Monday, December 15, 2008

Verdict Of ‘Substantial Compliance’

THE Supreme Court’s 4-3 verdict that upheld the 2007 election of President Umaru Musa Yar’Adua confirmed earlier positions that the election lacked credibility. The controversy would remain.
Most of the dissenting views were about the serialisation of the ballot papers for the polls. Some think that it was a mute point that INEC did not serialise the ballot papers, or at least some of them. The dissenting judges however think that without a proper control on the ballot papers, it was doubtful how many they were, and how they were used.

Section 45 (1) makes the serialisation of the ballot paper mandatory. INEC did not comply with this. The Electoral Act does not make a provision for a waiver of this provision. Non-compliance with the provision should have been a substantial reason to order another election.

This major defect did not stop the majority of the judges from upholding the Court of Appeal’s earlier verdict that the election complied “substantially with the provisions of the Electoral Act”. The issue of “substantial compliance” remains a major flaw of the Electoral Act.

An Electoral Act that effusively lists conditions candidates must meet to contest elections, or even in filing their election petitions, should have been specific about “substantial compliance”. Leaving “substantial compliance” to the interpretation of courts makes room for more opinion than justice.

What was the intention of the law in asking for “substantial compliance”? Which provisions of the Electoral Act are less important and could be infringed without compromising the elections?

The sad thing about the Supreme Court verdict was that it tended to punish the appellants for the obvious defects of the Electoral Act. The essence of the Electoral Act is to guide INEC and contestants to elections that are credible. Where there are complaints, the provisions of the Act also provide guides for resolving them at the tribunals and the appeal processes.

“Substantial compliance” is an ambiguity that deserves excision from the Electoral Act. Other sections of the Act should be amended to ensure that only those who have no cases pending against them assume office.

There is always the great urge to move Nigeria forward with all the flaws the system amasses against its democratic growth. Many would see this verdict as meant to sustain democracy – again that is controversial.

In 2009, the 2007 elections would remain an issue. Some of the cases are still at the tribunals. The Court of Appeal is yet to make pronouncements on others.

Little has been said about the validity of results, where the victory of a governorship candidate, if of the Peoples Democratic Party, PDP, was the logic for the President sweeping the polls in that State. In Edo State , for instance, could the Court of Appeal upturning of the governorship election, held on the same day as the presidential, deny the presidential election in the State “substantial compliance”?

Nigerians have to live with a government the Supreme Court confirmed got into office after “substantial compliance” with the Electoral Act.