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THURSDAY ESSAY: Now That I am Fairly Recovered from
the Presidential Petition Tribunal Ruling of February 26......
by
Mobolaji E. Aluko, PhD
alukome@gmail.com
Burtonsville, MD, USA
February 28, 2008
Two days after this legal howler of a ruling, I am
recovering little by little from the shock, not at all from the major
implication that Yar'Adua/Jonathan were asked to remain as
President/Vice-President - honestly, I always thought that the Appeal Court
would contrive a way to rule so - but that in further listening to the ruling,
I really find that it is a frightening manual for even more SERIOUS electoral
rigging in the future in our country.
I had thought to use my un-lawyerly wisdom to further
pontificate on the ruling, but one Oziametu Akerele with the Centre for Values
in Leadership, Lagos, has made an excellent job of it, which I submit below as
an Appendix I. It writes comprehensively about
- (i) "the non-serialisation of ballot papers",
- (ii) "the shoddy handling of the voter registration
exercise by INEC"
- (iii) "voting late into the nights as witnessed in
Enugu and some other states";
- (iv) the covert exclusion of Atiku "because in the
final analysis there was no level playing field for all the candidates"
- (v) the wholesale rubbishing of "the testimony
of all the witnesses of the petitioners"
- (vi) the disturbing way with which "the Chairman of
the Tribunal was hurriedly elevated to the Supreme Court" despite
the un-investigated "Saharareporters.com's....
blow by blow analysis of how the Government tried to compromise the members of
the bench" and
- (vii) the complete lack of swipe "at the INEC and his
Chairman for the shameful way they brought Nigeria to ridicule and
embarrassment in the eyes of the international community or the way and manner
they conducted the elections"
In addition/amplification to the excellent pointers by
Oziametu Akerele, I also wish to point out that the Presidential Election
Petition Panel ruled that the evidence of non-swearing of oath by
several INEC members in clear violation of the Electoral Act could
not be used to invalidate the elections. Clearly, such an omission of a
requirement could be interpreted as a premeditated attempt to CLEANSE their
consciences when they eventually carried out various nefarious acts. In
discounting the effect of the non-swearing, the Petition Panel stated that it
is the INEC officers that should be punished for their acts, not those who their
non-swearing would affect.
Fine. Yet, the very same Petition Panel turned around
to hold that the wrongful swearing of oaths by 19 witnesses of Buhari
before a Notary Public (Valentine I. Ikeonu) who was a lawyer
of the Petitioner (Buhari) in violation of Section 83 of the Evidence Act and
Section 19 of the Notary Public Act was sufficient to WIPE OUT all of their
depositions, and proceeded to do so. That left only 2 witnesses for
Buhari both who were ruled to be inconsequential, because one of them (Bamfa of
Langtang) was said to have been in only a few polling stations anyway out of
the over 1,000 in Plateau State, while the other was said to have been a
witness from Edo State that was not pleaded by Buhari.
Why was it not the Notary Public who wrongfully
swore in people who should be punished, and NOT the person who the witnesses
should have aided - Buhari? Why was this defect - which is easily cured -
not asked to be cured by the court?
It is therefore clear then the Panel therefore not only
showed bias, but also approbated and reprobated.
The issue of lack of serial numbers on ballot papers is the
greatest legal howler here. The Panel held that it was a SUBSTANTIAL
violation of the Electoral Law, but was not enough SUBSTANTIAL NON-COMPLIANCE
to nullify the election because the petitioners could not show how the results
were affected. However, this is palpably disingenuous: the serial
numbers were instituted by law PRECISELY to be able to carry out such an
audit. If such an audit is NOT enabled by lack of serial numbers, then
HOW can ANY petitioner prove his point? What is the point of provisions
in the Electoral Law if the Panel agreed that:
- the voters registers were invalid/tainted;
- the non-serialization of the ballot paper was unacceptably
in violation;
- there was widespread delayed and late-night voting
but then it stated that no proof has been offered that these
three FUNDAMENTAL violations impacted on the results? In fact, the court
went on to characterize all of these violations as "miniature
complaints."
