Reforming Nigeria's Election Tribunals
ELECTION TRIBUNALS: HAS ANYTHING CHANGED?
An intermediate court hearing an electoral appeal case arising from the 2003 senatorial elections after overcoming several overt and disguised attempts to stop it from delivering a judgment eventually concluded hearing the appeal and set a date for its judgment. On the date for judgment in this case that was laced with phenomenal political overtones, the courtroom was jammed by 9 O'clock in the morning by people from all walks of life. They had come ostensibly to be witnesses to history that was in the making. They had come to celebrate the day when the judiciary was to put its imprimatur on the register of justice. But two hours later same day, the judges making up the appeal panel were yet to enter the courtroom.
Meanwhile in the background, voices sounding much like those of the panelists were clashing rather rancorously. One voice was particularly vehement. Repeatedly, this voice rose against the other clashing voices in clear protestation. "I cannot now change a judgment already written. It is not possible" Inside the courtroom, those present strained their ears for this dramatic uproar.
Eventually, the panelists entered the court, took their bow and also their seats. The opening sentence from the Chair of the panel was sensational, though glib. He complained about pressures and blackmail from unnamed quarters against members of the panel. The blackmailers wanted only one thing: that the judgment of the tribunal should favor them. The pressures, the Chair of the panel continued, came through telephone and courtesy calls. Those inside the court and watching this confession were stunned at the candor on display but not altogether surprised. It had been the stuff of these election cases to foment astonishing events as politicians carried their rigging propensities from the polling and collation stations to the hallowed temples of (in) justice.
Having rendered this incredulous preliminary outburst, the Panel Chair beckoned on the colleague seated to his right to read the judgment. But the member seated to the left of the Chair protested that he would have none of that. He insisted on reading his own opinion first. The audience was confused. Was this confirmation of a divided panel? What was this panelist going to read? Was it the majority or minority opinion? Nonetheless, they patiently listened as this rather righteously mettlesome judge finished his ruling and closed the book. They applauded.
The Chair then remembered he ought to have read the judgment himself rather than beckon on the panelist to his right to do so. He began to read the other judgment. His first few sentences astounded and annoyed the crowd inside the hall. As he went on and on, something gave among the audience many of whom impulsively stood up and murmured uncontrollably. Their murmur was that of outrage and disapproval. They pitied the Chair of the panel who was inexorably headed for an affront against the prevailing public mood. The audience decided to halt him before he went any further. They surged towards the platform in their numbers, still murmuring and hissing.
The Chair and his team sensed immediate danger which they didn't have any clear strategy to contain. The more he read the judgment, the closer the restive crowd got to the platform. Once it became clear that the crowd could not be restrained otherwise, all three panelists stood up as the advancing crowd made their closest push towards the platform. And in one moment of pure, unbelievable and unprecedented drama, all three members of the panel fled the hall like circus actors whose time on the stage had expired.
If this incident didn't happen in reality, it would have provided ample raw material for fictional experimentation. But this was exactly what transpired in the now famous election case involving Nicholas Ukachukwu and Ugochukwu Uba for who represents Anambra South in the Nigerian Senate. In fact the incident took place at the Enugu Division of the Court of Appeal. That appeal was long protracted in circuitous manner and defied the permutations of the most prolific political or legal voodooist. Because of this particular case, the Court of Appeal now has two different decisions arising out of similar facts to set its precedent on the platform of uncertainty. It does not even make any difference that lawyers and non-lawyers have been warned to ignore one of the said judgments. The judgment dramatized above has also claimed the careers of Justices Okwuchukwu Opene and Adeniji who have been relieved of their positions by the National Judicial Council following a petition alleging that that two appeal court judges took bribes to perpetrate injustice in their decision.
To the extent that elections involve questions sometimes regarding the rights of individuals in society, disputes often occur. Such disputes may touch on multiple and complex issues. They may relate to the right of an individual to be registered as a voter or of like-minded persons to come together to form political parties and compete for power. It may be in the nature of the rights of candidates to mobilize funds and mount campaigns for votes. It may also related to the rights of a political party member to legitimately seek the party's endorsement to represent it on the ballot or the right of a citizen to vote, to present him/herself for election or the right to have access to judicial institutions to secure an enforcement of these rights when breached.
Elections in themselves also present rule of law challenges. For example, electoral management bodies are under obligation and are justly expected to apply the legal framework for elections in an even-handed manner to avoid the danger of being charged with bias or lack of independence; charges that can erode the credibility of the electoral process. Moreover, how elections are handled may be helpful in identifying weaknesses of the legal system within which they are held.
