By Awa Kalu, SAN

This is the season for elections. Apart from a few constituencies in respect of which the National Assembly elections were postponed, it is safe to say that elections into legislative houses at Federal level have been concluded in the pattern of staggered elections adopted by the Independent National Electoral Commission (INEC). It can also be said that the presidential election has come and gone and at the time of putting this piece together, Dr. Goodluck Jonathan, incumbent president, had been declared the winner of the election held on 16th April, 2011.

Although the election into the National Assembly and the presidency have respectively been hailed as generally free and fair, there are uncertainties here and there. While we await the forthcoming gubernatorial elections, it is also safe to say that once the result of any election is known, what follows subsequently is a post-election challenge of questioned results.

Therefore, in preparation for the tradition of challenging elections in tribunals set up for the purposes several Judges have been sworn-in as umpires of election petitions and have been posted to their respective stations all across the Federation. This article seeks to dilate on the dimensions of electoral justice through the courts.

No chronicler of the history of democracy in Nigeria would be faithful to the assignment if he refused or failed to acknowledge the critical role the judiciary has played in providing succour, relief or reprieve for the persons aggrieved by the result of an election. As is understood even in the circle of laymen, a democratic system must provide for society a remedy for wrongs because of the maxim that where there is a wrong, there must be a remedy. Failure to do so would lead to anarchy.

For this reason, since the introduction of the ballot box in Nigeria as a means of deciding who our leaders, at different levels should be, provision has always been made for the just and peaceful resolution of disputes arising from the exercise of franchise by the electorate. However, it can hardly be disputed that judicial resolution of election disputes whether through the regular court or Tribunal has never been acknowledged as providing a foolproof confirmation of the true or real wishes of the electorate. This point formed the underpinning of the comment by the late former Attorney-General of the Federation and Minister of Justice, Dr. Nabo Graham-Douglas, SAN, (who in his own right was a great scholar and jurist), in the aftermath of the Supreme Court decision in Awolowo v. Shagari. He said of that decision, as controversial as it was soon after it was made, that “The cynical observer of contemporary Nigerian political society may deride it as one in which the president, the Head of state, the Chief Executive and Commander -in -Chief of the Armed forces of the Nation is, in essence, not chosen by the popular will of the electorate as expressed through the ballot box but foisted on the nation by a judicial decision”.

ustice Aloysius Katsina-Alu, Chief Justice of the Federation and Prof Attahiru Jega, INEC Chairman

It cannot be doubted that it was the same cynicism that greeted the judgment in most of the petitions filed in challenge of the general election held in 2007 even though many of such judgments received acclaim. It cannot be denied that the ill will generated by the decisions of the Court of Appeal, in particular, is still being felt till date. Most often, no judgment is received with unanimous acclamation leading some to rejoice while others would cry blue murder-depending on which side vocal support may lean.

Many cynics have indeed questioned the wisdom in filing election petitions thus creating doubt on the vires of such petitioners. Whether or not those who approach election tribunals with complaints of malpractice do so in search of justice is debatable. Whether or not all politicians, as they always do, submit themselves voluntarily before the tribunals is equally debatable. This is because an average Nigerian politician never ‘walks alone’. There is the godfather, there are hangers-on and there is the almighty political party. It is never clear who makes the decision to file a petition having regard to the multiplicity of interests in any elective position.

An exception may be noticed in the recent presidential election in respect of which General Buhari, the defeated presidential candidate of the CPC has personally decided not to challenge the outcome but for reasons of democracy, has said that his party could head to court if the party deems it salutary for the system.

For the avoidance of doubt, there are several positions which may be contested in each election, whether the election is local or general. For example, in a local election which concerns elections in a state into a local government council, several councillorship positions and a chairmanship and deputy chairmanship seats are contested for. Similarly, in a general election, at state level, the office of Governor, Deputy Governor and legislative seats in the House of Assembly are available.

At federal level where the big apple stands, the Presidency, Senate and House of Representatives seats are hotly contested. Each of these positions provides power, influence and equitable remuneration to those who win. A motley of associated positions are up for grabs in the event of victory. It is for these reasons that each election is fraught with tension occasioning anger and disenchantment in the event of a loss. The investment in elections in cash and kind is always huge.

The loss of face and attendant loss of followership make defeat at the polls a difficult pill to swallow. In such a situation it is only the broke politician who walks away. Many a times however, the losing politician is egged on by his or her countless supporters, an irrepressible godfather, a money bag or group of money bags who want to sustain the onslaught on the electoral process in order to recoup their investment should the appeal succeed.

The pressure which this puts on the system is better imagined than told. It is important to underline the point that a wind of change appears discernible having regard to the fact that leading politicians seem prepared to accept electoral defeat without resort to the tribunals. Whether or not this is an emerging trend, remains to be seen. Our comments will therefore remain benchmarked by the previous attitude of the average politician.

Thus, as is usual, immediately after the result is announced after a general election, apologists begin to taunt the losers to approach the tribunals for redress. In the light of similar tactics adopted after the 2007 elections elder statesman, Chief Anthony Enaharo lamented that ‘like gullible infants, the losers of the election have been called upon by participants to go to the election tribunal.

One may ask whether the judiciary should be over-burdened by electoral crimes deliberately committed by members of the executive and legislative arms of government, egged on by their patrons and godfathers.

The judiciary is not a miracle worker. To ask the judiciary to resolve the kind of awesome and obscene violation of electoral processes blatantly displayed by political agents in the last general election is like asking a physician to raise the dead from the grave” (See THE NATION, Tuesday, May 8, 2007) As cynical and pessimistic as Chief Enaharo’s observation may be, it cannot be doubted that politicians, whether as petitioners or respondents, have had to contend with election tribunals over the years. It has to be noted however, that resort to the courts and tribunals as already pointed out, always leaves the innocent bystander stranded on account of several diverse angles presented by election petition proceedings.

For instance, most laymen, and even undiscerning lawyers do not know the boundary between pre-election disputes and those disputes fit for resolution only by election tribunals or such courts as are vested with jurisdiction in respect of matters arising from elections. Although it is generally agreed that judicial resolution of election disputes in an emerging democracy such as ours is inevitable, yet there is consensus on the pre- requisites for fairness and transparency in the determination of such disputes. These pre- requisites pertain to a prior provision of a framework conceived of as adequate for the purpose of ensuring that the organization of a free and fair election on a multi-party platform (if desired) is achieved. In the circumstance of the last election in which over fifty registered political parties indicated interest (and in the National Assembly election, over twenty of such parties participated and folded candidates) the electoral process proved to be under stress. A second pre-requisite is that all laws regulating the electoral process, including the constitution must contain provisions which conduce to the conduct of free and fair elections. It has to be recalled that this was one of the considerations which impelled the amendments to the constitution, including the enactment of the Electoral Act, 2010. Finally, the judiciary, either through the regular courts or election tribunals must evidently be assigned the role of mediating the disputes and granting relief to aggrieved parties who clearly merit it. Consequently, both the constitution of the Federal Republic of Nigeria 1999, as amended and the Electoral Act, 2010 make ample provisions which guide and regulate the conduct of election. However, since this piece centers on election petitions, no reference will be made to provisions in those instruments which relate only to pre-election matters. Greater emphasis in a follow-up, will be placed on the provisions which grant relevant courts and tribunals the leverage to exercise jurisdiction over election disputes.