Electoral Reforms: Why Ad Hoc Tribunals Should Go- Joe Edet Esq.

According to C. O. Okonkwo, the function of hearing and authoritatively determining disputed claims to legal rights or obligations constitutionally belongs to the Judiciary, but it is often exercised by the executive arm of government through administrative adjudication. Whereas, access to the courts is usually free to all manner of people who have some legal rights or claims to enforce, administrative justice is available strictly only to those specifically and expressly authorised to apply for it, thus Election Tribunals were set up for aggrieved parties to ventilate their grievances instead of resorting to violence. ‎Like other tribunals, Election Tribunals are judicial or quasi-judicial set up on an ad-hoc basis to settle electoral disputes arising from the conduct of elections. I really have no qualms with tribunals,my qulams is with the ad hoc nature of a serious matter.

‎The raison d’etre for setting up special bodies to handle election petitions have been criticized. Indeed opinions are divided as to the necessity where there exist competent courts of record to settle such issues. It is viewed from some quarters as a distraction, unnecessary duplication and above all enthronement of huge expenditures on the already impoverished polity. Reasons however abound on why Election Tribunals are established.

Firstly, Election Tribunals are strictly courts, except in nomenclature. Like regular courts they form part of the machinery of adjudication available in the country for resolving electoral disputes. Indeed many tribunals have all the trappings and characteristics of regular courts, including relatively permanent and independent existence, fairness and openness of proceedings, and the power to issue binding orders and decisions.

Secondly, the urgency and speed required in the settlement and determination of electoral issues necessitates the establishment of special courts to promptly dispose such petitions. The legal maxim ‘justice delayed is justice denied’ appropriately supports this point. This principle is the basis for the right to a speedy trial and has become a rallying cry for legal reformers who view regular courts as acting too slowly in resolving legal issues because the regular court system is too complex and overburdened. Delays associated with judicial proceedings are well known and well documented.‎

Thirdly, electoral cases are said to be ‘sui generis’, lawyers language for  its own kind or class; unique or peculiar in its ways,form amd manner. Accordingly, the rules that govern them are most of the time different from the rules that govern other civil actions. This point was well made in Che Nwole v Amah Iwuagwu, where the court of Appeal held that; ‘Election petitions are by their very nature peculiar from other proceedings and are very important from the point of view of public policy. It is the duty of the courts therefore to hear them without technicalities to unduly fetter their jurisdiction’.

An election petition is heard and determined by an appropriate Election Tribunal as usually provided by the constitution. In the1999 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.

It should be noted that Election Tribunals are preferred to regular courts in the determination of election disputes because electoral cases are ‘sui generis’. The uniqueness or peculiar nature is in relation to the procedure in its trial and determination. The courts have equally conferred and confirmed this status. Indeed the legislation dealing with electoral matters are  also governed by the doctrine. Oguntade JCA (as he then was) confirmed this in Abdullahi v Elayo and others thus: “A legislation dealing with election is often a special one with special rights and duties. It is sui generis with its peculiarities which a court must recognize and take into account”.

Election legislation also creates a special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purpose. Thus paragraph 45 (1) of Decree No. 18 of 1992 provides:

Subject to the express provision of this Decree, the practice and procedure of the Tribunal in relation to an election petition shall be assimilated as nearly as may be to the practice and procedure of the High Court in the exercise of its civil jurisdiction and the High Court Civil Procedure rules or Civil procedure Code shall apply with such modifications as may be necessary to render them conveniently applicable as if the petitioner and the respondent were respectively the plaintiff and the defendant in a civil action. It follows therefore that when applying the ordinary rules of procedure of the High Court in civil matters to election matters governed by legislation, the express provisions of the relevant legislation must be held inviolate.

The doctrine of sui generis is made applicable to election petitions because as a matter of deliberate policy, election petitions are expected to be devoid of procedural court that cause delay and the disposition of substantive disputes, hence the relevant rules are issued in mandatory forms.

