Trials Of Election Petition Tribunals – by Victor Ugborgu [Independent]

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Sun, 02 Mar 2008 00:00:00

 

Trials Of Election Petition Tribunals

By Victor Ugborgu, Senior Correspondent.



Many Nigerians had expected a verdict that would shake the very foundation of the country. At least, the presidential election tribunal was expected to acknowledge that there were some irregularities in the 2007 presidential election. Those anticipations were dashed on Tuesday February 26 when the five-member tribunal, gave the judgment in favour of President Umaru Yar’Adua, the presidential candidate of the Peoples Democratic Party (PDP) in the April 2007 general elections.

In its unanimous judgment, the tribunal threw out the petitions of  General Muhammadu Buhari, presidential candidate of All Nigeria Peoples Party (ANPP) and Alhaji Atiku Abubakar of the Action Congress (AC) and upheld the electoral victory of Yar’Adua. The tribunal claimed the petitions were plagued by want of evidence and that the alleged non-compliance and corrupt practices which they alleged were not substantial enough to warrant the nullification of the election. The tribunal was of the view that there was no shred of evidence to substantiate the alleged irregularities in the presidential election. The chairman of the tribunal, Justice James Ogebe had excused himself from the panel because of the controversy that trailed his elevation to the Supreme Court. Critics of the government had argued that such promotion when the tribunal had not finished its work, would affect the outcome of the tribunal findings.

 However, Justice John Fabiyi delivered the lead judgment that was concurred to by other three members of the tribunal- Raphael Agbo, Abdulkadir Jaga and Uwani Musa Aba-Aji. They all held that there was no credible evidence before the tribunal to grant the prayers of the petitioners. “It is not just all miniature complaint that can lead to the nullification of the election”, Fabiyi said. On the issue raised by Buhari that Yar’Adua was not qualified to contest the election based on his indictment by the Abia State white paper, the tribunal acknowledged that the document was legally valid, but averred that there was nowhere in the white paper indicating that Yar’Adua was actually indicted of fraud. The tribunal argued that it was only the court of law that could establish a case of fraud against anybody, adding that the said indictment offended section 36 of the 1999 constitution, as Yar’Adua was not allowed to defend himself. The tribunal also said the issue of non-compliance raised by Buhari could not hold water, because the petitioner failed to establish his case with facts. “The petitioner has not fully set out facts upon which he built his case. All that he has succeeded in placing before us are legal issues, inferences and opinion rather than material issues”, he said. Fabiyi also stated that Buhari did not prove how non-display of voters register before the election, irregularities with respect to numbering and non-serialisation of ballot papers affected the outcome of the election. The tribunal also exonerated the Army, Police and other security agencies of complicity in the conduct of the election. In the final analysis, the tribunal dismissed Buhari’s petition for want of evidence.
The tribunal also dismissed Atiku’s case because according to it his allegations were not substantiated. According to Fabiyi, where “a petitioner alleges malpractice, corrupt practice and non-compliance to the provisions of the Electoral Act, he has a duty to prove. It has not been demonstrated in this court how these allegations affected the outcome of the election”. The tribunal said even though INEC attempted to exclude the petitioner, the Supreme Court judgment of April 16, 2007 cleared the coast for him. It therefore dismissed his claim that he was excluded from the exercise. The tribunal therefore held that the discrepancies in the conduct of the presidential election were not sufficient to warrant the nullification of the election. That was how the two petitions filed by Buhari and Atiku were thrown into the dustbin of history by the presidential election petition tribunal sitting in Abuja.

Mixed reactions have continued to trail the tribunal’s February 26 verdict. While many applauded the verdict, others say the judgment was “full of sound and fury, signifying nothing”. For instance, Atiku described the verdict as a slap on the face of Nigerians because the tribunal failed to address the issues at hand. “In an epochal and far reaching judgment, the Presidential Elections petitions Tribunal has in its wisdom decided that the charade called election held in April last year was a fair representation of the free will of the people of Nigeria. The judgment is not against Atiku Abubakar or Action Congress. It is the peace loving people of Nigeria who have lost. In my humble opinion, the people of Nigeria have had their voices silenced again. Justice has not been done and the rape of our young democracy has been sustained. The future of constitutional democracy and free and fair elections in Nigeria, nay, Africa remains imperiled and we must redouble our efforts at vigilance”, he observed. He therefore instructed his team of lawyers to file an appeal at the Supreme Court.

