There are some issues, which a public commentator would need cogent explanation as to why he cannot comment upon them. Over such issues, the virtue of silence becomes a candidate for ridicule, scorn and sometimes suspicion and one is forced to mutter some words even if incoherently just to save his face. This is the dilemma upon which I found myself after the declaration of the Petition Election Tribunal (I will be referring to this as PET in this article) last week, that the April, 2007 Presidential Election validly elected Yar’Adua and Goodluck Jonathan to the presidency and that the two petitioners crying wolf (where there is none?) should ‘go-and- sit down’.

It appears the appeal sometimes last year by President Yar Adua that the judiciary should beware of public opinion in the discharge of their duties have paid off at last with this ruling of the PET which dismissed the consolidated petitions of Buhari and Atiku against overwhelming public opinion, including that of international observers that the election was fundamentally flawed. Had the tribunal based their judgement on public opinion, this election would have been annulled and by now the President would have issued a statement accepting the verdict of the Tribunal and by that foreclosing an appeal against the ruling. The machinery would have also been set in motion to swear-in an acting president in the person of David Mark, the embattled Senate President who is also sitting on an illegal mandate.

This was however not to be as the PET surprised the whole world when it ruled that the petitions brought before it lacked merit. The Tribunal hinged its ruling on the ‘inability’ of the petitioners to prove that there was substantial non-compliance with the Electoral Act 2006 as alleged. While it is accepted by all that the petitioners needed to prove their allegations beyond reasonable doubt, before their petitions could be upheld, it is important to also comprehend what manner of proof the tribunal was looking out for, and what constitutes ‘reasonable doubt’ in the context of the PET ruling?  While nobody has the right to contend with the submission that provisions of Section 146 (1) of the Electoral Act had predicated the conduct of the elections on substantial compliance to the said Electoral Act and not a total compliance, one would require the Tribunal to define what constitutes ‘substantial non-compliance’ with the Electoral Act.

Take the argument that the petitioner did not tender the non-serialised ballot papers to the Court, for example. It is in my layman’s opinion that since the petitioner tendered a written evidence to the effect that INEC actually issued a specific instruction to the Printer to print the ballot papers without serial numbers, the burden shifted to INEC to prove that contrary to the petitioner’s claim and the written instruction from Iwu, the papers were indeed eventually printed with serial numbers, and used for the election, by tendering serialised ballot papers used for the election before the Tribunal. It amounts to a travesty of justice to reject available evidence from the petitioner, which was not contested by the respondent in preference for non-existent evidence to the contrary, knowing fully well that INEC as a defendant to the case may have denied the petitioner access to some critical information needed to nail them at the PET. By countering the petitioners’ evidence without counter evidence, it then appears the Tribunal had set out to attain a certain destination at all cost.

That the tribunal did not find it a substantial non-compliance to the Electoral Act that the voter's register used for the election, which is a key tool in the whole process was very irregular as even photos of children featured in many documents, against the requirement that voters should be above 18 years of age is very mysterious indeed. The petitioners also tendered documents before the Tribunal to prove that pre-dated and post-dated result sheets were used by INEC to declare Yar’Adua winner. Curiously again the Tribunal did not find this curious. In choosing to dwell on the manually collated results, the tribunal did not explain the intent of INEC in authenticating differing versions of the same result. The Tribunal did not establish equivocally that the manually collated results tallied with the results upon which Yar’Adua’s victory was announced by INEC and if so, the purpose of the variant versions, pre and post dated.

One of the most sacrilegious statement made by the judge is that ‘Even if the petitioner was able to prove that the Electoral Act was not substantially complied with by the 1st and 2nd respondents (INEC and Prof. Maurice Iwu), the petitioner will have to prove that the said non-compliance has substantially affected the result of the presidential election’ This logic is flawed on the grounds that the means of acquiring the results of the election necessarily must be right before the results could be right as well. If it does not matter to the Tribunal how the results were awarded to the contestants then, one wonders the essence of the Electoral Act. If an Iwu could just sit somewhere and allocate votes with his pen to a choice candidate knowing fully well that it would be impossible for a petitioner to prove to the tribunal how his act affects the authenticity of the results then, we can as well forget about democracy. We should as well just authorize the Chairman of the Electoral Commission to select our leaders on our behalf, thus saving us billions of Naira wasted by the commission in the name of conduction an election under the Act.

