It is common knowledge that the task of churning out a constitution is not an easy one; hence those saddled with such responsibility approach it with a lot of seriousness, but with the knowledge that no matter how perfect the final document might turn out, it will at some point in time be subjected to an amendment and that has been the fate of many constitution.
Even the constitution of the United States of America, often referenced by nations at the outset of making a home grown document is said to have undergone 27 amendments, since June 21, 1788 when it was ratified. The 1999 Constitution of the Federal Republic of Nigeria has also being amended on a number of occasions.
But one of such amendments is section 285(6) of the constitution as amended on election petitions for a stable constitutional democracy. That section stipulates that “an election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.
This provision has been described by many analysts as an encumbrance that should not be seen the constitution based on its implication on administration of justice. Leading the agitations for the removal of this provision is the Governor of Lagos State, Mr. Babatunde Fashola, who is also a Senior Advocate of Nigeria (SAN).
Fashola who spoke at the 2013 conference of the Nigerian Bar Association (NBA) in Calabar said addition of that section to the constitution has neither improved the electoral process nor advanced the course of justice adding that although delays in discharging election petitions by the tribunals carried a lot of costs for judicial time, putting a limit on the time of hearing the petitions can never be the right remedy.
“My recommendation is simple. Section 285 (6) of the Constitution must be deleted for no other reason than the fact that it has proven to have no utilitarian value in improving the electoral process and the fact that it compromises justice and the right to a fair hearing”, he noted. For the governor, instead of putting a time limit on the tribunals and hearing of petitions, the cause or causes of the delays in hearing the petitions and challenges in the way of discharging election petitions on time should be sought and addressed decisively.
“What were the reasons for those inordinate delays? What roles did the parties to the petition play in the delays? What roles did lawyers play deliberately or by lack of professionalism? What roles did the Judges play in the delays? Were the professionals involved in the trial sufficiently prepared by training and experience for the tasks which we assigned to them?” he queried.
Fashola explained that allowing that section to stand would tantamount to encouraging rigging and other electoral malpractices since the perpetrators would just frustrate trial for just 180 days in order to get into office. His objections to the provisions were also supported by some prominent senior advocates in Nigeria.
Mr. E. O. Sofunde, (SAN) an eminent lawyer who has risen through the ranks and file averred that that sub-sections 5 stipulates that an election petition shall be filed within 21 days after the date of the declaration of the result of the election, stressing that he has no doubt in his mind that the provision puts a person who intends to petition against the result of an election at a disadvantage.
“Identical provisions as sub-section 5 had existed in the various Electoral Acts but perhaps with a different time frame (give or take a few days more or less) within which a petition may be presented”, he said. The lawyer who said he was fortunate to be the lead counsel to the Independent National Electoral Commission INEC in the 2003 presidential election petition whose final outcome at the Supreme Court was reported as Buhari & Anor v. Obasanjo & Ors (2005) 13 N.W.L.R. Part 941 1 said Chief Michael Ahamba S.A.N, counsel to the petitioner, lost not because he did not know how to plead.
“It was because he had limited time to present his case. He could not, even with his team of lawyers, conceivably plead every single malpractice in every State within the time limit prescribed to present the petition. He confided in me that he and his team had sleepless nights on end trying to put together the petition”, the eminent lawyer asserted, stressing that a similar fate befell his team in Belgore & Ors v. Ahmed & Ors (2013) 8 N.W.L.R. Part 1355 60.
“In spite of the fact that we utilized the provision of the Electoral Act that permitted us to go to court to obtain an order directing I.N.E.C. to provide us with election results, we did not start obtaining same until after the time within which to file the petition had elapsed and in fact continued receiving them even after trial had started.
“It is clear that it is to the advantage of a winning party to the petition to have the inspection and copy taking process prolonged for as long as possible. Even if the documents had been made available to us on the day the results were declared, we would still have had a Herculean task going through them in order to plead with full particularity within the 21 days allowed by the law”, he explained, adding that he obtained 300,000 ballot papers and 1,500 result sheets over 16 local government areas.
