DEMOCRACY AND ELECTORAL PROCESS IN NIGERIA

CHAPTER ONE

INTRODUCTION TO THE ELECTORAL PROCESS

1.1       Introduction

A very important distinguishing feature of democracy is the electoral process. It is the process of choosing from different candidates running for a particular political office.

The Black’s Law Dictionary defines election to mean the act of choosing or selecting one or more from a greater number of persons, things, courses or rights. It connotes the act of choosing from several possible rights or remedies in a way that it precludes the use of other rights and remedies. Election refers to the process of selecting a person from a variety of candidates to occupy a particular political office. This process is carried out by the process of voting.

In the case of Attorney General of the Federation v. All Nigerian People’s Party[1], election was defined as;

“. . . The action or an instance of choosing by vote, one or more of the candidates for a position especially a political office”

The role of elections in sustaining a democracy cannot be overemphasised. Democracy refers to government of the people by the people and for the people. This means that under a democracy the participation of the people in government is an indispensable factor. Hence, they have a right to elect a representative to wield the mandate of power in government for a definite period of time, in Nigeria, it is for four years. However, where such government fails to live up to the expectation of the people who voted it into power, and does not adequately represent the people, the people have the right to vote them out in subsequent elections and vote in another government who they deem capable enough to represent them in governance.

A practical example is evident in the 2015 Presidential elections held in Nigeria which saw for the first time since 1999, the voting out of an incumbent President. The people felt the government at that time was not performing up to expectation, hence, the need to bring in a new government to properly represent them. This was viewed by many observers, locally and internationally as the triumph of true democracy.

The conduct of elections has a major effect on the sustenance of a democratic government. It gives the masses the opportunity to elect into office, a government of their choice which is one of the peculiar features of democracy.[2]

The electoral process cuts across a wide range of process of choosing by votes, a candidate to represent the people in a political office in a democratic government. It is expedient to note that the electoral process is not streamlined to what occurs on the day of the polls only. It constitutes the process of accreditation of voters, voting, and collection of results from the various polling units, counting of votes and the announcement of the election results.

In the case of APGA v. Ikedi Ohakim[3] it was held that;

“The purpose of election in a democratic setup is to determine the wishes of the people as to who should represent them in the legislature and the executive setup. It is therefore necessary to ensure that any election conducted is done in a way that would ensure that the main objectives are substantially met”

1.2       Historical Development of Elections in Nigeria

Prior to the advent of colonialism in Nigeria, there was the existence of close to three hundred ethnic groups possessing different languages and systems of rule and governance. Each of the various existing political units had their way of selecting their rulers. In the Oyo Empire for instance, the king was selected from one of the ruling houses, a council of notables known as the Oyomesi and the Ogboni society. These various organisations had their various peculiar duties which enhanced checks and balances in the governance and rule of the Oyo Empire.[4] The system of elections was totally unfamiliar to the various societies and communities existing during pre-colonial times. [5]

The clamour for elective principle in Nigeria was first made in 1881 during the agitations for the separation of Lagos from the Gold coast colony. Notwithstanding the fact that the colonialists ignored the demands, the agitation continued and became stronger.

In 1920, Joseph Casely Hayford and Dr. Akinwande Savage formed the National Congress of British West Africa in Accra, Ghana. After its inauguration, a petition containing its demands for the grant of elective principle was presented by its delegation to the Secretary of State for colonies, Lord Mimer. The delegation returned without success having had their petitions unattended to by the Colonial secretary. Even the colonial governors in West Africa were opposed to the demands of the National Congress of British West Africa. The Colonial office were in full support of the West African Colonial Governors and they opined that to have half-elected legislative councils would be tantamount to abandoning absolute financial control of the colonies which would be disastrous to their aims and objectives.[6]

In 1906, the Colony and protectorate of Lagos became part of Southern Nigeria. The Northern and Southern protectorates of Nigeria were amalgamated in 1914 with Lord Lugard becoming the first Governor General of the country. Sir Hugh Clifford succeeded him as the Governor General of Nigeria in 1922, and the Clifford’s Constitution became the constitution in force during that period. The 1922 constitution was very crucial to the development of the electoral process in Nigeria. The constitution was the first constitution to contain elective principles. The constitution gave rise to a legislative council which consisted of forty six members, twenty seven unofficial members and nineteen official members. Four of the unofficial members were to be elected by an adult male suffrage with residential qualification of one year, and a gross income earning of £100 per annum. One of them was to represent Calabar, while the other three were to represent Lagos. The reason for this provision was due to the fact that Lagos and Calabar were considered to be the two major towns in Nigeria during that period. Moreover the population of the two towns consisted of educated individuals who could be entrusted to use their franchise properly. The new constitution, with its introduction of the elective principle fostered the formation of various political organisations in the country.[7]

The Richards Constitution of 1946 which was in force after the expiration of the term of Sir Hugh Clifford, did not increase the number of elective posts available for Nigerians. This greatly upset the masses.

