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Election petitions: What INEC must do differently in 2019

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By Henry Ojelu

As the 2019 general election approaches, a study by Human Rights Law Services, HURILAWS, has noted that to address the issue of access to, and high cost of procuring relevant election documents needed for election petitions, the Independent National Electoral Commission, INEC, should immediately, after announcing the result of an election, make available at no cost, certified copies of all relevant election documents to all the political parties to facilitate fair challenges against the election outcome.

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The study also highlighted the herculean challenges that political office seekers  and their legal teams would likely face in pursuing their cases at the 2019 election tribunals, adding that the rule on substantial non-compliance should not be restricted to what transpired on the election day since matters such as voters’ registration, unlawful campaign outside of the statutory period, campaign funding, accreditation of voters, collation of results etc, form the composite process of an election, any of which could be manipulated to thwart the fairness of an election and totally change the outcome thereof.

The 42-page report, which used the 2017 Anambra State Governorship Election Petition Tribunal as a case study, was formally presented by Head of HURILAWS, Dr. Olisa Agbakoba, SAN.

READ ALSO: INEC, security agencies must stop PDP’s vote-buying in Osun Re-run- APC

Speaking during the presentation,  Agbakoba who was represented by HURILAWS’ Senior Legal/Programmes Officer, Collins Okeke, noted that the decision to understudy the 2017 Anambra State Governorship election petition tribunal was borne out of concern about the process of dealing with complaints and resolving election disputes which is also a critical part of the election process.

“We believe that in addition to observing/monitoring the voting process, attention must also be paid to the process of managing pre and post-election disputes because the tribunals/courts represent the confidence of the people not only in the electoral process but also in the rule of law and the non-existence or malfunctioning of the tribunals/courts will lead to the electorate and the political class settling political scores through unconventional means,” he said.

Findings of the Study

Number of petitions:

According to the report, out of the 37 candidates that participated in the November 18, 2017 elections, only three candidates filed petitions before the Election Tribunal. Shockingly, candidates who came 2nd and 3rd and were expected to have had some fighting chances at the Tribunal given the reasonable number of votes they also garnered, chose not to challenge the outcome of the election. The report noted that candidates that presented petitions sequel to the election were those that secured insignificant number of votes, and by virtue of that fact, it was ab initio a herculean task for them to upset the presumption of regularity and substantial compliance.

The report highlighted that it was even more cumbersome for the petitioners to establish the corrupt practices they alleged as having marred the election because they could not muster enough financial muscles to deploy the massive array of evidence and witnesses requisite to upturn the apple cart, as it were.

Cost of filing petitions

According to the report, filing fees for all petitions was fixed for N400,000. It noted that the high cost of filing petitions and prosecuting it might have discouraged some potential petitioners, given the large number of candidates (36) that stood for the 2017 election. The report pointed out that having expended so much during the election campaign, petitioners were usually in very tight financial circumstances at the stage of election petition.

Access to electoral materials

Another critical issue which the report highlighted was access to electoral materials. Petitioners at the Anambra State election Petition Tribunal, according to the report, 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,” the report stated.

Time within which to dispose  petition matters

On the issue of period within which to dispose petition at tribunal, the report stated: “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.

In the case of Anambra Governorship election, there were delays during the preliminary stages of the petition process due to the inability of members of the Tribunal to assemble.  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 characterise election petition tribunals.

This is also a key factor that facilitated the expedited hearing and determination of the petitions filed.”

Judgment of election petitions

On its finding on the final decision reached by the tribunal, the report stated that though the Anambra State Governorship Election Petition judgment exhibited high level of erudition, the final decision was somewhat emasculated by the obvious lack of reasonable input by the two other members of the Tribunal. According to the report, one member was completely absent throughout the hearing and determination of the petitions, and the member present along with the chairman was largely passive. “There is no knowing if the fate of any of the petitions would have been different if all the tribunal members had been actively and robustly involved in the hearing and determination. Though it is doubtful the outcome of the petitions would have been significantly different, the full participation of all the Tribunal members would have given the judgments better hue of fairness and vigour of erudition,” the report said.

Funding

On the issue of funding of election petition, the report based on its finding noted that it would be good to interrogate the source of funding of an election petition process by a respondent who is an incumbent and has access to state resources. According to the report, it puts the petitioner at a serious disadvantage where the respondent can draw from state resources to retain the best of legal minds or advocates to defend a petition whilst the petitioner with his or her very limited personal funds, struggles to retain a relatively inexperienced lawyer to prosecute the petition with the humongous weight of burden or onus of proof the petitioner is expected to discharge.

Recommendations:

At the conclusion of its findings, the report made vital recommendations on how the seeming challenges of the Anambra State Governorship Election tribunal which is a broader reflection of past, present and future election tribunals in the country can be surmounted.

Considering the fact that the main ground against the Anambra election was the allegation of corrupt practices in the form of vote-buying, the study recommended that it would be fairer to reduce the standard of proof where a petitioner is alleging corrupt practices against the conduct of an election to proof on a balance of probabilities. It stated that the onus can shift to the respondent where a petitioner has volunteered reasonable evidence that warrant rebuttal evidence by the respondent.

The report also recommended an expansion on the rule of non-compliance. It stated that the  rule on substantial non-compliance should not be restricted to what transpired on the election day since matters such as voters’ registration, unlawful campaign outside of the statutory period, campaign funding, accreditation of voters, collation of results etc, form the composite process of an election, any of which could be manipulated to thwart the fairness of an election and totally change the outcome thereof.

On the issue of access to and high cost of procuring relevant election documents needed for election petitions, the report recommended that INEC should immediately after announcing the result of an election, make available at no cost, certified copies of all relevant election documents to all the political parties to facilitate fair challenges against the election outcome. Alternatively, it suggested that certified copies of such documents may be made available by INEC to the National Library, which will in turn issue at nominal cost recertified copies to any person who wishes to have them be it for election petition, research, or other personal or public purposes.

 

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