Election Tribunals – The Beat Goes On [Independent]

No Comments » March 22nd, 2008 posted by // Categories: Elections 2007



 

GUARDIAN

Election Tribunals: The Beat Goes On

 

Sun, 23 Mar 2008 00:00:00

 

One of the most persuasive arguments of political watchers to the reason Nigeria did not erupt in violence after the monumental fraud last year’s general election was depicted as, was the feeling that those who were believed to have been robbed of their supposed victories were most likely to get justice at the nation’s judiciary. Even before the election, the judiciary had shown itself as a vibrant sector, capable of remedying every crooked situation, once the injured approached it. The dispatch and fearlessness with which it gave succour to some of the governors that were removed from their offices, through the ostensibly weird impeachments that took place in some states in the country within the period, coupled with the manner in which elements like the former Vice President, Atiku Abubakar, and Peoples Democratic Party (PDP) governorship candidate, Chief Ifeanyi Araraume, were able to get redress through the courts, were some of the pointers to the viability of the judiciary option. This must have informed why all eyes, including those of even the least politically lethargic, have more or less remained on the various electoral tribunals. But even against the backdrop of the fact that virtually all the elections represent specific outcomes to specific states and their electorate, some of them seem to have assumed national importance, not only in the manner they were conducted, but also because of the personalities involved. Enugu, Abia, Oyo, Ekiti and Edo states appear to have led the list in the rating of many Nigerians in this regard. While the impacts of those of Enugu and Abia, which were decided sometimes back, are still enjoying a level of public discourse, the courts in the last one week or thereabout came out with decisions on the other equally highly contentious cases.

 

It started penultimate Tuesday, with that of Ogun State, where the Court of Appeal sitting in Ibadan reinstated the petition of the All Nigeria Peoples Party (ANPP), Senator Ibikunle Amosun, where he was challenging the election of the state Governor, Otunba Gbenga Daniel. The tribunals headed by Justice Haruna Tsamanni had dismissed the case of the ANPP candidate on the ground that it did not contain vital information like the age of the petitioner, his name, as well as the party that sponsored him in the April 14, 2007 polls. The decision drew the ire of several people with the state branch of the party vowing to test the ruling at the appellate court. It did and came up with a victory. The five judges of the appellate court agreed with him that Tsamanni was wrong to have dismissed his petition. In a unanimous decision, the judges held that the lower tribunal acted in error by dismissing the petition.

 

This, according to the justices – K.B Akaahs (presiding), S.S Alagoa, I. Thomas, O.F Omoleye, and J.I Okoro – amounted to mere technicalities, which should not be allowed to affect substantial justice.

 

Similarly, an interlocutory appeal filed by the governor, which questioned the timing of the filing of the petition by the ANPP candidate at the lower tribunal, was also dismissed. According to appellate court, the non-issuance of receipt to the petitioner at the time of filing the petition as demanded by law should be blamed on the registrar and not the person filing the papers.

 

Justice Akaahs had specifically faulted Daniel for making ‘heavy weather’ of whether or not the petitioner included his political party. “Who really are the parties as contained in section 144 (2) of the Electoral Act? They include a candidate, political party, respondent and presiding officers. These are proper and necessary parties,” he said. And citing the case of Green vs Green, he noted that although the name of a political party is desirable in a petition, it would not prevent the tribunal from essentially dealing with the petition on its merit.

 

He added: “Section 177 of the constitution is needed more for a valid nomination as a governorship candidate, and this can be challenged on proper grounds. Section 145 (1) of the Electoral Act stipulates that an election may be questioned, if a person is not qualified; and if this is so, the various sections of the constitution will be examined for each office, like we have sections 65 and 66 for the National Assembly members and 177 to 106 for governorship cases. Section 177 relied upon by the respondents is not limited to membership qualification but citizenship and educational qualification. The issue of qualification is a weapon of offence and not a shield of defence. All the authorities cited by the respondents were anchored on technicalities and the court has since moved from that to the era of substantial justice. I find merit in the appeal and the order by the lower tribunal on October 19, 2007 striking out the petition is hereby set aside.”