The National publicity secretary of AC, Lai Mohammed said the verdict has not changed the confidence the party has in the judiciary. “We have always shown tremendous respect for the judiciary because of its forthrightness, fairness and fearlessness. The judgment of February 26 has not changed that even though we would have wished that the tribunal would rule otherwise, considering the preponderance of solid evidence showing that what was passed on for election on April 21 was nothing but a charade and a mockery of election process”.

On his part, Buhari said it was not yet uhuru for Yar’Adua since according to him, the case is still at ‘the semi-final stage’. He expressed his intension to proceed to the Supreme Court to have the election nullified. Lead counsel to Buhari, Chief Mike Ahamba, (SAN) said he was disappointed with the verdict because it did not reflect the expectations of Nigerians. Ahamba maintained that he proved that results of the election were dated April 20 as against April 21, the actual date of the presidential election.

 Indeed, the April 2007 general elections conducted by the Independent national Electoral Commission, (INEC) were controversial and dubious in nature. There was a general impression that both the governorship and presidential elections were a charade in view of the high level of rigging, violence and loss of lives and property that accompanied them. Following the announcement of election results, there were disputes, claims and counter-claims of the circumstances surrounding the elections despite the claim by Professor Maurice Iwu, chairman of INEC that he conducted a free and fair election. Instead of acting like an unbiased umpire, Nigerians believe that INEC conducted the 2007 elections in favour of the ruling parties at the federal and state levels without recourse to the people’s desire. In some areas, the elections were conducted and results reflected the will of people. There were also circumstances where cases of electoral malpractices were rampant which would better handled by Election Tribunals to determine, whether or not these malpractices substantially affected the outcome of the elections.
The 2007 general elections were roundly codemned as fraudulent by both local and international observers.

The federal government in keeping with the dictates of the constitution, set up the Election Petitions Tribunal to correct the  perceived wrongs perpetrated during the elections. The various tribunals were set up pursuant to Section 285 of the Constitution of the Federal Republic of Nigeria, 1999, to deal with grievances arising from the Governorship, National Assembly and State Assembly Elections. Appeals from these Tribunals go to the Court of Appeal, which is the final court in those elections. According to Section 285 of 1999 constitution, there is no further appeal from the Court of Appeal to the Supreme Court. However, any grievance against the Presidential Election by any candidate is made to the Court of Appeal by way of petition and a dissatisfied petitioner or respondent can appeal the decision of the Court of Appeal to the Supreme Court.

It was based on this faith in the judiciary that many aggrieved candidates in the last election proceeded to the tribunals to seek redress of the lapses noticed in the exercise. In all, eight separate petitions were filed against the declaration of Yar’Adua as winner of the April 21, 2007 presidential polls. Out of which the tribunal struck six out for lack of competence.

Topmost on the petitions before the court were those filed by the former Head of State and the presidential candidate of All Nigeria Peoples Party, (ANPP), Major-general Muhammadu Buhari and the former Vice President and the presidential candidate of Action Congress, (AC), Alhaji Atiku Abubakar. The duo had petitioned the tribunal over what they termed serious irregularities in the April 21 election that threw up Yar’Adua as president. INEC declared that Yar’Adua of PDP garnered 24, 638, 063 votes representing 69.82% of the total votes cast. He  was closely followed by Buhari of  ANPP with 6, 605, 299 votes representing 18.72%, Atiku of AC got 2, 637,848 votes representing 7.47% and Orji Uzor Kalu of the Progressive Peoples Alliance, (PPA) scored 608, 803 votes which represents 1.73%. From the conduct of the election, many had maintained that the results were not the true reflection of the wishes of Nigerians.  Not withstanding, Umaru Yar’Adua, largely considered the former President Olusegun Obasanjo’s favourite was declared winner of the poll with 24.6 million votes, four times that of his closest rival, according to INEC.

