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Enforcing the right to political participation

1

Can I Start A Claim?

For the purpose of bringing a claim in court, you, or someone whose rights are violated must have “title to sue”.

Title to sue operates to limit the categories of persons who may bring an action over a particular matter, to the effect that busy bodies do not unnecessarily approach the court freely.

  1. To start with, you must be able to show to the satisfaction of the court that your political rights and obligations have been or are about to be violated and the claim must disclose reasonable cause of action.
  2. As an alternative, human rights advocates and Non-governmental organizations may bring a claim on behalf of an aggrieved person where it is necessarily required.
2

Who Do I Bring A Claim Against?

Meaning of Defendant: According to the Administration of Criminal Justice Act, 2015, a defendant is defined: any person against whom a complaint, charge or information is made.

In other words, it is a person who is asked to put upon his defence by answering the complaint against him either it is civil or criminal. It is important noting that this term is referred to as “Respondent” at an appellate court i.e., Court of Appeal and Supreme Court of Appeal.

Where a citizen’s political rights are abused, the person(s) whose actions directly or indirectly resulted to such abuse can be taken against to court will be the defendant.

Generally, it is only natural persons, that is to say, human beings and juristic or artificial persons such as bodies corporate that are competent to be taken against before any court. For instance, the law requires that an electoral body (Independent National Electoral Commission) be made a party while challenging the outcome of elections in Nigeria.

3

Which Court Can I Go to Enforce My Right to Political Participation?

Generally speaking, to correct the wrongs or seek redress for human right violations (right to political participation inclusive), it is advisable to approach any High Courts because it is the court empowered by law to entertain such matters.

Thus, in the case of Surveyor General F Cross River State V. Jonathan (2014) LPELR – 23380 (CA), the court held that where the main claim of an applicant is anchored on a breach or threatened breach of his fundamental right, the High Court has the jurisdiction to entertain and determine the application.

The High Courts are established by Section 249 – Federal High Court; 254A (1) – The National Industrial Court; the High Court of the Federal Capital Territory – Section 255 (1); and the High Court of a state – Section 270 (1). These Courts enjoy unlimited jurisdiction subject only to the provisions of Section 251 of the Constitution of Federal Republic of Nigeria 1999 (As altered) and any other provision thereof and in addition to such other jurisdiction as many be conferred upon them by law. This definition was given in the case of EFCC v. REINL (2020) LPELR-49387(SC).

However, if you are challenging the outcome of elections, you are required to approach these courts as follows:

  1. In the case of Presidential election (President and Vice president), the court of Appeal established in section 239 of the Constitution of Federal Republic of Nigeria 1999 is the appropriate court that is empowered to entertain the petition.  However, if the decision is not in your favour, you can then approach the Supreme Court of Nigeria. Note that the decision of the Supreme Court of Nigeria is final. As such, you cannot challenge it in any other Court or Tribunal.
  2.  In the case of National Assembly elections (Senatorial seats and House of Representatives), the National Assembly Election Tribunal established in section 285 subsections 1 of the Constitution of Federal Republic of Nigeria (First Alteration) Act, 2010 is the appropriate court empowered to entertain the petition. However, you are entitled to approach the Court of Appeal. Thus, the decision of the Court of Appeal for electoral matters relating to National Assembly seats cannot be challenged anymore. You cannot approach any other Court or Tribunal.
  3. In the case of Governorship elections (Governor and Deputy Governor), the Governorship Election Tribunal established in section 285 subsection 2 of the Constitution of Federal Republic of Nigeria (Second Alteration) Act, 2010 is the appropriate court empowered to entertain the petition. However, if the decision is not in your favour, you can still approach the Court of Appeal and up to the Supreme Court of Nigeria. Note that the decision of the Supreme Court of Nigeria is final. You cannot approach any other Court or Tribunal.
  4. In the case of State House of Assembly elections, the State House of Assembly Election Tribunals established in section 285 subsections 1 of the Constitution of Federal Republic of Nigeria (First Alteration) Act, 2010 is the appropriate court empowered to entertain the petition. However, you are allowed to approach the Court of Appeal. Note that the decision of Court of Appeal with respect to such cases cannot be questioned. i.e., You cannot approach any other Court or Tribunal.
  5. In the case of the Chairmanship (Chairman and Vice chairman) or Councillorship elections held in Abuja, the Area Council of Election Tribunal, Federal Capital Territory, Abuja established in section 135 of Electoral (amendment) Act, 2010 is the appropriate court empowered to entertain the petition. However, if the decision is not in your favour, then you have the right to approach the Area Council of Election Appeal Tribunal, Federal Capital Territory, Abuja established in section 136 of Electoral (amendment) Act, 2010. Note importantly that the decision in this Tribunal is final with respect to such cases. i.e., You cannot approach any other Court or Tribunal. Note also that this applies to other Local governments in every state of Nigeria.
4

Making an Election Petition

What Is Election Petition and How Does It Operate Here?

This simply refers to a written application which sets out the claims of an aggrieved person challenging the outcome and conduct of an election and other related matters. It is usually the way of commencing an action in a Court or Tribunal.

Who Can Present Election Petition?

These are the persons who can present election petition when the need arises at the conclusion of an election.