In some jurisdictions, it is given that elections produce fair and just outcomes and that the results when declared would be acceptable to all but an insignificant percentage of those who contested. This may not necessarily be the case in other areas. Post-electoral disputes and recriminations form a critical part of Nigeria's electoral realities. Often several cases are filed after elections following closely behind open charges of fraud and manipulation of votes. In those cases, all manners of breaches and shortcomings are catalogued. It is not yet clear why this is so. Whether the complaints relate to incidences of fraud and manipulation or whether to an unyielding character among political office seekers who find it difficult to swallow the pill of electoral defeat. The unrelenting quest by politicians to reverse electoral returns through the judicial process makes it necessary to pay closer attention to the election disputes resolution framework within the larger electoral management mechanism.
Participants in the electoral process should be aware of what mechanisms are available to resolve their grievances as part of political and voter education activities prior to the elections. There has to be faith and belief that the election disputes resolution process is fair and allows equal access to all those aggrieved in the application of its procedures. The framework establishing the election disputes resolution process should be public knowledge and have clear, unambiguous meaning. They should apply equally to everyone.
Though the procedures for resolving electoral disputes may differ from those governing other forms of legal disputes, the institutions applying them are basically the same in character and orientation. They should have levels of resources and attitude that make the attainment of justice the major, if not, the only goal. Thomas Carothers, writing on the core values of an environment operating rule of law principles says "The central institutions of the legal system, including courts, prosecutors, and police, are reasonably fair, competent, and efficient. Judges are impartial and independent, not subject to political influence or manipulation. Perhaps the most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding"
The 2003 elections will go down in history as the most judicially contested in the annals of elections in Nigeria, poignantly demonstrated by the fact that at the time of making this presentation, which is close to two years after those elections were concluded, cases dealing with them are still pending in some states of the country.
The 1999 constitution provides for the establishment of electoral tribunals to resolve disputes arising from the elections. Section 285(1) and (2) provide for the establishment of the National Assembly Elections Tribunal and the Governorship and Legislative Houses Election Tribunals respectively. Members of the tribunals were appointed by the President of the Court of Appeal in consultation with the Chief Judge of a state, the Grand Khadi of the Sharia Court of Appeal of the state or President of the Customary Court of Appeal of the state as the case may be.
Electoral cases are said to be sui generis ("of its own kind"; of its own kind or class; unique or peculiar). Accordingly the rules that govern them are most of the time different from rules that govern other civil actions. In the event the peculiar nature of such cases admits of two parallel interpretations - that such cases should not be defeated by ordinary technical hitches that can mar mere civil actions or that where the procedures of the tribunal are not followed in any material particular, the petition is defeated.
In Uche Nwole V Amah Iwuagwu the Court of Appeal held that "Election petitions are by their very nature peculiar from other proceedings and are very important from point of view of public policy. It is the duty of the courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction. In the instant case, the tribunal allowed the issue of technicality to prevail in a case where very serious and even scandalous allegations were made. The trial tribunal should have allowed the case to go on and to die a natural death if need be instead of shutting out the opponent (sic) through the use technicalities. Once there are other areas worth looking into it behoves a tribunal to do so and if the petition has to fail after applying the stipulated legal tests then it is welcome to such an eventual end"
On the contrary, Justice Sampson Uwaifo of the Supreme Court in the case of Buhari V Dikko Yusuf observed that "An election petition is heard and determined by an appropriate election tribunal as usually provided by the constitution. In the 1999 Constitution, such provision is made under section 285 and the Sixth Schedule to the Constitution. The procedure is largely governed by a law made specifically to regulate the proceedings. The jurisdiction of an election tribunal to deal with election petitions is of a very special nature different from that in an ordinary civil case. It is plain that the proceedings are special for which special provisions are made under the constitution. Election petitions are distinct from the ordinary civil proceedings. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition"
Decisions of election tribunals in Nigeria after the 2003 elections were basically of two kinds: those in which the respondents raised preliminary objections leading to the striking out of the petitions and those heard on their merits and either allowed or dismissed with reasons. When a petition is struck out at the preliminary stage, it prevents an inquiry into the complaints raised by the petitioner. In the event, the person complaining is not allowed to prove his case and the person against whom the complaints were made runs away with a pyrrhic victory secured by recourse to technicalities. When a person who is aggrieved is sent away from the judicial forum without the opportunity of presenting his case and having it thoroughly weighed against the rebuttal of those defending, neither democracy nor the rule of law is well served. Rather the party sent away on such technical points leaves the forum of justice more aggrieved than before he went to the forum in the first place.
