The Relevance of Alternative Dispute Resolution in Electoral System

The Relevance of Alternative Dispute

Resolution in Electoral System

ByProf Paul Obo Idornigie,

PhD, FCIS, MCIArbNIALS. Abuja, Nigeria

Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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A g e n d a Introduction Meaning of ADR Contours of ADR The Electoral System The Relevance of ADR to the Electoral

System Challenges Facing the Election Tribunals Concluding Remarks


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IntroductionDiscourage Litigation. Persuade

your neighbours to compromise whenever you can. Point out to them how the nominal winner is often

the real loser – in fees, expenses, and waste of time –

Abraham Lincoln


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IntroductionUnlike wine, disputes do not improve

by aging. In traditional African societies, no

formal place called a court.Electoral Disputes – going to or out of

court.Electoral Law in the Concurrent List.


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….IntroductionMeaning of ADR?Changes our focus on how disputes

are categorized, analysed and processed.

What is wrong with the judicial process?

Transforms social, political and economic disputes into legal disputes.


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….. Introduction Rights and revenge are not the focus of

most disputes. Holy books support ADR processes:

Gen 18:16-33, Matt 5:9 and 18:15-17 and Holy Quoran 49:9.

How should election disputes be categorized, analyzed and processed?


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….. Introduction Can ADR be used for electoral disputes –

interparty and intraparty, pre- and post-election?

Vesting of original and exclusive jurisdiction on the Election Tribunals.

Thrust of the presentation is the relevance of ADR in Electoral System.


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Meaning of ADRRange of procedures or processes that

serve as alternatives or additional to litigation through the courts for the resolution of disputes, generally involving the intercession and assistance of a neutral and impartial third part?

Is Arbitration part of it?


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…..Meaning of ADR Analysis of the words ‘A’, ‘D’, ‘R’. Is concept African or foreign? ADR also describes processes which add

to and enhance the range of resources and mechanisms to settle disputes.

ADR like a confluence with many tributaries.


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….. Meaning of ADRProcesses include

mediation/conciliation, private judging, expert determination, early neutral evaluation, mini-trial, Ombudsman, med-arb and court-annexed arbitration.

Need to establish a nexus between a dispute and a process.


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…. Meaning of ADRAre electoral disputes amenable to

these processes?Determine when to go to court and

when to go out of court.


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Contours of ADRADR a confluence with many tributaries

– Arbitration, Conciliation/Mediation, Negotiation, etc.

Arbitration anchored on fundamental principles - party autonomy, arbitrability, separability, judicial non-intervention and competenz-competenz.


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….Contours Mediation/Conciliation – consensual Will members of APC on the one hand or

APC and PDP on the other agree to adopt any of these processes?

In other words are processes amenable to intraparty or interparty disputes?

Which disputes – before or after elections?


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….. Contours - Holy Bible – Genesis 18:16-33 – City of Sodom and Gomorrah The Holy Books support ADR. 50 righteous people in a city would you destroy

the whole city and not leave the 50 – will spare all for their sake.

What of 5 out 0f 50 that are righteous, I will not destroy them.

What of 40 or 30 or 20 or 10 are found to be righteous, I will not destroy the city for the sake of the righteous.


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… Contours - Matthew 18:15-17 – Peace with your brother If your brother offends you, go and tell him

without a third party and if he listens you have regained him.

If he fails to listen, take one or two persons so that in the mouth of 2 or 3 witnesses every word may be established.

If he neglects to listen, report to the church and if he neglects to listen to the church, let him be unto thee as an heathen man and a publican.


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…. Contours - Holy Quran 49:9 And if two parties or groups among the

believers fall to fighting, then make peace between them both.

But if one of them rebels against the other, then fight you all against the one that which rebels till it complies with command of Allah.

If he complies, then make reconciliation between them and be equitable.

Verily, Allah loves those who are equitable.


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…. Contours Matt: 5:9 Blessed are the peacemakers for they shall be

called the children of God – Sermon on the Mount.

Prophet Mohammed (SAW) said: compromise is lawful between the faithful except that which renders unlawful lawful or lawful unlawful – Sayyid Sabiq Figh Al-Sunnah Vol. III p 409.


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The Electoral SystemsThe Major Actors – INEC, State

Independent Electoral Commission, Political Parties, Courts and Local Government Election Tribunals.

Their Roles are constitutional and statutory

Any application of ADR processes?


