The Supreme Court judgment upholding the election of President Bola Tinubu has left lawyers divided on whether election cases should be concluded before the swearing-in of elected officials.
Some senior lawyers want post-election cases decided before elected officials’ inauguration to avoid conflict of interest, especially from presiding judges.
But others held that the period provided by the 1999 Constitution, as amended, is enough to treat election petitions, not minding whether it ends before assumption of office or not.
According to Section 285 of the 1999 Constitution, “an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.”
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Section 285 (5-7) provided that, “an election petition shall be filed within 21 days after the date of the declaration of result of the elections.
“An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition. An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or Court of Appeal.”
Both the Presidential Election Petition Tribunal , PEPT, and Supreme Court, spent 140 days handling the petitions tendered by Peoples Democratic Party, PDP, candidate, Alhaji Atiku Abubakar, Labour Party, LP, flagbearer, Mr Peter Obi, and All Peoples Movement, APM.
In the end, the apex court affirmed Tinubu as the valid winner of the presidential election held on February 25.
Given suspicions that usually trail the outcome of such judgements in favour of any incumbent and fears of a clash of interest, lawyers gave their opinions on the way forward.
A legal luminary, Prof Awa Kalu, SAN, said: “Ideally, when you have a contest for the highest political seat in the country, even at the state level, it makes sense to clear every electoral hurdle including litigation before the winner takes the prize. If you are running a race: 100 metres, 400 metres, 1500 metres, whatever the type of race or competition, ordinarily, you finish the competition before somebody picks up the prize. So, it makes sense even in politics for any competitor to pick up the prize after the race. It is not when the race is still on, somebody already has the prize. It makes it difficult for the umpire to say give us back the trophy, let us present it to another person. That certainly is an aberration.
“So, I recommend very strictly that we should finish the race before the title is won. So, when somebody appropriates all the powers whether as president or as governor or as a member of the legislature and so on, let the totality of the competition be over before you present the trophy. That is my position. And there are many reasons for this including the point I have just made. If you present a trophy and you restart the competition, even the referee will be shying to say oga, bring back your trophy so that we can give it to the person that has won.
“You will hear it even in commentary that it has never happened before. How do you remove a president, governor or whosoever? I believe it makes sense, it makes for fairness, to keep the trophy. Let all the competitors look at it. And when somebody has won the race, let the winner pick it up. That is the way to go. It is not when somebody is already a president, a governor or a legislator that you start litigation and he now uses the weight of his office.’’
Also speaking, Mr. Kunle Adegoke, SAN, said the call for election petitions to be concluded before swearing-in is worth looking into.
He said: “The agitation to have an election petition concluded before swearing-in is worth looking into. If that should then be the case, our Electoral Act will have to be amended to have more time for preparation and holding of the elections that will allow the 10-month period for electoral litigation to be concluded before the swearing-in of newly elected officials is done.
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“The meaning of the above is that we need to bring the time for holding the elections closer or earlier at least 10 months before the 29th day of May of the election year. Holding the elections two or three months before the swearing-in date cannot guarantee conclusions of electoral cases before the handover date.
“However, I believe that what we need most is the need to ensure that elections are free, fair and transparent. The National Assembly has tried with the various provisions enacted into the Electoral Act, 2023. We need to ensure that we create a greater guarantee of elections being held in peace and with minimized possibilities of undue manipulation and interference.
By my assessment and based on the report by the Election Monitoring Committee of the Nigerian Bar Association, which is my professional constituency, I believe the 2023 elections were freer and fairer than some elements would want the world to believe. That is not to say that the electoral process is perfect. However, if the agitators would be more relaxed through ensuring that electoral litigation is concluded before swearing-in, I think there is nothing wrong with the idea. It has the possibility of calming frayed nerves.’’
A senior lawyer, Mr. Ebenezer Apata, said election petitions in court should be conducted before swearing-in, adding that any candidate that is returned as a winner of an election already has an upper hand.
His words: “The truth is that the decision of the Supreme Court from the appeals filed by the appellants to the decision of the Presidential Election Petition Tribunal, PEPT, at the Court of Appeal is apt. It is not surprising that the Supreme Court unanimously upheld the decision of the Court of Appeal.
“It doesn’t mean that the petitioners didn’t have a good case, but when talking of justice, there should be justice for both parties, the people and for the court. Justice isn’t a one-way traffic thing. It is four-way traffic.
