‘Future Elections Will Be Do-Or-Die’

– Lawyers Alert

– Following Increasing Difficulties In Proving Alleged Electoral Fraud Before Election Petition Tribunals

 

By Matthew Kuju

It has been observed that proving election petitions before Election Petition Tribunals in Nigeria is increasingly becoming virtually impossible.

For instance, following the 2019 General elections in Nigeria, more than 90 per cent of the petitions filed at the Election petitions tribunals were dismissed.

As at the time of going to press, of all the Governorship elections petitions filed across the country, none has scaled through; none of the election petitions has succeeded.

Let us take Nasarawa State as a case study.

The Election Petitions Tribunals In Nasarawa State In A Glance

Three Elections Tribunals sat in Nasarawa State.

In all, at the end of the time allowed for the filing of election petitions at Elections Petitions tribunals, 28 petitions were filed.

There four Governorship election petitions, Senatorial, House of Representatives and State House of Assembly petitions filed.

In all, one petition, that of Mr John Mark versus INEC was struck out while four petitions were withdrawn, namely: Basil Osheka versus Mr Mohammed Adamu Omadefu, Abdullahi Mohammed versus Abdullahi Dahiru (both for State House of Assembly), Musa Yusuf Nagogo versus INEC and Ombugu Emmanuel Alexander versus Audu Alhaji Sule both for Governorship.

Of the remaining 19 petitions, 18 were dismissed. Of all these petitions, none was outrightly declared in favour of the petitioner. Perhaps the only petition that came close to favouring the petitioner was that of Hon Dr Joseph Haruna Kigbu in which the Tribunal stopped short of ordering the INEC to declare the petitioner as the winner of the election.

It is against the backdrop of what has been observed, that it is easier for the camel to pass through the eye of the needle than for election petitions to scale through before a tribunal, that Eggonnews interacted with some legal practitioners who have handled election petitions.

Commenting on why election petitions are proving difficult to scale through, Barrister Gabriel O. Akaaka opined thus:

“Election petitions are of their own nature. They are very unique and are of their own nature and the requirement is that the petitioner has to prove his case. He has to succeed on the strength of his case. It should not be because the defense or the respondent’s case is weak. You must prove or you must succeed on the strength of your case.

“So if you are not able to prove, the tribunal will throw your petition out.

Every petition is based on facts, facts that have been brought before the tribunal by the counsel to the petitioner. You said all but I think in one of the cases the tribunal was able to order for elections in some wards.

“Now the tribunal must look at all the facts of the petition before ruling. So the petitioner may go to the tribunal with a very strong belief that he has a good petition but proving the petition is a very difficult thing.

“Because when you win, the electoral umpire, that is the INEC that conducted the elections, align with you. It avails you all the facts so you’re more at home as a respondent with INEC. You get all the support that is required.

“When you lose, you know you are challenging INEC that it did not conduct the election very well.

“So it becomes a problem. And INEC is saying ‘no, I conducted the election very well and this is the person that won.’

“So it is more difficult to prove an election petition than to defend an election petition. That is why in most cases, it is the petitioner that is losing the petition and not the defendant or the respondent in the election petition.”

Also speaking, Barrister John Abum said: “Election petition is a very technical issue. It has its own unique procedure. For instance, if you want to prove criminal allegations, as a petitioner, you are expected to do certain things in order to prove your petition beyond reasonable doubt.

“So the whole problem is not with the petitioners. The problem is with the law. The law requires you to do extra to get judgment. Most at times it is very difficult in view of the timeframe and then the hurdles of getting materials from INEC and all those things.

“That is why some people even just draft it and file it before they now go for the materials. You make applications, you pay huge sums of money before they now issue you the materials.

“Now, before you come back to scrutinize the materials and then go back to your petition, you cannot amend. The law says you cannot amend petitions. So in that case your hands are tied. You have to just do with what you have filed and then you crash-land.

“So the problem is not with the petitioner per se. The problem is with the law. The law has pushed you to a very tight corner so that you cannot even punch very well.”

