ABSTRACT
The electoral
process is a total process that includes registration of voters, identifying
the political parties to be voted for, voting, counting of votes, and
declaration of election results. This process is the foundation of civil
societies. A strong civil society is vital and needed to serve as the bedrock
of a stable democracy. It represents the reservoir of resources -- political,
economic, cultural, and moral -- to complement and, when necessary, to check
the power of the state. A dynamic and diverse civil society directly stimulates
social and political participation, increasing the involvement and commitment
of citizens and promoting an appreciation of the obligations, as well as the
rights, of citizenship. By providing many potential avenues for political,
economic and social expression, a society with a rich associational life gives
people a stronger stake in the social order. This in turn, creates a climate
within which mutual respect, tolerance, negotiation, and compromise actually
make sense, and flourish.
Nigeria claims to be
democratic and seeks to prove that under the banner of representation and
multi-party political systems. Elections are used as a means by which
representatives and policies are decided. The choice between political parties
or individual candidates is made through elections.
It should be noted that the public
function implies elections. This electoral process is the peaceful transfer of
power and legitimate exercise of authority. It demands active, broadbased
citizen participation. It is the election that actually determines who shall
wield power for a number of years as specified by the constitution. An
electoral system may be defined as a process in which the mode of coming to
power or the change of government is decided in a particular country at a given
time.This paper is going to examine the development of several election laws
that has been developed and the
progression of the laws .
TABLE OF CONTENTS
COVER
PAGE................................................................................................I
CERTIFICATION
PAGE..............................................................................II
ABSTRACT.....................................................................................................III
TABLE OF
CONTENTS................................................................................IV
DEDICATION.................................................................................................VII
ACKNOWLEDGEMENT..............................................................................VIII
TABLE OF
CASES.........................................................................................1X
TABLE OF STATUTES.................................................................................XI
LIST OF
ABBREVIATIONS.........................................................................XIII
CHAPTER ONE
GENERAL INTRODUCTION
1.0.0
INTRODUCTION...................................................................................................
1
1.1.0 BACKGROUND TO THE
STUDY........................................................................4
1.2.0 OBJECTIVES OF THE
STUDY .....................................................................
.....6
1.3.0 FOCUS OF THE
STUDY................................................................................
.......6
1.4.0 SCOPE OF THE STUDY...................................................................................
.....7
1.5.0
METHODOLOGY...................................................................................................
7
1.6.0 LITERATURE
REVIEW................................................................................
........7
1.7.0 DEFINITION OF
TERMS......................................................................................9
1.8.0
CONCLUSION.......................................................................................................13
CHAPTER TWO
HISTORICAL FRAMEWORK OF ELECTORAL LAW IN NIGERIA
2.O.O.INTRODUCTION................................................................................................14
2.1.0. HISTORICAL
BACKGROUND OF ELECTION LAWS IN NIGERIA........15
2.2.0. THE POST
INDEPENDENCE POLITICAL SETTING..................................19
2.2.1. THE FIRST
REPUBLIC......................................................................................19
2.2.2. THE SECOND- THE
FOURTH REBUPLIC....................................................20
2.3.0. PROGRESSION OF
POST COLONIAL LAWS ..............................................22
2.4.0. NATIONAL
ASSEMBLY ,GOVERNORSHIP,HOUSE OF ASSEMBLY
ELECTION
PETITIONS UNDER THE 1999 CONSTITUTION..............................31
2.4.1. PRESIDENTIAL
ELECTION UNDER THE 1999 CONSTITUTION...........35
2.5.0.
CONCLUSION......................................................................................................36
CHAPTER THREE
MAJOR ISSUES IN ELECTORAL LAW-INTRA-PARTY DISPUTES AND JUSTICIABILITY ,
QUALIFICATIONS AND DISQUALIFICATIONS.
