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As we approach the 2023 general election, the political waves and atmosphere are already flooded with expectations from all corners of the nation with Political Parties flying their candidates and equally rehabilitating and reinvigorating their structures across the country in a bid to canvass votes for their party and candidates through social engineering and public enlightenment about citizens’ franchise.
These have resulted in party alignments and decamping of many from one political party to another and has equally degenerated into political crisis within and outside party’s domain. These crisis spin across both inter and intra party disputes. Intra party disputes include but are not limited to conducts of party primaries and membership status while inter party crisis include a host of post election disputes.
It is important to note that most of the intra party disputes are generally referred to as internal party’s affairs which may be resolved by the party’s leadership in line with the party’s constitution and other relevant laws and guidelines. However, the decision of a party may sometimes be challenged in court by way of a pre-election matter especially where the conducts complained of affects a person’s fundamental right. In the case of intra party disputes, the crisis mostly arise from the conduct and outcome of a primary election as well as the legitimacy of a candidate presented by a party. The court of law is empowered by the Constitution of the Federal Republic of Nigeria and the Electoral Act to hear and determine all issues arising therefrom.
While it is established that both pre and post election issues are remediable under the law, this article focuses on post election issues and the processes of challenging the conduct and outcome of an election within the confines of our enabling laws with core interest on the grounds for challenging an election in Nigeria.
The process by which the outcome of any election is challenged is known as an election petition. 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 provision with respect to persons who can file election petition and the grounds upon which the petition may be presented.
WHO MAY PRESENT AN ELECTION PETITION
In order 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 provides that an election petition may be presented by either a candidate in an election or a political party that participated in the election. The said 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. A candidate in an election; or
b. A political party which 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.
It is worthy to note that under the Electoral Act 2010, a person who was validly nominated and cleared to contest an election by INEC but was wrongfully excluded from the ballot may equally file an election petition by virtue of section 138 (d). However, the said provision has been deleted by virtue of the new 2022 Electoral Act under section 134, which invariably means that a person who was excluded from election can no longer file an election petition. At best, the matter may be treated as a pre-election matter.
To further curb excessive floodgates of petition against an election, the Constitution under Section 285 (13) and (14) prohibits INEC from declaring a person who did not participate in all stages of an election as the winner of that election. In a bid to further prevent unending litigation and to maintain sanity of the electoral system, the same section under Sub section (14) clearly defines what constitutes pre-election matter. All these gear towards building a sustainable democratic system devoid of situations where highly-connected individuals will use the technicality of the law to overturn the will of electorates.
GROUNDS UPON WHICH AN ELECTION MAY BE CHALLENGED IN NIGERIA
In challenging elections in Nigeria, the Electoral Act 2022 has placed limitations on what constitutes the ground for questioning the validity or outcomes of elections. By virtue of section 134 (1) of the Electoral Act 2022, the only grounds upon which an election may be challenged are that:
a. the person returned as elected was at the time of the election, not qualified to contest;
b. the election was invalid by reason of corrupt practices or non-compliance with the Electoral Act; and
C. the winner was not duly elected by majority of lawful votes cast at the election.
However, in line with sub section 2 of section 134, the mere fact that an act or omission is contrary to the directive of INEC or any of its officers is not a ground for challenging the election-provided such act or omission is not inconsistent with the Electoral Act.
In addition to the foregoing, section 134(3) provides that a person’s election shall not be challenged on the ground of qualification once the person satisfies the relevant provisions of section 65, 106, 131, or 177 of the constitution as the case may be. This is because such a person is deemed to be pre-qualified for the election.
Furthermore, section 135(1) of the Act provides that an election cannot be invalidated by reason of mere noncompliance with the provision of the Electoral Act if in the opinion of the election tribunal or Court, such election was conducted substantially in accordance with the principles of the Act and the non-compliance did not substantially affect the result of the election.
Contrary to popular belief, irregularities in an election is not a ground to challenge such election. In Ogboru v. Ibori, the Court held that section 134 of the Electoral Act 2010 did not make “irregularities” one of the grounds for contesting an election. The word “irregularities” was in this case categorically distinguished from corrupt practices or non-compliance, which was one of the specific grounds set out in the section. Against this background, paragraph 4 of the petition that questioned the election on the ground of “irregularities” was held to be unknown to the Electoral Act.
It is imperative to state that an aggrieved person who intends to challenge an election must ensure his greviances are within the prescribed grounds of petition otherwise such an election petition is bound to fail. This position has received judicial blessing by the Court in Nwabodu v. Giff (1998) 12 NWLR Pt. 579, 522 where the court held that an election petition brought on ground of “irregularities” in the conduct of an election is incompetent and unknown to law as same is not among the grounds stated in the Electoral Act.
For the sakeof clarity, each of the respective grounds for petition shall be independently discussed below:
1. That the person returned as elected was at the time of the election, unqualified to contest.
A petitioner who challenges an election on this ground will have to prove that the Respondent has fallen short of the requirements prescribed by the requisite provisions of sections 131,137, 177, 182 of 1999 Constitution presidential and governorship elections respectively and Sections 9, 65, 66, 106 and 107 for National Assembly and state House of Assembly elections. On a general note however, the qualification and disqualification criteria prescribed by the aforementioned sections are the same for all candidates seeking any elective office, except the age requirement. For the categories mentioned above the criteria are provided below:
1. The candidate must be a Nigerian citizen;
2. He must be educated up to school certificate level or its equivalent;
3. He must not be adjudged a lunatic or of unsound mind;
4. He must not be under a sentence for dishonesty or fraud;
5. He must not be an undischarged bankrupt;
6. He must not have been convicted and sentenced for dishonesty or found guilty of contravention of Code of Conduct less than 10 years before the date of the election;
7. He must not be under the employment of State or Federal Public Service within 30 days immediately before the date of the election (the candidate ought to have resigned, withdrawn, or retired from such service in accordance with the relevant conditions of service 30 days before the date of election);
8. He must not be a member of any secret society (Section 318 of the 1999 Constitution);
9. A candidate must be at least: a. 35 years of age for Presidential election; b. 35 years for Governorship and Senate elections; and c. 25 years of age for House of Representative and House of Assembly elections.