 

For many supporters of the ANPP candidates and indeed many Nigerians, who believe that what happened in Ogun and indeed virtually all the states in the South West, were the handiwork of former President Olusegun Obasanjo and the PDP rigging machinery, and therefore should be undone, the ruling instantly drew wild jubilation.

 

However, whatever joys this group of Nigerians felt appeared to have been cut down substantially, on Monday, with the decision of the Oyo State tribunal upholding the election of Governor Christopher Adebayo Alao-Akala. Indeed, the verdict has since been drawing intense debate on both sides of the divide. With a spilt judgement of three to one, the tribunal declared that the election, which threw up Alao-Akala, was held in substantial compliance with the Electoral Act 2006. One of them, Justice Wali Basir, had dissented. In his opinion, the over-voting established in the four local government councils of Ogbomoso North, South, Ogo-Oluwa and Surulere was enough ground to prove a case of substantial non-compliance with the Electoral Act. He therefore nullified the election, asking that fresh polls be conducted in the disputed councils. The four judges, were however, in agreement that the grounds of indictment, electoral malpractice, rigging and violence pleaded by the petitioners, were not proved beyond reasonable doubt and were subsequently dismissed. The ANPP governorship candidate in the polls, Senator Abiola Ajimobi, had proceeded to the tribunal to challenge the victory of Alao-Akala alleging massive irregularities, violence and non-substantial compliance with the Electoral Act 2006, particularly in the four local government councils of Ogbomoso land. Ajimobi, through his counsel, Adeniyi Akintola (SAN), then sought the cancellation of results from the disputed councils and his declaration as the winner of the election, having scored the majority of lawful votes cast. In the alternative, the ANPP candidate sought the nullification of the entire election and demanded the conduct of a fresh one.

 

Before this, a separate petition, where the candidates of the Republican Party of Nigeria (RPN), Democratic Party Alliance (DPA) and National Democratic Party (NDP), Mueez Akande, Prof. Wole Akinboade and Demola Ayoade as well as their political parties, including the ANPP, also challenged the eligibility of Alao-Akala to contest election, having been indicted by an administrative panel of enquiry set up by former Governor Rashidi Ladoja for corruption, was dismissed.

 

Justice Teni Hassan-Yusuf had then, on behalf of the two other members, held that while there was non-compliance with sections 50 (1) (2), 54, 75, which bordered on over-voting, non-accreditation, non-signing of results as well as non-signing of ballot papers by electoral officers, which resulted in the voiding of 93,173 votes for the PDP and 3,949 for the ANPP out of the 357,922 and 239,189 votes recorded for both parties in that order, the election was held in substantial compliance with sections 146 (1) and 147 (1) of the Electoral Act. The three members who spent ample time to calculate the results, faulted the initial votes of 357,922 credited to the PDP and 239,189 for the ANPP by the Independent National Electoral Commission (INEC), maintaining that by virtue of over-voting, non-accreditation and non-signing of ballot papers by electoral officers, the results in the affected units stood invalidated. Stating that the exhibits and evidence adduced by the petitioner had established that there were over-voting in the four disputed councils, she added that where votes recorded exceeded the total number of voters, election in such places should be declared null and void.

 

She also commented on non-marking of the voter’s register, saying that by virtue of Section 99 of the 1999 Constitution, mode of ticking for governorship election was blue ink, adding that any other interpretation would amount to absurdity.
“Where accreditation is not done with blue ink, votes recorded from such units will be invalidated and results must be voided. We have perused the voter’s register and we found non-accreditation on voters’ register, it was never ticked while in some units, accreditation was done with red, black and green ink, and in some instances with pencil, which is contrary to the manual released to electoral officials to serve as a guide. Evidence that both electronic and manual were used for the exercise was belated, why did Alao-Akala not tender the manual register for his defence? He chose to tender the one for Ibadan South-West, which was not part of the pleading; he was merely chasing shadows rather than substance and this in contravention of Section 149 (b) of the Evidence Act,” the tribunal chairman said.

