THE BURDEN OF PROOF OF NON-COMPLIANCE AND THE SUBSTANTIALITY RULE IN ELECTORAL CONTESTS IN NIGERIA AND THE USA

Abstract

A petitioner in an election petition has the burden of proof of non-compliance, but such non-compliance must also be shown to have substantially affected the result of the election. This burden of proof is very difficult to discharge as decided cases have shown. Electoral jurisprudence is often founded on the presumption of regularity of election results as declared by the electoral umpire, which implies that the law takes for granted that a credible election has been conducted. This tends to lend judicial validity to the view that challenging the outcome of an election through the legal process is an exercise in futility. The consequence of this undue judicial protection of the declared winner and the electoral umpire to the detriment of the petitioner is that legal justice has scarcely redressed electoral injustice. This rebuttable presumption of the regularity of elections and results no longer serves the ends of justice in our electoral process. The purpose of electoral laws is to obtain a correct expression of the intent of the voters. This paper seeks to show that the presumption of regularity and the application of the substantiality rule is herculean, unreasonable and unfair, and proposes a departure to a lower standard. It recommends reforms that enhance electoral justice by using video evidence to prove the signing of election results like form EC8A by party agents, automatic electronic transmission of results and a review of the substantiality rule so that proved cases of fundamental non-compliance should vitiate the results of the election.