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FRAMEWORK FOR POLITICAL ADR

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THE CASE FOR ADR IN POLITICAL & ELECTION DISPUTES.

Background:

Disputes and differences are inevitable features of relationships in every sphere of life. In a number of unremarkable events they are resolved by parties themselves through negotiations. But when they persist in a non-constructive direction, yielding to no creative and acceptable resolution, the inevitable outcome is conflict.

The consequence flowing from such conflict for all concerned is never desirable. If it is business, a deal may be lost and opportunity for a future one may as well be forfeited. In family life, a once thriving loving relationship may be severed in a bitter battle to assert right or extract revenge. In politics, contestation for power becomes a zero sum game.

A voluminous surge has been witnessed in political and electoral disputes since 1999 when Nigeria returned to constitutional governance. Many thanks to expanded political space. Litigation solutions have proven critically ineffective. Instance the recent landmark judgment of the Supreme Court on Ladoja's case; yet the conflict has not abated. It is feared that fresh moves for the Governors' impeachment are being incubated as we write.

It is thus understandable that the dominant issues on which the Nigerian political class articulate divided opinions and positions have remained largely the same, having not previously been resolved amicably. We may list true federalism , resource control, state police, intra party conflicts , free and fair elections; and lately, controversial impeachments of executive leading to tense litigiousness and constant threat of instability.

Drawbacks of litigating political disputes :

Granted that adversarial adjudication is the conventional first choice, its indulgence of the disputants' consuming desire for victory over their adversary is most unsettling of the polity. Even the victorious party infrequently discovers that the price paid for judicial redress was not worth the trouble from the outset ..

Cost, delay, risks , emotional frustration, breach of confidentiality and lack of genuine solution to the underlying issue are only a few of the unintended consequences of adjudication. Worse still a disinterested third party pronounces a decision which bind the disputants as the term for settling their dispute.

The inadequacy of adjudicating every manner of disputes on evaluative technical merit basis led to search for alternatives. Businessmen who value time, money and sustained relationships pioneered the quest . They reckoned that ego-tripping adversarial success often failed to add to their bottom-line. Thus it was that the earliest modern day initiatives to forge alternative dispute resolution processes were credited to chambers of commerce and other business support institutions. Men of commerce have since the early 20th century innovated contemporary arbitration, conciliation, mediation and other forms of ADRs in response to the dynamics of an ever evolving business arena . See ICC and LCIA. This is equally true of Nigeria, particularly with regards to arbitration and conciliation. See Arbitration and Conciliation Act.

As for mediation, Nigeria has no law providing for mediation in general as an ADR option. However, certain legislations incorporated quasi mediation for settlement of specifically regulated transactions. See S.29 of Environmental Impact Assessment Act Cap.E12 LFN 2004; Section 76 of The Nigeria Communications Act No. 19 of 2003 and subsidiary legislation thereunder. In family law, we have provision for conciliation under Section 11 of the Matrimonial Causes Act Cap. M7 LFN 2004. There are also court annexed ADR processes superintended by non-for profit groups like NCMG in the Lagos and Abuja High Court jurisdictions.

While all these initiatives focus on fast tracking resolution of commercial and apolitical disputes, no such efforts are directed at introducing ADR into the settlement of political and electoral disputes in a structured, organized and ethics guided manner or at all. Hence every political and electoral dispute is submitted to court for adjudication with the attendant politicization of the bench.

Applying ADR to political disputes :

A striking parallel will be observed in the peculiarities that underpin commercial and political disputes. Hence the imperative of incorporating ADR options into settlement of electoral and political disputes. ADR is just as essential to effective settlement of business disputes as it is compelling in most political disputes within the Nigerian context.

(1) Time is of essence in election disputes - the offices being contested guarantee only a fixed tenure - at most four years . see BUHARI v OBASANJO (2003) Pt 850, where Supreme Court declined injunction to restrain swearing in of president-elect pending disposal of election petition against his return.

(2) Intra party disputes are generally non justifiable. Courts, except in the rarest of cases , do not pronounce opinion on political questions holding that such are best left for the non-adjudicatory arms of government. Little wonder then, that lacking genuine alternative outside courts, political disputants prefer to resolve such disputes through self help, assassinations etc .

(3) Furthermore, in the business of politics in Nigeria stakes and risks are always as high as , if not higher than, in ordinary commercial competition. Invariably disputing politicians would be more comfortable if given the ADR option being assured of hedging their risks, saving faces and crafting solutions by themselves or through mediators who need their consent to propose settlement terms acceptable to them. Moreover , just as in business, it is said that in politics there are no permanent friends but permanent interest.

(4) Interest based settlement as opposed to positional or right based bargaining is the magic formula which gives ADR superiority over litigation. Accordingly, win-win solution is never going to be a problem if parties voluntarily engage trained minds to facilitate resolution of their disputes in a creative and result oriented manner that the disputants can control.

Witness the recent declaration of alleged vacancy in the office of Vice President on ground of decampment from party and the incumbent's disqualification by the Independent Electoral Commission for alleged indictment by a panel of inquiry. The Federal Government, INEC and the Vice President are now locked in a labyrinth of trial and appellate litigations to resolve the disputes; yet the D-day for election advances without a clear resolution in sight . Couldn't such have been submitted to mediation in the first instance, since the parties seem interested in a genuine resolution?

