Ordered political succession through free, fair and transparent elections has been a major challenge in Nigeria. Most elections since independence have been disputed and sometimes the problems and issues generated and engendered by disputed elections have been used by the military as part of their excuses for intervening and overthrowing the government.
Some of the problems include issues around lack of internal democracy in political parties, imposition of candidates on the party and on the members, wrongful and illegal substitution of candidates, mean use of power of incumbency, division in political parties, the powers of the Independent National Electoral Commission to qualify and or disqualify candidates and electoral irregularities and malfeasance.
The resolution of disputes arising from some of these issues through the normal judicial process and through the use of the instrumentality of election petitions tribunals sometimes drags on for years without any resolution. Sometimes the seeming resolution of some of the issues gives rise to additional or multiple problems and creates its own bitterness and cyclical disputes. It is therefore imperative to devise new and creative means of assisting political parties, their candidates, executive committees of political parties and other stakeholders in the electoral process resolve their disputes.
It is also imperative to build the capacity of members of the Independent National Electoral Commission and assist them acquire new skills that will enable them assist political parties resolve their disputes. It must be pointed out that conflicts are part of human society and human existence.
Conflicts can lead to positive societal changes and can also produce destructive consequences. The important element in conflicts is how they are resolved so that they do not snowball to unmanageable proportions.
The Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010(as amended) recognise the fact that conflicts may arise in the course of political events and that these conflicts have to be resolved if the society is to move on or else there will be political anomie.
The 1999 Constitution and the Electoral Act, 2010(as amended) envisage that candidates at an election, their political parties, cronies, supporters or the electoral management body may compromise an election and a candidate that did not score majority of the lawful votes cast in an election may be declared as duly elected.
A candidate may also secure victory through corrupt practices or non compliance with the Constitution or the Electoral Act and this may create difficulties that have to be resolved through the normal judicial process or through the instrumentality of the election petitions tribunals. For pre-election matters, the Electoral Act, 2010(as amended) gives the High Courts of the various States and the Federal High Court the power to deal with such situations.
These includes issues dealing with the submission of the list of candidates and their affidavits by political parties, the issue of double nomination, political parties changing candidates and the withdrawal of candidates. During the 2003 elections, candidates and political parties filed a total of 574 petitions.
For the 2007 elections, a total of 1, 290 petitions were filed. For the 2011 elections a total of 732 petitions were filed and in the 2015 elections a total of 663 petitions were filed. These exclude pre-election matters that are filed in the regular courts. In both pre election and election matters, legal practitioners employed all sorts of subterfuge to prolong trial to allow the incumbent remain in power while the trial is going on.
It is clear that unless we find a new constitutional, statutory and administrative framework for the resolution of election disputes the problems of calling endless witnesses, legal manoeuvres, exhausting the appeal process and fishing for jurisdiction in election petition matters may not abate. In finding solution to some of the pre-election matters and disputes we must bear certain variables in mind.
Some disagreements in some of the parties relates to the internal management of parties and their non compliance with the dictates of the Constitution and the Electoral Act, 2010(as amended). Some political parties are factionalized and have multiple candidates and multiple nominations for party and elective offices. Some political parties are run in a manner that conflicts with all known principles of democracy. Some of the nomination processes are fought with all the arsenals at the disposal of the candidates.
This is because power and its trappings especially in Nigeria provides a sure avenue and escape from poverty and some candidates see the issue of securing the nomination of their parties and winning elections as a do or die affair. It is therefore imperative to consider the resolution of some electoral disputes through Alternative Dispute Resolution Mechanism (ADR). ADR may be defined as a range of procedures or processes that serve as alternatives to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of neutral and impartial third party. Alternative Dispute Resolution is employed to make sure that disputes especially of a political nature are actually resolved.
The resort to Courts can be time consuming and acrimonious. At the end, parties either win or lose. The winning party goes away celebrating and the losing party retires to lick his or her wounds and sometimes plans counter strategies on how to cripple the mandate of the winning party.
There are certain disputes which can be resolved by the Independent National Electoral Commission acting within the purview of the Constitution and the law. These are disputes that have a bearing on its administrative competence. These are disputes that revolve around the internal running of political parties and their organisation.
These are disputes where the law and the Constitution allow them to issues rules and regulations. These include its administrative actions relating to the registration and merger of political parties and the recognition accorded to factions that are in dispute with one another.
The Electoral Management Body can also issue guidelines relating to the internal running and management of political parties to enhance transparency and openness in those parties. The Electoral Management Body can take administrative decision in conjunction with the political parties relating to the decision on what constitutes cogent and verifiable reasons for the substitution of candidates.
These actions are in conformity with the Electoral Act which gives the Independent National Electoral Commission the power to issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of the Electoral Act, and for its administration. It is also in conformity with the Electoral Act, 2010(as amended) which gives the Independent National Electoral Commission the power to conduct civic education and enlightenment in the print and electronic media to enhance its functions. It is also in the interest of the electoral process for the Independent National Electoral Commission to train some of its officers on Alternative Dispute Resolution.
These Officers must display the highest standard of professionalism and etiquette and get the confidence of political parties and other stakeholders in the electoral process. In which case, political parties in dispute can use the institutional capacity of the electoral management body in resolving their disputes.
The Independent National Electoral Commission can issue guidelines for the resolution of internal disputes in political parties and study the Constitution of all the parties and get them to incorporate Alternative Dispute Resolution Mechanisms in their Party Constitutions.
Part of the guidelines and regulations can include the use of ADR Lawyers in the resolution of their disputes. The guidelines can prescribe minimum qualification and experience for the arbitrators. Guidelines can also suggest the use of standing Institutions and professional ADR practitioners in the resolution of disputes.
The Guidelines and Regulations can also suggest ADR Contract Clause in the Constitution of Political Parties. The ADR contract clause in the Constitution of political parties will allow them, by agreement to attempt to resolve any dispute between them by the use of one or more ADR processes.
It may be a very simple, short clause or alternatively set out a lengthy and complex process. It may specify a particular ADR procedure, such as negotiation, mediation or arbitration or leave the parties to agree on one as and when particular disputes arise.
The existence of the clause provides ample justification for ADR to be suggested, discussed and entered upon freely and voluntarily and on an equal basis without any assumptions about relative strength of each party’s case. Moreover, in drafting such a clause, the following factors should be taken into account: Length and detail- essentially the clause merely needs to stipulate that in the event of a dispute arising, the parties will attempt to resolve it by ADR in which case the details would be worked out when the dispute arises.
Leave a Reply