BACK TO THE FUTURE: A JURISPRUDENCE FOR RESTORING ELECTION PETITIONS

Abstract

By constitutional and statutory prescription, the functions of Nigeria’s Independent National Electoral Commission (INEC) encompass inter alia, promoting knowledge of sound democratic election processes; and conducting all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation. An election petition is aimed at questioning the election return and declaration of a candidate in an election. The adjudicating body that has sole jurisdiction to decide such petition is the Election Tribunal. The jurisdiction of an election petition tribunal to decide an election petition is invoked when a person has been elected and there are questions raised such as are provided in the Electoral Act, 2022. Statutorily, INEC has a duty of providing compulsory discovery of documents and materials used in an election to a person desirous of challenging the returns of the election. Procedurally, INEC is required to be joined as a defendant to any election petition. Requiring INEC to providing materials to assist a petitioner in a proceeding where INEC is a respondent creates a tension between INECs constitutional function as an empire and its procedural role as a respondent. This tension as resolved by INEC entails obstructing compulsory discovery and disobeying court orders for discovery. This puts paid to any pretension of neutrality by INEC in election petition proceedings. This paper aims at suggesting a framework for re-establishing INECs impartiality in election petitions. The paper found that the procedural requirement of making INEC a respondent to election petitions unnecessarily converts INEC’s role from that of umpire to that of adversary. The paper concluded that in order to restore INEC to its unmitigated role as umpire, there should be a recalibration of electoral adjudication procedure to eliminate INECs status as compulsory co-respondent. The paper then suggested and itemised extant procedural machinery that could be deployed in election petition adjudication that obviates a necessity of making INEC a compulsory co-respondent.