Today, its no doubt that election petition forms an intrinsic nature of our democratic setting as dispute and dissatisfaction are bound to arise from the conduct of election and as such dispute has to be resolved and determined by a competent judicial bodies in order to maintain the interest law and order in the Country. The Constitution in fairness to this has created a special adjudicatory bodies otherwise called the tribunals and these as well include the National Assembly Election Tribunal, the Governorship and Legislative House Election Tribunal and the Court of Appeal with exclusive jurisdiction on matters pertaining to the presidential election but left a vacuum that has to do with laws creating and regulating Local Government Election Tribunal. This has therefore led to a lot of idea as to the nature and forms of laws regulating election petition in some Local Government in Nigeria. The project therefore examines the various Laws regulating election petition in some Local Government of Nigeria. The project examines particularly Bauchi and Kwara States Laws regulating election petition in their Local Governments.
In the contemporary of today, elections have become the most acceptable means of changing leadership in any given political system because all citizens in a modern democracy cannot run the administration of the country; only their representative can do it for them. In order to choose such representatives, elections are necessary. Election ordinarily, in most democratic states is usually conducted by an institution (Independent National Electoral Commission) set up by the law in a given society4 Representative government is often referred to as democracy where the authority of government` is derived solely from the consent of the governed5. The principal mechanism for translating that consent into governmental authority is the holding of free and fair elections which is the cornerstone of creating a democratic political system.
Election petitions are ‘Sui generis’6 and as such they are considered to be distinct and completely divorced from civil proceedings. Election petitions are by their nature peculiar from the point of view of public policy. It is the duty of the Courts therefore to endeavor to hear them without allowing technicalities to unduly fetter their jurisdiction7. Because of its peculiar nature, guidance in the adjudication of Election petitions to be drawn only from the relevant statute from which the Court derives its jurisdiction8.
The locus standi of a petitioner is a crucial matter touching on the competence and the jurisdiction of an Election petition Tribunal to adjudicate on the petition before it9. Locus standi focuses on the party asking to get his complaint before the Court on the issues he wishes to have adjudicated. It is primarily the duty of the election petition Tribunal to satisfy itself that a petitioner before proceeding with the hearing of the petition10
Generally, under the various statutes that have been enacted in Nigeria on election petitions the following categories of persons who have the right to go to Court and present an election petition include a person who claims to have had a right to contest the election11; a person who claims to have had a right to be returned at the election12; a candidate at the election13; and a political party14. The important point to note however is that each electoral law makes provision for the category of persons that can file election petitions15. The right to contest an election is not a common law right. It is created by statute and any one seeking relief under such a law must bring him strictly within the provisions of the law16. A person seeking to challenge the result of an election must be able to satisfy the Election Petition Tribunal that he falls within the category of persons who have the right to challenge the election under the applicable law
Before an election petition can be validly presented, an election must have been held and complaints which form the basis of such a petition must be found on what happened during and after the election. An Election Tribunal has no jurisdiction to investigate matters which took place before the conduct of an election18. An election must have been held and the winner of the election must been declared and returned19.
Where a winner is not declared and returned, an election petition cannot lie20. One of the most important provisions in all the laws relating to Election Petition Tribunals is essentiality of time21. The spirit of the various laws relating to Election Petition is that as mush as possible petitions should be given expeditions adjudication to enable the parties know their position and to enable the society know the result of the election in which they had voted. It is important to note that compliance with statutory provisions as to time within which to file an election petition is a fundamental precondition the breach of which denies the tribunal of its jurisdiction to entertain the petition22. Election petition in Nigeria is faced with so many problems like corruption among the politicians and the judiciary, prohibitive cost of running for election and the manipulation of the voters register. Failure of independent National Electoral commission to conduct credible elections since Nigeria’s return in 1999.
There should be a Constitutional solution to these problems by reforming the electoral laws which must not turn into political opportunism where sectional interests, rather than National ones are advanced. True electoral reform project must develop and conduct public education program to increase level of awareness/participation among the general public. This project therefore sets to examine the laws regulating election petition in the local government in Nigeria. With particular reference to Bauchi and Kwara State Electoral Laws.
1.1.0: BACKGROUND TO THE STUDY
It is a trite fact that Nigeria is a democratic country like any other developing Countries. In view of harmonious co-habitation of the people living in Nigeria, there are enactment of various laws to safeguard peaceful relationship and welfare of the people. The Constitution of the Federal Republic of Nigeria 1999 (being the recent), the electoral Act 2006,2010 and the Electoral Laws for each state of the country all aim to regulate the conducts of election in Nigeria.
There are other subsidiary tribunals with rules and regulation which were made in order to promote stability in the entity called Nigeria based on election24. All these would serve as the background of this essay. This project therefore seeks to examine the laws regulating election petition in the Local Government of Nigeria with specific reference to
1.2.0: OBJECTIVE OF STUDY
The cardinal reason for writing this particular essay is because it affords a good opportunity for an examination of the laws regulating election petition in the Local Government of Nigeria.
