as a result of challenges to the outcome of an election. This is known as election petition. To proceed further we need to ask ourselves questions. Perhaps, self inquiry might as well be the way ahead, some of the basic questions to as are;

(a) What is democracy?

(b) What are we doing with democracy as a way of life and system of Government?

(d) Who has the responsibility for the prosecution of offenders?

(e) Can that responsibility be discharge by a Police Force that is not independent or disciplined?

(f)Can offenders be prosecuted without adequate machinery and resources for
prosecution?

(g) What is the meaning and composition of an election petition? (h) (h)Is it a desirous or rewarding exercise?

(i)Should any one challenge the outcome of an election he is dissatisfied with in
Nigeria and if answered in the affirmative, how?

Honest answers to these questions may well lead us to solutions or at least possible identification of the path to follow. If all fails, at least, we know that it is not for a lack of effort. We shall proceed, now to offering answers to the above questions.

WHAT IS DEMOCRACY?

A simple definition has been accorded to the word democracy1 thus:

1Wikipedia-simple English dictionary

"Democracy (from Greek, rule by the people) is a type of government where the people living in a country, usually the citizens of that country, choose who is the ruler, or the people who make the laws. In a democracy, there are elections where the people can vote and choose who they want to lead them, or choose the laws. The decision is made based on the number of votes. Very often, it is the largest number of votes that win, but there may be other ways that decide the winner. This form of government was developed long ago by the ancient Greeks in the city of Athens. However, they did not have voting booths, collect the votes, and add them up like today. They had everyone gather in an official area, discussed, passed, and made the laws that day. They would pick a leader by writing the name of their favorite candidate on a piece of stone or wood. The candidate with the most votes became the leader. Today, direct democracy like the Greeks would cause many problems, because our countries are much larger than just the size of a city, and even the cities are much larger. Instead, most countries have an indirect democracy, which means that all the people vote to choose their leaders, and the leaders then make the laws. In special cases, people can sometimes vote on laws directly, and that is what democracy is. In Switzerland, some Cantons have what they call Landsgemeinde. What they do is they put together all the people who have the right to vote in a common place. Discussions and voting then takes place at this meeting. Up until very recently the right to vote was exercised by raising one's sword. Because swords are dangerous, and in order not to harm women, women were excluded from voting that way."

Nigeria has from time immemorial striven to be a democracy in the sense that even under the occupation of the world's dominant colonial power, Great Britain, the thrust was to acquaint the people with the rudiments of democracy. Such efforts include the amalgamation the Northern and Southern protectorates of Nigeria in 1914 by Lord Lugard, The 1922 and 1945 reforms leading up to the Macpherson and Lyttleton Constitutions of 1950 and 1954 and the Independence and Republican Constitutions of 1960 and 1963. The essence of these documents was to empower Nigerians to elect their leaders by themselves for the purpose of governance and law-making. The Military truncated this journey in 1966 as a result of the proven excesses of the civilian democrats, which resulted in a military putsch and the reign of the jack-boot continued until 1999, with a brief interlude from 1979-1983. As things stand, Nigeria is a constitutional democracy rooted in its grand norm, the 1999 Constitution (which has so far defied amendment).

HOW HAVE WE FARED WITH DEMOCRACY AS A SYSTEM OF GOVERNMENT

Some unrepentant optimists refer to Nigeria as a transitional democracy. In other words, a justification for her bad performance in the maintenance of democratic ideals. This is not correct. The problems of Nigeria have nothing to do with her adoption of democracy as a system of governance. Rather, it evolves from mundane expressions of greed, selfishness; get rich quick mentality or syndrome, self aggrandisement etc. To actualise such base objectives, politicians, have always deployed, ethnicity, hate, thuggery etc as vehicles for the actualisation of political gains.

The practice of democracy in Nigeria is therefore distributed along the lines or parameters mentioned above. With all the myriad of problems besetting State Government, Houses of Assemblies throughout the nation only succeeded in churning out money related legislations. Even the National Assembly, refuses to work on simple bills unless committee members are encouraged to understudy similar institutions abroad.

The question is when those Foreign Legislative Houses enacted their own laws, how many jurisdictions did they visit. But that is not the issue here; its relevance is just to show that the current Electoral Act may not have anything to do with altruistic yearnings or aspiration of the Nigerian people.

ARE WE PRACTISING DEMOCRACY IN NIGERIA?

The real problem with Nigeria is not a lack of familiarity with democratic ideals or institutions, because even during military interregnums the latter still maintained most of die democratic institutions. The real problem arises from a combination of factors such as insincerity to democratic ideals, corruption, greed, selfishness, lack of respect for fundamental human rights which together ensure or present an appearance of perpetual unfamiliarity with democracy. Thus as far as the attitude of Nigerians to democracy is concerned, it is just a matter of lip service and sheer opportunism. Democracy is seen as a ladder to sudden inexplicable stupendous wealth hence the use of all eliminatory tactics to acquire political power. Thus if these attitudes do not change then it is likely that we will for a long time answer to die name of a transitional democracy which is the equivalent of being neither here nor there.

