Time frame for election petitions: N/A, judiciary and the constitution
By Akpo Mudiaga-Odje
As we approach the dawn of another electoral year, the National Assembly has enacted new laws and/or amended existing ones, with a view of effectively regulating both the pre and post election activities in the country.
One of such amendments seems to have set out the time frame for the judiciary to dispose of election petitions. This provision is viewed against the backdrop of the severe and embarrassing delay in the hearing and determination of election petitions. It is interesting to note that the petition filed in 2007 by Hope Democratic Party of the great Arthur Nwankwo against the election of President Umaru Y’ Adua of blessed memory is still pending before the Court of Appeal same having been sent back for re-trial by the Supreme Court.
That petition is four years old as at now and will surely outlive the four year term of the incumbent and embarrassingly, it will be joined by other petitions that will challenge the 2011 elections.
In otherwords, we will have contemporaneously petitions challenging the 2007 presidential elections and others challenging the 2011 presidential elections. If one may ask, what if the petition challenging the presidential election results of 2007 succeeds this year? What then happens to the subsequent presidential elections of 2011?
It is against this background that the lawmakers in their wisdom set out to amend the Constitution by setting time limits for the determination of election petitions in Nigeria. However, as noble as this gesture may be, it appears it will again lead to a clash between the Legislature and the Judiciary vis a vis the doctrine of Separation of Powers as entrenched in the Constitution. It is to these challenges that I now turn.
Amended Constitution and Salient Electoral Points.
The latest amendments to the 1999 Constitution, specifically contained in the (First Alteration) Act 2010 and the (Second Alteration) Act 2010, were informed by and geared towards Electoral Reform. Though very important reforms were introduced in the amendments, some of the amendment appeared self serving and pandered inexorably to the interests of our politicians.
On a very cheering and interesting note however, the amendments have reduced the time frame for the disposal of electoral disputes. In this wise, Section 285 of the 1999 Constitution (First Alteration) Act 2010 introduces new Subsections (5), (6) & (7) as follows: Section 5 _ “An election petition shall be filed within 21 days after the date of declaration of results of the election.
Section 6: “An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition (six months)
Section 7: “An appeal from decision of an election tribunal or Court shall be heard and disposed of within 60 days from the date of the delivery of judgment of tribunal.
With this latest amendment, electoral disputes are now to span a maximum of eight months, from Election Tribunal to Appeal. This is very progressive as it has dealt with the problem of electoral cases dragging on for years whilst one of the parties enjoys the pecks of the disputed office. However, this provision has to be examined in the light of the apex court decision in AG., Abia State vs. AG., Federation (2002) 6 NWLR (pt 763) 264 at 397 paras C-D wherein Uwais CJN proficiently declared that:
“Section 25 subsection (10) seeks to limit the period within which any judicial proceedings must be concluded. This infringes on the principle of separation of powers as entrenched in the Constitution. The National Assembly has no power to dictate to the Judiciary how to conduct its affairs, just as the Judiciary cannot fix a time limit for the proceedings in the National Assembly _ see the case of Paul Unongo vs. Aper Aku (1983) 9 S.C 186; (1983) 2 SCNLR 332”.
In the case of Unongo vs. Aper Aku 1983 2 SCNLR 332, the apex court was faced with the same problem as Section 25 (10) above. Section 129 (3) of the Electoral Act 1982 provided that: “Proceedings before a High Court in the case of a petition in respect of the office of President or Vice President, Governor or Deputy Governor or in respect of any of the Legislative Houses shall be completed not later than 30 days from the date of the elections concerned.”