Buhari in his petition also joined the Army, the Navy, the Air Force and the Police as respondents. He claimed that the soldiers and the police deployed to maintain law and order during the election were actually used to harass, intimidate, maim and kill innocent electorate who vowed to resist rigging the election in favour of Yar’Adua. He argued that the 1999 Constitution did not allow the deployment of soldiers and the police for such purposes except during emergencies. He also joined Obasanjo in his petition on the ground that the former president abused his powers under the constitution by deploying both the soldiers and police for the purpose of rigging the election.

Buhari and Atiku laboured to upturn the electoral victory of Yar’Adua insisting that the INEC declared Yar’Adua in error. They tendered volumes of documents to prove that the Presidential election was not only inconclusive, but also fraudulent. They also urged the tribunal to quash the election on account of non-compliance with the provisions of the electoral Act of 2006, including alleged irregularities, ballot stuffing, rigging and corrupt practices that allegedly characterized the exercise. The petitioners accordingly prayed the tribunal to invalidate the election and order for a fresh one, because INEC muddled up the entire exercise. Both Buhari and Atiku presented weighty evidences to prove that the election was nothing to write home about. But the President asked the tribunal to dismiss the two major petitions, saying his electoral victory was not only overwhelming but also landslide. The tribunal obliged him.

Political observers say the verdict of February 26 was synonymous with what happened in 2003 when Buhari challenged the result of that election at the tribunal.  He spent two and half years to get to the root of the matter. Even at that, the case was decided in favour of the PDP. Others believe that from what happened at the tribunal it would be difficult for Nigeria to hold legitimate, credible, and peaceful elections in the years to come.

 A Lagos based Auditor; Mr. Bankole Bolaji told Sunday Independent that tribunal erred while ruling on the case. “ Politics is a game of numbers but can we say that INEC actually counted the true number of people that voted for President Umaru Musa Yar’Adua?  I don’t trust elections in this country since the annulment of the June 12, 1993 general elections.  The judgment shows that there is nothing in Nigeria that is done based on facts.”

However, the various election petitions tribunal sitting in various states have given landmark judgments that seemed to have rekindled the hope of Nigerians. So far the tribunals have nullified the election of seven governors. For instance, the Court of Appeal in Jos on February 26 upheld the nullification of the election of Murtala Nyako as governor of Adamawa State and ordered a fresh poll within 90 days. The court also ordered Nyako to vacate office immediately while the Speaker of the state House of Assembly should be sworn-in as acting governor. Nyako is seen as one of the beneficiaries of the Obasanjo’s “do or die” politics in which perceived strong opponents were unlawfully excluded to enable the PDP have an easy ride to victory. Justice Ayo Salami said the nullification of Nyako’s election became necessary because the election did not follow the stipulated electoral process, citing especially the unlawful exclusion of Ibrahim Bapetel the AC governorship candidate from the election. He ordered INEC to include all those excluded from the April 14 election in the fresh poll. The state election tribunal had last year nullified Nyako’s election due to some irregularities in the said election.

Current happenings in the state seem to have formed the opinion of analysts to conclude that it may be difficult for Nyako to reclaim the mandate. On Wednesday, February 27, the acting governor, Honourable James Barka sacked all the 16 commissioners, 21 caretaker committee chairmen and 42 area administrators and their secretaries. He also booted out all the Special Advisers, senior special assistants and special assistants appointed by Nyako. Political analysts say the action of Barka is a solemn blow to the beleaguered PDP governorship candidate in the rescheduled April 12 election.  

 Nyako is not alone in this political wilderness.  Ibrahim Idris, former governor of Kogi State is also in this dilemma. He has a date with history when he squares up with other candidates in the March 29 rescheduled elections. His attempts at maintaining his position at the Court of Appeal, Abuja Division were shattered on Wednesday, February 6. The Governorship Election Tribunal sitting in Lokoja, the Kogi state capital had on October 10, 2007 nullified the election of Idris, the PDP candidate in the April 14 governorship election because the exercise was flawed by the unlawful exclusion of the governorship candidate of the ANPP, Prince Abubakar Audu. Idris appealed the verdict of the tribunal insisting that he won the governorship election. He had hoped to win, but the Court upheld the nullification of his election.

