Election Appeals and Nigeria’s Election Protests
Will Election Appeals Pacify Nigeria’s Protesters?
Nigeria’s elections in 2003 and 2007 generated literally hundreds of challenges to results at the national, state, and local levels. (See Nigeria: Tribunals and the 2003 Elections, by the Legal Defence Centre, 2004.) As these cases weaved their way through courts and tribunals, scholars and election observers pointed to the use of the judiciary as a positive sign for democratic development. In response to doubts about fairness and concern about their institutional fragility, the courts managed to resolve even the most contentious and high profile cases. For example in 2007 the Supreme Court challenged the People’s Democratic Party (PDP) machinery, including the obstinate President Obasanjo, when it decided that Vice President Atiku Abubakar’s candidacy for president could stand. Alex Ekweume fought and lost a similar battle in 2003.
The following year the Court rebuffed Muhammadu Buhari’s challenge to the presidential election results in a narrow 3-4 decision which produced a scathing minority report. The decision ultimately stated that the plaintiff had failed to sufficiently demonstrate that the elections were stolen, a logic that failed to offer a positive affirmation for Umar Musa Yar’Adua victory. A major coalition of domestic observers called it an election “programmed to fail” (Daily Trust, 25 April 2007). Yet the disagreements played out through the country’s political institutions, leading some members of the Electoral Reform Commission to suggest that perhaps the courts should organize and oversee the elections.
The Courts in the 2011 Elections…So Far
Turning to 2011, the courts on the one hand have again played a constructive role, arbitrating a bitter dispute between the Independent National Electoral Commission (INEC) and the National Assembly legislators. As in 2002,
Carl LeVan discussing the elections with Chinua Achebe and INEC Commission Jega in December 2010
when President Obasanjo’s lawyers lobbied to have all elections on the same day, the courts this year ruled against legislators who sought to change the sequence of the elections. By affirming INEC’s authority to determine the sequence of elections, the courts challenged the PDP machinery yet again, undermining the ruling party’s efforts to maximize “coattail effects” by holding presidential elections before the legislative elections.
In the long run this will improve opposition opportunities – a fact apparently reaffirmed by PDP’s weak showing in the legislative elections held last weekend with the party losing ground in several key states across the country. For example:
- In Ogun state, the Obasanjo “brand name” was defeated in the hometown of the former president. The daughter of former President Olusegun Obasanjo, Iyabo Obasanjo-Bello, contested the Senatorial seat in Abeokuta in Ogun Central. She lost in her father’s Ita-Eko, Abeokuta Ward 11 to her Action Congress Nigeria (ACN) counterpart, Gbenga Obadara. While Obasanjo-Bello polled 85 votes, Obadara scored 194.
- Again in Ogun State, in Governor Gbenga Daniel’s Isote Ward in Sagamu, his PDP Senatorial candidate, Toheeb Odunowo lost to the ACN candidate, former deputy governor of the state, Gbenga Kaka by 121 votes to PDP’s 90 votes. (PPN scored 118 and Labour Party 27).
- In Kwara State, Ibrahim Yahaya Oloriegbe (ACN) defeated outgoing governor Bukola Sakari (PDP). In Osun State, Olagunsoye Oyinlola, the former governor of the PDP also lost to his ACN rival while controversial senator, Iyiola Omisore has also lost his seat in vote tallies released so far. See Sahara Reporters for a tally of other compelling results.
On the other hand, Muhammadu’s pre-election statement that he did not intend to use the courts should he lose, rang out as a threat that no longer seemed terribly veiled in the wake of the horrifying post-election violence earlier this week. He eventually condemned the violence, and reversed his pledge to not appeal the electoral results. Whether the courts can again serve as peaceful arbiters in general depends in part on the ultimate resolution of a bizarre set of decisions on recent electoral appeals – and flaws in the Electoral Act which will likely extend, rather than resolve, such animosities.
Legal Avenues for Electoral Appeals
The 2010 Electoral Act streamlines the appeals process and shifts some of the burden of evidence to plaintiffs in order to apparently reduce the number of frivolous complaints about electoral results. However it also provides little guidance on the critical questions related to tenure. If an incumbent’s election is challenged, who is in charge in the interim? And more broadly, how much authority do the courts have to decide such matters?
Two sections of the Electoral Act detail the civil procedure for appeals. First, Section 140 outlines the judicial procedure for bringing an electoral petition, stating:
- “If the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the election will be nullified.”