“As a result of this, we pleaded in general terms with regard to several complaints. The tribunal, the Court of Appeal and the Supreme Court held that we failed to plead with sufficient particulars and, therefore, the evidence on the point could not be considered”, he argued.
Another eminent lawyer, Mr. Charles Edosomwan (SAN) affirmed that though the intention behind this constitutional amendment was to further the goal of achieving fair trials of electoral disputes expeditiously within delimited periods, these good intentions he argued has taken Nigerians on unsavoury journeys of unhelpful judicial construction which now finds justice lying prostrate and crushed in the dust.
“In the first case example of PDP Vs. CPC (2011) 17 NWLR 485, two consolidated appeals by President Jonathan, Vice President Sambo and the PDP itself filed in July 2011, came up for hearing in October of 2011, a period well over the 60 days within which such appeals should have been brought and disposed of”, he said adding that the Supreme Court with Onnoghen JSC leading, held the words of Section 285(7) to be of the genre of a limitation statute and being clear in their meaning portended certain fatality to the appeals.
“It must be stated here that although the appellants were not charged with delay or any tardiness, the management of the particular litigation was under the exclusive control of the domestic administrative apparatus of the Court of Appeal and the Supreme Court registries. Regardless, the court held that there was no jurisdiction to provide the least succour to the appellants by hearing their appeals on the merits. The appellants were thus left without reprieve”, he affirmed. .
Edosomwan is of the view that while one must support policies aimed at eschewing the embarrassment of interminable electoral litigations and their counter- productive effects on our democracy, one doubts if the current attitude is not causing more harm than good. According to him, elections provide the electorates the unique opportunity to wield the sovereign powers in their votes over their leaders, in choosing them or in rejecting them as they may choose.
“In this case, to allow a situation quite outside a helpless citizen’s control to rob him of an opportunity to judicially contest his electoral mandate is perversion of the worst kind carried on in the name of expediency”, the lawyer cautioned. Mr. Niyi Akintola, SAN, believes that rather than ameliorating the sufferings and injustice encountered by petitioners and respondents in election petitions, the amendments have aggravated the problems.
Akintola posited that he had watched with delight and sadness how the provisions were used to the advantage and disadvantage of his clients at various levels in the courts.
“In Solomon Ahwinahwi VS. Peoples Democratic Party EPT/DT/R/01/2011, I had been briefed to handle the appeal at the Benin division of the Court of Appeal. Briefs of arguments were filed and exchanged within time. All the parties to the appeal were ready but alas, the appeal fell within the vacation period of their Lordships. When the appeal came up for hearing, it was 3 days after the 60 days prescribed by Section 285(7) and that ended the dream of the appellant to have justice”, he submitted and quoted Soremi JCA (Rtd) who presided as saying.
“We are sorry Chief Akintola. We sympathize with the parties especially the appellant. Our hands are tied by the provisions of Section 285(7). We cannot even invoke the provisions of Section 3 and 5 of the Interpretation Act as urged on us by Chief Akintola. We cannot change the Constitution”, he said in regret.
It was therefore not out of place that the former Commissioner for Justice, Lagos State, Professor Yemi Osinbaj, SAN conclude that It does appear that all that a candidate that is declared winner needs to do, to get away with the mandate, even where it was brazenly stolen, is to file a preliminary objection and follow it through the appellate process.
“For gubernatorial elections, appeals now go all the way to the Supreme Court, which makes it easier to prevent trial for 180 days. Thus by simply holding up the actual trial of a petition, a rigged election will be legalized by a dismissal of the Petition based on Section 285(6) as was the case in ANPP v. Goni”, he said, adding that the judiciary appears to have taken the unfortunate view that it is helpless even to order a fresh trial properly speaking, even where it is obvious that an interlocutory challenge was merely a ploy to let time run against a petitioner”.