Elections in Nigeria are mostly faced with a series of election petitions, which question the validity of results declared by the Independent Electoral Commission (INEC). Though the election petition process in Nigeria is not devoid of laws guiding it, the several challenges, (difficulty in getting necessary documents from INEC but manual and electronic) often faced by a majority of the parties, most especially the Petitioners have often led to the failure of such petitions and by extension eroded the confidence of parties in the election tribunal.
What is an election petition?
An election petition is a process by which the outcome of any election is challenged. The applicable laws currently guiding election petitions in Nigeria include the Electoral Act 2022, Rules of Procedure for Election Petition, the 1999 Constitution of the Federal Republic of Nigeria (as amended), and the extant Court/Tribunal Practice Direction. These laws have made adequate provisions concerning persons who can file election petitions and the grounds upon which the petition may be presented.
Who may present an election petition?
To understand the grounds for challenging elections in Nigeria, it is imperative to elucidate briefly on persons who may challenge an election or present an election petition. Section 133 of the Electoral Act, 2022 provides under subsection 1 thus:
133(1) An election petition may be presented by one or more of the following persons;
- A candidate in an election; or
- A political party that participated in the election.
It is thus evident that only the candidate or party in an election can bring an action to challenge the conduct or outcome of an election.
Grounds For Bringing Up Election Petition In Nigeria
By the provisions of section 134(1) of the Electoral Act, an election may be questioned on any of the following grounds:
- a person whose election is questioned was at the time of the election, not qualified to contest the election;
- the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;
- the respondent was not duly elected by a majority of lawful votes cast at the election.
A) THE GROUND ON NON-QUALIFICATION
To contest an election in this context the candidate must be qualified to do so. It is a constitutional requirement that must be met otherwise the candidate will be deemed not qualified to contest. According to Section 134(3) of the Electoral Act.2022, a person is deemed to be qualified for an elective office and his election shall not be questioned on the grounds of qualification if, concerning the particular election in question, he meets the applicable requirements of Sections 65,106,131or 177of the Constitution and he is not, as may be applicable, in breach of Section 66,107,137 or 182 of the Constitution.
The implication of the above is that where it is satisfactorily proven by the petitioner before the tribunal that the winner of an election is not qualified to contest the election, therefore, the candidate who came second will have to be declared the winner of the election.
B) GROUND OF CORRUPT PRACTICES AND NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT
An election can be questioned on the grounds that it was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the Regulations, and the Guidelines for the Conduct of Elections. This places a compulsory duty on INEC to adhere to the provisions of the above laws to have free, fair, and credible elections as a breach of the Act the Regulations, and Guidelines has far-reaching consequences.
For instance, the failure of INEC to upload election results to the INEC Result Viewing Portal (IREV) in real-time using the BVAS, electoral violence, disenfranchisement of voters, intimidation, manipulation of election results and mutilation of result sheets, etc are all incidents of corrupt practices and non-compliance, which the Electoral Act frowns at and are therefore grounds upon which an election can be challenged.
The court in INIAMA V AKPABIO (2008) 17 NWLR (pt.1116) 225; OKE V MIMIKO (2014) 12 NWLR (PT. 1388) 322 etc held that a petitioner who pleads corrupt practices and non-compliance with the Electoral Act must establish by evidence their effects on the outcome of the election. That is, for a petition to succeed under these grounds, it must be proven that there was non-compliance and that the non-compliance substantially affected the result of the election.
It is worthy of note that Section 137 of the Electoral Act, 2022 provides that it shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if the originals or certified true copies manifestly disclose the non-compliance alleged.
C) THE GROUND FOR NOT HAVING A MAJORITY OF THE LAWFUL VOTES CAST AT THE ELECTION
For a Petitioner to succeed on this ground the evidence adduced in support of the allegation should come directly from the officers who were on the field where the votes were counted and or collated. This requires that party agents from each polling unit where corrupt practices are alleged must be called to testify in court. The evidence of a person who merely received the figures without being present is hearsay which is not admissible in law. The court is therefore not going to rely on the testimony of agents from other polling units or other wards. The attitude of our courts has been to treat the testimony of agents from other polling units as hearsay evidence which is not admissible. BUHARI V OBASANJO (2005) 13 NWLR (P. 941)
The Electoral Act further provides in section 134(2) that:
An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election.
It is worthy of note that in addition to the three grounds for election petitions stated in section 134(1) of the Electoral Act, the Supreme Court, in Obasanjo v. Yusuf (2004) LPELR - 2151 (SC), unequivocally declared that the violation of the provisions of sections 239(1)(a) and 285(1)(a) & (b) and (2) of the 1999 CFRN, could create an additional ground for questioning the election of the President or the Vice-President, members of the National Assembly, or Governor or Deputy Governor or member of any state House of Assembly, respectively.
Section 239 (1) (a) and Section 285 (1)(a) & (b) and (2) of the Constitution provides:
(1) "Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether;
(a) Any person has been validly elected to the office of President or Vice-President under this constitution; or ."
Section 285 provides:
(1) "There shall be established for each State of the Federation and the Federal Capital Territory, one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals which shall, to the exclusion of any Court or tribunal, have original jurisdiction to hear and determine petitions as to whether-
(a) Any person has been validly elected as a member of the National Assembly; or
(b) Any person has been validly elected as a member of the House of Assembly of a State.
(2) There shall be established in each State of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor.
It must however be noted that no petition before a tribunal is competent, except the same is predicated on the grounds stated in the Electoral Act and the Constitution or both.
TIME TO FILE
The election petition must be filed within 21 days after the date of the declaration of the results of the elections. The Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition. This is as stipulated in Section 132(7) & (8) of the Electoral Act, 2022. Failure to comply with this time frame will be fatal to the petition of the petitioner.
The Electoral Act, 2022 made some innovations that will not only help in conducting free and fair elections in Nigeria but also help in having a good election petition. Non-compliance with the provisions of the constitution and the Electoral Act in any election may give rise to election petitions which may invariably disrupt the democratic system in place in the country. This in turn sets the country back in respect of the gains which the amendment to the Electoral Act sought to establish.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.