Cleaning Up Messy Electoral Laws

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Lingering Fuel Crisis

Before I delve into the word for today, I cannot but express the displeasure of Nigerians on the matter of the lingering fuel crisis. It was rather nauseating watching the Minister of State of Petroleum, Mr Lokpobiri, after their meeting with the Vice President last week,  making incoherent excuses that don’t seem to add up, in a bid to assure Nigerians who are going through so much hell, that fuel would soon be available, while the CEO of NNPCL, Mr Mele Kyari looked on. Again, I hold President Tinubu to his November 2023 warning that non-performers would be sacked, so that they do not constitute themselves as clogs in the wheels of Nigeria’s progress. I repeat that, it appears that it is time for those running the oil sector to go home. Keeping them in their jobs, cannot be more important than the welfare of millions of Nigerians, who can no longer afford to feed because of the inflation caused by the increase in fuel price and the non-availability of the product. Let those who know how to drive, get into the the driver’s seat!

I have never worked in the oil industry, but does common sense not tell one that if NNPCL has allegedly run up a $6 billion debt with fuel suppliers and they are unwilling to extend any more credit to them and supply them fuel, it goes without saying that NNPCL should have been breaking down the door of Dangote Refinery (DR) to send crude oil there to be refined, in order to make fuel readily available to Nigerians, that is, if they had even the slightest bit of concern for the well-being of Nigerians. Instead, a foolish campaign of calumny was mounted against DR, raising false allegations about DR’s product! 

Oil is the main source of revenue for Nigeria, and therefore, it is bizarre that running of such a vital sector should be left in the hands of those, who by their actions, appear to be inept. There is no better time than now, for the Tinubu administration to decide that some things are too crucial to be used for paying back political debts, or to satisfy APC, or other reasons unrelated to capacity to perform on the job – such things must be put in the hands of those who have the expertise to operate them. Clearly, this is not the case with the Nigerian oil sector. 

And, this reminds me of the social contract that Dr Ngozi Okonjo-Iweala discussed, at our recently concluded 2024 NBA-AGC. Not only must offices, particularly the crucial ones, be populated with only those who have the know-how, Government must be committed to fulfilling the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution) particularly Section 14(2)(b), the security and welfare of the people which is the primary purpose of Government. Section 16 of the Constitution, the economic objectives and achieving them, is synonymous with the welfare of the people. A hungry man, they say, is an angry man, not a happy one (see Section 16(1)(b) of the Constitution). And, Nigerians are rather unhappy. The fact that the pump price of fuel has increased, isn’t helping matters. 

Students are planning a protest against economic hardship on September 15, while the #EndBadGovernance Protesters have already given advance notice of their next outing on October 1, 2024. A month after the last protest, the most pertinent question to ask, is how gainfully Government has used the intervening period between the last protest which ended on August 10 and now, to alleviate the suffering of Nigerians, and address some of the legitimate concerns raised by the #EndBadGovernance Protesters. 

Court of Appeal’s Proposals for the Amendment of the Constitution and Electoral Act

1) Section 187 of the Constitution

Last Wednesday, I read an article in This Day Newspaper about some of the Court of Appeal’s proposals for the amendment of the Constitution and the Electoral Act 2022 (EA). Their first port of call is the amendment of Section 187(1) of the Constitution, so that as in the Bayelsa State case of PDP v David Lyon, Biobarakuma Degi-Eremienyo & Ors (2020) LPELR-49734(SC) per Ejembi Eko, JSC, the joint ticket of a Gubernatorial candidate or Governor-elect will not be vitiated as a result of the disqualification of the Deputy Gubernatorial candidate or Deputy Governor-elect by a court of competent jurisdiction. That Section 187 of the Constitution should also be amended to allow the Governor, Governor-elect or Gubernatorial candidate the luxury of nominating another Deputy, if there’s a disqualification of the extant one. Though the article was silent on the Presidential ticket, it wouldn’t be illogical to assume that such amendment could also apply to Section 142(1) of the Constitution, as it relates to the joint ticket of the President and Vice President.

I’m sure that we all recall that the Supreme Court upheld the judgement of the trial court sacking Mr Degi-Eremienyo, on account of his presentation/submission of forged/false documentation to INEC. People have asked me many times why the court was able to sack Mr Degi-Eremienyo then, based on the PDP’s allegation that he presented forged documentation and therefore, stood disqualified by virtue of Section 182(1)(j) of the Constitution; but that, following the 2023 elections, there was no disqualification of candidates based on allegations in rival parties’ election petitions that some candidates were not constitutionally qualified to run, because of the presentation of questionable documentation to INEC. But, the truth is that, in the  2023 petitions, had the courts disqualified anyone based on allegations of submitting false documentation brought by XYZ Party against ABC Party, and disqualified an ABC Candidate based on XYZ’s petition, such decision would have been perverse. This is because Section 31(5) of the Electoral Act 2010 which was the law in force at the time of Degi-Eremienyo’s case, was amended in the 2022 EA. Section 31(5) of the 2010 EA allowed  ‘Anyone’ to bring such allegations of questionable documentation before the Federal High Court, while Section 29(5) of the 2022 EA amended the aforementioned Section 31(5) to restrict ‘Anyone’ to only fellow ‘Aspirants’ who participated in the primaries of the same political party with the candidate being accused.

