Opinion: On Rethinking the Provisions of Section 285(6) of the Constitution as Amended on Election Petitions for a Stable Constitutional Democracy

Introduction:

1.     With a background understanding of the nature of electoral processes in Nigeria over the years, it would seem an impossible task breaking through the seeming merry-go-round process that is has been. Until recently, the elections time-table have been similar throughout the country. What is obtained now is that gubernatorial elections in states like Ondo, Edo, Ekiti and the likes have been irregular with the other states as a result of Electoral Tribunals that ousted the then alleged and judged illegal incumbent governors. To stall such situations, the Section 285(6) of the constitution had to be inserted in the constitution as part of the amendments to the 1999 Constitution. 

2.    At the passage of this amendment, there was some applause for the Legislature on their ability to make laws that would indeed work for the good governance of the country but in the light of interpretation of the law when put to test in our courts, the contrary has been the outcome. It is with this backdrop that there is the need to rethink this section of the Constitution.

The Law

1.     The Section 285(6) of the 1999 Constitution of the Federal Republic of Nigeria as amended states as follows: ”An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition”.

2.    In the consolidated cases of ANPP v. Alhaji Mohammed Goni & 4 Ors and Alhaji Kashim Shettima & 1 Other v Alhaji Mohammed Goni & 3 Ors., with suit numbers SC. 1/2012 and SC.2/2012 respectively, the decision of the Supreme Court gave interpretation to this Subsection as:

‘an election petition tribunal must mandatorily deliver its judgment within 180 days from the date of filing of the petition, failing which, the tribunal becomes automatically stripped of its jurisdiction to continue further hearing of the petition’.

3.    The Court held, per Onnoghen JSC, that “it has been held by this court in a number of cases including consolidated appeal nos. SC/ 141/2011; SC/ 266/ 2011; SC/ 267/ 2011; SC/ 282/ 2011; SC/ 356/ 2011; SC/ 357/ 2011: Brig. Gen Mohammed Buba Marwa & Ors vs Adm. Murtala Nyako & Ors delivered on 27th January 2012 that the time fixed by the constitution is like the rock of Gibraltar or Mount Zion which cannot be moved; that the time cannot be extended or expanded or elongated or in anyway enlarged; that if what is to be done is not done within the time fixed, it lapses as the court is thereby robbed of the jurisdiction to continue to entertain the matter. It is very worrisome that despite the decisions of this court, since October, 2011 on the time fixed in the constitution, some of the justices of the lower court still appear not to have gotten the message. From where will the election tribunal get the jurisdiction to entertain the retrial after the expiration of the one hundred and eighty (180) days assigned in the constitution, without extending the time so allotted? Do the courts have the vires to extend the time assigned by the constitution? The answer is obviously in the negative”

Comments:

1.      Considering the law prima facie would present no bad intent by the law makers, neither would it suggest such mechanical jurisprudence as is evident in the interpretation rendered by the Supreme Court. Indeed the law makers must have intended that the 180 days (6 months) period that is stipulated by the amendment would help the electoral process a great deal. It is suppose to instill sanity and some sense of alacrity on the part of the petitioners as well as the members of the tribunal.

2.      Justice delayed is justice denied and therefore the need to be brisk, thorough and careful about such petitions that call national trust and popular representation to question, hence the necessity for such an amendment. This point is further buttressed on the need to instill a sense of stability to the democratic process and ensure that the nation fully runs on similar and not confused lines.

3.      On the other hand however, justice rushed is also justice crushed; and so some judicial opinions have been based on the arguments that the law seems to insist on hasty proceedings which may forestall justice. This is however not too grounded based on the fact that if an election occurred today, procedurally, the best forms of evidence that can be gathered would only be obtainable within the earliest future date and 180 days should represent such a period.

4.      The law in itself is a clarion call to ensuring that petitioners be on their best and put in expertise, professionalism, enthusiasm and indeed due diligence in probing electoral matters. The only shortcoming that could be perceived is such peculiar cases which in themselves cannot all be preconceived by the law makers, and so the need for a general situation applicable to everyone is what is represented in the law.  

5.      Besides a petitioner should not bring vexatious and ungrounded reasons for complaints before a tribunal and defense should also not be unnecessarily dragged and prolonged as this was the mischief sort to be corrected at the drafting and passing of this law.

Conclusions

1.     Standing on the principle of the mischief that this law sort to correct, it is my submitted opinion that the section 285(6) of the Constitution of the FRN remains a worthy amendment.

2.    I also submit that the decisions of the Supreme court on the interpretation of this constitution are in line with the principles herein adduced. However, I do not subscribe to the emphasis on time rather than on diligent prosecution.

3.    The only addition that I propose is that the law should provide for such extension of time based on incontrovertible evidence of diligent prosecution but insufficiency of time, which in my opinion would indeed be rare. The Courts should be given the power to extend the 180 days period for a definite period also on evidence of such.

4.    The injustice purported to be worked by this law doesn’t really exist as justice is not a relative term but should also not be abused on a journey of eternity due to unnecessarily prolonged issues.