When asked: How come most of the election petitions filed are not succeeding at the Election Petitions Tribunals? Barrister John Matthew responded thus:

“Thank you very much. I think this is a very valid question and the concerns shared by the generality of the public is also a concern shared by most of us who are in legal practice particularly those of us who have been privileged to conduct matters before the election petition tribunal.

“The very unfortunate trend that has been the bane of cases before the election petitions tribunal is the misapplication of the law in respect to the requirements to establish a petition before the tribunal.

“Over time the apex court and some of our superior courts have laid down some principles of law in regards to the requirement for proof before the election petitions tribunal before a petitioner can succeed.

“And the tribunals and lower courts, in my opinion, have misapplied some of these principles with the resultant effect which is that they have made what is supposed to ordinarily be a simple task, very, very onerous task with very far reaching effects on our polity. And I will give you a classical example.

“It is a general principle of law that polling unit agents are the best witnesses of what transpired at polling units during the elections. And therefore, the evidence emanating from them is the best that you can offer in proof of any form of malfeasance at the polling unit. Now this general position ought to admit exceptions. Where a petitioner does not have complaints on misconduct of elections at the polling units. But his problem is that the votes as recorded at the polling units were not correctly entered at the subsequent levels of election, what is the basis of requiring that polling unit agents be called for proof of the conduct of elections at the polling units when you have no complaints about them.

“In the last petitions that I handled, in one of the cases – I wouldn’t want to mention specific names – elections were duly conducted in all the 10 polling units of an electoral ward. The results of these 10 polling units were correctly entered in the ward summary. When it reached transferring the figures into the Local Government summaries, 1,000 votes were taken out of the votes of a particular political party. At the tribunal, the results of the polling units, that of the ward and that of the Local Government were all tendered to show at the stage where these votes were reduced. The agent of the Local Government was called to give evidence. The results were identified by the agent of the Local Government to show the reduction. At the ward level the votes were 1,117. At the Local Government collation centre ‘1’ was taken out leaving 117 thereby short-changing the party with 1,000 votes.

“Now, will the court say you must call all the polling unit agents when you don’t have a complaint? You must call all the ward agents before you call the Local Government agent before you can prove that reduction even when certified true copies of those results were before their lordships.

“So it is very strange. If this trend continues, it means that to prove an election where you have 30 polling units, you must call 30 witnesses within the limited time that is allowed. And there is no election petition – even that of the House of Assembly which is the lowest political office in the general elections, there is no House of Assembly (constituency) that has less than 40, 50, 60 polling units.

“So it means you must call agents from 60 polling units before you call the relevant ward agents to prove a simple petition. You will be required to call a host of witnesses. The same tribunal will be giving you five minutes to present your case per witness.

“Most petitioners go away with the feeling that they cannot get justice. The end result will be that people will resort to self-help. People will want to win elections by any means possible because they know that when you get to the tribunal you cannot establish it given the stringent conditions that our laws have turned the exercise into.

“The only exceptions may be when you have issues of either qualifications or exclusion. If you are challenging on those grounds maybe you may not be questioning the conduct of the elections but the qualification of the candidate. This might be the only exceptions that will make it easier for you to establish any election petition.

“Otherwise, if it is to establish malpractices I am sorry to say it has become as difficult and more cumbersome and it does not encourage any petitioner to seek to or ventilate his grievances at the tribunal.:

When asked if it has always been so, he quickly answered: “No! And even now I doubt if it is the correct interpretation of the law. The law has always been that it is where you have complaints that you need to bring an avalanche of evidence to establish your case. But where none of the parties is complaining about the conduct of election in a polling unit, why are you calling polling unit agents for that place when the results are before the court. And the law is that results as declared by the electoral body and certified are deemed to be correct unless the contrary is established. And the law is that you cannot give verbal evidence to alter the content of document.

