INTRODUCTION TO THE ELECTORAL PROCESS
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, 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.
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 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. The system of elections was totally unfamiliar to the various societies and communities existing during pre-colonial times. 
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
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.
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.
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 12th of September, 1960, thereby granting Nigeria independence and sovereignty. 
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.
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
- 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. Furthermore, by virtue of the provisions of the 2nd 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 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.”
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.”
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
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.”
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 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 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 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
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;
- The parties interested in the election petition
- The right of the petitioner to present the election petition
- The holding of the election, the scores of the candidates, and the person returned as the winner of the election
- 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
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,
(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.
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.
 (2003) 15 NWLR (pt. 544) 600.
 (2008) LPELR-CA/PH/EPT/489/07.
 A, Babalola, Election Law and Practice, (Ibadan: Intec Printers, 2007).
 Constitution Federal Republic of Nigeria (1999) as amended.
 The Electoral Act (2010) as amended.
 Black’s Law Dictionary (2nd Edition).
 Article 1, First Schedule to the Electoral Act (2010).
 P. A, Onamade, Advocacy in Election Petitions, (Lagos: Philade Co. Ltd, 2007).
 (1988) 5 NWLR (pt. 94) 323.
 Electoral Act, (2010) as amended.
 Paragraph 4(1), First Schedule to the Electoral Act (2010) as amended.
 Buhari v. Yusuf (2003) 14 NWLR (pt. 841) 446 at 504.