Also this topic is born out of the fact that there is an urgent need to ensure and ascertain an in depth corrective legal framework in the Laws governing the procedure of election petition in the Local Government of Nigeria so as to enable the Court of law adjust to the provision of these laws in order to prevent putting either the petitioner or the respondent in any disadvantage as it concerns Election Petition and to correct obnoxious and ridiculous laws regulating election petition in the Local Government of Nigeria.
1.3.0: FOCUS OF STUDY
The aim of making laws either by the constitution, the Electoral Act and the state Electoral Laws is to uphold the integrity of the fundamental human rights of every individual on election, create enabling and conducive atmosphere devoid of anarchy, among others.
However, there are lacunas in the applicability of some of the state electoral laws which cause the contentious issues that constitute the research to this study.
It will therefore be apposite to take a cursory look at these lacunas which serve as loopholes for effective determination of election petition. The focus shall be to examine the laws regulating election petition in the Local Government of Nigeria particularly laws of kwara state and Bauchi states Electoral Laws.
1.4.0: SCOPE OF STUDY
There are some provision relating to the laws regulating election petition in some Local Government which are observed to be seemingly unduly advantageous or disadvantageous to either of the parties to election petition, therefore, the scope of this study is to undertake an examination of laws regulating election petition in Local Government between the petitioner and the respondent. This study will be limited to the laws regulating election petition in Local Government of kwara state and Bauchi state.
Although references may be made to laws of other states and countries, it may not be in details but shall be for the purpose of examining Bauchi state and kwara state aforementioned.
The methodology of this research shall be based on primary sources of law i.e. the Constitution of Nigeria, the Electoral Act, State Electoral laws, Case laws, Statutory provisions and the secondary sources of law which includes textbooks, journals, articles, dictionary and other write-ups that will aid a thorough examination of this project. It shall also be analytical and comparative in nature.
1.6.0: LITERATURE REVIEW
The subject matter is a long standing issue and in which field many authors and researchers have dealt extensively based on their ideologies, background, exposure and views. Nevertheless the scope of this work has made it almost impossible not to refer to text of some celebrated Authors like A.F Afolayan and P.C Okorie in the book Modern Civil Procedure Law where they wrote on Election petition process in Nigeria generally they did well by not attempting to divorce the two concept, though the tone of his writing was skeptical and not well detailed enough
In the naming of Nigerians who are vast in the knowledge of Election petition, mention must be made of Chief Afe Babalola whose book, Law and Election in Nigeria, has aided this research by it simplicity and directness. He has also indeed dealt with the peculiar nature of petition by saying that election petition are ‘SUI GENERIS’ and as such they are considered to be distinct and completely divorced from Civil proceedings. However, the book did little on election petition in the Local Government of Nigeria.
Similar view was expressed by UWAIS J.S.C (as he then was) in Jim Nwobodo V. C.C Onoh (1984) 1 SC 1 at p.195
an election petition is not the same as ordinary Civil proceedings, it is a special proceedings because of the peculiar nature of elections which by reason of their importance to the well-being of a democratic society, are regarded with an aura that places them over and above the normal day to day truncation between individuals which give rise to ordinary or general claims in Court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.
It is though open to criticisms by reason of his main focused on old use of statues and Act compared to 2001 when the book was written.
Compendium of Laws by Chief Abubakar Sadip Ogwuche Esq has a worthy contribution to the development of our legal system, it has also rendered an invaluable service, not only to the legal profession and the legal fraternity as a whole, but also to any interested in the Electoral Laws. In a unique way, through this book, the author has handed the key to the rich treasures of our Electoral Laws to all who care to benefit from that treasure, be it a professional or a layman. It is fitting to acknowledge this worthy contribution to our Electoral system and to the expanding world of legal knowledge.
Abubakar went further in dissecting the Electoral Law and process in Nigeria by giving the essential features of election with the aim of discovering the purpose and intention of the Law makers of the Electoral Act and Nigerian Constitution at any point in time to achieve a free and fair election. On the whole, the chapters on Electoral Law and process are in no small measure relevant to the success of this project. However, the author, paper is general and not specific to Local Government election petition.
It is hope that this work will also contribute its own quota to the better understanding of the subject matter in Nigeria especially the laws regulating election petition in Local Government. This project work examines the existing laws and provision regulating the Bauchi and Kwara State, election petition with a view of highlighting areas of weakness and modes of implementation of new and improved laws.
1.7.0: DEFINITION OF TERMS
According to oxford Advanced Learners Dictionary, “Election is being defined as,” the process of choosing a person or a group of people for a position especially a political representative government by voting.
More so, the oxford defined “Petition” as a written document signed by a large number of people that asked somebody in a position of authority to do or change something. It can also be an official document asking a court to take a particular course of action.
It is not a doubt that the best way to choose a leader is by election but this very way has led to so many problems in the Country because most of it usually lead election petition which at the end of it all it does not bring out the true nature of democracy in Nigeria.
This project has therefore suggests some of the ways out to the problem facing election petition in Nigeria especially in some Local Government of Nigeria.