3.0.0.INTRODUCTION..................................................................................................37
3.1.0.LEGAL STATUS OF A
POLITICAL PARTY...................................................37
3.1.1.CONSTITUTIONAL
FRAMEWORK FOR POLITICAL PARTY RULES
AND
REGULATIONS....................................................................................................38
3.1.2. JUDICIAL
APPROACH TO INTRA PARTY DISPUTES..............................40
3.2.0 QUALIFICATIONS
AND DISQUALIFICATIONS..........................................46
3.3.0
CONCLUSION................................................................................................................51
CHAPTER FOUR
ELECTORAL LAW REFORM
4.0.0.INTRODUCTION..................................................................................................52
4.1.0.EVENTS THAT LED
TO THE REFORM........................................................54
4.1.1.THE ELECTORAL
REFORM COMMITTEE.................................................58
4.2.0.A REVIEW OF THE
ELECTORAL ACT 2010 AS GAZETTED...................66
4.3.0.PROPOSED
AMENDMENT OF THE ELECTORAL ACT 2010...................69
4.4.0.CONCLUSION.......................................................................................................72
CHAPTER FIVE
GENERAL CONCLUSION
5.0.0.CONCLUSION.......................................................................................................74
5.1.0.RECOMMENDATION..........................................................................................76
BIBLIOGRAPHY
ARTICLES ON THE
INTERNET..........................................................................80
BOOKS.......................................................................................................................81
TABLE OF CASES
NIGERIA
●
Abdul
Kadir v Mamman (2003)FWLR (Part 170) 1353; (2003)14NWLR(Part 839)1
●
Adeleke
& ors v Oyo State House of Assembly & Others (2007)All FWLR(Part
345)211;(2007)All FWLR
(Part 353)3
●
Adisa
v Olayiwola (2006)6 SC(Part II)47
●
Anselem
Onejeme v Hon (Mrs)Euchari Azodo & Others(2005)All FWLR(Part 261)365
●
Aregbesola
& Others v Oyinlola & Others Reported in the Daily Champion ,2nd
November,2010,pg10
●
Attorney
General of Abia State and 35 Others v Attorney General of
Federation(2002)6NWLR(Part
763)264
●
Attorney
General of the Federation v All Nigerian
Peoples
Party(2003)15NWLR(Part844)600
●
Barrister
Vincent Osakwe v INEC & Others(2005)All FWLR(Part 261)325
●
Chukwu
v Icheonwo (1999)NWLR(Part 600)587,596
●
Dalhatu
v Turaki (2003)FWLR(Part 174)247;(2003)15NWLR(pt.843)310
●
Hon
P.C Onuoha v Chief R.B.K. Okafor & Others(1983)SCNLR244
●
INEC v
Musa [2003] 10 WRN 1 at 40-41 ;(2003) NELR PT. 806, 72
●
Mimiko v
Agagu Reported by the Court of Appeal in
CA/EPT/342A/08
●
Nwachukwu
v Eneogwe(1999)4NWLR(PART600)629
●
Ojukwu v
Onwudiwe(1984)1SCNLR247
●
Ogboru v
Uduaghan
●
Shodeinde
v The Registered Trustee of the Ahmadiya Movement in Islam(1980)1-2
SC 225
UNITED STATE OF AMERICA
●
Baker v
Carr 369US 186,82
●
Flast v
Cohen 392 US 83,88 Sct.. 1942 20 LED 2nd 947
●
Powell v
Mc Comark , 395 US 486 ,89 Sct (1944)L. ed. 2nd
491
●
Westberry
v Sanders 376 US 17
TABLE OF
STATUTE
NIGERIA
●
African Charter On Human and Peoples'
Rights(Ratification and Enforcement)Act.
Cap 10 Laws of the
Federation,2004
●
Constitution of the Federal Republic of Nigeria
(Promulgation) Decree No 24,1999
●
Electoral Act 1982. Cap 15,Laws of the
Federation 1990
●
Electoral Act 2010 ( As gazetted)
●
Electoral Reform Committee Report,Volume
One,2010
●
Local Government Elections Decree No.7 of 1997
●
Local Government (Basic Constitutional and
Transitional Provisions)Decree No.36 of
1998
●
National Assembly(Basic Constitutional and
Transitional Provisions)Decree No.5 of
1999
●
Presidential Election(Basic and Constitutional
and Transitional Provisions)Decree
No.6 of 1999.