 In a unanimous decision of a five-member panel delivered by Justice Victor Omage, the Appellate court held that ‘the exclusion of the petitioner and second respondent, Audu from the Kogi gubernatorial race by INEC was a wrong that must be cured.’

His words: “INEC was wrong to have excluded the name of petitioner because he was validly nominated by his party. The purported indictment relied upon by INEC is not a conviction pronounced upon by a court of law; INEC is not a judicial body to penalize any candidate by excluding him from an election. It lacks the judicial power to disqualify any candidate, more so a candidate who had been duly nominated by his party. INEC is ordered to conduct fresh election for the Governorship seat of Kogi State.”

Consequently, the speaker of the State House of Assembly, Clarence Olafemi was sworn in as acting governor. Luckily for Olafemi the appeal court upheld his election on Thursday February 28. Olafemi’s election was nullified a few weeks ago by the tribunal following irregularities that threw up the speaker.

The nullification of the election of Governor Theodore Orji of Abia State on February 25 was theatrical as well as intriguing and full of technicalities. The tribunal awarded victory to Chief Onyema Ugochukwu of the PDP even though it acknowledged that PPA won the majority of the total votes cast. The justice Abdulahi Yusuf-led tribunal ruled that both Orji and his deputy, comrade Chris Akomas were not qualified, to contest the April 14, 2007 governorship election in the state as they did not resign their appointment properly within 30 days as stipulated by the constitution. The five-member panel also held that Orji was not qualified to contest the said election because he belonged to a secret cult contrary to constitutional provisions on that matter. The panel expressed surprise that Orji did not make any serious efforts to controvert the evidence of the secretary of the Okija shrine. The tribunal said the governor’s inability to counter the evidence of the petitioner’s witness that he was a member of the Okija secret cult showed that the petitioner proved his case beyond reasonable doubt. However, the tribunal held that the petitioner could not prove allegations of malpractice leveled against the governor. It held that the election was free and fair and that the PPA won the highest number of votes cast. Orji said he has confidence in the judiciary despite the verdict against him, especially after acknowledging that he actually won the election. “I respect the decision of the tribunal as a believer in due process of the law and judiciary. I have since asked my lawyers to appeal the decision of the tribunal,” the governor said.

The National secretary of PPA, Ben Onyechere however faulted the tribunal verdict, because it was mainly based on technicalities. “We want to state that the tribunal employed technicality in its verdict. We recall that when the tribunals were inaugurated across the country, they were told not to decide cases based on technical grounds. The members were asked to decide cases on substantial evidence presented by petitioners, but it ignored this advice and employed technicality to decide the case. The substantial evidence has proved that PPA won the election and our candidate was voted into office by the people.”

 Political analysts say Orji has been very controversial even before he was sworn-in as governor. A few weeks before he settled down to tackle with the challenges of governance, the governor was enmeshed in an alleged ritual scandal that rocked the very foundation of Abia state.  

Other governors that have their elections nullified include Sullivan Chime of Enugu State and Nasamu Dankingari of Kebbi.

 The Supreme Court decided the two crucial governorship cases involving Peter Obi of Anambra and Chibuike Amaechi of Rivers State. On June 14, 2007 the Supreme Court returned Obi of All Progressive Grand Alliance, (APGA) as the authentic governor of Anambra State, thereby voiding the swearing in of Chief Andy Uba of the PDP as governor of the state. The Apex court in a unanimous judgment faulted the conduct of the election into office of the state governor when the tenure of Obi was yet to expire and therefore ordered that Obi should return to his seat immediately. Governor Obi was sworn in as the governor on March 17, 2006 after Court of Appeal in Awka removed Dr. Chris Ngige, the then governor from office, having discovered that he was declared winner of April 19, 2003 election in error.

On October 25, 2007 the Apex Court in another landmark ruling ordered Sir Celestine Omehia, the then governor of Rivers State to vacate office with immediate effect, because he was not the original candidate of the PDP in the April 14 governorship election in the state.  The Apex Court ruled that the former speaker, Rivers state House of Assembly, Amaechi was the authentic candidate of the party and therefore should be sworn in immediately. The decision of the court followed an appeal brought by Amaechi against the decision of the Court of Appeal upholding his substitution with Omehia as the PDP governorship candidate. In the lead judgment, read by Justice Aloysius Iorgyer Katsina-Alu, the Supreme Court ruled thus: “The starting point of this case is in the decision made by this court in the case of Araraume V. Ugwu. The simple issue decided in that case is that a political party wishing to substitute a candidate for another within 60 days to the election must give cogent and verifiable reasons to INEC for the substitution sought. In the said Araraume case, this court decided that to offer the reason frame, as ‘error’ is not in compliance with Section 34 Sub- section 2 of the electoral Act of 2006.

