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The Relevance of Alternative Dispute Resolution in Electoral System

The Relevance of Alternative Dispute Resolution in Electoral System. By Prof Paul Obo Idornigie , PhD, FCIS, MCIArb NIALS. Abuja, Nigeria. A g e n d a. Introduction Meaning of ADR Contours of ADR The Electoral System The Relevance of ADR to the Electoral System

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The Relevance of Alternative Dispute Resolution in Electoral System

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  1. The Relevance of Alternative Dispute Resolution in Electoral System By Prof Paul Obo Idornigie, PhD, FCIS, MCIArb NIALS. Abuja, Nigeria

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

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

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

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

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

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

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

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

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

  11. …. Meaning of ADR • Are electoral disputes amenable to these processes? • Determine when to go to court and when to go out of court. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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

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

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

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

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

  17. …. 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 – SayyidSabiqFigh Al-Sunnah Vol. III p 409. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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

  19. ….. Electoral Systems • At any hearing in a Tribunal can the Tribunal encourage ADR? • Enforceability of Outcomes – arbitration or mediation/conciliation. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

  20. The Relevance of ADR to Electoral System • Pre- and post- Election Disputes. • Conduct of Primaries. • Nature of ADR – reinstatement of customary jurisprudence based on needs and interest of parties, communities. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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

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

  23. ….. Relevance • Constitutional amendment is required to make adoption of ADR a condition precedent to litigation of civil electoral disputes especially intraparty pre-election disputes. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

  24. Challenges Facing the Election Tribunals Constitutional – • 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, 3rdSch). • ss 221-229 Political Parties– constitution and roles; powers of NASS • S 197(1) – Each State to establish SIEC (Part II, 3rdSch) – Chairman & 7 Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

  25. …..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. • 6thSch – NASS and Governorship – not local government. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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

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

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

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

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

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

  32. ….. Challenges • Outcome of ADR Processes – enforceability. • Original and exclusive jurisdiction on Tribunals and Appeal Tribunal • Criminal sanctions and arbitrability. • Attitude of Election Tribunals – assume or deny jurisdiction or refer to ADR? Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

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

  34. …. Concluding Remarks • Courts (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. Being a Paper on ADR delivered at the Workshop/Training for Judges of Yobe State Local Govt Election Tribunal: 18-20 Dec 2013

  35. ….. 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. 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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