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….. Electoral SystemsAt any hearing in a Tribunal can the

Tribunal encourage ADR?Enforceability of Outcomes – arbitration

or mediation/conciliation.


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The Relevance of ADR to Electoral SystemPre- and post- Election Disputes.Conduct of Primaries.Nature of ADR – reinstatement of

customary jurisprudence based on needs and interest of parties, communities.


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….. Relevance Social Cohesion and Equilibrium. Arbitration a hybrid – private and public

consequences. Is the electoral system based on

consensus or divergence? The electoral process has become a very

viable business – is it profit-oriented?


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…..Relevance If a business, is it commercial business? Is the system violent and acrimonious? Role of INEC/SIEC – direct parties to

provide for ADR in their Constitutions. Pre-action Notices to include ADR

provisions in the Constitutions of Political Parties – INEC to so direct.


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….. RelevanceConstitutional amendment is required

to make adoption of ADR a condition precedent to litigation of civil electoral disputes especially intraparty pre-election disputes.


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Challenges Facing the Election TribunalsConstitutional – S 7 – State to make Laws and 4th Sch. s 153 set up Federal Executive Bodies including

INEC with clear powers and mandate (Part I, 3rd Sch).

ss 221-229 Political Parties – constitution and roles; powers of NASS

S 197(1) – Each State to establish SIEC (Part II, 3rd Sch) – Chairman & 7


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…..Challenges S 285(1) Election Tribunals –

establishment and jurisdiction of Election Tribunals

3rd and 6th Schedule to the 1999 Constitution – SIEC and Election Tribunal respectively.

6th Sch – NASS and Governorship – not local government.


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…..ChallengesNationallyOther than the Constitution Statutory – Electoral Act – ss 1-7 Establishment and Functions of INEC. ss 78-102 – Political Parties – powers of INEC to

register political parties. ss 133- Determination of Election Petitions

arising from Elections – presidential, governorship, etc – not local government.


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…… ChallengesYobe State LevelYobe State Independent Electoral

Commission and Local Government Elections Law, 2003.

S 3(1) - Establishment of the Commission pursuant to section 197(1) of and 3rd Schedule to the Constitution.


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… Yobe State Level S 9 – Functions and Powers of SIEC. S 54(1) – Establishment of one or more

Local Government Election Tribunal appointed by the Judicial Service Commission.

S 54(2) -Tribunal to consist of a Chairman and two other members all of whom shall be persons of unquestionable integrity.


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…. Challenges S 54(1) - Local Government Election Tribunal

has exclusive and original jurisdiction over election petition – validly elected, tenure and whether petition is proper or improper

S 59 – Election Appeal Tribunal (Chairman and 4 others) appointed by the State Judicial Service Commission - hear and determine appeals from decisions of Election Tribunals.

S 62 - decision of Election Appeal Tribunal is FINAL, no court can supervise or review.


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….. ChallengesS 57(1) provides for grounds for

challenge:• Candidate not qualified or disqualified• Void by corrupt practices, irregularities

or offences• Respondent not duly elected by a

majority of the vote or lawful votes cast.


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…. Challenges• Petitioner validly nominated but

unlawfully excluded from the election. Institutional – powers of INEC/SINEC

and jurisdiction of the Tribunal.Powers of Political Parties - who wins

an election – the party or candidate?Concept of ‘consensus candidate’.


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….. ChallengesOutcome of ADR Processes –

enforceability.Original and exclusive jurisdiction on

Tribunals and Appeal TribunalCriminal sanctions and arbitrability.Attitude of Election Tribunals – assume

or deny jurisdiction or refer to ADR?


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Concluding Remarks Generally, disputes are bound to arise. In a democracy because of the need to

articulate and advance various interests – personal, religious, regional, cultural, disputes will necessarily arise.

The critical question is which is the best forum for the resolution of electoral disputes?


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…. Concluding RemarksCourts (including Tribunals) or ADR

processes?ADR – a range of processes that serve

as alternatives or additional – to what?National interest should take pre-

eminence over personal interest.


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….. Concluding Remarks Consider constitutional, statutory and

institutional challenges. Exclusive and original jurisdiction. NASS to exercise their powers under s228

CFRN and direct political parties to provide for ADR.

INEC to direct political parties to so provide. Thank you for your attention and God bless.

Documents

The Relevance of Alternative Dispute Resolution in Electoral System