RED ALERT:
Beyond the most talked about section 84(10) of the Electoral Act 2022 which President Mohammadu Buhari himself highlighted, the new Electoral Act 2022 comes with as much good innovations as it does with mischiefs. In couple of days, I shall publish a full list of the innovations and mischievous deletions from the old Electoral Act.
For Instance,
ON THE MISCHIEF SIDE:
Section 31(5) of the Electoral Act 2011 (as amended) which is the provision that enable a citizen to bring an action against any candidate who presents forged certificate has been substituted with Section 29(5) [Electoral Act 2022). In the old Act, the subject of the clause is “Any person”. Which the Supreme Court had given its literary meaning of any person or every person. So, you and I, ordinary Nigerians could challenge a politician who presented forged certificates. That way, a citizen who know that a governor had submitted forged certificate, or that a candidate does not have a university certificate which he claims he has (Toronto University Saga), may go to court and seek that candidate’s disqualification.
In the new Act, that has been circumscribed. It now reads: “Any Aspirant who participated in the primaries of his political party”, ie, the same primaries as the man who presented the forged certificate. Thus, if you did not participate with that governor in the same primaries, you cannot raise the issue of his presentation of forged certificate or the nonexistence of his certificate. That way, they are limiting Nigerians from challenging presentation of forged certificates. It is easier to settle a co-aspirant to withdraw the suit than it is to settle ordinary Nigerians. They are merely protecting themselves with their forged certificates. Some a Governor on my mind.
Also, section 134, which is the new section that provides for the grounds for the challenge of an election has deliberately and mischievously deleted the most potent and less difficult to prove ground. The ground which says that where a person is lawfully nominated by a political party but unlawfully excluded from the election, he could bring a petition. Why should such a ground be deleted? In the coming days, you will observe situations where a political party with the strongest candidate for an election will not be represented on the ballot paper on the Election Day and since it is not a ground for challenging an election, that candidate and political party will be helpless because they will have no ground to challenge that election.
Nigerian lawmakers seem not appropriate the fact that “election” is an advance form of conflict resolution mechanisms, which enables countries resolve conflicts over disputations as to who becomes the leader of the country. Where they continue, by their selfish motive, to make the rule book of that mechanism discriminatory, depriving, protective of wrongdoers, they make the people less confident in the mechanism and may resort to self help. Lack of satisfaction in election and its processes has led to civil disturbance in some countries. Nigeria must avoid that.
ON THE GOOD SIDE
Section 137 (repeated in 138) is an introduction that has dispensed with the calling of witnesses in prove of an election petition. That way, no Court would dismiss a petition on the ground that over 4000 polling unit witnesses were not called, as was the case in Wike vs Peterside in 2015, or over 180,000 polling unit witnesses not called in Atiku vs Buhari 2019.
ON WHAT IS MISSED OUT
It has been my strongest recommendation and I will continue to advocate same, that the burden of proving regularity or compliance in any election should be shifted to INEC. Once a petitioner is able to establish, prima facie, that there was some kind of non-compliance with the Electoral Act, the onus should be on INEC to prove that it complied with the Act. Once that is done, INEC will take additional steps to ensure that they comply with the Act in the conduct of an election.
The law as it is presently, enables INEC assist a party to rig an election, declare the rigged results for that party. Then, when an aggrieved party petitions to the court or tribunal, and because the onus is on the petitioner to prove the irregularities and non-compliance, the same INEC will begin to frustrate the petitioner by not releasing CTC of Results and denying access to electoral documents, etc. If the onus were on INEC to prove regularity and compliance with the Act, INEC will be the one struggling so hard to bring in the electoral documents to court to justify the regularity of its election.
Today, electoral malpractice is “the norm” of our electoral system. Every political party plans on winning election based on malpractices, be it intimidation, vote-buying, ballot snatching, compromise of electoral officer, etc. Therefore INEC should have the burden of proving that the election which it conducted was free of these “norms”. This should be our law until such a time when these present “norms” become what they truly are: abnormals. Then and only then should INEC be relieved of that burden.
The full list of the innovations and mischiefs is coming SOON
Achinike William-Wobodo
Lawyer, writing from Port Harcourt.