 

Noting that the claim by INEC Head of Operations, Olubunmi Ariyo, in his oral evidence that blue ink was not provided, was not pleaded amounted to hearsay, she said his directive to electoral officials to use any ink for accreditation, which contradicted the manual, was unreasonable and ridiculous, and amounted to arrogance, as the use of any ink other than those prescribed in the manual was an anomaly. The tribunal also faulted the non-signing and stamping of results by electoral officers, saying by virtue of section 75 of the Electoral Act, such results remained invalid.

 

However, it held that the failure of the ANPP candidate to utilise the services of a forensic expert to detect the signature on the ballot papers did not help the petition, adding that the recovered 179,088 ballot papers tendered in various boxes by Ajimobi were not sorted out and only dumped on the tribunal. He pointed out that “it is not the duty of the tribunal to sort this out, while the argument on signature can only be sustained by a handwriting expert.”

 

Though the tribunal subsequently proceeded to void the results of the affected polling units in the four disputed Ogbomoso councils, thus leaving the PDP with 264,799 and ANPP with 238,587, it however insisted that the level of non-compliance did not substantially affect the total election results, as the petitioner was only contesting four out of the 33 local government councils in the state. “Of the over 4,000 units in the state, the petitioner was only contesting about 300 polling units and this to our minds will not warrant the nullification of the entire polls results. We are satisfied that non-compliance did not substantially affect the result of the election. Therefore, we are satisfied that Adebayo Alao-Akala, having won the majority of lawful votes cast, has met the requirements of sections 146 (1) of the Electoral Act and 179 of the 1999 Constitution and is duly returned as the Governor of Oyo State,” the tribunal stated.

 

But in his dissenting judgement, Basir from Taraba State, said the voided votes in the affected councils were enough to cancel the results in the entire four local governments and order the conduct of a fresh election.
Anchoring his opinion on the case of Buhari and Obasanjo in the 2003 Presidential election, where the Supreme Court nullified the entire result from Ogun State, as a result of non-compliance in one council, he said the ANPP candidate in his case had been able to establish substantial non-compliance. “The petitioner has been able to prove non-compliance in 309 polling units, thus duly discharging his responsibility; the burden is on Alao-Akala to defend. None of the witnesses gave reasons why there were over-voting, as they merely alluded to peaceful conduct of the election,” he said.

 

He contended that once the issue of non-compliance confers undue advantage on either party in an election petition, such must be addressed. In this case, he said Alao-Akala did enjoy undue advantage since he is a beneficiary of non-compliance. “By the cancellation, the electorate were disenfranchised in the 309 polling units and this is a betrayal to the political people of Ogbomoso. I found it impossible to agree with my colleagues on this point because the non-compliance was substantial. Although by the nullification, Alao-Akala still won the election, he has lost the mandatory requirement of one quarter of the two-thirds of the lawful votes cast. Once an election result is nullified on the account of over-voting, both parties must seek the votes of the electorate,” he said and therefore directed that fresh polls be conducted in the four disputed councils of Ogbomoso.

 

The tribunal was also unanimous in dismissing the ground of indictment by the candidates of DPA, RPN, DPN and their political parties on the ground that only a court of law and not an administrative or judicial panel has the right to indict a person.
Relying on different authorities, it held that “the constitution only enables” a tribunal to investigate the culpability of a citizen, adding that until prosecuted by the court, “it is impossible to find a person guilty”; that an administrative panel could not indict on a criminal offence as any of such indictment is of no effect.

 

The tribunal also dismissed the claim of non-embossment of photograph by the DPA candidate, saying by virtue of the case of Lagos State in the case of Agbaje and Fashola, there was no express provision in all the sections which made candidates pictures mandatory.
On the dismissal of Alao-Akala from the Nigeria Police Force as claimed by the RPN candidate, the tribunal noted that the candidate made unsuccessful attempt to prove this in his pleading but was later abandoned. Based on this, the tribunal dismissed the petition as lacking in merit.