Majority of the petitions decided after the 2003 elections were not heard on their merits but were rather struck out on, at times very spurious and flimsy technical points. Many such decisions were reversed on appeal though there was equally a discernible lack of consistency in the judgments of the appeal tribunals. Below are highlights of some of the grounds on which the petitions were struck out and our comments whether those orders were justified.
Necessary parties not joined
A good number of the petitions were struck out when the tribunals held that parties necessary to their proper determination were not joined either as petitioners or respondents. They relied on the provisions of Section 133 of the Electoral Act which identified a candidate in an election and a political party that participated in the election as proper parties to present a petition. Where a petition complains of the misconduct of an electoral official in the election, such an official whether electoral, presiding, returning or any other officer is deemed to be a respondent and joined in the petition in his /her official status as a necessary party.
The tribunals in interpreting who a necessary party to a petition is for the purpose of its effective determination went very far in stretching its meaning sometimes to ridiculous levels. In some petitions the tribunals made hasty and fatal preliminary orders on the grounds that so-called necessary parties were not joined. In J.K.N Waku V Joshua Adagba (Senatorial/Benue) the tribunal gave as one of the reasons for striking out the petition that soldiers and policemen accused of aiding the PDP in carrying out electoral fraud were not joined as necessary parties. The tribunal reached a similar verdict in Paul Unongo V George Akume (Governorship/Benue). In Onwuka Kalu V Kalu Orji Uzor (Governorship/Abia) the petition was struck out because the 1st respondent's running mate was not joined as a necessary party.
It is instructive that there was lack of consistency in the judgments of the tribunals on this issue though the Court of Appeal in some of the cases that went on appeal on this issue tried to impose some standard. Often most of those whom the tribunals held ought to be joined were not really necessary for the proper investigation of claims made in the petitions.
The position of the tribunals on this issue may also have arisen from an improper understanding of the provisions of the Electoral Act. The Act provided that where a party who ought to be joined is excluded, he is deemed to be a party. What this requires understandably is that when the tribunal finds that a party ought to be joined but wasn't, it can make an order including the name of such person as a respondent or petitioner and not to strike out the petition on that ground.
The bid to satisfy the demand of joining necessary parties increased the cost of access to the tribunals. A clear example was the case of Ugochukwu Agballah V Chimaraoke Nnamani (Governorship/Enugu) where in his bid to fulfill the requirement of joining necessary parties, the petitioner named 3,327 respondents whose names or official descriptions took 71 of the 77 pages that made up the petition. Most of those named were not required at the hearing for any purpose. Compiling such huge documents entailed unnecessary costs. I hereby recommend that it does not require every single electoral official or individual mentioned in a petition to be joined as a party to make it valid. This will impose undesirable burden on the aggrieved and promote mere technicalities over and above substantial justice. It is enough in my view that when the conduct of electoral personnel is questioned, joining the highest ranked electoral officials in the units where the returns are being contested should be sufficient. In fact joining INEC as a respondent should pre-suppose joining of electoral officials working in the Commission's behalf.
Petition not certified/signed/addressed for service
The Electoral Act requires that after a petition is presented at the tribunal, the secretary of the tribunal should compare the original with the required number of copies and if satisfied that they are genuine copies of the original shall certify them as such and in the manner prescribed. This provision is contained in paragraph 3(3) of the First Schedule to the Act. What is the effect o the petition when this requirement is not met?
Failure of the tribunal secretary to certify the petitions accounted for the striking out of several petitions in Akwa Ibom State. The secretary of the tribunal blamed the non-fulfillment of that requirement on the fact that the petitioners did not provide spaces in the petitions where the certification would be done. Among the petitions that failed on account of this shortcoming were Ufikaro Efet V Adasi Ubulam (State House of Assembly/Akwa Ibom), Imoh Imoh V INEC & ors. and Bassey Edet V Esio Udo.
Notwithstanding the reason given by the tribunal secretary for failing to certify the petitions as required by the Electoral Act, was it right in the circumstances for the petitioners to pay the price of this misconduct that was clearly not theirs? When a petition is presented before the registry of the tribunal, the logical step is for the petitioner to take every precaution to fulfill all mandatory conditions necessary for him to enter the petition properly in the docket of the tribunal. Whatever is left thereafter is a matter of administrative procedure for which the petitioner should take no responsibility. It smacks of injustice for the tribunal to hold otherwise as happened in the cases under reference.