●
State Government(Basic Constitutional and
Transitional Provisions)Decree No. 4 of
1999
●
State Government(Basic Constitutional and
Transitional Provision) Decree No 50 of
1991
●
Transition to Civil Rule(Political Programme)
Decree No.34 of 1998,Political
Parties(Registration
and Activities) Decree No.35 of 1999
●
Transition to Civil Rule (Political Parties
Registration and Activities) Decree of 1991
●
Transition to Civil Rule (Political Parties
Registration and Activities) Decree of 1991
TABLE OF
TREATIES
●
African Charter on Human and People's Right
LIST OF ABBREVIATIONS
●
AC Action Congress
●
All FWLR All Federation Weekly Law
Report
●
CJ Chief Judge
●
CJN Chief Judge of
Nigeria
●
EC8A Statement of Result
Forms
●
EC8B Summary of Result
Forms
●
FEDECO Federal Electoral
Commission
●
FWLR Federal Weekly Law
Report
●
FSC Federal Supreme
Law Report
●
INEC Independent National
Electoral Commission
●
IBID Ibidan
●
JCA Justice of the
Court of Appeal
●
JSC Justice of the
Supreme Court
●
LP Labour Party
●
NEC National Electoral
Commission
●
NBA National Bar
Association
●
NRC National Republican
Convention
●
NWLR Nigerian Weekly Law
Report
●
PCA President of the
Court of Appeal
●
PRP Peoples redemption
Party
●
PDP Peoples Democratic
Party
●
PW2 Prosecution Witness
(Second)
●
STARE DECISIS Stand by Past Decisions
●
SDP Social Democratic
Party
●
SC Supreme Court
Report
●
SCNLR Supreme Court if Nigeria
Law Report
●
SCNJ Supreme Court of
Nigeria Judgements
●
US United States
CHAPTER ONE
GENERAL INTRODUCTION
1..0.0:INTRODUCTION
Elections have become the most acceptable process of
changing leadership in any given political system in the present day. The Black’s
law dictionary defines election as the
process of selecting a person to occupy a position or office, usually a public
office.[1] Another definition is the one which
defines election as the act of selecting someone or something; the exercise of
deliberate choice.[2]Election
is the cornerstone of democracy and it is essentially a contest for the votes
of adult members of the society by aspirants to political office. It is worthy
of note however that the concept of elections is quite recent in the history of
man as it can be traced to the emergence of democratic government. Professor W.
Phillips in his book, power and choice; an introduction to political science
said:
'In the long swing of the history , elections with broad
mass participation are rather new. Such elections originated with democratic
government, which means that they came along at the end of the eighteenth
century and the beginning of the nineteenth. Today, elections are widespread
around the world, even though a number of world’s states are not democracies'[3]From
the foregoing , it is clear that elections and democracy are
intertwined ,it is therefore appropriate
to touch on democracy which can be defined as a form of representative
government based on the consent of the people. Jimmy carter, former president
of United States said
Democracy is like the experience of life itself-always
changing, infinite in its variety, sometimes turbulent and all the more
valuable for being tested[4]
The principal medium
for translating the people’s consent into government authority is the holding
of free and fair elections. However, history has shown that it is usually
difficult to hold free and fair elections, even the united states, which is the
model for other democracies was faulted in the year 2000, when the elections
that led to the victory of president bush was alleged to be marred by
irregularities in the state of Florida.
In Nwachukwu vs. Eneogwe;it was held that :
Once an election is found, substantially, not to be
free and electorate, either by violence or intimidation, has not been allowed
freely to cast their votes, the election where such has occurred, ought to, and
must be nullified and a fresh one conducted[5]
Nigeria has had its fair share of electoral disputes, the
presidential and governorship elections of 1999, 2003 and 2007 were reported to
be marred by irregularities in vote tabulation and reporting of results by both
foreign and local observers.
Electoral law is that branch of law that seeks to regulate
the electoral system which ranges from voters’ registration, political parties
registration to collation of results. According to Wikipedia, electoral law is
a branch of constitutional law which regulates the electoral process.
