The 2015 elections are over and we are in the season of election dispute adjudication. Election disputes are not just civil claims ventilating the rights of private individuals, they are claims and questions of wider significance to the integrity of our constitutional democracy and the political stability of Nigeria.
They also border on the collective interest of the society to be governed by a democratic government founded on the will of the people expressed in periodic and genuine elections. Although free and fair elections are best guaranteed by the conduct of the election management body, security agencies, other government agencies, political parties, candidates and the larger civil society, the courts have become the last resort once disputes arise in the electoral process. Therefore, the challenge is to use law as an instrument of social engineering to resolve democratic conflicts in the overall interest of the society.
In the adjudication of election disputes, courts are called upon to play a fundamental role to strengthen the pillars of democracy. It is not only about justice to the litigants but justice to the whole society and the respective constituencies that voted in the elections.
It is justice as to whether the votes count or the votes of constituencies are replaced by usurpers who assume office against the wish of the people. If those who actually won elections are returned through the courts, good governance will likely ensue while impostors who did not win the popular votes but find themselves in positions of power will likely subvert processes and create an atmosphere of impunity to cover their tracks.
As a popular aphorism says, a people cannot rise above the quality of their government. Thus, justice as conceptualised here is not about technical statements of the law but whether justice has been seen to be done by those who stayed under the sun and the rain to cast their vote.
The average Nigerian has lost hope in the ability of government (executive and legislature) to protect his rights and the judiciary is glorified as the last hope of the common person. The poser after the conclusion of the work of the tribunals and the appeals will be; Did the judiciary through the tribunals live up to this expectation? What was the public perception on the adjudication of the cases?
Thus, a case is made for sound electoral reform which should allow the electorate the final say on who represents them instead of what has been termed democracy by court order.
Indeed, Nigeria’s Vision 20:2020 acknowledges that the country is still faced with the challenge of conducting free and fair elections and one of the four dimensions of the Vision, the institutional dimension, is the vision for a stable and functional democracy where the rights of citizens to determine their leaders are guaranteed.
The idea that electoral petitions are sui generis and as such, every technicality should be explored to defeat the ends of justice seems to be the jurisprudence of might is right, an open invitation to anarchy since law cannot remedy injustice; violation of laws and its attendant mindset of impunity is translated into corruption and poor governance.
Instead of the nature of election petitions being the reason for violation of peoples’ right to choose their leadership, its nature provides every reason to scrupulously and meticulously examine whether substantive law has been complied with and to protect the right of the people to elect a government of their choice. The nature of an election petition should de-emphasise adjectival law which to all intents and purposes ambushes substantial justice.
Upon the consideration of jurisprudential schools of thought, if law is viewed from the Austinian positivist command of the sovereign backed by sanctions, the poser will be; What is the command of the sovereign in electoral petitions? Is it to confirm the choice of the people or to strike out cases on frivolous technicalities?
The answer must be in the nature of confirming the choice of the people because the command of the sovereign which is the law is that the votes must count.
Even if the hierarchical structure of Hans Kelsen’s positivism is used to assess technical interpretations of electoral laws against interpretations weighing in favour of substantive justice, it is evident that what fits into the constitutional hierarchy of laws in the grundnorm is an interpretation that makes every vote count.
If electoral jurisprudence is informed by the utilitarianism of its impact on the society through the measurement of happiness by the proverbial felicific calculus, which quantifies the pain or pleasure that will result from choosing alternative causes of action in our conduct, then the happiness of the majority is not improved through using technicalities to defeat the ends of justice.
By the historical school of jurisprudence which sees law as the spirit of the nation and in a constant state of evolution, law grows with the growth and strengthens with the strength of the people and finally dies away as the nation loses its nationality.
Nigeria which claims to be one nation founded on one destiny should be growing and as such, reinforcing the fundamental tenets of democracy and good governance and these tenets are antithetical to using technicalities to enthrone impostors into elected positions.
Finally, the way to satisfy the claims and demands of the society, with the least sacrifice is by enthroning substantive justice over technicalities in electoral cases. There is a level of impunity in holding that mere court rules and procedures should trump substantive justice based on the constitution which is the grundnorm.
Court rules and technical provisions are forms and procedures, a means to the end, a guide. When you put them on the scale with the ends of justice and you weigh the form to be greater than the substance, then, that is a substantial fallacy of reasoning and a miscarriage of justice. Indeed, it seemed that some judges of previous election tribunals looked for every conceivable reason and opportunity to short circuit justice by striking out cases and concluding their jobs in record time. This is not the spirit of justice.
The fact that Section 137 of the Electoral Act limits the category of persons who may file petitions to candidates and political parties makes the voter to be of no consequence and a mere spectator even if the votes did not count. There is the need for a new concept which grants locus standi to all taxpaying citizens who are registered voters to sue to challenge the outcome of an election. If the object of election petitions is to ensure that the votes count in the decision of who takes an elective seat, why should the voter not have locus to sue? If sovereignty belongs to the people of Nigeria from whom government through the constitution derives all its powers and authority, why should the sovereigns not be in a position to challenge poll returns which they deem not reflective of their votes?
Nigeria needs resolution of election disputes based on substantive law that makes the vote count; enough of unbridled technicalities that affirm injustice.
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