I don't know what they expect judges to do when petitioners woefully fail to bring before judges evidence that judges hearing election petitions would rely on to overturn results declared by INEC in favour of the winners whom they are challenging in the tribunal.
I started doing election cases way back in 1999 when the country returned to democratic civil rule after a long spell of military dictatorship.
I have since then appeared as counsel in two presidential election petition cases (Buhari vs. Yaradua (2008), and CPC vs. President Goodluck Jonathan (2011).
I also counselled in several governorship election petitions including Comrade Adams Oshiomhole v. Professor Osunbor and Onyema Ugochukwu.
In 2007, I was the counsel to the Petitioners in Dr Paul Ukpo and five others versus Senator Liyel Imoke.
I have also handled several National and State Assemblies election petitions in Akwa Ibom and Cross River States since 1999 till now.
Therefore I have first-time practical experience with what election petitions are and even the attitude of the judges.
I tell you election litigation is difficult, tedious, stressful and challenging to the Petitioners, Respondents, Judges and legal practitioners alike.
The first challenge for the petitioner is assembling and gathering evidence from the numerous polling units where the election takes place.
It is usually difficult because some of the polling agents appointed by the political parties to be watchdogs are more often than not nonchalant, ill-prepared,ill-trained and compromised to enable them to gather evidence they can submit to their political parties to use to prepare petitions in cases where there is non-compliance.
The petitioner has 21 days after the day of the declaration of the result to challenge it to file his petition.
This is usually inadequate to enable someone who contested a presidential or governorship election to prepare his papers for filing.
Nigeria has 176,974 polling units across the country.
If a petitioner wants to challenge a presidential election for non-compliance he has to call a witness from each of these 176,974 polling units across the country.
Is it possible for a petitioner to call 176,974 witnesses or to prove his case when the Tribunal is given just 180 days to hear a petition and deliver judgment?
Also, there are 8,000 electoral wards in the country,776 local governments 36 States and the Federal Capital Territory, Abuja.
A petitioner who wants to complain about the collation of results from the Polling Unit to the Ward to the Local government area collation centre to the State collation centre in presidential election litigation must also call witnesses in all these collation centres.
The same procedure applies to the governorship election.
Almost all the States of the federation have not less than 3,000 polling units.
It is a nightmare for lawyers to sit down and gather, and scrutinise reports from these polling units and craft a petition to file within days.
The Rules of Election Petition require the petitioner to frontload the evidence he wants to present before the election tribunal.
In other words at the time of the filing of the petition, the petitioner must file statements on oath of all the witnesses he intends to call.
Any evidence not filed at the time of filing of the petition is inadmissible and cannot be used no matter how weighty it is.
The Rules of Election litigation are extremely technical and peculiar unlike in ordinary litigation where the rules are lax and not strictly enforced.
Any infraction of the Rules of an election petition by the petitioner is fatal to his case.
The election tribunal is given 180 days from the day of the filing of the petition to hear and determine it.
The law that regulates election petitions is also a challenge.
The burden of proof is on the petitioner not on INEC or the person whom a petitioner has been filed against.
Also, the law presumes that an election result is correct unless the contrary is proved.
In all these what do we expect judges to do?
If the petitioner fails to prepare an iron cast with credible and overwhelming evidence to cause the judge to overturn the result of the election who should take the blame?
The law also says that a judge hearing an election petition should exercise his discretion and allow the result to stand if in his opinion the election was conducted in substantial compliance with the provisions of the Electoral Law.
The legislature or the lawmaker appreciates the fact that elections are conducted by INEC using human beings who are fallible and prone to human frailties and shortcomings that would likely on election probably not follow the rules to the letter because of one reason or the other.
Therefore if mistakes omissions or breaches of these election guidelines and regulations made by those entrusted with the conduct are isolated and cannot affect the outcome of the election in a way to subverts the will of the people that election must stand.
Finally, the principles of law evolving from election litigations laid down as precedence from say 1979 to the present have not changed.
Judges are conservative by orientation and judicial activism is not encouraged under common law system except perhaps at the Supreme Court level.
Even then the Supreme Court is not only a court of law,but also of public policy.
It is very difficult and even smacks of radicalism and discipline for judges down the judicial ladder to depart and disregard precedents laid down by superior courts in the judicial hierarchy no matter what.
I therefore submit that if Nigerians want to see a different trajectory in election litigation the law must change.
It is not the judges that will change the law.
The work of the judges is to interpret the law as it is.
Judges are forbidden to interpret the law as it ought to be.
It is the National Assembly that has the power to fundamentally alter or change our electoral law.
Till then, our hardworking and overworked judges should be spared.
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