- “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, they shall order a fresh election.”
- “If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes they shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”
Next, Schedule 1(28) explains what occurs following the conclusion of appeal proceedings, stating that “At the conclusion of the hearing, the Tribunal shall determine whether a person whose election or return is complained of or any other person, and what person, was validly returned or elected, or whether the election was void.” In other words, election tribunals have clear authority to determine the winner of an election. At that point, “If the tribunal or court has determined that the election is invalid, then, subject to section 138, where there is an appeal that fails, a new election shall be held by the Commission.”
Though these provisions sound clear enough, the 2010 Electoral Act does not address how such judicial decisions would affect tenure. More importantly, the Federal High Court in April upheld a decision of a February Abuja High Court decision based on the 2006 Electoral Act (and considering Section 180 of the Constitution relating to tenure) challenged the authority of the courts to determine a winner.
Synchronizing Tenure, and Determining the Winner
This raises two sets of questions. The first concerns whether a governor who wins a seat after an electoral challenge will be required to run for re-election at the end of the electorally fixed four year term, or if the term of office begins only when the governor is sworn into office. This is important because with the PDP’s poor showing in the gubernatorial races, allowing governors to being their term when they take the oath has the effect of extending the tenure beyond the official fixed term — and thus conflicting with a fundamental feature of presidential political systems.
The other set of questions revolve around the status of an incumbent who decides to run for re-election. If an incumbent decides to run for re-election and the re-election is challenged, would the incumbent have a claim to continue in office until the election petition successfully removes him or her? The question is of particular importance when approached from a governance standpoint. Who is responsible for matters of state while the election petition is undergoing judicial review? If the seat is an open one with no incumbent, then it would make more sense for no one would be sworn in until the dispute is resolved. For Nigeria’s governors, who control billions of dollars in revenue received from the center, an extended absence of leadership would dramatically undermine governance.
The Electoral Act does not address these questions, which affect at least five sitting governors who are fighting to extend their tenure and whose cases may set legal precedent. None of the cases promise to simplify INEC’s task or to weaken PDP hegemony. Comments next week will analyze these cases and put them in the context of Nigeria’s recent constitutional amendments.
April 23, 2011
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Carl LeVan - May 6, 2011
If Nigeria has 36 states, why were there only 26 gubernatorial elections?
In one of the more celebrated cases of electoral appeals following the 2007 elections, Kayode Fayemi successfully challenged the election of the Ekiti State governor’s re-election. Fayemi, a former civil society activist and a candidate of the Action Congress of Nigeria (ACN) challenged Governor Segun Oni through the Ekiti State Election Petition Tribunal. When Oni won the re-election in April 2009 following re-run of the election, Fayemi filed an appeal petition in June 2009 challenging Oni’s victory in both elections. The Tribunal affirmed Oni’s victory in the re-run election in a narrow 3-2 decision. The Tribunal chairman upheld Oni’s election on the grounds that the electoral malpractices alleged by Fayemi were not substantial enough to invalidate the results of the polls and declared Oni winner with 109,000 votes, compared to Dr. Kayode Fayemi’s 106,000 (after deductions of unlawful votes were made). Fayemi then successfully petitioned the Federal Court of Appeals sitting in Kwara State, and was declared winner on October 15, 2010 .
Oni’s case demonstrates the operation of the 2010 Electoral Act as it relates to electoral appeals, but on the issue of the dates of Fayemi’s tenure following his belated victory in October of 2010, the articles and case law available was silent. Following his win, when does his tenure officially begin? When will it end? On April 16, 2011, the Court of Appeals sitting in Abuja decided on a group of cases addressing the critical issue of tenure. Prior to the recent court hearing and decision, the issue had continued to be a point of contention between the INEC and the governors of five states; Alhaji Ibrahim Idris (Kogi), Aliyu Wammako (Sokoto), Murtala Nyako (Adamawa), Liyel Imoke (Cross Rivers) and Timipre Sylva (Bayelsa).
(See “No Gov Election In Kogi, Sokoto, Adamawa, Bayelsa, C/River, Court Rules”)
The story of these other cases begins in Bayelsa State, where government officials asserted that the decision in the Ekiti State case should not apply to Bayelsa Governor Timipre Sylva. Officials argued his tenure began in 2008 when he took the oath of office, and therefore he tenure should last until 2012. Successfully building a case on a small technical detail, Governor Sylva’s lawyers reasoned that in Governor Oni’s case, the court determined the issue of his tenure based on the cancellation of only 63 units in 10 local government areas. However in Bayelsa State, the entire 2007 election results were cancelled and had to be conducted again in 2008.