In this study, the
focus will be on Nigeria’s electoral law which has grown a lot from its pre
independence period. Nigeria is on the eve of another election which if
successful will mark its third uninterrupted transition of power since the last
military intervention in 1999. Premised on this, the importance of electoral
law in Nigeria cannot be over emphasised. The Nigerian electoral law can be
traced back to 1922, with the introduction of the ‘elective principle’ by the
then governor-general , Sir Hugh Clifford who in the constitution of 1922 which
was named after him made provisions for the election of four representatives to
represent the Lagos and Calabar region, however, only male adults were allowed
to vote. This ‘elective principle’ is very crucial in the discussion of
Nigerian electoral law because it gave room for the formation of political
parties which although not like the contemporary political parties, served its
purpose back then.[6]
The 1946 constitution by Sir Arthur Richard did not alter the ‘elective
principle’ of 1922, this position changed in 1951 when Sir Macpherson became
the governor-general, there were more electoral seats and the people were
better represented in the colonial government. The Nigerian electoral law and
system has since evolved as both legal and institutional framework are put in
place to regulate the system and targeted towards ensuring free and fair
elections.
1.1.0:BACKGROUND TO THE STUDY
Nigeria’s electoral development is closely tied to its
political experience. Pre-colonial and colonial era did not offer any notable
contribution in this regard. Nigeria is a nation of more than 300 ethnic groups
and each had a distinct system of operation before the arrival of the British
colonial masters through which security and welfare of tribesmen were
organized. It was clearly different from the colonial package of political
governance of the southern and northern protectorates which were amalgamated in
1914 to become what stands today as Nigeria.
Upon the amalgamation of the southern and northern
protectorates in 1914, Lord Lugard became the first governor-general of
Nigeria. The white colonial masters were in charge of all the arms of
government but from 1922 when Sir Hugh Clifford became the governorgeneral, an
elective principle was introduced whereby four out of forty-six member
legislative council made up of twenty-seven unofficial and nineteen official
members, this was significant because it was the first of its kind. The
elective principle expanded and developed all through the pre-independence
times with the various constitutional provisions that came after the Richard’s
Constitution .
After independence, Nigeria’s electoral system became more
expansive and sophisticated. Various institutions were established to guide and
regulate the electioneering process, alongside these institutions, various laws
were being promulgated to oversee the electoral process.
With a population of over 120million and many expatriate
communities across the globe, the largest economy in west Africa, and great
political importance in the region ,the African continent , and the global
stage, events which affect the future and stability of Nigeria affects the
entire world .Nigeria being a democratic
state especially since recent times, has to have elections from time to
time so as to decide who rules the affairs of the nation and who represents the
various ethnics in decision making from the local to the national level. The
success of the election to the outlined posts is important not just to the
citizens but also to the world in general.
Nigeria faces a major challenge when it
comes to holding of elections that are free and fair.
The most free and fair and peacefully conducted elections
were those in 1959, 1979, and 1993 and the most chaotic, violent and disputed
were those in 1964 and 1983. It is also noteworthy that Nigeria has had its
fair share of political instability as a result of military intervention at
different times in her political history at different times since her
independence in 1960.the 2007 election was not without its shortcomings too, in
fact, premised on the outcome of the 2007 elections and the reactions of the
candidates and citizens which sprung the agitation for a change in the
electoral law, the late president Umaru Yar’adua set up an electoral reform
committee. However, this is not the first time of such committee or panel at
different points in the Nigerian electoral history, various committees have
been formed to revise the regulating the electoral system.
From the days of the Clifford’s constitution’s elective
principle to the present day, legal and institutional framework has been put in
place to regulate the electoral process. Such institutions established include
NEC ,FEDECO and now we have INEC. The constitution also provides for election
tribunals that hear cases bordering on electoral disputes. On this groundwork,
one can say the Nigerian electoral system and electoral law has come a long way
notwithstanding the shortcomings.
1.2.0:OBJECTIVES OF THIS STUDY
The broad objective of this study is to appreciate
Nigeria’s political dynamism in relation to her electoral development with
special focus on the challenges of the electoral system and different
provisions made so as to solve existing problems and forestall future ones, the
lapses of such provisions made and suggestions on what can be done to rectify
such lapses.
