A.B. Mahmod - Mustapha Akanbi Foundation

Contribution by
A.B. Mahmoud SAN, OON
True or False: ‘Justice Delayed is Justice
Denied’ has no relevance in Election Petitions.
Delays defeats justice: It is easy to accept this
maxim in the fields of
Criminal Justice and
 Civil Justice
But what about in the field of
 Electoral Justice?
What is electoral justice?
The process by why the legal system comes to the aid of the
electoral process to ensure that the will of the electorate in
choosing its representatives to run affairs of state is protected.
Is Electoral Justice different?
The Candidates
The Electorate
The wider Public
The Issues:
 Elective Offices are time bound; officers generally elected for
specified term
 Public Funds (Tax payers)
 Democracy/Governance/Public Policy: smooth transition,
minimum disruption in government business
What is behind the delays in trial of election
The Role of Political Parties;
 The Role of the Election Management Body EMB;
 The Role of the Courts;
 The Structural and Institutional Arrangements
 Procedural
Political Parties play a central role in our
Constitution grants and protects the rights for the
civil association that creates them;
The constitution grants them the legal right, and
perhaps until the new amendments, the monopoly
to participate, present candidates at elections.
They are fundamental and central to our system of
representative democracy
Perhaps the most relevant vehicle for the
expression of the will of the electorate.
Many of the conflicts within the electoral system
are generated by the political parties:
Manipulation of the system for election of party leaders
and candidates for elections;
Role of godfathers
Powers of incumbency whether of Governors or
President etc : use of state resources
The role of political parties is illustrated: Ararume v.
INEC (2007) 9 NWLR pt 1038 pg 127 Ameachi v. INEC
2008 5NWLR pt 1080; 227
Some the conflicts spill into the Election Petitions under
what we term “Pre-election Disputes”
These have made Election Adjudication more protracted:
Ameachi’s case; The cases of Sokoto and Kebbi;
The question then is what should be done to
streamline the role of the parties:
They reciprocate the constitutional and legal
privileges granted them so that they enhance our
system of representative democracy by themselves
becoming more democratic, transparent and
accountable to their members?
 More Structured engagement with the EMB that
provides greater interaction, consultation and input
into decisions pertaining to elections and
preparation for elections.
 Greater reporting and disclosure in the areas of
funding and election finance
It is generally perceived that the EMB in Nigeria have
not in recent past acted credibly or in a transparent
There are serious allegations of corruption, lack of
transparency, manipulation by Politicians and
functionaries at the highest levels
INEC became a tool in the hands of the Presidency in
trying to exclude certain candidates, notable was the
case of Atiku Abubakar
EMBs it is widely believed deliver a predetermined
Naturally these conduct generated considerable
amount of legal disputes creating unnecessary burden
on the judiciary both before and after the elections.
How do we ensure that the necessary
safeguards are in place to enhance the values,
norms and principles that govern the activities
and functions of the EMBs?
That they are truly independent, autonomous and
 That their actions are responsible, transparent, and
carried out with the highest degree of
The safeguards must be both institutional and
Institutional: the legal provisions:
Legal and Financial Autonomy
Security of Tenure
The Uwais Panel Recommendations
The new constitutional amendment and the new electoral act
making its way through the National Assembly geared towards
making improvements in the legal and institutional
Strengthening INEC’s autonomy making it a non-party to
election disputes
What about the normative issues: the values of integrity,
transparent management and administrative best practices
within EMBs?
The recent appointment of Prof. A.M. Jega to
Chair the INEC was widely acclaimed and
seeing as a signal that this Administration is
serious on its promise to improve our electoral
Offers a good opportunity to revamp the
system and make it more credible.
Some suggestions:
Its relationship with political parties: regular, sustained and
The new draft electoral act proposes more powers to INEC to
monitor the internal organisation of political parties: finances,
conventions, congresses and party primaries;
The relationship should not just be of policing but of sustained
engagement and collaboration
Its relationship with CSO and other stakeholders
Continuous engagement throughout the Electoral cycle: prevoting phase, the voting-period and the post-voting period.
Voter education
Credible Voter registration
Use of ICT to enhance transparency and public confidence:
Register of Voters published on the internet?