10. A candidate must be a member of a political party and sponsored by that political party.
11. A candidate for Presidential and Governorship elections, should not have been elected to such office at any two previous occasions.
With respect to the first criteria, relating to Nigerian citizenship, Section 28 of the Constitution on citizenship is to the effect that a person loses his citizenship, if not being a citizen of Nigeria by birth, he acquires the citizenship or nationality of another country other than Nigeria of which he is not a citizen by birth. The various provisions on the criteria for disqualification for the offices of President, Governor or the National and State Houses of Assembly seats prohibit contesting election if a person has voluntarily acquired the citizenship of another country and has made a declaration of allegiance to that country. Therefore, to succeed on this ground, there must be evidence that the Respondent renounced his Nigerian citizenship, usually by a Certificate of Renounciation or by tendering a signed Oath of Allegiance of that other country. It is imperative to note that by virtue of Section 131(a) and 177(a) 1999 CFRN, only citizen of Nigeria by birth can contest election to the office of the President or Governor of a State.
On the issue that the candidate must have been educated up to School Certificate level or its equivalent as envisaged by Sections 131(d), 65(2) (a), 177 (c) and 106(c) 1999 CRFN (as amended), S. 318(a-d) 1999 CFRN define school certificate. In effect a candidate may rely on any of those grounds in (a) – (d) to challenge an election and only ground “(c)” needs to comply with paragraphs (i) – (iii) as was held in Bayo v Njidda (2004) 8 NWLR (Pt.876) 544.
On means of proving educational qualification in respect of “(a)” and (c)”, a certificate may be necessary. In Atiku v INEC (2020) 12 NWLR (Pt.1737) 37 (SC), it was held that evidence of having been educated up to secondary school level may be established by production of photographs, an affidavit or testimonials.
2. That the election was invalid by reason of corrupt practices or non-compliance.
It has been severally opined that the purport of this provision is that for an election to be upheld by the Court as a valid election, it must have been conducted in substantial compliance with the law as the reverse would be held to have been conducted in substantial noncompliance with the law and therefore must be voided. In Nwole v. Iwuagwu (2004) 15 NWLR (Pt895) 61, the Court of Appeal held that noncompliance with the Electoral Act is not restricted to only a breach of the Act but extend to all acts capable of placing obstacle or obstructing willing voters and candidates. The Court further stated that the conditions in Section 139 (1) Electoral Act 2010 are conjunctive, thus, a petitioner relying on noncompliance has the herculean burden of proving not only that substantial noncompliance complained of, but also that it substantially affected the result.
The Court of Appeals in the case of OJI & ANOR V. NDUKWE & ORS (2019) LPELR-48955(CA) summarize this ground in the following words.
“…the Appellant’s sole ground in his petition reads thus: the 1st Petitioner state that the election of the 3rd Respondent was marred by corrupt practices and non compliance with the provisions of the Electoral Act 2010, as amended. A literal construction of Section 138 (1) (b) reflects that a person can question the election (sic) was invalid because of corrupt practices or non compliance with the provision of the Electoral Act. In other words, once election is questioned on the basis of invalidity it can be predicated on corrupt practices or non compliance. The use of ”or” connotes an alternative or an option. Consequently, both corrupt practices and non compliance should not be joined together as one ground. A petitioner can ground a petition on corrupt practices or noncompliance with the Electoral Act. It is instructive to note that a ground on corrupt practices invariably relates to non compliance to the provisions of the Electoral Act as it relates to allegations bordering on criminal practices. Therefore, a petition predicated clearly on non compliance with Electoral Act can be predicated solely on breach of civil obligations in the Electoral Act and irregularities arising from the election which are civil in nature or non compliance with the Electoral Act in relation to criminal allegations.”
3. That the Respondent was not duly elected by majority of lawful votes cast at the election.
It has been stated that this ground particularly focuses on the the scores of the candidates and is related in a way to a complaint of malpractice, because malpractice depletes the votes of the party returned. It must be specifically pleaded by the petitioner in other to succeed. In Iniama v Akpabio (2008) 17 NWLR (Pt. 1116) 225 at 344, the Court held if there is an allegation challenging the scores of candidates at an election, 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 collated. This in effect means that the collation officers who counted the vote cast should be brought to testify in Court as to the allegation. Evidence from a person who received the figures or scores from officers who were present at the counting and/or collation of the votes is inadmissible as hearsay.
Conclusion
Noncompliance with the provisions of the constitution and the Electoral Act in any election may give rise to an election petition as one of the means by which election can be challenged in Nigeria. In doing so, the petitioner has to confine the grounds of petition within the requisite provisions of the Electoral Act as discussed above otherwise such petition may fail.
Maryam Musa El-yakub is a Legal Practitioner, and an Associate at Litigation Department, Law Corridor.
[email protected]
Lawcorridor.com