This is bizarre.
Compatriots, the pronouncement by this Panel is DANGEROUS
for the future of our country if not substantially reversed in many parts by
the Supreme Court, which is one major reason that the Petitioners SHOULD
proceed to the higher Court. All it requires is for a future rigger to
make a closer study of the ruling, and use it as a guide for even more
serious rigging in the future.
The Panel made a lot of Elections being "Suis
Generis" - one of a kind - in a democracy. If indeed they are
"suis generis", then the ORDINARY application of the Evidence Act
should not be done, or special dispensations should be done. Granted that
political contestants are there to WIN elections, it is INCUMBENT that the
Umpire - INEC in this case - should be SCRUPULOUSLY impartial, otherwise the
losers on all sides have a good reason to complain.
It also appears that any future electoral reform MUST
require INEC to provide both AUDIO and VIDEO evidence of its results
announcements at every polling station, although we stand the risk once again
of those being violated, and a compliant tribunal once again saying that it
does not matter.
Finally, let me end all of this with a football (soccer)
analogy .....
Imagine a soccer match in which one half-portion of the
field is strewn with broken bottles and various physical barriers, and the
other half of the field is smooth. In the First 45-minutes Half of the
game, the favored team's (Team A) is playing from this rough side, (where its goalpost/keeper
are) while the other smooth half-portion of the field is where Team B's
goalpost/keeper are. Team B's complaint to the referee falls on deaf ears, but
it carries on the match anyway, feeling that at half-time, the teams will
switch sides anyway. As a result of the differential quality of the
half-fields, Team A scores 3 goals against Team B by half-time. After the
break, however, everyone is surprised when the Referee, CONTRARY to
rules of the game, REFUSES to have the two teams SWITCH SIDES after
half-time. After much protestation, Team B continues the match - and gets
beaten 6-0. Upon protest later on, an Administrative Panel indicates that
indeed the Referee should have allowed the teams to switch sides, but that
there is NO SUBSTANTIAL EVIDENCE to show that Team B would have won IF the
side-switching had been permitted.
Can you imagine that?
It may in fact be the case that Team B might NOT have
won if there was a switching of sides after the half-time. But HOW will we EVER
know if that switching of sides as required by law was not allowed?
I submit that the Presidential Election Petition Tribunal
judgment is as absurd as this analogy.
I rest my case for now, and trust that Buhari and Atiku will
proceed to the Supreme Court, not for themselves, but to save Nigeria's drunken
journey of democracy over so many rickety bridges to the future.
Bibliography
http://www.nigerianmuse.com
/essays/SATURDAY_ESSAY_Why
_Nigeria_s_2007_Presidential
_Election_will_be_Canceled_on
_Super_Tuesday_Or_Should_Be
SATURDAY ESSAY - Why Nigeria's 2007 Presidential Election
will be Canceled on Super-Tuesday – Or Should Be
by Bolaji Aluko
http://www.nigerianmuse.com
/essays/TUESDAY_ESSAY_On_Today
_s_Prononuncement_of_the
_Presidential_Petition_Panel
_For_Yar_Adua_Jonathan_and
_Against_Buhari_Atiku_Some
_Quick_First_Impressions
TUESDAY ESSAY - On Today's Prononuncement of the
Presidential Petition Panel For Yar'Adua/Jonathan and Against Buhari/Atiku -
Some Quick First Impressions
by Bolaji Aluko
Appendix
http://www.guardiannewsngr.com
/editorial_opinion/article04/
/indexn2_html?pdate=280208
&ptitle=The%20Presidential
%20tribunal%20ruling:%20Matters
%20arising
GUARDIAN
Thursday, February 28, 2008
The
Presidential tribunal ruling: Matters arising
By
Oziametu Akerele
THE
much-awaited Judgment of the Presidential election appeal tribunal has finally
come but not gone as some of the issues raised will continue to be around for
many years to come. I took time off to listen to the ruling of the respected
Judges and certainly not impressed with some of the grounds on which they based
their dismissal of the case on.
