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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.
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Authors 
Posted by Robot| 03.03.2008 03:34