In the case of AG Federal V Ajayi the Court of Appeal held that "Where there is any default in the performance of the functions of the officials of the court, the blame cannot and must never be placed at the doorsteps of the litigant who is seen to have carried out his own duty under the law or the rule" Moreover the fact that a petition was not certified cannot be so substantial to the proper determination of the issues involved as to warrant a striking out of the same without going through a hearing. It is merely a technical issue that should not come in the way of justice.
Related to the issue of non-certification are cases where proper filing fees were said to have not been paid by the petitioner. This was the main ground for striking out the petition in Flint Obiekwe V Ben Obi & ors. (Senatorial/Anambra). This was another technical reason which had no connection whatsoever with the allegations in the petition. It should have been possible to remedy this shortcoming so the petition could be heard on its merits. One petition at least was struck out on grounds similar to the two above. In Abdullahi Yelwa V Garba Umar & ors (Federal House of Representatives/Kebbi) the petition was struck out for being statute barred by just one day. It was based on the laxity of again the tribunal secretary who failed to issue the petitioner with the form TF002 as prescribed by the Electoral Act. This lack of conformity was not in any way traced to the petitioner. Yet the petition was struck out.
Finally on this point, the issue of failure to sign the petition or provide an address for service and name of the occupier claimed some petitions at the preliminary stage. Again these are plain technical shortcomings which unfortunately the tribunals relied on to strike out the petitions. The petition in Funsho Williams V Bola Tinubu (Governorship/Lagos) was struck out because it was not signed by the petitioner. This ought ordinarily to be a curable defect. Worse still was the case of Yohanna Dickson V Isaiah Balat (Senatorial/Kaduna) which was struck out because, according to the tribunal, the address of service of the petitioner at which documents meant for the said petitioner may be left and its occupier were not stated in the petition.
In making orders striking out petitions, the tribunals completely ignored the provision of paragraph 49(1) of the First Schedule to the Electoral Act which provided that "Non-compliance with any of the provisions of this schedule or with a rule of practice for the time being operative, except otherwise stated or implied shall not render any proceeding void, unless the Tribunal or Court so directs but the proceeding may be set aside wholly or in part as irregular or amended or otherwise dealt with in such manner and on such terms as the tribunal or court may deem fit and just" Without prejudice to a few cases where the tribunals allowed amendments to be made to petitions to save them from being struck out, in others the tribunals were too hostile and desperate, and denied the applications to amend as happened in the case of Usani Usani V Donald Duke (Governorship/Cross River) where the tribunal's refusal to grant the application to amend so infuriated the petitioner's legal counsel that he had to stage a walk out.
What these cases show is that the tribunals were constrained by technicalities to the detriment of justice. The behavior of these tribunals called to question the training and character of the panelists. How they were appointed and what informed their decisions. In Pat Ajudua V Olaka Nworgu (Federal House of Representatives/Rivers) the court of appeal delivered a timely warning: One cannot pretend to be unaware of the growing tendency in recent times among judges who are called upon to hear and determine election matters to shy away from this sacred duty by hiding behind technicalities. The Nigerian society is a very delicate and sensitive one. There is, nobody can honestly dispute this, widespread discontent. In my view, the last panacea for creating peaceful and conducive atmosphere is to keep all avenues for ventilating grievances as wide open as possible. While we must work according to and within the provisions of the law and the rules, we must do all we can to avoid enthroning technicality above everything else, even, nay, especially in election petition matters"
Mobilizing evidence and the Burden of Proof
Article 6 of the UN Basic Principles on the independence of the Judiciary provides that " The principle of independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected". Respecting the rights of parties in the judicial process includes several safeguards. For instance, parties should be allowed to have access to evidence necessary to present their cases especially where such evidence are in the custody of public institutions. A party to a judicial proceeding should also not bear the burden of proving facts neither within his knowledge nor in his custody. In handling the 2003 election cases, the tribunals in Nigeria turned some of these safeguards upside down and caused in the process injustices of grave proportions.