The 1951 Constitution expanded the electoral field to a great extent. A central legislative House, which was the House of Representatives was established. The House of Representatives consisted of one hundred and forty eight members. One hundred and thirty six members out of the one hundred and forty six members were to be elected Nigerians. The existing regional councils in the various regions in Nigeria were constituted into Houses of Assembly whose members were selected through electoral colleges. The electoral colleges had three stages- the primary, the intermediate and the final electoral colleges. Tax payers possessed franchise at the primary level. The final electoral colleges were small groups directly responsible for the election of persons into the various Houses of Assembly. Voting at the primary and intermediate colleges was done by a show of hands, while at the final Electoral College, the secret ballot was adopted.

The 1954 constitution replaced the 1951 constitution. The 1954 Lyttleton constitution further expanded the electoral field and also provided a foundation for the Independence of Nigeria. The constitution introduced a federal system of government by sharing powers between the centre and the regions. It also introduced a unicameral legislature for the country to be presided over by a speaker instead of the governor. Membership of the house was to consist of one hundred and eighty four elected members. The Nigerian Order in Council was passed on the 12^th of September, 1960, thereby granting Nigeria independence and sovereignty. [8]

It is vital to note that in Northern Nigeria, up till 1959, women were restricted from running as candidates in elections despite all the parameters provided by the constitution as to the qualifications for running as a candidate in elections. Only male persons were eligible to be nominated as candidates in the Northern region. However, as the electoral process continued to evolve, the discrimination against women gradually became a thing of the past.[9]

In 1966, Nigeria witnessed a military coup which occasioned the military takeover of government as opposed to democratic rule. The military rule strictly prohibited elections and the elective principles were automatically suspended. However, in 1979, Nigeria witnessed the springing up of various political parties including

•  Greater Nigerian People's Party (GNPP)
• National Party of Nigeria (NPN)
• Nigeria Advance Party (NAP)
• Nigerian People's Party (NPP)
• People's Redemption Party (PRP)
• Unity Party of Nigeria (UPN)
• Movement of the People Party (MPP)

The election was won by the National Party of Nigeria candidate, Shehu Shagari, who defeated the Nigeria People’s Party candidate, Nnamdi Azikwe by a close controversial vote. The federal military government handed power over to the new civilian president, Shehu Shagari, thereby ushering in the second republic.

The 1979 constitution for the first time introduced a presidential system of government as opposed to the parliamentary system of government which was in force before the second republic. It is expedient to note that the second republic in 1979 also introduced election petition tribunals to handle election matters with restricted appellate rights with the sole aim of dispensing justice speedily with regards to election petition matters. 

Elections are indispensable in any nation’s political system. This is due to the fact that it ensures periodic change in government thus enhancing democracy. Furthermore, periodic change in government ensures that, where previous governments failed to live up to expectation by fulfilling the desires of the masses, the new government elected in to power can make up for such shortcomings of the previous government by ensuring the wishes and desires of the masses are well taken care of. It is also expedient to note that, elections must be free and fair. In other words, elections must be rid of all irregularities and malpractices that can negatively influence the outcome of such elections i.e. putting the wrong candidate as a winner into an elective position.

1.3       Statutory Framework of Elections

The statutory framework regulating elections into the various political offices is the Constitution of the Federal republic of Nigeria (1999) (as amended). The Electoral Act (2010) is also a very relevant statute with regards to the electoral process. 

The Independent National Electoral Commission, which is the body saddled with the responsibility of enhancing the electoral process by conducting free and fair elections is established by virtue of Section 153 (f) of the Constitution[10]. Furthermore, by virtue of the provisions of the 2^nd Schedule, Part 1, Item 22 of The Constitution, the National Assembly possesses the power to legislate on electoral matters for National Assembly and governorship elections.

Section 87 of the Electoral Act[11]  makes provisions for guidelines with regards to the nomination of candidates by political parties. It provides as follows;

(1) A political party seeking to nominate candidates for elections under this act shall hold primaries for aspirants into all elective positions.

(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries

(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.

Subsection (4) deals with requirements for indirect primaries

Subsection (9) provides that where a political party fails to comply with the provisions of this act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.

Subsection (10) provides that notwithstanding the provisions of the act or rules of a political party, an aspirant who complains that any of the provisions of this act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or The High Court of a State, for redress.

Subsection (11) provides that nothing in this section shall empower the courts to stop the holding of primaries or general election under this Act pending the determination of the suit.

      There are specific provisions in the constitution with guidelines and qualifications for eligibility of candidates to contest elections.

       For instance Sections 65, 66 and 68 of the Constitution, provides for the qualification for membership of the national assembly and the tenure of their offices. Sections 131-133, and 135 of the constitution defines the qualification for a person aspiring to be elected as president or vice president and the tenure of Office. Sections 106 and 107 make provisions for the qualifications and requirements for membership of the state house of assembly and the tenure of their office. Sections 180- 182 provides for the qualifications for an aspiring governor and deputy governor.

1.4       Election Petitions.

Generally, a petition connotes a written request signed by many people demanding a specific action from an authority or government.