“So where a court already has certified true copies of results before it, and the figures are not being challenged and these results are duly certified, the duty of the court is to look at them. There are decided authorities on that point. But our judges – I don’t know, at the risk of sounding combative if I may use that word – I don’t think there has been enough resourcefulness at the bench to be able to draw the fine distinction between cases where you need to call polling unit agents for misconduct of election at the polling units and the cases where you are challenging on the basis of wrongful computation.

“So if your case is that ‘results have been computed in this place, here are the results. They were not included. Please tribunal include them.’ And nobody is disputing the figures, why do you want to call these polling unit agents? And those same results were the ones used to declare the person who won and yet the law – not the law, judges, because that is not what the law says. The unfortunate thing is that once precedence has been laid, even though wrongly, under the doctrine of stare decisis, the lower courts are bound to follow them slavishly.

“So there is no judicial activism at our bench, particularly our lower rung of the bench, to make a decision and say ‘look, even though the Supreme Court or the Court of Appeal has said so, that case is distinguishable from this. Because the law says the results are presumed genuine if they are duly certified and they are not being challenged.

“So I have the result before me and I can compute.’ The court should be able to draw and distinction between those principles and the case it is facing. But our judges don’t do it – I’m sorry to say so. They just copy hook, line and sinker, the decision has been made somewhere else that you must find polling unit agents and they don’t look at the case before them.

“I think some of the decisions are utterly wrong and I hope our superior courts can take the earliest opportunity to overturn some of these decisions so that we can have sanity.”

Barrister Ovye John, who is  Nasarawa State based legal practitioner and who also has been involved in Election petitions responded to the general observation that it is increasingly becoming difficult to prove election petition this way:

“To be sincere with you, there are a lot of factors… of the 1999 Constitution that provides that an election petition shall arise within 21 days from the day of the election. You know, this 21-day period to be honest with you, is really not enough for a petitioner to really be prepared, to assemble all he needs to assemble to try a case at the tribunal.

“One, he needs to bring all the witnesses. And it is not only assembling them, their witness statements on oath will all be drafted and will also be filed along with the petition in court.

“Aside that, you know election petitions involves voluminous documents ranging from voters registers, Form EC8As, B series, C series, D series, E series as the case may be. So you will need to assemble all these documents and keep them and get ready in order to make sure you have the true facts to be able to tender the petition.

“It also depends on the type of malpractice, the kind of case you really want to file at the election petition tribunal. If it is for election malpractice, you need to show all these documents that will show that actually there were electoral malpractices.

“If you don’t have documents, it will really be impossible for you to prove an election petition. Before you file a petition before an Election Petition Tribunal, your petition must contain all these documents.

“And how can you get these documents? Immediately after the election, a petitioner who intends to go to court will now hire the services of a legal practitioner who is going to approach INEC for certified true copies of all the documents.

“And then the frustration you are going to experience from the INEC is another ballgame. It is a different ballgame because even in the few cases where INEC is willing to issue these documents, the request for high sum of money.

“And you know of course a poor petitioner cannot afford to pay this high sum of money to be able to obtain these documents.

“In most cases before they give you, they will have the application from your counsel and then it takes sometimes three weeks or even a month. You will now discover that you will be in a fix whether to file the petition or not because you will not be able to have these documents on time to go through them to be able to put them inside your petition before filing the petition.

“You see sometimes that is the difficulty a petitioner experiences because of the 21 days period constitutionally guaranteed. You cannot go beyond that. Once a petition is filed outside the 21 days, it is incompetent and therefore it will be struck out.

“So whatever the case may be, you have to file it within these 21 days. You see the difficulty a petitioner experiences. That is just one.

“Secondly, the witnesses you need to even gather. For example, a lot of statutory provisions have provided that you can bring a lot of witnesses before the court. However, often times the court has interpreted these witnesses to mean polling unit agents. Failure to assemble polling unit agents will now cause the tribunal to find that you have not assembled witnesses who have experienced, said and done the actions by themselves.

“So in most cases, evidences are being held to be hearsay if you fail to assemble polling unit agents.