“We don’t need to be told that election petitions in court should be conducted before swearing-in because any candidate that is returned as a winner of an election already has an upper hand. He has an advantage over other candidates because the candidates contesting his return as the winner of the election have an uphill task to prove that there was no substantial compliance with the Electoral Act. “It is better that there is no swearing-in before election petitions are concluded. None of the candidates will have an undue advantage over the candidate contesting his return. We need a lot of amendments in our laws if we want to move forward.’’
On his part, Professor Paul Ananaba,SAN, said: “The Electoral Act should be amended to address the issue of Section 137. That section is what the tribunal understood to mean there is no more need to call evidence in each polling unit. But the way the law is as par the judgement, witnesses will be called in virtually every polling unit. That law should be reviewed to bring that thing to an end. We cannot spend years trying to call witnesses.
“The time for election petitions should not be more than three months. All our elections should be held on or before the last day of February. We will have March, April and May to decide petitions. The onus of proof should statutorily be on the Independent National Electoral Commission, INEC. INEC alone should defend elections.
“Election petitions should spend six weeks at the tribunal, three weeks at the Court of Appeal and three weeks at the Supreme Court. Every election petition should have been decided on or before May 26. That way we will have a sane situation.”
Giving his view, Ebun-Olu Adegboruwa, SAN, urged the National Assembly, NASS, to amend the Electoral Act 2022 to have transparent elections.
His words: “The Supreme Court held that failure by INEC to upload election results on iREV leads to loss of public confidence in the electoral process.
“The court, however, held that such failure will not lead to the nullification of election results. The judgment is sound in law and accords with the relevant statutes on the issue.
“What then is the penalty for the electoral umpire that failed Nigerians upon its voluntary undertaking? It is left for the National Assembly to amend the Electoral Act 2022 to give us transparent elections. We cannot continue in this fashion.’’
On his part, Mr Adebayo Ojo ,SAN, said: “In Kenya where most people refer to, it is only one level and it is at the Supreme Court. They don’t start at the Court of Appeal. In Kenya, they don’t practice adversary proceedings which we do, their system is inquisitorial. I watched the first one where President Uhuru Kenyatta’s election was nullified. That is Raila Odinga and Kenyatta and I also watched the second one.
“Election petitions are not proven beyond reasonable doubt, it is civil, although suis generis. It has to be proven on a matter of probability, but it is only when you raise issues that are criminal in nature that you have to prove that. Let us conduct our elections well ahead of time. When people are saying we can do it before the swearing-in, they’ve forgotten that rushed justice isn’t justice. That is why I said we need to have elections well ahead of time. When we started this nascent democracy, I was in Ajimobi and Akala in 2007. It took us over two and half years before we could get judgement at the first tribunal and it also went on to the Court of Appeal. We all remember how long it took under Governor Aregbesola before he could get judgement, likewise Governor Adams Oshiomole. In fact, Fayemi was close to four years old. Some even spent their time there, but now we have 180 days.’’
Also, a former Chairman, Nigerian Bar Association, NBA, Gusau Branch, Bello Galadi, called for the amendment of the Electoral Act and other relevant laws to allow INEC conduct elections and address all election cases before May 29.
He said the modifaction would allow elected officers to concentrate and immediately hit the ground working.
According to him,”we need to start discussions on how to amend the constitution, the Electoral Act and other relevant laws, so that in future, elected officers are allowed to enjoy an uninterrupted four-year mandate without distractions.
“INEC should conduct the general elections six months to the date of swearing-in. All election cases should be determined before the swearing-in. Elected officers should be allowed to concentrate fully on governance, otherwise, the essence of Section 308 (1), (2) and (3) of Nigeria’s constitution has been defeated. The section had donated civil and criminal immunity for the President, Vice President, Governor and Deputy Governor respectively.
“As a sitting elected officer, the tendency of the officer to illegally use public resources to prosecute his election petition cases is high, because, in Nigeria, it is ordinarily difficult to differentiate between the public and personal money.
“The laws should be amended to provide for two weeks to file petitions arising from all elections. Two months should be allotted for the Election Petition Tribunals, EPT, to determine their cases. Two weeks should be provided for the filing of appeals arising from the decisions of the EPT. One month should be allotted for the determination of appeals from the EPTs. Appeals from the decisions of EPTs should terminate at the Court of Appeal for gubernatorial elections instead of the Supreme Court.
“In my opinion, retired Justices of the Supreme Court, Court of Appeal, Federal High Courts, State High Courts, National Industrial Courts, Kadis of Sharia Courts of Appeal and judges of Customary Courts of Appeal should be appointed as members of Election Petition Tribunals. The power to appoint the members should be vested in the Chief Justice of Nigeria, in consultations with the National Judicial Council and Federal Judicial Council.’’
