Asking INEC to assume an unconstitutional responsibility of proving the propriety or not of a petitioner’s grouse against an election conducted by the same INEC will amount to an abuse of the Law of Evidence.
It is not surprising that the bill before the senate seeking that the onus of proof in election petitions be shifted to the Independent National Electoral Commission (INEC) has met with large displeasure and disapproval from sizeable number of senators as well as the members of the public. The bill, which is sponsored by Senator Hadi Sirika, has scaled the second reading. According to the senator, “ whereas the law of evidence vests the onus of proof on the petitioner, the bill seeks to reverse the trend by its search to incorporate it into the Electoral Act.” It is this deliberate move to infringe on the extant Law of Evidence and the subsisting Evidence Act, which has rightly caused the necessary uproar and disdain that has trailed the bill. This Newspaper feels that the bill lacks merit and should be thrown out by the senate especially as it seeks to infringe on the existing Law of Evidence.
It is instructive that Senator Sirika even expresses awareness that the Law of Evidence established that the onus of proof resides with the petitioner in every issue. We feel that until there are formal constitutional amendments that will repeal the existing Law of Evidence and the subsisting Evidence Act, it will amount to a waste of time and resources by the senate to continue considering that bill. That is why we are worried that such a contradictory bill has successfully scaled the second reading. The Evidence Act 2011 is very clear in its stipulations concerning onus of proof. As contained in the Act, the onus of proof is vested upon the petitioner. To that extent we are of the view that the Evidence Act should be upheld.
The sponsor of the bill argued its purpose further thus, “ It will shorten litigation time, make INEC live up to its responsibility and promote transparency.” But he did not explain how these could work. We feel that due process of the law must not be subverted on the exigency of time. Asking INEC to assume an unconstitutional responsibility of proving the propriety or not of a petitioner’s grouse against an election conducted by the same INEC will amount to an abuse of the Law of Evidence. Rather than seek a new law that shifts onus of proof to INEC, the senate should compel INEC to readily cooperate with both the petitioner and the tribunal in every election petition by promptly providing all relevant evidence that will help in adjudicating the petition urgently and forthrightly.
We feel the onus of proof is not the problem but the bottlenecks in legal processes as well as the delays by the INEC in providing required evidence at election courts. Only recently, the Electoral Act was amended to direct that litigations over electoral results must not go for more than 90 days. We feel much of the fears for election petitions such as Senator Sirika expresses will be allayed if INEC, the judiciary and concerned stakeholders adhere to the stipulations of the Electoral Act and the Evidence Act.
The judiciary and INEC, going by the Electoral Act, already have their hands full. Adding the shifting of onus of proof on INEC will definitely amount to one too many. However, we call upon INEC to prepare better than ever to conduct a good election while making itself available to promptly provide required evidence at election courts to enhance smooth dispensation of justice. This will be more beneficial than the plan to subvert the Law of Evidence through shifting onus of proof.
