Introduction

Over the past six months, Nigerian judges and justices have been tasked with the responsibility of entertaining pre-election and post-election disputes. A significant number of Nigerian jurists had to answer the National call at the instance of the Chief Justice of Nigeria (“CJN”) who assembled panels across the Federation to determine petitions emanating from legislative, gubernatorial, and ultimately the presidential elections which were held on 25 February 2023. In this short piece, we shall take a cursory look at post-election disputes and consider the question of whether the 21-day period within which a petitioner is mandated to file a challenge to an election result is adequate to make a water-tight case and if not, make recommendations on the issue.

The judgment of the Presidential Election Petition Tribunal in 2023

On 06 September 2023, Nigerians (home and abroad) and indeed other interested persons in the international community turned their focus to the three judgments of the Presidential Election Petition Tribunal (“PEPT”) which were televised in real time. Although, this article is not aimed at empirically critiquing the judgments of the PEPT, however, one thing was clear, the PEPT in the three petitions that were determined dismissed those petitions on the basis of insufficient evidence, amongst other reasons. In the three petitions, the PEPT (among other findings) held that the Petitioners did not adduce material evidence in proof of the allegations of irregularities in their Petitions.

The special nature of election petitions

Election Petitions are sui generis meaning, they are in a class of their own. This means that the principles applicable in election petitions are not generally applicable in general civil law proceedings. One of the striking features that makes election petitions distinct is that the grounds of a petition have statutory flavour. A Petition challenging an election can only be presented on three grounds, and those grounds are captured in section 134 (1) of the Electoral Act 2022 (the “Act”). Section 134 (1) of the Act provides that:

“134.— (1) An election may be questioned on any of the following grounds—

(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; or

(c) the respondent was not duly elected by majority of lawful votes cast at the election”

From the provisions of the Act above, particularly sub paragraphs (b) and (c), it is apparent that most petitioners will be required to plead facts and tender factual evidence to demonstrate that there was substantial non-compliance with the provisions of the Act or that the Respondent (winner of the election) did not score majority of lawful votes cast at the polls. In adducing the required evidence, petitioners are saddled with the statutory responsibility of gathering material facts and evidence from all the polling units in which there was substantial irregularity as alleged. In a bid to appreciate this point better, the presidential elections in 2023 were conducted in over 176,000 polling units, consequently, the Petitioners were saddled with the responsibility of alleging facts in their petition and adducing evidence to demonstrate that there was substantial irregularity in tens of thousands of the polling units.

The 21-days rule

Notwithstanding this seemingly onerous responsibility placed on Petitioners, it is even more tasking that a Petitioner has only 21 days within which to gather all the necessary facts and evidence before filing the petition challenging the election. In Maku & Anor v Sule & Ors (2019) LPELR-58513 (SC), the Supreme Court of Nigeria in relying on the provision of section 285 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) held that a petitioner must file his petition within 21 days of the declaration of the result. Because the requirement to file the petition within 21 days is a constitutional requirement, the apex court held that the time frame is “just like the rock of Gibraltar or Mount Zion” which cannot be moved. In a nutshell, a petitioner challenging a presidential election will be bound to gather facts from tens of thousands of polling units and scrutinize those facts and evidence obtained and all these findings must be chronicled in the petition which must be filed within 21 days.
This 21-day responsibility becomes more impracticable because no significant amendment is permitted after the petition has been filed, even where new facts are discovered by the petitioner. This is because by the express provisions of Paragraph 14(2) of the First Schedule to the Electoral Act, 2022, any amendment that seeks to introduce any fact that will change the nature of a petition will not be permitted. The apex court laid down this principle in INEC v Yusuff & Ors (2019) LPELR-48890 (SC)

Despite the clear wordings of the provisions of the Electoral Act on the nature of amendments allowed, petitioners are often faced with the necessity of seeking amendments when they discover new facts. This they try to do through filing additional witness statements on oaths or introducing such new facts as part of their reply to the respondents’ case. However, more often than not, these amendments are refused, or such offensive paragraphs are struck out when objected to by the respondents. In the 2023 PEPT judgment, several witness statements on oath filed by the Petitioners were struck out for being filed outside 21 days from the date of declaration of result and/or for representing an amendment/introduction of new facts that are not allowed.

Our recommendation

Having examined the practicality of the herculean task bestowed on every petitioner, we believe it is impracticable to gather, and scrutinize relevant facts and evidence from thousands of polling units across the federation within 21 days after election results are declared particularly the presidential elections. Perhaps this explains why none of the runners up in the various presidential elections in our current democratic dispensation had successfully been seen to have established the numerous allegations of irregularity at the elections. Although, we are mindful of the need to dispense with electoral disputes as soon as possible, however, we must not also forget that the Tribunals and various appellate courts have no other responsibility but to affirm the will of the electorates at the polling units and nothing more. We believe that the panacea to this situation may come in two forms:

(i) The electoral body, INEC should schedule elections at least one year before the end of an electoral cycle to enable the various Tribunals and appellate court consider the real, factual, and evidential issues in controversy; and

(ii) The provision of section 285 (5) of the Constitution be amended and the 21 days’ time frame be increased significantly such that the petitioners, (particularly those challenging presidential and gubernatorial elections) will have ample time to gather, scrutinize and present all the relevant facts and evidence necessary for the just determination of the petitions.
We have expressly excluded the petitioners for legislative seats because in their case, they have a lesser landscape to cover; the elections are usually conducted in significantly lesser number of polling units, consequently, it may not be impracticable to gather and present all the necessary facts required with 21 days after declaration of the results.

In closing the curtains in this article, we must also admit that our recommendation specifically calls for a constitutional amendment which may not be as elementary as it sounds, however, we believe that if these suggestions are considered and indeed implemented by the 10th National Assembly, the candidates will have a better shot at challenging results declared by INEC and ultimately the electorates will have a better sense of satisfaction in the outcomes of judgments delivered by Election Petition Tribunals and their respective appellate courts.