OVERVIEW OF ELECTORAL ACT. 2006

Depending on which version you have, (although the National Assembly maintains that there is only one version) Electoral Act 2006 has been designed by the National Assembly of Nigeria to be a comprehensive handbook on elections in Nigeria... It is divided into 10 parts as follows; Part 1 — Legal status and Establishment of Independent National Electoral Commission sections 1-8; Part 2 staff of the commission, section 9; Part 3 - National Register of Voters and Voters Registration, section 10 — 25; Part 4, Procedure at Election, sections 26 — 77; Part 5, Political Parties, section 78 — 105; Part 6, Procedure for Election to Local Government, section 106 — 119; Part 7, Procedure for Local Government Council Elections section 120 - 123; Part 8, Electoral Offences section 124 - 139; Part 9, Determination of Election Petitions arising from Elections, section 140 — 151 and Part 10, Miscellaneous, section 152 — 1666 of concern to us here is Parts 8 and 9 of the Act, we shall examine matters relating to the them shortly.

WHO HAS THE RESPONSIBILITY FOR THE PROSECUTION OF OFFENCES

Ay offence disclosed in the Electoral Act, shall be triable in the Magistrate Court or the High Court of a State in which the offence is committed, or of the Federal Capital Territory Abuja

- see section 158-(1) of the Act. The most significant provision here is section 158-(2) of the Act which provides thus;

"Any prosecution under this Act shall be undertaken by legal officers of the commission or any legal practitioner appointed by it."

This section has far-reaching implications; firstly, it removes prosecutions of electoral Offences from the police and the Federal and States Ministries of Justice and restricts this important exercise to legal officers of INEC or legal practitioners appointed by the commission.

The implication is that criminal prosecution will be centralised Quere? Has INEC got the manpower to prosecute even 10% of electoral offences? By divesting the police of powers to prosecute such summary offences, who will investigate the offences, because, the fall-out of this prosecutorial ban is that the police will loose an interest in investigations. At ay rate, it is settled law that the Hon Federal Attorney-General can take over or discontinue any criminal proceedings in the Federation or State. So what is the functionality of this provision?

It seems clear that the provision which seeks to preserve the independence and integrity of elections under die Act by limiting participation in prosecution to her staff or lawyers briefed by her, looses sight of clear constitutional provisions which fetter its power to do so. For instance section 214 of the 1999 Constitution which prescribe that there shall be only one police force in Nigeria and the provision of section 174 and 211 which vest powers to prosecute criminal offences on the Attorney-General of states and the Federation.

Secondly, has the commission the man power to prosecute all offences charged to court in the Federation? The answer is in the negative, prosecution is expensive and rigorous business, and it is also a specialized art. Till date, INEC Legal Department is not equipped to prosecute any offender under the Act as the necessary facilities are not in place. Great care has to be taken to organise and dedicate a battery of lawyers in the legal department to prosecution of cases.

CAN OFFENDERS BE PROSECUTED WITHOUT ADEQUATE RESOURCE/OR CAN THE MISCHIEF OF ELECTORAL CHAOS BE AVOIDED

The essence of a democracy is to have functional machinery of Government, which in turn will provide safety and stability for her people to express their political rights in any atmosphere devoid of rancour and instability. In other words, where hoodlums are allowed to operate freely, troubling innocent by-standers, wishing to cast their votes and or exercise their civic rights, without let or hindrance, the credibility of the election and the integrity of those elected through such chaotic situation would have suffered a fatal blow.

Several unintended consequences will follow ranging from a down grading of the quality of the elections to loss of recognition by neutral observers. At this point in time, it is sad that Nigeria — self acclaimed giant of Africa and the world, - cannot moderate its activities when it comes to the acquisition of power or succession of same. This is because the reason for

seeking power is to make money and gather together scarce resources for the sole benefit of die office seeker.

In concluding this aspect, it is apt to mention that the electoral offences conceivable by any person is documented in our laws, they range from offences relating to Registration of Voters - section 124 of the Act and the maximum penalty is a fine of Nl00,000:00 or 2 years imprisonment to offences in respect of nomination etc, - section 125, disorderly behaviour at political meetings — section 126, improper use of voters card - section 127, improper use of vehicles — section 128, impersonation and voting when not qualified — section 129, Dereliction of duty - section 130, Bribery and Corruption — section 132-(1), wrongful voting and false statement — section 133, voting by unregistered persons — section 136 etc . The offences are not of importance here, it is whether those who seek to capture or retain power, who deploy thugs, assassins, forgers and polling booths specialist and other miscreants for a fee, will allow the system to arrests, investigate, prosecute and goal electoral offenders, This appears to be a long shot in the dark, as the perpetrators of these malpractices are those, who already run the machinery of Government or are aspiring to it.

