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
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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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
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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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.
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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….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.
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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….. 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
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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.
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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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?
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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…..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
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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.
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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…. Meaning of ADRAre 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
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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.
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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….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
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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.
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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… 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
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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.
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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…. 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.
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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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?
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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….. Electoral SystemsAt 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
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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.
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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….. 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
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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.
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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….. RelevanceConstitutional 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
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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
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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…..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.
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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…..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.
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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…… 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.
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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… 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
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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.
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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….. 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.
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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…. 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
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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?
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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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
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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.
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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….. 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.