We can contrast the present scenario to the presidential election of 1999 which was mediated post- judgment to obviate an appeal against trial court's decision. Because the mediation process was not structured or formalized it did not appeal to disputants after the 2003 presidential election which was contested up to the Supreme Court. By September, 2006 when the last of the appeals was disposed of, 13 appeals had been argued in the Supreme court over the election which was nonetheless upheld . The only victory for the petitioner was that the apex court acknowledged the industry of the counsel (not the parties) in ably arguing the cases.

It is striking that mediation of dispute arising from the 1999 presidential election ( even after trial court's judgment) saw the opposition parties picking some portfolio in government, whereas in 2003 it was a winner-takes-all when ADR was not explored.

(5) There is an undeniable relational linkage between political stability and economic prosperity - one cannot long prosper in spite of stagnation in the other. The indices must therefore be in harmony, and ADR as an antidote to constraints can be beneficially shared .

Incorporating ADR into Election Petition:

While this paper does not minimise the benefit of election petitions, Election Tribunal annexed ADR facility would help narrow the issues to be contested , the cost, the time ; and help mitigate the customary bitterness that attends emotion charged litigation like election petition. The facilities for discovery and inspection before presentation of petition regarding electoral material and election documents could be usefully employed to conduct early neutral evaluation of the grounds of petition and facts relied upon for and against, thereby reducing the burden on the court at the trial.

Introducing ADR into settlement of election and political disputes resolution will doubtless entail details as to practice and procedure which only experts in ADR practice are best suited to generate. A general outline of how we proceed is however attempted hereunder.

Conciliation, Mediation & Arbitration Options :

While classical mediation may be suited to settling ordinary political disputes, the option appropriate to election disputes will have to be a hybrid of conciliation and mediation that is court annexed. In the latter procedure the neutral third party should be fairly well informed in election matters to be able to facilitate settlement in a manner that the court can endorsed as consistent with the applicable law. It being noted that the constitution and the Electoral Act vest exclusive jurisdiction in the Court on election disputes. An amicable settlement which does not meet the dictates of the Electoral Act may thus be incapable of enforcement as term of settlement. See generally sections 144-148 of the Electoral Act, 2006.

In the light of the content, process and desired outcome of ADR in this area it is key to recognize that both conciliation and mediation processes are non determinative and they have many features in common. It has been suggested that the main difference lies in the fact that " conciliators have some degree of expert knowledge of the content in the area that they are conciliating. A conciliator can make suggestions for settlement terms and can also give advice on the subject matter which makes conciliation more of an advisory service. The conciliator can use their role to actively encourage the parties to come to a resolution but the conciliator is in no way determinative. In some types of conciliations the conciliator has a responsibility to provide legal information so that any agreement made can fit into the statutory framework that is required in the area that is subject to the conciliation. Mediation is purely facilitative whereas conciliation is a mixture of an advisory dispute resolution service and facilitation. The term mediation is used where the practitioner has no advisory role...... Both mediation and conciliation identify the disputed issues and use options to endeavour to reach an agreement. They are both relatively flexible processes and the outcome will depend on the parties themselves reaching agreement. See Boulle, L. (2005). Mediation: Principles Processes Practices. Lexis Nexis Butterworths. p 348 . Excerpted from Wikipedia

Conclusion :

In conclusion , while ADR promises speed, affordability and more satisfactory outcome than litigation, there is no guarantee of these benefits unless parties exhibit " willingness to engage and cooperate in the ADR process". The much advertised assurance of expedited turnaround time for disposal is susceptible to disruption where good faith and expertise of neutrals are in deficit.

Even with the admitted constraints , an average political or election dispute could be disposed of , before the expiry of the one month allowed petitioners to present their petition at a tribunal. An election petition must be filed within one month of declaration of result. See section 141 of Electoral Act, 2006 . That is time enough for parties to still proceed with filing their petition in the appropriate court or tribunal if ADR does not culminate in settlement.

It is thus suggested that the Electoral Act be amended to suspend operation of the 30 day rule or grant limited extension of time for presenting petition after failure of ADR as an added appeal to give the option a try.

Pre-election political disputes may however more conveniently be resolved by simple mediation that is not court annexed. This has relevance for litigations contemplated under sections 32(1) and 79 of the Electoral Act at the State and Federal High Courts.

One attractive route to statutorily achieving the canvassed objective is to incorporate ADR option into intra party , pre-election and post election dispute resolution mechanisms. In the first two , powers could be vested in Independent National Electoral Commission, to initiate the procedure (as was done for Nigerian Communications Commission in respect of telecommunications Disputes under the Communications Act of 2003 (supra). Federal Election Commission in the USA has such facility.

In non-election related political disputes the power to regulate mediation practice should be vested in the Federal and State High Courts, while in respect of Election petition-annexed ADR, such powers could be vested in the President of the Court of Appeal by virtue of section 285 and the 6th Schedule to the 1999 Constitution.

The effect of embracing this ADR centered reform will be phenomenally transformative our political landscape . It will equally engender marked reduction of case load upon the judiciary during the impending electioneering of 2007 and beyond. We may thus avoid the "spectacle of cases that drag on for several decades through the court systems (violating) fairness , the Constitution and due process..." as movingly lamented by Prof Chidi Anselm Odinkalu , one of Nigeria's finest jurisprudential minds in Thisday Law of Tuesday January 9th 2007.


A.J. Owonikoko Esq.,ACIArb (Nig.)
10th January, 2007.

pp: Synergy Attorneys. (Legal Practitioners )
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Phone: 234-1-4709338 ; Fax; 234-1-4712938
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