 

One of the arguably most contentious election petitions arising from last year’s election was decided on Thursday. It was that between the Action Congress (AC) candidate and former president of the Nigeria Labour Congress (NLC), Adams Oshiomhole, and incumbent Governor of Edo State, Oserhiemen Osunbor of the PDP. Apparently more, because of the profile of the former Labour leader, more than the outcome of the April 14 governorship election in Edo, many Nigerians had focused on how events at the election petition tribunal in the state would eventually resolve the high level absurdities that reportedly trailed the election. That it did at the end of about six hours, during which it reviewed its findings. At the end of the day, and to the joy of Oshiomhole’s supporters and the gloom of the governor, it ordered INEC, which has been held partially responsible for not only the bizarre results that made Osunbor governor, but similar outcomes elsewhere in the country, to issue the former NLC boss the certificate of return that would lead to his immediate swearing in as the new governor of the state.

 

In doing this, the tribunal had specifically unknotted the issue of the two major local governments of Estako West and Akoko Edo, where startling revelations of violence, ballot box snatching, disenfranchisement of the electorate and other forms of election malpractice were reportedly rife. In fact, one of the most significant aspects of this was that INEC actually cancelled the result in the controversial councils. However, votes from them were said to have formed part of what added up to give PDP victory on April 18, four days after the election. Deciding on this particular incident, the tribunal, apart from taking note that the result was signed by an unknown person, stood by the earlier pronouncement of INEC and declared that it was strange to electoral law for result of an election that took place on a particular day to be brought in four days later. This aided it in cancelling the entire results of the two councils relating to the election. Proceeding from there, the tribunal went ahead to accept the results in the four local governments of Oredo, Ikpoba Okha, Egor and Estako East, where Oshiomhole’s victory was not challenged by Osunbor. In the remaining 12 local governments, the tribunal, in a painstaking effort, apparently to arrive at a faultless position, sifted the valid votes from the lot that were declared. At the end of it all and after all the mathematics, it held that Oshiomhole won the majority of the valid votes and therefore the rightful winner of the election.

 

Justice Peter Umeadi, who read the unanimous judgement, held that after shelving all the votes cast during the election, the tribunal arrived at a conclusion that AC polled 166,577 votes and also won one quarter of the valid votes in 12 of the 18 local government areas of the state, while PDP scored 125,017.

 

“We order that the certificate of return issued to Professor Osunbor as the elected governor of Edo State be hereby withdrawn. The second respondent (INEC) is hereby ordered to issue a certificate of return to Adams Oshiomhole as governor of Edo State,” the tribunal said.

 

The former Labour leader had actually challenged INEC’s declaration of Osunbor as the governor after the April 14 election, and in his petition contended that he ought to be returned, having scored the majority of lawful votes cast.

 

He had prayed the tribunal to either declare him winner or in the alternative void the election, as it was marred with acts of corrupt practices, violence and rigging.

 

Agreeing mostly with the former Labour leader, it held that the petitioner proved incidences of multiple registration and voting, corrupt practices, violence and rigging during the election beyond reasonable doubt, particularly in 10 out of the 12 local government areas, where he challenged the conduct of the election in the state.  

 

The local governments, according to the tribunal, are Esan West, Esan Central, Esan South-East, Igueben, Esan North-East and Etsako West. Others are Owan West, Owan East, Orhionmwon and Ovia North East.

 

While commending the industry of counsel of the parties, the tribunal chairman lashed out at INEC’s Head of Operations in Edo State, Mr. Olawale Kayode, who was subpoenaed to give evidence at the tribunal, noting that the INEC official did not live up to his billing.

 

Just like in the previous judgements, reactions have been coming in torrents. Lawyer to AC and Oshiomhole’s lead counsel, Chief Adeniyi Akintola, said, by the judgement, the justices of the tribunal had written their names in gold. “You may not appreciate the level of how you have helped this country to move forward,” he said.

 

In his own comment, lead counsel for the PDP and Osunbor, Dr. Alex Izinyon, said the judgement would be tested at appeal. “My Lords, you have done your best. In 1992, it happened here. Undoubtedly, we must go upstairs,” he said.