The Action Congress argued against this interpretation of the Oni judgment, noting first that the 1999 constitution states that the Governor shall vacate office at the expiration of a period of four years, commencing from the date when he took the oath of allegiance and the oath of office. In addition, clarifying amendments to the constitution in 2010 state that “a person whose election as Governor was annulled and who also wins a consequent re-run may not serve more than the constitutionally prescribed term of office.” Governor Sylva was sworn-in in 2007, and the opposition ACN argued that the oath of office he took as a Governor in 2008 was therefore a confirmation of his previous 2007 swearing-in.
INEC also issued a broad statement declaring that it should conduct governorship elections in Adamawa, Bayelsa, Cross River, Ekiti, Kogi and Sokoto states in January 2011, because the incumbent governors won rerun or supplementary elections. It announced governorship elections in Rivers, Edo, Anambra, and Ondo States, setting dates based on when the incumbent governor took the oath of office. Governor Sylva of Bayelsa in response claimed that INEC‘s primary and only role is the conduct of elections and not the adjudication of legal disputes.
Judicial Setbacks for INEC
The disagreement alarmed four other state governors, who due to similar circumstances also believed their tenure should not end in 2011. Gov. Ibrahim Idris of Kogi State for example said his tenure or mandate is a constitutional matter for the court and not INEC to decide. In the same vein, Sokoto State Gov. Alhaji Inuwa Abdulkadiri stated that INEC’s reading of the law is “upside down” if it relied on the amended constitution for its action. According to him, their election was conducted in 2008 and anyone elected is entitled to four years counting from the day he assumes office.
A lower court held that in line with Section 180 of the 1999 constitution, the tenure of the governors legally commenced in 2008 and not in 2007 since the 2007 election that brought them into office in the first instance had been declared a nullity. The judge held that the 2007 elections being used by INEC to determine the tenure of the governors did not exist in the eyes of the law having been legally declared null and void by competent courts of law. Dissatisfied with the judgment of the court, INEC filed with the Court of Appeals in Abuja. Its lawyers argued in their appeal that the 1999 constitution was not intended to grant additional tenure to governors resulting in a single term of more than 4 years. (See: “No Governorship Poll in Adamawa, Bayelsa, Cross-River, Kogi, and Sokoto”)
All five cases were joined at the High Court of Appeals in Abuja which affirmed the Federal High Court judgment barring the Independent National Electoral Commission from holding the governorship election in five states, reasoning that the tenure of the governors had not ended. The appeal court upheld the lower court’s conclusion that the earlier oaths of office taken by the governors had been nullified with the rerun election. The lead judgment said, “In law, there were no elections in the five states in April 2007. In the eyes of the law, the governors were not elected governors in April 2007 and that the tenure of the governors legally started in 2008 when they took fresh oath of office and allegiance following the nullification of their April 14, 2007 elections by the courts.” The court held that since the 2007 elections were nullified and set aside by competent courts, the oath of office and allegiance subscribed to by the five governors had all been nullified and set aside along with the elections. (See for example, “How the Tenure Elongation Battle Was Won,” in Newswatch, 7 March 2011.)
Governor Emmanual Uduaghan of Delta State was not formally party to the suit, but tried to claim that the decision applied to him since he was sworn in on January 10, 2011 – which by incredible coincidence was the same day the president signed the constitutional amendments into law. (See “Elongating Their Tenure” in TELL, 7 March 2011.) In the end, he did have to run for re-election in April and he won.
The Tyranny of Small Decisions?
With the high court judgment, the tenure of the five governors will expire at various times – instead of on May 29 this year:
The courts can only interpret the law as they see fit, with little regard to the administrative problems the decision will create….Fair enough.
Little noticed, however, is the fact that all five of these governors are from the ruling PDP, meaning that the courts extended their tenure just as the party was experiencing a drubbing in legislative elections across in the country. Moreover, out of the 26 states that did run gubernatorial elections so far in 2011, the PDP lost in eight.
The decision also increases the likelihood of future challenges to laws, administrative decisions, and contracts implemented during gubernatorial tenures that were subsequently nullified. Stand by for more legal minutia!
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