Ayo Obe

In her justly celebrated lead judgment sending the election petition filed by Miss Oyinkansola Saraki against the election of Bukola Saraki back to the Kwara State Election Tribunal, Justice Helen Moronkeji Ogunwumiju said: "My Lords, democracy is not an esoteric or fanciful concept too difficult to grasp."

The retort of her brother judges in their decision on the election petitions filed by General Muhammadu Buhari and former Vice President Atiku Abubakar, would appear to be: "Oh yes it is!"

In a judgment which might justifiably be described as a charter for careless, reckless or dishonest election administration, the Court of Appeal harped on technicalities.  In the sole instance where they found the conduct of the presidential election at fault - the failure to serially number the ballot papers - they promptly turned around to blame the hapless petitioner, General Buhari, for failing to use some other means, some means not provided for or stipulated by the Electoral Act, to confirm that the number of ballot papers issued corresponded to the number of votes said to have been cast.  That the lack of serial numbers would make it impossible to show that the ballot papers issued were in fact those that were cast on election day, or that ballot papers had not subsequently been produced to 'make up the numbers' did not seem to have occurred to the Court of Appeal.  Oblivious to the already huge burden resting on the shoulders of any election petitioner, the learned justices thought nothing of increasing the burden so that he must prove that acts which ought ordinarily (despite the brazenness of some of the electoral malpractices that occurred on April 21^st last year) to take place under secrecy, in fact took place.  One might well ask what was the use of stipulating that ballot papers must be serially numbered in the Electoral Act?

Reprimanding Atiku for seeking to approbate and reprobate by complaining both of being unlawfully excluded from the election and of substantial failure to comply with the provisions of the Electoral Act, the same court - in making the unlawful exclusion complaint the basis of their decision, then went ahead to approbate the averments in support of the reprobated ground, to show that Atiku had in fact participated in the election.  Although Atiku showed that he had indeed been excluded until the Supreme Court ruled that he must be included, as far as the Court of Appeal was concerned, even if he had been included at the last minute, he had no reason to complain.  It does not require a great deal of imagination to speculate about what would have been the position of the same court if Atiku had refused to participate on the grounds of his unlawful exclusion right up to the eve of the election - suffice to say that it is unlikely that it would have reflected the Ogunwumiju approach.

It is easy now, for those savouring Yar'Adua's victory to say that there was never any chance that he might lose at the Court of Appeal.  But for the rest of the country, the absolute lack of nuance, the fact that the judgment showed so little sense of history or responsibility to the nation is deeply disturbing.  It was not just that the Court of Appeal completely missed the significance of the breach of the Electoral Act's stipulation that the ballot papers must be serially numbered, it was that there seemed to be so little appreciation of what such inexcusable breaches of the Electoral Act might mean to the conduct of future elections.  There is after all, little justification for INEC's refusal to print ballot papers with Atiku's name on them when it knew perfectly well that he had challenged his unlawful exclusion at the Supreme Court, since prudence would have dictated printing the ballot papers with the name on it and leaving those who chose to vote for him if he remained disqualified, to risk wasting their votes.

As with the elections in so many parts of the country, INEC had the most spurious of reasons for not allowing candidates to see even the design of the ballot papers before the election day.  One might wonder why, if the Central Bank of Nigeria can display copies of bank notes with 'SPECIMEN' written across them, it should be so difficult for the electoral body to do the same with ballot papers.  By not doing so, INEC gave itself carte blanche to favour some candidates with their full names, picture and party logo, but to consign others to total exclusion or partial representation, as happened in Lagos State where the picture of the non-favoured candidate was excluded.  While the election tribunals have, particularly with Justice Ogunwumiju's judgment, been rectifying the situation of total exclusion, the partial exclusion suffered by Atiku Abubakar up to the period shortly before the election and by candidates such as Jimi Agbaje in Lagos State on the day of the election remains a danger to future elections.

A presidential petitioner has the same 30 days to prepare his papers as one challenging a state house of assembly election.  While the one has a relatively small area to deal with, the other must produce a petition that captures the gross fraud and breaches that occurred from one end of the country to another.  To understand the extent of this burden, consider what it would take to produce evidence of even just one breach from each of Nigeria's 774 local governments.  One can then understand why the failure of the Court of Appeal to recognise this and instead berate Buhari (who had been abandoned by his party) because his agents could 'easily' have followed the audit trail of the ballot booklets, was so lacking in responsibility.

When the Court of Appeal fails to condemn or offer even faint criticism of the conduct of the elections, it is hardly surprising that the praise-singers of the ruling party are already claiming that the court has held that the elections were properly conducted, while the President feels no embarrassment about dedicating this latest victory to the Nigerian people.  Having listened to the songs of self-praise emanating from the Iwu-led INEC for the past nine months, a new verse has been added by the Court of Appeal.  Against this background, where might be the impetus for electoral reform?  What is there to reform in an election that was properly conducted?

Nigerians however, must not give up the hope of having credible elections in their country.  While it is to be hoped that the Supreme Court will have a better sense of responsibility and remedy some of the more egregious examples of the blinkered approach of the Court of Appeal, and certainly, withdraw the stamp of approval that the Court of Appeal so unthinkingly awarded the April 2007 elections, Nigerians must brace up to the reality that certain reforms in the electoral process must be non-negotiable.

Among such reforms would be that demanded by the Nigerian Bar Association, that the burden of proof in election petitions must be shifted from the petitioner to the electoral body and the respondent once a prima facie case of breach of the Electoral Act is made out.  Another might be that the failure to produce and publish the register of voters to be used at the election within a fixed period to the date of an election should be a ground for the automatic removal of the members of the electoral commission, whether the Senate and/or the President (who are likely to have benefited from the defaults of the commissioners) like it or not.  The abolition of the position of Residential Electoral Commissioner, an office which does not even require Senate confirmation but is made entirely at the whims and caprices of the President, and which Yar'Adua (when he was presenting himself as a 'servant leader') recognised were either nominees of the governor, where the ruling party held the state, or the ruling party state chairman where it did not would be a third.  A fourth might be that results from each polling station can be freely published and must be freely available for publication as and when counted, so that we can all follow the progress of counting, tabulation and collation right up to the declaration of the result for the constituency.  A fifth would be that all electoral materials must be delivered into the custody of the Chief Judge of a State for safe keeping, if necessary, in the vaults of the Central Bank, as soon as the result is declared.  Equal treatment for all candidates and prior display of ballot papers is a sixth.

It is not impossible for Nigeria to have credible elections, nor does it require anything 'esoteric or fanciful'.  It does however, require political will.  While the Court of Appeal's uncritical judgment can be rightly condemned as a charter for election riggers and bias in the administration of elections, it is to be hoped that the cumulative effect of election petitions being considered by other divisions of the Court of Appeal, and perhaps the Supreme Court, will give more impetus to demands for electoral reform.

Ayo Obe is a former Chair of the Transition Monitoring Group's Steering Committee.