As a means of Enhancing confidence and building
other critical national infrastructure and Electoral
system needs in the long run to develop synergies
with other national sub-systems:
linking civic registration with voter registration
Continuous civic/voter registration
Transportation of election materials and national postal
 The objective is make routine many of the key elements of
the election process so that the nation can save its
resources and process over time becomes less
controversial and generates less disputes.
 A credible, strong and transparent electoral process will
lessen the burden on the courts and minimize the use of
the courts to attain electoral justice
This is the main focus of this symposium:
The main thesis is that mature, responsible
political parties and Credible, professional and
Independent EMBs will deliver credible
elections and reduce considerably the use of
the courts to settle election disputes.
Still however, inevitably there will be election
disputes; How do we ensure that these are
speedily, effectively and credibly resolved?
Institutional reforms:
Continued improvements in the institutional /structural arrangements:
The Uwais panel has recommended some changes and I believe some of
these have been reflected in the new electoral act under consideration
Strengthening the tribunals and making them more functional: reduced
membership (5 to 3 with quorum at 2)
Governorship petitions to be commenced at the Court of Appeal with
appeals to the Supreme Court
Is the adhoc national tribunal system really necessary?
Moving Judges outside their stations, disrupting their family lives with
inadequate resources not conducive to their functions.
Constituting adhoc tribunals has turned out to be enormously disruptive
of normal judicial duties at the State High Courts.
Should the states judiciaries not be entrusted with the responsibilities of
settling disputes with possibilities of appeals on clearly defined areas?
Procedural safeguards:
Time limits for election petitions?
Previous jurisprudence (Unongo v. Aku 1983 14 NSCC 563 )
suggest that the legislature could not legislate to direct judicial
functions and therefore any time limits in statutes within which
a case should be tried offends the doctrine of separation of
Uwais panel recommends constitutional amendment to restore
time limits.
This is clearly the way to go: Timely disposal of election
disputes is crucial to any democracy.
It is almost universally accepted now that election disputes
must be decided within pre- determined timelines
In Africa many jurisdictions impose time limits ranging
between 5 days to 30 days.
Procedural safeguards
Improvement in rules of procedure: the Practice Directions;
front loading; filing of written addresses and appeals
Harmonisation of Election Jurisprudence: Conflicting Decisions
from various Courts, trial and appellate: Need for Certainty
It is important as a prelude to any general elections that the
Judiciary in collaboration with EBM, the Bar Association etc
conduct rigorous training seminars involving judges and
lawyers at which issues around election disputes procedural
issues, practice directions etc are thoroughly discussed
Post-elections and after most of the disputes have gone through
the system interactive and collaborative involving all
stakeholders appraisal ought to be carried out
Any new ideas?
What about ADR?:
ADR has been in an extremely useful tool in the settlement of disputes: commercial disputes, labour
disputes, other civil disputes, why not electoral disputes?
Many advovates of ADR have suggested its adaptation to Political party disputes See for instance
Applying the ADRs To Political Party Disputes
a paper presented at the INEC Workshop on Resolving Political Disputes in a Democratic Setting – the
Place of ADRs for political parties etc, Yar’ Adua Centre, Abuja, Dec 15, 2008 by Prof Andrew I.
Chukwuemerie* )
The advantages of ADR are well known
Can it be adopted to Election Disputes?
South African Electoral Justice Experience shows extensive use of ADR
Comparative Experience….Training, Sharing African and other experiences especially from other
emerging democracies as well as strong democracies…Ghana, India, South Africa etc
Normative safeguards:
Integrity issues
 Competence,
 appointment procedures
 Training
 Disciplinary oversight
 The Role of the Bar
Electoral Justice is an essential part of democracy.
The speedy disposal of election related disputes
within pre-determined time lines is now
universally accepted as an essential element of
electoral justice
Inability to achieve this will be a grave failure on
the part of the Nigerian Legal system and is
capable of undermining our democracy.
The Legal Profession must rise to the challenge to
ensure all necessary safeguards: institutional and
procedural an in place to guarantee that future
election disputes are resolved speedily, justly and

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