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Unsustainability of costs of elections and election petitions in Nigeria 12 Jan 2023

Maintaining Nigeria’s democracy entails the conduct of an expensive project called elections every four years. The costs of conducting the elections have increased with each election cycle but the current budget of N305 billion for the 2023 elections, excluding the Independent National Electoral Commission’s (INEC) annual allocation of N40 billion, is by far the largest. Daily Trust newspapers estimates that INEC has expended not less than N1.24 trillion in conducting elections over the past ten years.

The high cost of conducting elections, particularly the coming elections, is even more sobering when the country’s dwindling revenues and debt profile are considered. In addition to the costs of the elections, the uncertainty surrounding Nigerian elections causes a lag in new investment inflows, leading to reductions in business activities ahead the general election, and usually until the new government settles in. Even judicial activities suffer a lag as a result of elections.

Election tribunals would be constituted not later than 30 days before the elections and open their registries for business seven days before the elections, pursuant to Section 130 of the Electoral Act. The Chief Justice of Nigeria (CJN) swore in 307 judicial officers into election tribunals for the forthcoming elections on 7 November 2022. By the provisions of the Sixth Schedule to the Constitution, the members of the election tribunals, i.e., the National and State Houses of Assembly Election Tribunals and the Governorship Election Tribunals, are appointed from among judges of a High Court, kadis of a Sharia Court of Appeal, judges of a Customary Court of Appeal or other members of the judiciary not below the rank of a Chief Magistrate. These 307 judicial officers for not less than six months, i.e., the first half of the new year will abandon their regular dockets for election petitions. Litigants already before their courts have to wait for the return to regular duties to continue their quest for justice.

Election petitions are a special specie of court cases and are in a special class of their own. Hence, the Electoral Act prescribes the persons who may institute an election petition, the grounds upon which a petition may be based, and the reliefs which may be sought for and granted by the Tribunal.

An election petition may only be presented by a candidate in the election and or a political party that participated in the election. Such a candidate and or his or her political party may only sue the person returned as winner of the election and INEC where there are allegations regarding the conduct of the Commission or its officers. An election may only be challenged on three grounds: that the person returned as winner was, at the time of the election, not qualified to contest the election by failing to meet any of the requirements and qualifications as prescribed in Sections 65, 66, 106, 107, 131, 137, 177 or 182 of the Constitution as may be relevant; that the election was fraught with corrupt practices or non-compliance with the Electoral Act which substantially affected the result of the election; and that the person returned as winner was not duly elected by majority of lawful votes cast at the election.

Despite these provisions aimed at streamlining election petitions, hundreds of petitions are filed after each election. It was reported that the Court of Appeal received 805 appeals arising from election petitions across its 16 judicial divisions after the 2019 general elections. Several factors responsible for this include our multi-party system, distrust of the electoral process, the high volume of irregularities that mar most of our elections, and the do-or-die nature of politics in Nigeria. Yet, only a handful of election results are overturned.

Tribunals have two options upon the success of a petition: nullify the election and order a re-run within 90 days of either the decision of the tribunal where the decision is not appealed or the nullification of the election by the court having final appellate jurisdiction where the decision is appealed. An order of the nullification of an election and an order to INEC to conduct a rerun can only be made where the tribunal finds that the election was fraught with corrupt practices or non-compliance with the Electoral Act, which substantially affected the result of the election.

Where the tribunal or court finds that the person who obtained the highest votes at the election was not qualified to contest the election, the tribunal or court would nullify the election and declare the person with the second highest number of valid votes cast at the election who satisfies the requirements of the Constitution and the Electoral Act and is still a member of the political party under which he contested as the winner of the election and as duly elected. Also, where the tribunal or court finds that the person returned as the winner of an election did not score the majority of valid votes cast at the election, the tribunal or court would declare the candidate who scored the highest number of valid votes at the election and satisfies the requirements of the Constitution and the Electoral Act as the winner of the election.

Over the years of Nigeria’s democracy, the mistrust in the electoral process has extended to the outcome of election petitions. Election tribunals are an important part of the democratic process of conducting elections, as there must be an avenue for aggrieved parties to seek redress for electoral malpractices and irregularities. It also provides a system of checks and balances to keep the electoral body, INEC, accountable. Election tribunals and the judiciary as a whole, especially when it comes to political cases, however, operate under a huge cloud of mistrust, allegations of impropriety, and partisanship.

An example is what many perceived as upholding technicality to work an injustice in the Adeleke v Oyetola election petition case in a judgment delivered by the Supreme Court in 2019. The Tribunal had nullified the election, but the decision was overturned by the Court of Appeal and Supreme Court, on the ground that one of the members of the Tribunal who delivered the lead judgment did not sign the attendance sheet of the Tribunal’s proceedings on a specific day key evidence was presented, signifying his absence from the proceedings of the day.

Many decisions relating to the appointment or removal of judicial officers carry insinuations of cherry-picking for the purposes of the next election cycle and the attendant election petitions. We thus have a situation where the country spends a humongous amount of money on elections, another huge sum on election petitions – with the regular court business of the members of the tribunals put on hold – yet many Nigerians do not believe that the outcome of the process reflects the choice of the voters.

The Punch newspapers reported a survey conducted by Anvarie Tech, ResearcherNG, and Bincika Insights on Freedom of Expression, Political Participation, Rule of Law and Corruption with a focus on the trust of respondents in independent government institutions. The survey was funded by the Washington D.C.-based National Endowment for Democracy and revealed that 40% of participants do not believe elections are free and fair, 71% lack trust in the judiciary, and 65% lack trust in anti-corruption agencies.

We must reduce the costs of elections generally and the number of judicial resources and personnel dedicated to election petitions. They are becoming unsustainable. Already, the President of the Court of Appeal, Hon. Justice Monica Dongban-Mensem, a few months back while exercising her powers and performing her duties to constitute election tribunals decried the delay in funding the process.

Three factors capable of reducing the huge costs of conducting elections and the huge judicial resources and personnel dedicated to election petitions are reducing the number of our political parties in the country; making political office less attractive than it is currently where contestants fight till their last breath; and running credible elections thereby reducing the chances of their contest.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).