1.3.0:FOCUS OF THE STUDY
In order to meet the broad objectives of this study , I
will focus on the following specific objectives:
• To
critically study the historical background of elections in Nigeria with a view
to understanding and appreciating the legal and constitutional framework put in
place to regulate the electoral process from past times to the present times.
• Highlight
the challenges facing the electoral system and the laws and suggest ways to
which the electoral laws and system can be more reliable than what we have
today.
1.4.0:SCOPE OF THE STUDY
This study covers from the colonial period from post
colonial period i.e. 1922 to the present day. The post colonial period is very
important in this study because 1922 marked the beginning of electoral process
with the introduction of elective principle by Sir Hugh Clifford. The study
will also cover the various electoral process ranging from voter’s registration
to party systems, this will be done with the view of making the research a
diligent one. The study will also talk about electoral disputes making use of
important cases which serve as major authorities in the present day electoral
law.
1.5.0:METHODOLOGY
The system of method followed in this study is the use of
secondary data such as resource materials from the internet, textbooks, law
journals, newspapers and law reports .
1.6.0:LITERATURE REVIEW
This sub-chapter reviews the books consulted in the course
of this study. One of such books consulted in the course of this study is 'Electoral Law and Practice in Nigeria' by
Aderemi Olatubora. The author discourses electoral law in Nigeria in the
light of past and present electoral statutes. The first chapter of the book
introduces the legal and institutional framework for elections. It considers
the function of state independent Electoral Commissions, the limits of the
powers of INEC to make bye-laws or Subsidiary Legislations. The chapter also
deals with important pre election matters and several other issues on which may
turn the much desired victory of a party to an election matter.
Chapter three of the book deals comprehensively with the
statutory and constitutional grounds of election through the cases. Here, the
learned author has been able to demonstrate clearly that, except the complaint
in an election petition is based on any of or a combination of the statutory
grounds of non qualification of a successful candidate, invalidity of election
as a result of corrupt practices or non compliance with provision of the
electoral act, unlawful exclusion of the petitioner from election and the
constitutional ground that the successful candidate has not been duly elected,
such a complaint will not qualify as an election petition properly so called.
Another book consulted in the course of this study is Laws
governing elections and election petitions by Nwakanma SAN, co authored with
Ngozi Elehi, this book touches on several election issues and the progression
of Nigerian Election Law.
Chapter eleven is devoted to the necessity of requesting
for further and better particulars by a party to an election petition where the
pleading of the opposing party is vague
and general in nature. The author, through the cases , demonstrates that
failure to give further and better particulars, when required and ordered ,
could deprive the party so required to furnish such better and further
particulars the opportunity to lead evidence in proof of such averments that
are general in nature with the drastic consequences that where the substance of
the petition is hinged on the impeached averments, the entire petition may be
declared incompetent. This position is amply demonstrated by the case of PRP v
INEC referred to.
In chapter twelve, the learned author highlights the
procedural necessity of consolidation of
election petitions brought by different persons and or entities against the
same election return. With high degree of clarity of thought and through the
cases, he gives some practical instances when the need for consolidation may
arise and concludes this chapter with some notes on the procedure for the
withdrawal of election petition. While the latter chapter focuses on the
parties in election petition,who can be a petitioner, who should be a
respondent, consequences of non-joinder of necessary parties and such other
topics relating with the way election petition proceeding is conducted in
relation to the parties involved.
On the whole the authors of this book through up to date
information assiduously assembled presents a reliable literature on electoral
law. They examine the qualifications for positions in Nigeria , the intricacies
of conduct of elections and electoral
offences in such depths that makes the understanding of electoral law in
Nigeria easy.
1.7.0:DEFINITION OF TERMS
With a view to having a better understanding of this study,
certain words have to be well defined, these words are words that will occur
from time to time in this study and are also of great importance in electoral
law. These words are as explained below;
Democracy:
democracy is a political form of government in which governing power is derived
from the people by consensus (consensus democracy), by direct referendum(direct
democracy) or by means of elected representative of the people(representative
democracy). Even though there is no specific, universally accepted definition
of 'democracy', equality and development have been identified as important
characteristics of democracy since ancient times.[7]
Abraham Lincoln defined democracy as 'the government of the people by the
people and for the people'[8].
