The Odinga Standard: Guidelines To Adopt In Preparing Election Petitions

Overview 

Raila Odinga & Another v Independent Electoral and Boundaries Commission (IEBC) & Others [2017] KESC 31  KLR 

On 1st September, 2017, the Supreme Court of Kenya handed down a decision annulling the Kenyan Presidential election, by a vote of four Judges to two. The court determined that there were significant failures in the transmission of results from polling stations to constituency tallying centres and the national tallying centre, which jeopardised the election’s integrity. The court also found that IEBC didn’t follow constitutional and statutory provisions for election administration. The court ordered that a new Presidential election be held within 60 days, in accordance with the Constitution.

This was seen as a historic and decisive victory, for African democracy. In practical terms, it also meant that Kenyans were to have another (second) presidential election within  60 days. This was undoubtedly quite expensive in terms of money and time, but, perhaps, worth it for a clear and decisive declaration that democracy in Kenya was not only working but maturing. The ruling of the Supreme Court underscored what IEBC, international observers and some international press wanted to write off as mere irregularities, but were in actual fact, significant procedural failures that undermined the core of Kenyan democracy.

The discontent and criticism of the election were never about winning or losing. It was about having a winner who was worthy of the title “democratically elected”, and the Supreme Court found that IEBC simply did not deliver on basic democratic principles of transparency and rule of law, that should ordinarily guide any election. Fundamentally, this ruling was also about reminding IEBC that it couldn’t pick and choose which parts of the Constitution it wanted to obey. The ruling reflected glaring errors that, on one hand, IEBC argued were not enough to alter the outcome of the election, but, on the other, critics argued, compromised the integrity of the whole process.

For instance, IEBC conceded that they did not use the biometric electronic transmission system that they were required to use; and instead, relied on text messages and photographs of manually filled forms as sources of information. The process of tallying was also problematic because IEBC seemed to ignore much of the law regulating it. The Commission’s Lawyers also argued that the forms used for reporting results from the different regions would be available in time for the announcement of the results on 11th August, 2017; yet, as late as 14th August,  IEBC was still asking the opposition to be patient while it tried to make the forms available to them for verification.

A number of the forms provided by IEBC also didn’t have serial numbers or bar codes, and some were simply lined paper with numbers scrawled on them. Although Lawyers for IEBC conceded these irregularities, they equally argued they were not significant enough to have affected the whole outcome; but, unfortunately, in court, the Chief Justice pushed back asking “If some of the forms have bar codes, then shouldn’t all of the forms have bar codes?”  It was based on all the above reasons, that the Kenyan Supreme Court nullified the Presidential election under Article 140(2) (a) of Kenya’s Redraft Constitution of 2010.

Nigeria’s 2023 General Elections

One could easily be forgiven for believing that the Kenyan experience was déjà vu here in Nigeria and that our National elections last month were simply a rehash of the same playbook script that characterised the Kenyan elections five years ago, in that the situation, facts and allegations of irregularities on the part of our Independent National Electoral Commission (INEC) appear to be virtually the same as that of the IEBC, but with a fundamental difference.

The position of the law here in Nigeria as spelt out in the 1999 Constitution (as amended) and the Electoral Act 2022, is not on the same footing as that of Kenya. It appears the Federal Government and the National Assembly conscious of the historic and landmark decision of the Kenyan Supreme Court, may have instead,  taken precautions to insulate themselves from the Kenyan experience by whittling down the effects of the Electoral Act 2022, thereby ensuring that our courts and tribunals would be incapable of ever giving such a ground-breaking decision as that of the Kenyan Supreme Court.

Let us now look at, and analyse some of the various examples as to why this may indeed, be the case.

Instituting Presidential Election Petitions Directly at the Supreme Court

In Kenya, petitions relating to their Presidential elections are heard directly by the Kenyan Supreme Court; but, under our Electoral Act here in Nigeria, Presidential election petitions have to first be instituted and heard at an election tribunal, which for Presidential election petitions is the Court of Appeal. It can only be filed at the Supreme Court, upon the filling of an appeal after the Court of Appeal has adjudicated upon the petition. Does this procedure serve any real or useful purpose?  I don’t think so, because all Presidential election petitions ultimately end up at the Supreme Court anyway, so why not Institute the petition there in the first place, and save much valuable time and expense?

In Odinga & Anor v IEBC & Ors (Supra), the Kenyan Presidential election was held on the 8th of August, 2017, and the hearing of the Presidential Petition commenced as early as the 18th of August, 2017. The hearing concluded on the 29th of August, 2017, and the Kenyan Supreme Court handed down its decision on the 1st of September, 2017. The hearing of Petition was heard timeously, in that it took less than two weeks. During this short period, the Kenyan Supreme Court was able to hear oral arguments from all the parties between 26th August and 29th August. A decision was given within three days of the conclusion of the hearing.

Surely, this is the sort of standard and time frame we need to set for ourselves here in Nigeria. The present time frame of 180 days to hear and determine election petitions under our Electoral Act, assuming we consider the Court of Appeal an election tribunal, or 60 days if it’s not classed as such or for appeals, is unduly long. It defeats the long-standing principle first established in Ashby v White (1703) 92 ER 126 to the effect that, the Courts don’t want to be unduly engaged in matters of Parliament. The Courts recognised the fundamental privileges and independence of Parliament, as far back as the 1700s.

Does the 1999 Constitution Specifically State that Elections Should be Free and Fair?

