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Retrieving a stolen election

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Retrieving a stolen election

Some of those that repeatedly accuse the Nigerian judiciary, especially the Election Petitions Tribunals, the High Courts, the Federal High Court, the Court of Appeal and the Supreme Court of mandate usurpation and truncating the genuine wish of the people expressed in their votes know that they are not telling the Nigerian people the whole truth.

Some of those that accuse the courts and the tribunals of undemocratic imposition of candidates and the retention of mandate fraudsters are aware that it is disingenuous to accuse the Nigerian judiciary of unbridled interference in the process of electing various categories of public officers when they know that courts and tribunals do not lightly interfere with the voting preferences of the people unless it is glaring that what some people call an election is a fraud. I am saying that the purveyors of mandate usurpation narrative are not telling the whole story because, some of them see an election and the electoral process from the jaundiced lenses of a one-day Election Day dash. An election is not a one-day dash but a series of interconnected events.

“In Kanhiyalal Omar v. R.K. Trivedi & Others103 and Union of India v. Association for Democratic Reforms & Another104, the Supreme Court of India, for example, stated that the word ‘election’ is used in a wide sense to include the entire process of election which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process.

These stages include voter registration; political party and candidate registration; the allocation of state resources and access to media; campaign activities; and the vote, count, tabulation and declaration of results. Lady Justice Georgina Wood, the former Chief Justice of Ghana, made the same point and added other stages when she stated: “The electoral process is not confined to the casting of votes on an election day and the subsequent declaration of election results thereafter.

There are series of other processes, such as the demarcation of the country into constituencies, registration of qualified voters, registration of political parties, the organisation of the whole polling system to manage and conduct the elections ending up with the declaration of results and so on.” And according to the European Human Rights Committee, the process also includes the right to challenge the election results in a court of law or other tribunal.”

In the Kenyan case of Karanja Kabage v. Joseph Kiuna Kariambegu Nganga & 2 Others, the High Court stated that “an election is an elaborate process that begins with registration of voters, nomination of candidates to the actual electoral offices, voting or counting and tallying of votes and finally declaration of the winner by Gazettement. In determining the question of the validity of the election of a candidate, the court is bound to examine the entire process up to the declaration of results… The concept of free and fair elections is expressed not only on the voting day but throughout the election process…

Any non-compliance with the law regulating these processes would affect the validity of the election of the Member of Parliament.”

It is therefore clear that the electoral management body and all the critical stakeholders in the electoral process have an obligation to conduct an election in “a simple, accurate, verifiable, secure, accountable and transparent manner” and this process encompasses all the stages of an electoral cycle. I agree that some decisions emanating from some Election Petitions Tribunals and the courts can hardly be justified. Some of the decisions are not only bizarre but smacks of disrespect to the electorate that trooped out to cast their votes believing that ultimately their votes will be the determinant of who is elected to represent them.

But as with all aspects of human endeavour, nobody can claim omnipotence. All are prone to mistakes but when such mistakes are deliberately contrived, it becomes problematic and the people are entitled to complain.

Unfortunately, it is the bad decisions of some of our courts and tribunals that are given prominence and the seminal and ground-breaking ones are hardly celebrated. I am forced to return to the issue of mandate usurpation because we are fast approaching what may appear to be a frenzied electoral period and the National Assembly appears to be the leading institution that may trigger a big judicial contest.

is also clear to me that we may have a deluge of pre-election disputes in a season when we are yet to conclude alteration to the Constitution of the Federal Republic of Nigeria to provide timelines for the conclusion of pre-election disputes.

It is also clear to me that we are still under the illusion that there can ever be a second election in Nigeria and that presidential elections must always be conclusive on the first ballot and based on that we have refused to make a determination whether the electoral management body, the security agencies and the critical stakeholders in the electoral process have the capacity to reverse its logistics and prepare on time to conduct such a second election within a period of seven days of the declaration of the inconclusive election.

It is also clear that with the dominance of two political parties in Nigeria and the realignment, repositioning and cross carpeting that may likely take place before the election, candidates and political parties may be desperate to win the 2019 elections and in the process may engage in unwholesome activities.

Therefore, the court and the Election Petitions Tribunals are part of the electoral process and have been constitutionally and legally primed to assist political parties and candidates maintain electoral integrity and retrieve illegally and unconstitutionally acquired mandate.

The courts and the tribunals are part of the electoral process and their mandate and the limits of their mandate have been constitutionally defined and delineated. One thing is clear, the courts and the Election Petitions Tribunals do not hustle for cases and petitions. The courts and the Election Petitions Tribunals remain dormant and inactive unless an aspirant, a candidate, a political party or an individual approaches with a suit or petition and activates their jurisdiction.

This must of necessity be so because sovereignty belongs to the people and it is the responsibility of the people to elect those that will govern them and when hustlers, electoral merchants and entrepreneurs undermine the will of the people, the people are entitled to a mechanism of redress.

As the Tanzanian High Court stated in the old case of Madundo v. Mweshemi & A-G Mwanza71: “An election petition is a more serious matter and has wider implications than an ordinary civil suit. What is involved is not merely the right of the petitioner to a fair election but the right of the voters to non-interference with their already cast votes i.e. their decision without satisfactory reasons.”

We must brace up for more litigation relating to the 2019 election. We must determine whose responsibility it is to sequence the order of elections and this determination may likely be made by the courts. I have looked at items 14 and 15 of the Third Schedule to the Constitution of the Federal Republic of Nigeria relating to the powers of the Independent National Electoral Commission (INEC) to fix the order of elections.

The constitution gives the commission the power to organise, undertake and supervise certain category of elections. My understanding is that to organise includes and encompasses to put in order, arrange, classify, categories, fix and make plans for the conduct of an election.

Therefore, the power to fix and classify and order the sequence of elections cannot be taken away from INEC without constitutional alteration. But the National Assembly as the constitutionally ordained lawmaking institution feels otherwise.

The stage is therefore set for a battle of wits between the National Assembly and the forces that see the reordering of the elections as unconstitutional and or meant to give undue advantage to members of the National Assembly. I am also convinced that the courts will be called upon to adjudicate on many pre-elections matters and matters bothering on the interpretation of the constitution culminating in petitions to the election petitions tribunals. Our plea is that the political parties should put their house in order and play by the rules and free the courts to concentrate on other aspects of human endeavour.

All the critical stakeholders should endeavour to assist in the conduct of election that is “simple, accurate, verifiable, secure, accountable and transparent manner” and the courts and the tribunals will not have cause to intervene and or interfere in affirming or nullifying such an election.

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