PART 2

ELECTION PETITION PROCEDURE -ELECTORAL ACT 2006 AN OVER VIEW

THE NATURE OF AN ELECTION PETITION

From the foregoing, Election petitions are undoubtedly, suits instituted for the purpose of challenging the validity of an election, or the return of a candidate and, or claiming the return of a candidate. This accord with Section 140-(1)2, which provides thus:

"No election and no return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (In this Act referred to as an 'election petition') presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party"

In this provision the tribunal in the case of Presidential election means the court of Appeal, while in the case of other elections it means the election tribunal as established by the Constitution or Act4. All election tribunals must however be constituted within 14 days.5 The law also stipulates mandatorily that an election petition shall be presented within 30 (thirty) days from the date the result of the election is declared.6 The provision is so strict that Paragraph 14-(1) & (2) of the 1st schedule to the Act [As the Electoral Act 2002 willhenceforth be referred to] prohibits

2 Op Cit - Electoral Act

3 Section 140-(2)-(a) of Electoral Act 2006

4 Section 140-(2)- (b) of Electoral Act 2006

5 Section 140-(3) of the Electoral Act 2006

6 Section 141 of the Electoral Act

amendment to the petition after time for filing has expired.7 Computation of time at times poses a thorny issue for counsel and parties because of the strict requirement of the legislation. Because of the tricky nature of time related objections counsel is well advised before drafting a petition or reply to take into consideration the provisions of Section 15-(2) of the Interpretation Act8 and Section 3 of the Public Holidays Act.J See also the Court of Appeal decision in Balewa v Muazu10 and Atikpekpe v Joe11

By the provisions of Section 144-(1) of the Act an election petition may be presented by one or more of the following persons:

(a) A candidate at the election

(b) The political party which participated in the election

The rationale for the inclusion of political parties as petitioners is not far-fetched or obscure. It is an outgrowth from our political history where successful candidates have been known to trade off their mandate for undisclosed consideration. Thus in the event of a premature cross carpet by an aggrieved candidate, a political party can still void an election or return in the absence of the candidate. Another reason is that since the candidate runs on the plat form of or is sponsored by the political party, the latter has a stake in the outcome of the results. The foregoing provision has to be read in conjunction with paragraph 4-(l) of the 1st schedule12, which provides thus:

"An election petition under this Act shall-

(a)specify the parties interested in the election petition;

(b)specify the right of the petitioner to present the election petition

(c)state the holding of the election, the scores of the candidate and the person returned as the winner of the election; and

(d)State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner."

Belgore JSC captured the importance of satisfying the foregoing requirements in the recent case of Egolum v Obasanjo13 thus:

"Therefore an election petition is like pleading in civil matters. The petitioner must thus reveal all material facts on which he relies for his petition. In the case of the present appellant who was not a candidate, he must specify his right to file the petition as provided in sub paragraph 5 (1) aforementioned.

7See the Court of Appeal decision in Anigala v Abeh & Ors 1999 7 NWLR Pt 611 Pg.454 at 470 - 8 Cap 179 LFN 1990

9 Cap 378 LFN 1990

10 [1999] 5 NWLR Pt. 604 Pg. 638 at 643

11 [ 1 999] 6 NWLR Pt 607 Pg.428 at 437-43 8

12 made pursuant to Section 160 of the Electoral Act 2006

13 1999 7 NWLR Part 611 Pg. 355 at 396/397

Mere averment that the petitioner has a right to contest the election, without more, is not enough; he must specify that right. For a person who actually contested the election, the presumption will be in his favour that he has all the qualifications set out in Section 2 of the Decree and the Independent National Electoral Commission has cleared him to contest; in that case he has filed all the forms necessary for a prospective candidate in schedule 5 to the Decree. To specify means to explain clearly, to mention specifically, to state in full and explicit terms, to particularize and explain in detail. The appellant as petitioner never specified his qualification or right to contest election. Therefore the petition is fundamentally defective as the qualification giving rise to the purported rise of the petitioner has not been stated.... Thus the petitioner has no locus standi."

Consequently, the establishment of locus standi is an essential feature of a petition that must be satisfied by every petitioner. Another thorny aspect of an election petition is ensuring that the correct respondents are sued. Section 144-(2) of the Act provides thus:

"The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or other person who took part in the conduct of the election, such officer or person shall for purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status"

Paragraph 47-(l)-(4) of the 1st schedule to the Act provides rules identical to the above. Specifically, sub-paragraph 1 provides that such official mentioned above that conducted the election, i.e. Electoral, Returning or Presiding Officers shall not be at liberty to decline from opposing the petition14. This is a necessary safeguard to prevent collusion between government officials and petitioners. The only exception is where consent not to oppose the petition is given in writing by the Attorney General of the Federation. Where the petition ought not to have been opposed and costs are eventually awarded against such Electoral Officer, such officer shall be indemnified by the Government of the Federation.15 It is the responsibility of the commission ' or the Attorney General of the Federation or of the State concerned to appoint one of her counsel or appear in person or brief a private legal practitioner to represent such official referred to above.17 It follows without much argument that a private legal practitioner so appointed 'shall be entitled to be paid his professional fees' while a legal officer 'shall be entided to be paid such honorarium as may be approved by the commission'.18 The implication is clear and the fees for the private legal practitioner ought not and indeed cannot be set in advance by the commission.