It is unfortunate that the tribunal
will come to the conclusion that non-compliance with the electoral law on
serialisation of ballot papers has not substantially affected the final outcome
of the results? If the non-serialisation of ballot papers is not enough to
affect the outcome of an election what else will? Is it not better then for any
form of paper to be used in so far as the electorate vote? If the authors of
the electoral law had envisaged that with or without serial numbers ballot
papers the election will be valid, then there would have been no reason or need
for it to be made mandatory under the electoral law.
The electoral law, and all its
contents is not useful in guiding electoral activities since non-compliance or
its flagrant violation will not be deemed to affect the outcome of the election
that may be conducted under its purview.
Secondly, the tribunal stated that
the shoddy handling of the voter registration exercise by INEC which led to the
unfortunate exclusion of millions of Nigerians does not also affect the overall
result of the election. It further stated that there is no evidence that any
Nigerian was excluded because nobody went to court. This again is another sad
aspect of the ruling which I think is a reversal of all the confidence we
Nigerians have developed in the Judiciary in recent times. Is it not a
well-known fact that INEC defrauded Nigerians through the voter registration
exercise and in fact INEC supplied less than one quarter of the laptops needed
throughout the nation? This surely affected the results in the final analysis.
It is on record that most parts of Nigeria did not even see the registration
officers for many weeks during the exercise and yet INEC said it was
successful.
Thirdly, the tribunal stated that
voting late into the nights as witnessed in Enugu and some other states is not
also capable of affecting the results. This is a matter that really touched my
heart, we know that in this country there is no electricity anywhere due to the
woeful performance of NEPA, you can imagine how unscrupulous elements will take
advantage of the national darkness to perpetuate electoral evil across the
federation using all instruments of coercion. Definitely voting at night
anywhere in the world will affect the outcome of any result because the heart
of man is desperately wicked; no man can know it as declared by the Bible.
Fourthly, though I agree with the
tribunal that Atiku in the final analysis was not excluded from contesting the
elections, the activities of INEC in collusion with the then President Olusegun
Obasanjo in respect of Atiku save for the Supreme Court ruling affected his
full participation in the election, covertly this man was excluded because in
the final analysis there was no level playing field for all the candidates.
Furthermore, the tribunal tried to
rubbish the testimony of all the witnesses of the petitioners. This is not fair
because in 2011 the same thing will repeat itself and aggrieved parties will
not be willing to come to the Judiciary for Justice because of the fear of
being rubbished on technical grounds instead of the substantive issues being
addressed. We pray that the Kenyan option will not be the last hope of the
oppressed by then.
Most importantly, Nigerians are
also very disturbed with the way the Chairman of the Tribunal was hurriedly
elevated to the Supreme Court as a member, this in my opinion affected the
final outcome of the petition since we cannot say it was a "not a matter
of rub my back I rub your back process". If you visit saharareporters.com a
blow by blow analysis of how the Government tried to compromise the members of
the bench is there. This is not fair on Nigerians.
It is my belief that any day any
time the President will win any elections conducted between him and his
opponents, but this must be seen to be done under a free and fair atmosphere.
The way and manner Obasanjo destroyed all institutions of democracy to pave way
for his anointed candidate is the issue at stake. All forms of executive and
presidential lawlessness in the name of do or die politics must be discouraged
in all ramifications.
It came to my notice also that the
tribunal did not take a swipe at the INEC and his Chairman for the shameful way
they brought Nigeria to ridicule and embarrassment in the eyes of the
international community or the way and manner they conducted the elections. It
is my considered opinion that Prof. Maurice Iwu is the major culprit and should
be held accountable and responsible by all Nigerians.
Finally, I believe in the judiciary
and I think it still represents the interest of the common man. But this
judgement should be tested at the Supreme Court as the final arbiter. We must
put electoral violence and robbery to final rest in this country. If we abide
by the ruling of this tribunal, it is capable of emboldening would-be
lawbreakers in the future since the aggrieved persons may still not have the
required "evidence" to prove their case in court.
· Akerele is with the Centre for Values in
Leadership, Lagos.
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Authors 
Posted by Robot| 28.02.2008 09:51