“So for example if a petitioner files a petition against a governorship election, and in Nasarawa State we have 13 Local Governments, and if you are alleging there were malpractices in whatever number, you need to bring polling unit agents from all these Local Governments, from all these polling units.

“You can imagine that in Lafia you have more than 300 polling units. It becomes impossible to assemble the whole lot of all these polling unit agents for their witness statements to be taken and filed along with the petition within these 21 days. It is almost impossible.

“The statutory provision of 21 days has made it impossible for the petitioner to do a thorough job to bring all these polling unit agents, assemble them and take their statements one after the other and file along with the petition. You cannot even file the petition and bring the witness statements subsequently. It will be incompetent. Because it will mean adding to the petition which the Electoral Act disallows. You see how difficult it is to prove malpractices in election.

“The third part is that the petitioner is expected to now link all these documents to the particular places of his petition, where he intends to use them. For example, from interpretations of court especially as in the case of Ladoja vs Ajimobi which was reported in 2016, the Supreme Court and a plethora of other judicial authorities have already decided that if you intend for example, to prove over voting, the petitioner needs to tender voters register, statement of result in the appropriate forms – that is, Form EC8As, EC8Bs, C series, D series and E series, depending on the election. And then you will relate each of these documents to the specific area of the petitioner’s case. And then you will have to show the figure proving the over voting if removed, will result in the victory of the petitioner.

Once you fail in all these conditions that I have enumerated, they are conjuctive. They are not disjunctive because you have to do all together. Failure to do one, you have failed. That is why it is increasingly difficult for petitioners to really be successful in election petitions.

“Another leg is that sometimes the reason why the petitioners find it difficult to prove their cases is because the respondents, after the declaration of results at the polls, they also go behind to bribe or threaten people not to come out to testify for the petitioners before the election petition tribunal. That in fact, is another reason why it has become increasingly difficult for petitioners to prove their cases before election petition tribunal.

“It is really disturbing. It has become a serious issue because very few petitions become successful before election petition tribunal. Even when it is seemingly clear and obvious that elections were really not conducted in accordance or in compliance with the electoral laws and rules, election petitions tribunal usually allow petitions to go in that direction because of technicalities. So it is advisable that our laws be amended especially the Electoral Act.

“There is this case – I’m sorry it is not handy now, I cannot remember – where the Supreme Court held that once a petitioner goes before an election petition tribunal and presents his case before the election petition tribunal, however the petitioner presents his case, the burden he has is minimal. It is not on preponderance of evidence. Preponderance of evidence means the evidence brought by the petitioner and the respondents will be put side by side to see which way it tilts. Whichever way it tilts, it means that side wins. That is preponderance of evidence. But the Supreme Court in this case now decided that the burden shouldered on the petitioner should be minimal proof. However little or minute the proof is, it should be enough. So that the respondent should be the one to come and proof – especially the INEC – to come and show how they were able to declare usually the first respondent, as the winner of the election. The burden should shift to INEC to prove why they were able to declare the winner in the election. I think that rationale of the Supreme Court should be applauded. That should be the line our courts in Nigeria should follow. The petitioner should only have the minimal proof and not base on the preponderance of evidence.

“Another reason why it is difficult for the petitioner at the tribunal is that election petitions are considered to be sui generis. That is it is in a class of its own. They are not considered as ordinary civil cases. And so the Supreme Court has over time held that in election petitions, time is of the essence. And then because of this mentality, petitioners are being limited to prove their cases within a very short period of time.

“You can imagine that the election petitions I handled – 4 election petitions for House of Assembly – each of them, I was only given 2 days to assemble all the documents, all the witnesses to prove my case as a petitioner. You can imagine how difficult it was for me to prove that petition. Honestly it was very difficult because I was limited to only two days. So as a result we couldn’t do much. That is another reason why it is extremely difficult for petitioners to prove their cases before an election petition tribunal.”

It is said in some quarters in Nasarawa State that a prominent politician in Nasarawa Sate propounded the approach to elections, that an aspirant in an election must by hook or crook, by whatever means available be declared winner. He does not want to be told that an aspirant was rigged out of an election. That aspirant should endeavour to out-rig his opponent. He says let the opponent be the one to go to Court.