 Nevertheless the doctrine is not cast on stones as it can in appropriate cases or circumstances be applied liberally in the interest of Justice. The Supreme Court had approved some relaxation of the strict application. The liberal application of the doctrine strengthens the courts jettisoning of technical rules. The Court had stated that ‘petition must be weighed against the wider need not only to do justice but also to be seen to be doing it. In Egolum v Obasanjo ,Achike JSC stated that ‘The heydays of technicality are now over. This much was emphasized by Holden J in Dogari v Gwarzo and ors that allegation in electoral matters must be pronounced upon judicially and no technicalities can be allowed to stand in the way of that inquiry. Equally in Nwobodo v Onoh, Uwais JSC stated that ‘it is the duty of the courts therefore to endeavour to hear petition without allowing technicalities to unduly fetter their jurisdiction’.

Electoral Tribunals are known for their flexibility. Cases are  often decided upon their own facts and merits, and not on any principle of precedents already established by it or other tribunal. In other words, general principles of law applicable in other civil matters are not primarily applicable per se to election petitions. The argument equating ‘cause of action’ in civil cases to ‘cause of action’ in election petition was roundly rejected. Thus an election matter is not the same as ordinary civil proceedings.

Above all, time is of essence in the determination of election petitions. It must always be born in mind that in the determination of election petition matters, public policy and the constitutional right to fair hearing within a reasonable time dictate that time is a rare commodity. In Ambassador Akpang Obi-Odu v Donald Etim Duke, Dongban-Mensem (JCA) stated clearly that as a matter of expediency and in the expected and established spirit of election petitions, time is of essence. Reason being that, it is the right of the electorate to know within a reasonable time frame who of the contending parties is their elected representative but this knowledge becomes merely academic at the expiration of the term for which the election was held.

‎It’s hereby suggested that the sui generis status of the electoral processes and procedures should be elevated to the establishment of electoral or constitutonal courts dedicated purely and only to electoral matters and other constitutional matters. Consequently, all pre electoral matters,electoral matters and matters arising from elections on the whole should be handled by the Electoral Courts. There should also be special judges and judicial officers trained specially for electoral cases and other constitutional matters.

After close to twenty years of uninterrupted and unbridled democracy, our democracy has lost the flavour of  ‘nascence’ and  has come to stay thus the need to have permanent structures put in place instead of the ad hoc approch we’ve adopted and operated so far. It’s really a distraction to coopt regular judicial officers or to transform existing courts to tribunals as other civil and criminal cases are usually  left unattended to

 Nigeri has a rich reservoir of experience and  qualified judicial  personnel who are on standby to fill in vacant positions where  created. Nigeria has overtime contributed so manyjudicial officers to other African countries. It’s time to tend to our own domestic needs,ala Donald Trump.  Indeed a separate set of judicial officers should be appointed up to the apex Court to handle electoral and constitutional matters. The distractions on existing court system is somewhat and unbecoming.

In actual fact, Similar courts exist in South Africa, United Kingdom ,the Oriental Republic of Uruguay and elsewhere. We only need to design ours to suit our peculiarities. The electoral court in South Africa oversees the electoral commission established by the Electoral Commission Act, 1996 to replace Special Electoral Court which oversees the 1994 elections and her status similar to that of the high court. The implication being that even the Electoral Commission may be granted such independence expected of it to the point that it may not really be under the presidency. In Uruguay, article 278 of the 1934 constitution assigns electoral court the competencies to exercise overall responsibilities for electoral acts and procedures and to decide appeals and complains and undertake the functions of a supreme electoral court of justice. Thus, the court does not only hear and review electoral disputes and complains, it is also the highest court on all election related matters.

Another compelling need for the establishment of electoral courts independent of regular courts would be the need for expeditious determination of cases. There have been some very protracted election cases in the past that dragged incessantly and endlessly.

JOE EDET is a Constitutional Lawyer and  Special Adviser to the Governor of Cross River State Prof Ben Ayade on Mineral resources. He can be reached on joeyedet@gmail.com