The tribunals across the country have also nullified the elections of members of the National Assembly. Notable among them are those of theSenate president, David Mark,  Senators George Akume, Tanko Ayuba and others.

The petitions relating to the various state Assemblies have equally been awesome. The tribunal sitting in Umuahia, Abia State on January 27 nullified the election of Chinedum Elechia, the deputy speaker of the state House of Assembly. The tribunal held that there were irregularities in the election. The tribunal chairman, Justice Yusuf Abdulahi ordered the return of Ikechukwu Onobe of the PDP as the elected candidate into the House of Assembly.

In Benue State, the election victory of the minority whip in the state Assembly, Steven Onmeje of the ANPP was also nullified on October 16. The tribunal based its decision on the fact of altered result, allegedly effected by INEC. Justice Ibrahim Bukar, chairman of the tribunal said the PDP candidate scored majority of the lawful votes cast and ruled that the election was held in substantial compliance with the Electoral Act.

In Ebonyi State the tribunal nullified the House of Assembly election in Onicha west on September 12 and ordered INEC to conduct a fresh election in the constituency.  The head of the tribunal, Justice Chioma Iheme- Nwosu held that the PDP failed to convince it on the replacement of the petitioner, Michael Ude Umanta with Sylvester Nwite after the party’s primary election. The tribunal then instructed INEC to include Umanta’s name on the ballot as PDP candidate in the bye-election it ordered.

In yet another landmark ruling, the Kogi State election petition tribunal in Lokoja on September 18, 2007 nullified the election of the speaker of the state House of Assembly, Clarence Olafemi of the PDP. But the appeal court saved the day for him by affirming that he won the election.
In Nasarawa state, it was a major score for the Labour Party (LP) as the election petition tribunal sitting in Lafia sent the Nasarawa State House of Assembly Majority Leader, Abduhamid Kwarra packing. His election was nullified based on irregularities noticed in the credentials he submitted before INEC. In her ruling, Chairman of the tribunal, Justice Rita Pemu, said the election was nullified because it has been proved that the certificates presented by Kwarra, which he claimed were obtained from the University of Jos were forged including the National Youths Service Corps (NYSC) discharge certificate.

 In Adamawa State anxiety and tension trailed the decision of the Justice Akin Akinwalere-led tribunal that nullified the election in Yola South constituency at the expense of the PDP.

Justice Akinwalere nullified the election on the ground that the ANPP candidate, Alhaji Ibrahim Waziri was unlawfully excluded from the April 14 general elections. He held that the argument of the respondents that his party did not validly nominate Waziri is untenable, since party nomination was a domestic affair of the party and not the concern of the tribunal.  

In Imo State, there was a wild jubilation when the election of a PDP candidate representing Ideator North constituency was nullified. The tribunal noted that Emeka Omeaku of the Democratic Peoples Party, (DPP) won the majority of the votes cast in the April 14 House of Assembly election, which was awarded to the PDP candidate in error.

Oru west constituency also in Imo State had its own test of the nullification when the election of Mbadiwe Emelumba of the PDP was quashed by the tribunal and verdict upheld by the Court of Appeal. APGA, the party that challenged the election of Emelumba got what could be regarded as a fair judgment as a fresh election was ordered by the appellate Court.

Political analysts believe that these annulments show that INEC is completely incompetent and that Nigerians cannot get any credible election from its current leadership.  The only option they argue is to disband the commission.  They further recall the wordings of Abraham Lincoln, that “No man is good enough to govern another man without the other man’s consent as the people would not accept to be slaves. The people’s rights to vote freely who governs them express the very idea of democracy”.
 
•Additional reports by Emmanuel Ukudolo and Isioma Madike.

 

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