Controversy over timeframe as Presidential Tribunal commences pre-hearing session

Peter Obi, Bola Tinubu and Atiku Abubakar

Controversy over timeframe as Presidential Tribunal commences pre-hearing session

The Presidential Election Petition Tribunal (PEPT) will today commence pre-hearing session in the five petitions challenging the declaration of Bola Tinubu of the All Progressives Congress (APC), as the President- elect.

The Chairman of the Independent National Electoral Commission, Mahmood Yakubu, had on March 1 declared Tinubu the president-elect on the grounds that his party scored the majority of votes cast in the polls.

Dissatisfied with the result, five political parties and their presidential candidates filed separate petitions seeking orders to annul the election and declared them as winners or alternatively an order directing the INEC to conduct a fresh election.

The petitioners are the opposition Peoples Democratic Party(PDP) and Atiku Abubakar, marked CA/PEPC/05/2023; the Labour Party (LP) and Peter Obi, marked: CA/PEPC/04/2023; the Action Alliance (AA) and its presidential candidate, Solomon Okangbuan; with No: CA/PEPC/01/2023; Allied Peoples Movement (APM) and its candidate, Chichi Ojei, with suit number: CA/PEPC/03/2023; and the Action Peoples Party (APP) in a petition with No CA/PEPC/02/2023.

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The tribunal has fixed the pre-hearing session after it has stopped receiving replies to the various petitions on April 23.

Technically, today’s proceedings are specifically to sort preliminary applications before proceeding with the substantive petitions.

Regardless of the date fixed for the hearing of the petitions, there are calls by some legal experts, political analysts, Civil Society Organizations, religious leaders and other stakeholders for the amendment of the electoral process in a manner that every election petition case would be dispensed with before swearing in the declared winner.

In Nigeria, election petitions are governed by specific electoral law making them unique in nature. Section 288 of the constitution and the Electoral Act 2022 regulate elections, while petitions are also governed by the 1999 Constitution and the Electoral Act.

The call is necessitated by the fact that some provisions of the 1999 constitution and the Electoral Act erect legal roadblocks and difficult for petitioners challenging the conduct and outcome of elections to sail through to victory at the tribunals.

One of such notorious provisions is section 285 (6) which provides that “An election tribunal shall deliver judgment in writing within 180 days from the date of filing of the petition.”

Those advocating for the amendment of the electoral process are of the view that the Section 285 (6) is inimical to achieving fair hearing enshrined in the same Constitution. To them, setting 21-day time frame within which to file a petition challenging the conduct of elections in Nigeria is ridiculous.

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They noted that challenging the conduct or outcome of a presidential election implies challenging the election conducted in 36 states and the Federal Capital Territory (FCT). According to the legal experts, law that gives the petitioner 21 days to gather his materials and articulate his grievances in a form that can be presented before the tribunal within 21 days is not progressive, considering the fact that the same 21-day deadline was also given to opposition candidates to file their petitions for other categories of election held in smaller geographical areas like state, district and constituency.

It is therefore their opinion that these requirements of the laws do not provide a fair and level playing grounds for the parties involved in election petitions as swearing in those declared winners pending the determination of the tribunal cases has often given the defendants undue advantage to use the state resources to fight their opponents at the tribunal.

Since the return of the fourth republic, presidential election results have always been rejected and contested at the tribunal with exception to the 2015 presidential election won by President Muhammadu Buhari.

In 1999, the election of former President Olusegun Obasanjo was challenged at the tribunal by Chief Olu Falae. In 2003, Obasanjo’s re-election was challenged by Muhammadu Buhari.

In 2007, both Muhammadu Buhari and Atiku Abubakar challenged the victory of late President Umaru Musa Yar’Adua who won a highly controversial election. Buhari returned to the tribunal in 2011 when he challenged the election of President Goodluck Jonathan.

There was no challenge of Buhari’s victory in 2015 as the then incumbent President, Jonathan conceded defeat and congratulated the winner. However, in 2019, Atiku Abubakar challenged the re-election of President Muhammadu Buhari.

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It is interesting to know that historically, no presidential election tribunal has upturned the election of the declared winner. The closest was in 2007 when the Supreme Court in a split decision of 4- 3 upheld the election of late President Umaru Musa Yar’ Adua.

The point to be considered is that, in all of the above situations, the presidential candidates so declared as winners by the electoral body, all took their oath of office on May 29, while petitions against them were still pending at the tribunals.

Those advocating for the conclusion of election petitions before swearing in the declared winner are of the view that the fact that the constitution prescribed a time frame of about 180 days, doesn’t mean that it must run its course since the policy has been overheated.

However, in as much as it is true that justice delayed is justice denied, it is no less axiomatic that justice rushed is justice crushed.

Until and unless a major constitutional adjustment is carried out, to the effect that nobody must be sworn in as anything whether president or governor or lawmakers until the petition has been exhausted, the laws regulating the hearing and determination of election petitions remains sacrosanct.

Dayo Akinlaja (SAN) said it is not feasible to achieve because there are inbuilt procedures to ensure fair hearing and parties are given timelines for filing processes.

He explained that a party cannot be stampeded to file processes before the expiry of the timelines allowed under the law and each party may decide to hurry or speed up the process.

All parties are entitled to fair hearing and there is no way fair hearing would not be sacrificed where the procedure of adjudication is inordinately rushed.

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To that extent, the agitation for the completion of election cases before May 29, 2023, cannot be effectuated within the prism or framework of the constitution and the Electoral Act, 2022, which provides for a decision or judgment to be delivered within 180 days of the filing of the petition against the return of a candidate in an election.

There are also the appeals arising therefrom to be completed within 60 days from the date of filing. To be achievable, both the Constitution and the Electoral Act will have to be amended to make such a provision.

In addition to the above, although the timeframe had been spelt out, parties still find ways to raise technical issues like failure to serve parties directly, failure to file within a certain time, failure to tender certain vital documents, objections and arguments over the admissibility of documents, lengthy cross-examination of witnesses etc.

Unfortunately, these are allowed by the (tribunal) courts which have stalled the process thus defeating the purpose of the legislative solutions or gains made.

Furthermore, all decisions must be within the law with judicial activism to restore confidence in the Nigerian election systems and to ensure no party is robbed as justice must not only be done but must be seen to be done.

In the future, it is possible to amend our laws and rules of court to accommodate such an idea, but it is clearly impossible under the nation’s present circumstances.

It is more arduous to prove an election petition than to defend it. That is why the petitioners need more time to prove their cases and not necessarily the defendants.

That is why the Petitioners are given 21 days to file and the defendants have 14 days to respond. And the Petitioners have a further 7 days to reply, making a total of 30 days as against the 14 days of the Respondents. It follows that in leading evidence in court/Tribunal in support of the petitions, the petitioners would also take more time.

Quote: “the agitation for the completion of election cases before May 29, 2023, cannot be effectuated within the prism or framework of the constitution and the Electoral Act, 2022, which provides for a decision or judgment to be delivered within 180 days of the filing of the petition against the return of a candidate in an election”