In short, by virtue of the new Section 29(5) of the EA, only an Aspirant for the same position in ABC Party can sue an ABC Candidate at the Federal High Court on the documents presented/submitted, not later than 14 days from the date of the occurrence of the event complained of, and not a Candidate from XYZ Party (see Section 285(9) of the Constitution). On the definition of Aspirant, see Ardo v Nyako 2014 10 N.W.L.R. Part 1416 Page 592 at 624-625 per John Inyang Okoro, JSC; Oli v INEC & Ors (2023) LPELR-60587(SC) per Helen Moronkeji Ogunwumiju, JSC.

While some welcome the amendment to Section 187 of the Constitution, citing the unfairness of what amounts to punishing the Governor who hasn’t committed any offence, for the sins of the Deputy (an antithesis to the principles of equity and justice), Section 36(8) of the Constitution provides inter alia that a person can only be found guilty of committing an offence known to law. What offence then, would the Governor be charged with committing, because the Deputy forged his own documentation, that he should be penalised?” It is for these reasons, that they believe that a Governor should be able to nominate a replacement Deputy. 

Others however, oppose the amendment on the ground that, if candidates and their political parties fail or neglect to do their due diligence on candidates/running mates before they are selected and presented formally to INEC with their documentation, then they shouldn’t be given a second bite at the cherry when such candidates are declared unfit by the courts. That, in fact, Section 29(8) of the EA prescribes a N10 million fine upon conviction, for the presentation of a candidate who doesn’t meet the Section 29 qualifications.

2) Section 246 of the Constitution 

The Court of Appeal also proposed that Section 246(3) of the Constitution be amended, so that not only appeals arising from the National and State Houses of Assembly terminate at the Court of Appeal, Gubernatorial election petitions and all pre-election matters should also terminate there. Back in the day, for example, by virtue of the Section 148(1)(a) & (b) of the 2002 Electoral Act, only the Presidential election petition appeal lay to the Supreme Court, while all other petitions terminated at the Court of Appeal, including that of the Gubernatorial election petitions. But, by virtue of Section 246 of the Constitution, the Gubernatorial election petitions now also lie to the Supreme Court. 

Reverting to the old system where only the Presidential election petition appeals lie to the Supreme Court, will definitely decongest the Apex Court’s overcrowded docket, and let the Justices  concentrate on more important appeals. Why should all pre-election matters get to the Supreme Court, when not all substantive election petitions get there? Presently, the case of X of ABC Party who submits a forged WAEC Certificate to INEC in his bid to run for Plateau State House of Assembly, can be fought as a pre-election matter from the Federal High Court all the way to the Supreme Court, but an election petition brought by Y of XYZ Party against X for the same House of Assembly seat terminates at the Court of Appeal! How so? 

However, this issue of expanding the subject-matter jurisdiction of the Court of Appeal is intertwined with the issue of the process of appointment of Judges and their elevation to the higher Benches. Nigerians have lost most of their confidence in the Judiciary, and with the Court of Appeal’s reputation for delivering conflicting, and sometimes perverse judgements, a case in view being that of the Plateau Lawmakers, they therefore, prefer to exhaust all levels of appeal, getting some comfort from the Apex Court. At the risk of sounding like a broken record, the testimony of former NBA President, Olumide Akpata, that Judges who were being considered for elevation to the Court of Appeal, were not conversant with the most basic legal principles like ‘Lis Pendens’; who can blame anyone for not wanting their fate to be determined by those who may not be well equipped to decide their cases? 

If the jurisdiction of the Court of Appeal is to be expanded to be the final arbiter on Gubernatorial election petitions and all pre-election matters, then there must be a rejigging of the process of recruitment of judicial officers right from the beginning, be it Magistrate, Judge, Kadi or Customary Court Judge, so that only the brightest and the best are chosen. Apart from promotion tests and interviews, judicial officers must be grilled on their judgements which must contain all the elements of a good judgement, and not just because they are someone’s relative or protégé. These kind of measures, along with serious sanctions for corruption, will inspire confidence in Nigerians, and set a better stage for the expansionary proposals of the Court of Appeal. 

3) Section 285 of the Constitution 

As for the amendment of Section 285 which sets the timelines for the determination of pre-election matters and election petitions, the whole section must be reviewed holistically, vis-à-vis the holding of Primaries to the substantive elections and swearing in, if the object is that all litigation concerning elections must be completed before swearing in, unless of course the dates set for submitting forms to INEC, holding Primaries and elections are changed, so that all litigation will end timeously. But, this may not be practical because, based on the timelines set in Section 285, elections may have to be completed a year before, to be able to complete all litigation before swearing in. 

Or will a combination of reviewing the dates that Primaries and elections will hold, and necessary amendments of the EA, including Section 285 of the Constitution reducing all the time lines be more ideal? For example, Section 285(6) & (10) allow 180 days for pre-election matters and election petitions at first instance – this time frame can be reduced. Presently, for instance, in the case of the Gubernatorial election petition which goes through three stages – Tribunal, Court of Appeal and Supreme Court, the Tribunal will be concluded at least three months after swearing in, while the other two rounds of appeal will be completed early the following year – 349 days or so in total, approximately one year. Even a pre-election matter would probably be completed around the time of swearing in, if not after. 

Conclusion 

Definitely, it is time to clean up our somewhat messy electoral laws and process, and the time to do so is now, before the Primaries commence in 2026 and elections in 2027. The cycle of ignoring important matters till the last minute, then adopting a hurried fire brigade approach to tackle them, resulting in the making of vital mistakes and omissions which then become the centre for national debate after the fact, happens every election. This is the time for that debate, that will lead to concrete timeous action.