The politician, a lawyer at that, is said to have understood the intricacies and virtual impossibility of proving al election petition before an election petition tribunal, hence he would not want to be the one to approach the Tribunal.

Considering what the lawyers have said concerning the difficulty in proving electoral malpractice at the petition tribunal, is that not recipe for violence, do-or-die election?

Here is what the lawyers feel.

Barrister Akaaka said: ” Well, in an organized society not like ours where people take laws into their hands, a system is put in place by even the electoral body so that where the situation arise, the electoral body will also insist on doing the right thing and the people will insist that their votes count. When these things are done and the elections are properly conducted, it will be very difficult for anybody to take laws into their hands to win an election. That is why when you take laws into your hands you will rather mar the election and it will be very difficult for you to go to court again and win.

“In advance democracies you can hardly see people going to tribunal. So, time shall come when there will be no tribunals because people will not be ready to file election petitions. That is one.

“Secondly, there are a lot of developments. It is only people who have money that can effectively prosecute their case before the tribunal. It means that only people who have money can stand for election and win. At the end of it all it will be a very difficult situation.

“But my hope is that if we involve a very clean process, and people do the right thing, in future there will be no need to go to the tribunal.”

For Barrister Ovye John, “The consequences are that people have continued to open their eyes to what is happening. And then getting prepared, getting ready that subsequent elections there is every likelihood that it will experience deadly violence.

“Subsequent elections people are getting prepared not to allow fellow contestants to be announced winners. In fact, at the point of announcement could be what will really result in violence. Because people will not live to see other contestants being announced as winners for them to approach the election petition tribunal which has always proved to be hopeless. That could be one of the consequences. And we should not be surprised if we start experiencing such actions from people.”

The way out?

Barrister John Matthew is of the opinion that “There are a lot of improvements that can be done to the Electoral Act. Let me give you an example. In the Electoral Act, INEC made elaborate provisions for the use of the card reader for authentication, for transmission of results through electronic means in their manual. But these provisions are not backed up by any law.

” In fact all the hues and cries about the use of card reader and so on and so forth, the courts have said that the best form to show due accreditation and due authentication in any election is still the voters register. So the National Assembly has to sit up and amendments to the Electoral Act have to be done. They must throw their political aspirations and political leanings out of this and do a proper dissection of the Electoral Act to amend and take out those ambiguity that have beclouded our electoral process.

“It is unfortunate that I expected the last Buhari’s first term to have taken the necessary steps. If they didn’t correct it because it served them well at the ballot box, now that he is not going for another election this is the time for them to do it in totality. Because what you have left undone because it suits you today, might hurt you tomorrow.

“Our democracy is going to be in jeopardy unless and until we create a system where people can have confidence that the ballots that they cast can really count, and not election results that are written by a few people in a room somewhere knowing that it is difficult for you to prove otherwise at the electoral tribunals.

“The problem may not really be with our laws. It could be with the interpretation of our laws and the intimidation that these judges are sometimes subjected to. Whether rightly or wrongly, if you notice, while the election petition tribunals were going on, some curious letters were circulating that the judges should submit all their account details to the financial intelligence unit. And so rumours were flying all over and those were forms of intimidation, with the greatest respect.

The government of the day must do everything possible to insulate these judges and give them the room to apply the law as it is. The judges who are selected to be on this election petition tribunals must have sufficient knowledge of the law and experience to be able to navigate the intricate problems that are thrown at them at these tribunals. They must be able to see beyond those general principles of law that are thrown before them. You can’t come before me if I were a judge on the election petition tribunal and you say that for me to correct wrongful calculation of election results that are before me, that I will need evidence from those who were at the field when that was not an issue. I will not allow it because we have decided law. If you are citing an authority somewhere I will distinguish it.

“This is the judicial activism that is lacking. It is not the law, it is the application of the law because there are facts.”