  • A candidate that participates in the election.
  • A political party which participated in the election.

It is worth noting that the person who brings the claims to Court or Tribunal after the conduct of an election is mostly referred to as “Petitioner”.

Who Can I bring Election Petition Against?

  • A person whose election is complained of after his declaration as the winner by the Independent National Electoral Commission.
  • The Independent National Electoral Commission who conducted the election.

The two parties above are called “Respondents” when there is a formal election petition against them in Court or Tribunal. The Independent National Electoral Commission is an artificial person; that is, a body can bring legally clothed with the capacity to maintain claims against anyone and any other institution (which may be political party) on the one hand and also capacity to defend any claim brought against it, on the other hand.

What Must an Election Petition Contain?

Here is the format a proper election petition should follow:

  • The parties interested in the election should be specified.
  • The petitioner must state his right in presenting the election petition.
  • The petitioner needs to clearly state the fact of the election petition.
  • The petitioner must include basis upon which the election petition is based.
  • The petitioner needs to state his requests from the Court or Tribunal. For instance, that the petitioner be declared validly elected or returned as the winner of the election.
  • The petitioner must sign the election petition at the foot of the petition. However, if he has secured the service of a legal practitioner, the petition must be signed by the legal practitioner on his behalf.

What Are the Grounds on Which My Claims Can Rest in Election Matters?

The petitioner can only bring forward an election petition as it relates to these issues listed as follows:

  • That the candidate declared to be the winner of an election is not qualified to contest.
  • That the candidate did not have majority of lawful votes cast at the elections.
  • That the election was marred by corrupt practices or non-compliance with the provisions of the Electoral Act.
  • That the petitioner or its candidate was unlawfully excluded from the election even when he was lawfully nominated.
  • That the person whose election is questioned has submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.

However, the appropriate court to approach when the abuse of right occurs depends on the statement of claims and circumstances of the case.

5

How Do I Start A Claim in The Court?

There are two options available to you or someone whose political rights have been or are about to be abused. These are as follow:

1. You can bring an action by way of an “originating summons” seeking a declaration for the enforcement of your constitutional rights which have been abused by any actions of the government agencies; of any law that you are prevented, or a condition was given to you before exercising your political rights which was not provided by the 1999 Constitution.

Note: Originating summons as earlier mentioned simply refers to a type of application that is used to commence action in court where it is clear that the claim has to do with the explanation of provision of law such as the 1999 Constitution, documents, and other laws).

2. Also, the other option available to you is by bringing an action for the enforcement of fundamental human rights going by the provisions of Order 1 Rule IV of the Fundamental Rights Enforcement Procedural Rules 2009, which states that any of the rights stipulated in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act is also a right which can be brought under the rules.

One of such rights is right to choose or participate freely in the government of his country through chosen representatives. Therefore, when abused, Order XI of the Rules provides that in entertaining of any application, under these Rules, the Court may make such orders, issue such application, and give such directions as it may consider appropriate to do so for the purpose of enforcing the enforcement of any of the Fundamental Rights provided for in the 1999 Constitution or African Charter on Human and People’s Rights (Ratification and Enforcement) Act to which you may be entitled.

In summary, you are expected to follow these steps for your claim(s) to be properly established in court. These are: Filing an application which contains the appropriate names of the parties; the relevant fact of the event, the statement of claims, and proceed in gathering of evidence to support the claim(s) in court.

 

6

What Evidence Is Helpful to Prove the Violation to These Rights?

There are categories of evidence that could be used to support your claim(s) depending on the nature of the claim(s) brought to court for settlement.  In particular, the claim for violation to political rights could be proved with any of these kinds of evidence stated as follows:

  • Oral evidence.
  • Documentary evidence which includes electronic evidence.
  • Affidavit evidence, and
  • Real evidence.

Hence, it is important to note that any of these evidence needs to be relevant to the statement of claim(s) as regards the violation of the rights and must not be too far from the event that led to the claim(s) before the court could consider its truthfulness and admit them while deciding. As regards calling of witnesses, most often, this is always occurring in court where certain evidence would have to be brought forward by the witnesses or you.

How Do I Gather the Evidence?

Proper documentation of the events that led to the violation of the rights is very crucial at the moment when it occurs for proper reference when required to substantiate your claim in court.

This part discusses how to source for evidence that would be used to properly establish claim(s) in court. Thus, before starting on this, there are certain elements of the violation on your political rights that you need to be well familiar with. They are as follows:

  • You need to be sure that the claim(s) you intend to establish in court falls under the categories of claims a court could entertain and settle.
  • You need to ascertain whether the rights in question have been abused or about to be abused as contained in Nigerian law.

More so, among other things in your application, you are required to show certain events or circumstances that could show the abuse of rights.

Here are things you need to consider while doing this:

  • Get the documents safely which includes books, recording tape, photographs and information gotten from the electronic device exposing the abuse on your rights.
  • You should be quick in making your original story as it is. It is advisable that you do not add any unnecessary things to the story while making statement of claim.
  • Also, you are to make a quick research of members of the society that were present at the place when the abused happened to urge them to write statements and do well to come to the court proceeding as witnesses.
  • Try to approach any Non-Governmental Organization working on related issues within your area for proper information that would help in making and establishing your claims in court.
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