The tribunal also contradicted itself when it stated that there is no shred of evidence to prove that elections held at different times, and even if there was, he has not shown how that conferred undue advantage to the 5th and 6th respondents Yar'Adua and Jonathan) to warrant the tribunal to nullify their election," But then the Tribunal acknowledged the fact that INEC tried to exclude the petitioner, but following the April 16, 2007 ruling of the Supreme Court, INEC published his name...’ Surprisingly the Tribunal failed to conclude the last statement with the fact (which is known to them) that Atiku’s name was included only few hours to the election against the requirement by the Electoral Act that it should be done not less than 30 days before the election day thus slowing down the tempo of his campaign and demoralizing his supporters. Now if this did not confer undue advantage on his (Atiku’s) opponents then what did it confer?

Did INEC indeed provide a level playing field for the petitioner (Atiku) in view of the evidence before the Tribunal that INEC ab initio actively pitched its tent with the ruling party in their quest to disqualify the petitioner from the election until the Supreme Court had to stop them? And if the answer is no then why would the Tribunal want the word to believe that they did not see INEC’s action as running contrary to the letter and spirit of the Elecoral Act that expects it to be an unbiased umpire and thus committing a gross violation of the Act?

Having raised these issues (and I know legal luminaries will find more issues with the judgment), I want to take special note of a statement from the Judge that gives a clue as to the motive of the overall conclusion on the case. He stated that ‘The petition fails and is hereby dismissed. In view of the importance of these cases to the evolving democracy in Nigeria’. It is apparent that the overriding factor necessitating this judgment was not justice in the strict sense of it but rather a compelling desire not to rock the boat. The tribunal may have taken note of the messy scenario of Yar’Adua being compelled to hand over to David Mark, who incidentally is also sitting on a questionable mandate, and the possibility of Mark also being compelled to hand over to another if his appeal fails.

The tribunal went on a wild chase for quotable judgments to back up its ruling and found the famous Al Gore Vs George Bush case in far away America. I find this curious because it means that very soon we may have our judges relying on Judgments in American courts or even the American Constitution to decide cases. In making reference to the Al Gore Vs George Bush case in this matter, the tribunal was emphasizing the political rather than legal undertone of this judgment. Every one knows that, that judgment was used to stabilize American democracy, which was badly shaken by the shoddy elections that brought the younger Bush to power. Taken in this context, we may view the judgment as a sacrifice of justice for democracy rather than a victory for democracy as touted by some commentators. The mistake made by the judges of the PET is that while that American judgment was desirable to put a fledging democracy back on track after a glitch, in the Nigerian case, the very foundation of electoral democracy has been destroyed by this judgment; and as the Bible asks, ‘If the foundation be destroyed, what can the righteous (like Yar’Adua) do?’

The question is; can there be true democracy without justice, especially electoral justice? A democratic society should promote confidence in government institutions like INEC and popular support for social justice. The people’s right to choose their leaders seems not to stand the chance of being strengthened by this judgment. The tribunals needed to have asked itself or rather answered these questions before delivering that judgment: What is the role of justice in the process of building democracy and instilling confidence in its institutions?  What is the impact of widespread disenfranchisement of voters in the electoral process as was done by INEC, on democratic citizenship and the future of democratic institutions in Nigeria?

Nigeria may benefit from this judgement in the short-term on account of the fact that it affords a presumably good man in the person of Yar’Adua to rule us with focus on the rule of law and has also prevented a Kenya-type of catastroph which though very unlikely in our clime, could not be ruled out in the event that the election was nullified. But in the long run, election rigging, may have been unwittingly legalised by the this tribunal with the effect that politicians would not be afraid or rigging elections in the future if they know that minor technical glitches could be capitalised upon to throw away valid petitions from opponents.

The PET may have therefore wasted a great historical opportunity to turn the face of democracy not just in Nigeria but in the whole of Africa for good, out of fear of the unknown or maybe personal gratification. Yar’Adua  on his part has also lost the opportunity to go back to the electorate and authenticate his mandate-this I believe he could have done easily now that most Nigerians appear to have fallen in love with his rule of law phenomenon. He may therefore have to live under the evil shadow of illegitimacy as far as the voter in the street is concerned. It remains to be seen if the Supreme Court will rise up to the challenge or succumb to the same forces that clubbed the PET into line.

Robot  # 1 | 03.03.2008 03:34

There are some issues, which a public commentator would need cogent explanation as to why h...Read the full article.