The Kenyan Supreme Court found that IEBC failed to comply with constitutional and statutory provisions on conducting elections, such as using biometric technology for voter identification; transmitting provisional results electronically; publishing scanned images of result forms online; and verifying final results using original forms. The court held that these failures violated Article 81(e) of Kenya (Redraft) Constitution of 2010, which requires elections to be free, fair, transparent, verifiable, accountable, accurate, secure, efficient, and credible.

The court also held that these failures affected Article 86(a) of the 2010 (Redraft) Constitution, which equally stipulates that elections are to be simple, accurate, verifiable, secure, accountable and transparent. The court noted that it was not necessary for it to determine whether there was any hacking or manipulation of IEBC’s servers or result forms by any party, as alleged by the opposition. The court was of the view that it was not necessary for it to determine whether the incumbent President at the time, Uhuru Kenyatta, engaged in any electoral malpractices, as was being alleged. It was sufficient to annul the Presidential election for breaching the above constitutional provisions.

Significantly, there is no equivalent provision under the 1999 Constitution, other than vague and indirect references to such under the non-justiciable provisions of the Fundamental Objectives and Directive Principles of State Policy. This perhaps, best explains why our Lawyers spend months trying to establish incidences of manipulation and malpractices in our general elections.

The Presidential election petitions of both Alhaji Atiku Abubakar and Peter Obi, are laced with these unproven allegations. INEC is always joined as a Defendant in Election Petition cases, but the same INEC equally wants to justify before the tribunal or court that it conducted credible elections.

How ironic !! In short, INEC is usually the equivalent of a hostile witness! How then can a Petitioner succeed, if they are dependent on INEC to produce such evidence, as often seems the case? Even the Electoral Act 2022, merely mentions the need to show substantial compliance with the election. On what basis can you, therefore, overturn a Presidential Election here in Nigeria, with such a vague and subjective benchmark? If our Constitution had similar provisions to those of Kenya cited above, then a Presidential Petitioner would at least stand a realistic chance of overturning a Presidential election, if the court considers that there were substantial irregularities.

The Bimodal Verification Accreditation System (BVAS) 

Another essential difference in Nigeria’s electoral laws when compared to Kenya, is that the use of BVAS was not made compulsory under the Electoral Act 2022, or so it seems. Section 50(2) of the said Act provides as follows:

“Subject to section 63 of this Act voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission”

Furthermore, Section 60(5) provides: “The presiding officer shall transfer the results including the total number of  accredited voters and the results of the ballot in a manner as prescribed by the Commission”

INEC through what is at best subsidiary legislation, has introduced regulations and guidelines most of which are contained in its manual, but this does not contradict the above provisions of the Electoral Act 2022, because if INEC determines the procedure as provided under the Electoral Act, it stands to reason that it can vary its own guidelines since it has the power to determine its own procedure.

As the Petitioners themselves state in their Petitions, INEC merely gave assurances; whereas, in Kenya, the biometric electronic transmission system was backed by the force of primary legislation, and could equally be tied to the 2010 Kenya Constitution with regard to election administration. Is this an oversight by our lawmakers, or perhaps, deliberate? Your guess is as good as mine.

Bar Codes 

As the Chief Justice of Kenya queried if some of the ballot papers have bar codes, shouldn’t all of them have bar codes? Under the Electoral Act 2022, this is once again left to the discretion of the returning officer, thereby leaving scope for the possibility of malpractice or manipulation. Section 63 (2) of the Electoral Act 2022 provides;

“If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.”

Conclusion 

There are in fact, four avenues via which courts can be involved in electoral matters:

(1) judicial review for constitutional validity;

(2) criminal jurisdiction over electoral offences;

(3) a disputed return petition;

(4) judicial review of electoral administration.

The first issue under our laws as with Kenya, at least, in so far as it relates to Presidential election petitions, is that they should ideally be instituted at the Supreme Court. The second issue is not common, but it relates to criminal jurisdiction which should begin at the High Court level. The third is already provided for under our Electoral Act, and all disputed petitions begin at specially constituted tribunals, other than the Presidential election petition which begins at the Court of Appeal.

The fourth category which is the power to grant injunctions or declarations to proactively ensure compliance with electoral administration, is perhaps, a bit more technical; but, as noted in Odinga & Anor v IEBC & Ors (Supra) the Kenyan Supreme Court was able to craft its own issues for determination as follows:

(i) Whether the 2017 Presidential Election was conducted in accordance with the principles laid down in the Constitution and the law relating to elections.

(ii) Whether there were irregularities and illegalities committed in the conduct of the 2017 Presidential Election.

iii) If there were irregularities and illegalities, what was their impact, if any, on the integrity of the election?

(iv) What consequential orders, declarations and reliefs should this court grant, if any?

This approach enabled the Kenyan Supreme Court to reach a definitive and decisive decision on the Presidential election petition, within a relatively short period of time. The Presidential election petition was virtually treated like a judicial review application. A Constitutional amendment would be necessary here in Nigeria, for us to be able to get anywhere near the Odinga standard; but, as already noted, if the National Assembly have their own agenda, it becomes a near impossibility.

Realistically, it can only be achieved by redrafting our Constitution. Significantly, Kenya has already had three redrafts of their Constitution, the most recent being in 2010 and approved by about 67% of the population in a referendum.  In Nigeria we are yet to have a redraft, and instead, remain stuck with the occasional amendments; but, to whose benefit, I wonder?

Source: ThisDay