The Black’s law dictionary defines a petition to mean;

“ a written address embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong, or the grant of some favour, privilege, or license.[12]”

Election petition under the Electoral Act does not have a precise definition. The Act defines elections to mean;

“Any election under this act to which an election petition relates.[13]”

The Black’s law dictionary defines election petition to mean;

“Petitions for inquiry into the validity of elections of members of parliament, when it is alleged that the return of a member is invalid for bribery or any other reason. The petitions are heard by a judge of one of the common law divisions of the high court.”

This definition however directly relates to Britain’s parliamentary system of government. It therefore cannot totally be applied to Nigeria as we currently operate a Presidential system of government.

In an attempt to construe a definition relating to Nigeria, it is expedient at this juncture to examine the definition as given by Onamade P. A. a renowned scholar. He defined election petition to mean;

“A formal written request presented to a court or tribunal for enquiry into the validity or otherwise of a candidate’s return when such return is allegedly invalid.”[14]

From the foregoing it is not in dispute to state that election petition is the only acceptable procedure for challenging the result of a Federal, State, or Local government elections. It is the acceptable mode of presenting grievances with respect to the conduct of elections, results of elections or any other matter whatsoever in respect of the electoral process.

Election petitions are unique and peculiar in the sense that, they take precedence over and above the normal process of adjudication. As to the importance of the election petitions as a tool for sustaining democracy, Uwais JSC in the case of Nwobodo v. Onoh[15] had this to say;

“Election petitions are by their nature peculiar from the point of view of public policy. It is duty of the courts therefore to hear them without allowing technicalities to unduly fetter their jurisdiction.”

The learned judge further emphasised the peculiar nature of election petitions in the case of Orubu v. NEC[16] where he stated thus;

“An election petition is not the same as an ordinary civil proceeding. It is a special proceeding because of the peculiar nature of elections which by reason of their importance to the wellbeing of a democratic society, as regarded with an aura that places them over and above the normal day to day transaction between individuals which give rise to the ordinary or general claims in court. As a matter of deliberate policy to enhance agency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”

 It follows therefore that since election is the hallmark of democracy, and serves as tool for its sustenance, election petitions are expected to be free of all barriers that could hinder the speedy disposition of justice by the tribunal.

1.4.1         Election Petitions In The Electoral Act

As earlier stated election petition refers to a formal written request presented to a court or tribunal for enquiry into the validity or otherwise of a candidate’s return when such return is allegedly invalid.

The Electoral Act which is the statute governing all matters pertaining to electoral processes in Nigeria, provides for the procedure for challenging the election of a candidate into a political office as duly elected after an election.

Section 133 (1) of the Electoral Act[17] provides thus;

“No election and return at any election under this act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this bill referred to as an ‘Election petition’) presented to the competent tribunal or court in accordance with the provisions of the constitution or of this act, and in which the person elected or returned joined as a party”

It can be gleaned from this statutory provision that it is only by way of an election petition presented before a competent tribunal that any election can be questioned. Any other means or method of challenging elections which does not strictly adhere to the provisions of Section 133 of the Electoral Act is invalid and unacceptable.

With regards to the specific requirements to be fulfilled in filing an election petition, the Electoral Act provides that an election petition must specify the following[18];

1. The parties interested in the election petition
2. The right of the petitioner to present the election petition
3. The holding of the election, the scores of the candidates, and the person returned as the winner of the election
4. State clearly the facts of the election petition and the ground or grounds on which the petition is based, and the relief sought by the petitioner.

Section 137 of the Act makes provisions as to who may present an election petition. It provides as follows;

(1)   An election petition may be presented by one or more of the following persons-

(a)   A candidate in an election

(b)   A political party which participated in the election.

(2)   A person whose election is complained of is in this Act referred to as the respondent.

(3)   If the petitioner complains of the conduct of an electoral officer, a Presiding or Returning Officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the commission shall, in this instance, be:

(a)   Made a respondent

(b)   Deemed to be defending the petition for itself and on behalf of its officers or such other persons.

The crux of the matter is that for any person to be able to file a petition with regards to election matters, such party must have participated in the elections conducted. Such a party has to be either the individual who contested as a candidate of a political party in the election, or the political party on whose platform the aggrieved individual contested.

Furthermore, by virtue of the provision of Section 137, where the conduct of officers of the electoral commission who participated in the conduct of the elections is complained about in a petition, such officer or officers may not necessarily be jointly sued independently as respondents. The Commission in this case becomes the respondent to the petition and is deemed to be defending the petition on behalf of its officers whose conducts were complained about in the petition.

A candidate who contested an election and lost cannot be made a respondent to an election petition.[19] It follows therefore that only a person declared winner at an election qualifies to be a respondent to a petition in respect of the election being challenged at an election petition tribunal.

Section 138 makes provision for the grounds on which an election may be questioned. It provides as follows;

(1)   An election may be questioned on any of the following grounds, that is to say-

(a)   That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b)   That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)   That the respondent was not duly elected by majority of lawful votes cast at the election;

(d)   That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election

Subsection (2) goes further to provide that;

“An act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election, which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election”

Flowing from the joint provisions of Subsection (1) and (2) any act or omission that does not fall within the provisions of the above statute shall not pass as a sufficient ground for questioning the results of an election, or the conduct of elections.