Its origin can be traced to the Greek and then democracy meant rule by the
people. The majority rule is often
described as a characteristics feature of democracy, but without governmental
or constitutional protections of individual liberties, it is possible for a
minority of individuals to be oppressed by the tyranny of the majority. An
essential process in representative democracies is competitive elections that
are both substantially and procedurally.[9]
Another major concept that needs to
be defined is election, election is
a formal decisionmaking process by which a population chooses an individual to
hold public office. Elections
have been the usual mechanism by which representative
democracy operates since the 17th century . It has also been defined as an organised event
at which somebody is chosen by vote for something, especially a public office[10].
Election can also be defined as a procedure that allows members of an
organisation or community to chose representatives who will positions of
authority within it. The most important elections select the leaders of local,
state and national governments. The chance to decide who will govern t these
levels serves as an opportunity for the public to make choices about the
policies, programmes and future directions of government action. In
Nigeria,election is done/held periodically, earlier in history, Nigeria has
undergone some instabilities in her political settings, nevertheless, since
1999, election has been held at every four years interval .
Sections 132, 133, 134 of the 1999 Constitution of The Federal Republic of
Nigeria govern the election into the office of a president. In a truly
democratic state, the usefulness and importance of election cannot be
overemphasized.
The right to vote
is viewed by some as a more civil right dependent on law, while other
commentators see it as a fundamental political right. Boyer in his classic work
classified the right to vote as a fundamental political right as it produces
the most direct verdict by the citizens on performance of those who govern
them.11 In
West Berry v Sanders,12
the court testified to the fundamental character of the right to vote when it
said:
No right is more precious in a free country than that
of having a choice in the election of those who make the laws under which, as
good citizens, they must live. Other rights even the most basic are illusory if
the right to vote is undetermined.
The right to vote is generally perceived as inextricably
intertwined, with the concept of democracy . According to Venkatarangaiya: 'if
popular control of government through the mechanism of elections is the essence
of democracy, it follows that the control should be by all people and not by
any few of them . Unless it can be proved that those who are excluded are
either unfit or incompetent to exercise their vote... the basis of democracy is
the principle
11 Patrick Boyer, Political
Rights; The Legal Framework of Elections in Canada, 1981,n.p,121
12 376 US 17
of equality of all citizens and that to give the right to
vote to same and to deny it to others is in conflict with this principle and is
unjust'.[11]
The right to vote in Nigeria has a rather chequered history
. Universal adult suffrage became a reality in Nigeria in the 1979 elections
when women in the North were allowed to vote for the first time in elections.
Free and fair election is an election in which the
political system and processes guarantee that each voter will be allowed to
vote according to his conscience. A free and fair election will essentiality be
devoid of any form of thuggery, violence of any kind,oppression, intimidation,
impersonation and corrupt practices. Statistics show that the freest and the
fairest election in Nigeria was the annulled election of 1993.
Electoral dispute rises whenever a candidate in an
election complains about the fairness of such election. Election rigging is when an election is conducted in an untruthful
manner. Whenever electoral dispute arises, the parties involved are heard in election tribunals,this is as provided
for in section 285 of the constitution of Federal Republic of Nigeria,1999.
Electoral law has been defined as a
branch of constitutional law which regulates the electoral process. In order to
have free and fair elections, certain laws have to be put in place . Electoral
law seeks to regulate the electoral system, this system includes voter's
age,voter's registration, screening of candidates,political parties
registration, screening of
candidates,political parties' registration, overseeing
electoral activities to collation of results.
In Nigeria, we have the Electoral Act and also the
constitution as the chief authority in electoral matters.
1.8.0:CONCLUSION
Electoral law as a branch of law is very important.
Democracy, which is also representative government, is being practised by most
developed nations of the world, thereby, making it possible for the people of a
state to vote for a person that represents their interest. Election being the
tool through which democracy can be achieved is guided by electoral law which
is the focus of this study.
The development of electoral law in Nigeria will be
discussed in full details in the subsequent chapters of this study.
In discussing the electoral law, a careful look will be taken at its
lapses and growth interchangeably. This chapter introduces all that will be
discoursed in the course of this study.
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