Though only an insignificant number of the petitions survived the preliminary hurdles placed on their paths by the respondents, those also failed mostly because the petitioners had little if any evidence to prove allegations of ballot rigging and other malpractices. Ordinarily, candidates to the elections were entitled to results declared from the polling units up to the final collation and declaration points. That was why they deployed agents to represent them at such centres. Those agents were to countersign and obtain copies of these results when declared for the candidates who were entitled to those documents as a matter of legal right. But the 2003 elections were generally characterized by confusion and violence. Many agents representing parties and candidates not preferred were driven away from the polling and collation centres. Their signatures were allegedly forged on results by unscrupulous electoral officials and preferred party agents. The results were in many cases not delivered to the candidates. At the time of presenting the petitions, they were hamstrung by a complete lack of background facts needed. In some cases, up to the time of filing the petitions, they did not have the results. Yet they were required to state not only their own scores but also the scores for all other candidates and their parties. For many of them, it was a tall order indeed. Several petitions were struck out because scores of the candidates in the election were not stated. In all cases, it was not that the petitioners knowingly withheld such vital information. They simply did not have them.
Now enter INEC, generally alleged to have compromised the electoral process during the 2003 elections. It is critical that of the 15 major complaints made against the 2003 elections in the various petitions reviewed, 10 of them related to direct actions of INEC personnel or what they failed to do. And rather than see its duty at the tribunals after the elections as that of helping the tribunals give justice to the aggrieved, the Commission only poured insult upon injury. It saw its duty at the tribunals as not transcending protecting their declarations and used every trick in the book to make this possible. Where the petitioners, against great odds, got the tribunals to allow them to inspect electoral documents in INEC's custody, the commission frustrated them with impunity. In Peter Obi V Chris Ngige & others. (Governorship/Anambra) which is still pending, a detachment of anti-riot policemen foiled an order of the tribunal allowing the petitioner access to documents in its custody. In Imo State, a lawyer representing INEC before the state tribunal was arrested by security agents for tampering with election figures while the petitions were pending. When the APGA governorship candidate in the state obtained an order to inspect electoral documents and other materials, INEC failed to allow access to those documents.
In the face of these obstacles, petitioners complaining of irregularities and malpractices in the elections carried in addition the heavy burden of proving that the elections in question were not conducted in substantial compliance with the provisions of the Electoral Act. Also the standard of proof required in many instances was too high. Allegations in elections are often criminal in nature and the tribunals always insisted that they be proved beyond every reasonable doubt.
Keeping the Playing field level
Proper rules of judicial conduct enjoin that the parties have the opportunity of presenting their cases on the basis of equality and that no party to the dispute is given an undue advantage over the other. According to Article 7 of the Universal Declaration of Human Rights "All are equal before the law and entitled without any discrimination to equal protection of the lawŠ" Similarly, article 3 of the African Charter on Human and People's Rights guarantees to every individual equality before the law and to equal protection of the law.
But under Nigerian laws governing the resolution of electoral cases, the person whose return is the subject of litigation is given unwarranted advantages against the person aggrieved by the return. The playing field is sadly unbalanced in favor of the respondents in a manner that leaves the petitioner with choices drastically curtailed. A summary of section 138 of the Electoral Act 2002 is to the effect that a person returned as elected can assume and retain the office while the legal challenge to his victory is pending. This is a most criticized provision of the Act because of its bias in favor of the person returned as elected and whose return is ground for the petition.
The danger which the provision poses to the rights of the petitioner is demonstrated in the adverse effects of its practical application in electoral cases. I hold the view that it is a violation of due process and an affront on fair judicial conduct to allow a person whose election is the subject of a valid legal challenge to assume the office in contention while the case is pending. There is no time frame for the conclusion of election cases under the 2002 Electoral Act which only provided in section 137 that election petitions and appeals arising from them shall be given accelerated hearing and have precedence over all other cases or matters.
When the provision which allows a person whose return is challenged to assume the office pending the petition feeds on the one which prescribes no time frame for the conclusion of the cases, the sad situation is created where the person who has been sworn in will apply tricks and subterfuge to stall the case challenging his return or protract it for as long as is possible. It is for this reason that cases are still pending over elections conducted some two years ago.
In some of the 2003 petitions, the petitioners applied simultaneously that those whose returns were being questioned should be stopped from assuming the offices in the interim until the cases are decided. In the cases of C.N. Ukachukwu V INEC & ors. (Senatorial/Anambra) and Ben Obi V INEC & ors. (Senatorial/Anambra) the tribunal ordered the clerk of the National Assembly not to swear in the respondents whose respective returns were being questioned until the petition was heard and determined. This order was flouted.
In the light of these obvious and proven inadequacies of the 2002 Electoral Act, one would expect that the Draft bill of 2004 ought to make provisions to overcome those shortcomings. But the reality, if the provisions of the new bill are all considered, is a far cry. No substantial changes were made in the new bill to address any of those inadequacies. If the bill is passed by the National Assembly as presented, there would be no guarantee that the performances of the tribunals would be improved post the 2007 elections. The answer to the question whether anything has changed in the 2004 draft bill having regard to the experiences of the tribunals after the last general elections is in the negative.
