- Now That I am Fairly Recovered from the Presidential Petition Tribunal Ruling of February 26......
March 2, 2008 | posted by Nigerian Muse (Archives)
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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. Akerele 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'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 these INEC officers 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 a 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 made, or special dispensations should be made. 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-Half (45-minutes) of the game, the favored team (Team A) is playing from this rough side, (where its goalpost and 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 fall on deaf ears, but it carries on the match anyway, feeling that after 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 let the two teams SWITCH SIDES. 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
Buhari_Atiku_Some_Quick_First_Impressions" target="_blank">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
TRIBUNE
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 Sarahareporters.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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