Indeed, were any changes made at all? Yes, but only cosmetic amendments that failed to address the more fundamental factors that impeded the work of the tribunals in 2003. We have carefully scrutinized the provisions of the 2004 draft electoral bill on the resolution of election petitions and noticed changes only in the following insignificant areas.
… The creation under Section 153 of an Area Council Election Tribunal for the Federal Capital Territory and the FCT Area Council Election Appeal Tribunal whose decision in respect of Area Council Elections shall be final. [Section 154 (1) and (2)]
… The draft dispensed with various forms in the nature of receipts, notices and so on which were required under the 2002 Act. For example form TF002 issued as receipt on the presentation of a petition was not mentioned in paragraph 3 (1) of the relevant schedule in the 2004 draft. The same applies to Paragraph 4 (7) on form TF001, 7(1)(a) on form TF003, 9 (3) on form TF004 and 28 (3) on form TF006. Nevertheless, paragraph 19 (1) of the 2004 draft mentioned form TF005 in what we consider to be an unintended error.
… Three other paragraphs which were unbroken in the 2002 Act [9 (1), 9 (4) and 37 (1) were each divided into two paragraphs under the 2004 draft.
To the best of our knowledge these are the only changes we noticed in the 2004 draft on the handling of election petitions. This means that no real effort has been put into improving the work of the tribunals in the 2004 draft. This is a sad situation indeed.
WHAT IS TO BE DONE?
Having regard to the analysis we have made of the factors hindering the election tribunals in their work, we are recommending the following:
1. There is need for an amendment to the Electoral Act to set a time frame for the conclusion of all electoral cases to obviate the current open-ended and manipulable duration of such cases. INEC had stoutly defended its position of not setting such a time frame in the draft. They referred to a certain Supreme Court decision where the court held that setting such a deadline would amount to legislative interference in the work of the judiciary. This may be a matter for another day since we are yet to read that judgment. But it is sufficient to recommend at this time that even if that is the case, the new bill when passed should grant subsidiary powers to the Chief Justice of the federation or President of the Court of Appeal to make rules of procedure for the tribunals. This way, the judiciary would be setting its own procedures. This is normal within our justice administration system. Most of the procedural rules currently applied in our courts are made by officials of the judiciary. Whatever deadline set, must allow sufficient time between the conclusion of elections and inauguration of those elected to deal with petitions conclusively. This will make the tribunals responsive to the need to conclude the cases promptly, remove the psychological advantage which a person who climbs into an office while facing a challenge has over his challenger and enable the victorious party settle quickly into the responsibilities of the office rather than the present situation where those challenged at the tribunals spend more time at such tribunals than fulfilling the mandate of their offices.
2. Another major shortcoming in the work of tribunals is that they appeared helpless and pathetic when their decisions and orders were not carried out. In fact when the tribunals in the few cases that they had the courage to do so, reversed the declarations of INEC, the victorious parties had to still return to INEC for certificate of return. I do not know under which law this extra step is prescribed. While in some cases INEC demurred to issue the certificates, in others their reluctance encouraged those whose returns had been reversed to engage in legal calisthenics in the courts. Strangely one of such cases is now pending before the ECOWAS court in Abuja long after the Court of Appeal which our Constitution recognizes as the final judicial portal in such cases had closed the case. Let the new electoral law contain a provision that recognizes the decision of the final court of appeal in electoral cases as the certificate authorizing the triumphant party to assume the mandate without further recourse to INEC.
3. The new Act should also contain a provision requiring INEC to prove certain facts within its knowledge. For example, if the question for determination is whether or not a particular election has been conducted in substantial compliance with the provisions of the Act, the burden of proof should be on INEC to establish that the particular election is in compliance with the Act. It is unfair to require litigants to prove facts the materials to prove which are not in their possession. Since INEC is the institution that takes custody of all materials used for the election, they should be in a better position to prove those facts.
4. On the proclivity of the tribunals towards technicalities and not substantial justice, this is only a human weakness which legislation alone cannot address. There is need to create a new orientation for judges on the handling of election cases. Courage is required as is intellectual competence. Posting for electoral adjudication like refereeing in sports should not be an all comers affair. Only the best are good enough for such cases. The establishment of permanent Constitutional Courts whose jurisdiction would include dealing with electoral adjudication is recommended as a strong solution.