 

Soon after the tribunal gave its verdict, which was broadcast live on Nigerian Television Authority (NTA), wild jubilation erupted in parts of Benin, by supporters of the AC candidate, even as security was very tight.

 

Oshiomhole described his victory as that for the ordinary people of Edo.

 

“We said to you people that we will defend the votes. Today, we have defended the votes,” he said.

 

He also told a gathering of youths who had thronged his house in Benin, soon after, that he was happy that God had used the ordinary people and himself, stressing that together they would govern the state. For him, the victory could not have come at a better time than this Easter celebration.

Meanwhile, in a state broadcast soon after the tribunal judgement, Osunbor said he remained the elected governor of the state, adding that he and his party intended to appeal the judgement after critically studying it.

 

“In spite of my mixed feelings, my confidence in the judiciary remains strengthened, as it has further reinforced my belief that the judiciary is the bastion of hope in our fledging democracy, ready and able to uphold and defend its constitutional responsibility,” the governor said and called on the people to be calm, law-abiding and go about their normal activities.

 

While accusing the AC, with the tacit support of the former governor of the state, Chief Lucky Igbinedion and law-enforcement agencies, of

perpetrating electoral malpractices in the state, Osunbor assured that “these enemies of the people will not be allowed to continue to humiliate our people”.

 

Wild celebration of Oshiomhole’s victory in the ancient city of Benin forced long traffic jams, with many people driving with full light, while others swept the roads with brooms, the symbol of the AC.

 

Two lawyers, Tunji Braithwaite and Fred Agbaje, also commended the judgement.

 

Braithwaite, who is the national leader of the Nigeria Advance Party (NAP), said it was perhaps one of the few judgements that had met the people’s expectations in what he called the sham elections of 2007, though he added that the verdict came perhaps too late. “I salute the panel for doing justice. But we still maintain that the corruption that is being fuelled by the presidential tribunal result has done irreparable damage to the well being of this country and it is only through a revolution that we can get this nation back on its feet,” he said.

 

For Agaje, the judgement was the best thing that has yet happened since the elections. He described it as a radical departure from the “sham verdict” of the election tribunal in Ibadan, saying that it has restored the hope of the common man in the judiciary which was earlier panel-beaten by the Oyo tribunal.

“I am happy for the people of Edo State, especially for my people of Akoko-Edo and that of the entire Edo North, whose electoral right was sold out and had been restored. The judgement shows that the rule of law must take pre-eminence at all times,” Agbaje said.  The judgement has, however, thrown the PDP into some form of gloom. Chairman of the party in Edo, Dan Orbih, said Thursday had been a very sad day for the party.

 

“The reason being that the victory we worked so hard to achieve for the party has just been taken away by the verdict delivered at the tribunal. However, I was delighted to hear the leader of our legal team, Dr. Alex Iziyon (SAN), reaffirming his faith in the judiciary that our party and candidate will go on appeal.

 

“All I can say is to appeal to our members to remain calm and await the reaction from the party after consultation with the lawyers on the sad development,” Orbih said.

 

Orbih’s is certainly a different song from the one being sung in Oyo at the moment. Alao-Akala and his camp have not only remained in celebration mood, but have continued to boast about it.

 

“Before the judgement, we have heard series of wishful judgments brandished as holistic truth, both on the pages of newspapers and several recreational joints, but we thank God that finally the truth has prevailed in a very profound manner. We must always bear in mind that in truth, there is justice; and in justice, there is truth.

 

“As the executive governor of Oyo State, I hold no grudge against anyone; as a principal stakeholder in the affairs of Oyo, I admonish the opposition to join me in the urgent challenge to develop our state; and as a believer, I extend my hand of fellowship to all and sundry and express my unalloyed love to you all. I implore you all to go about your normal duties and shun any type of violent celebration or recrimination. There is a lot to be done,” Alao-Akala said.

 

Ajimobi has, however, continued to cry foul, describing the judgement as travesty of justice, wondering why it did not nullify the elections in the four disputed councils where non-compliance with the Electoral Act was established. “Why should they resort to the game of addition and subtraction when the law is very clear and straightforward on what should be done in such circumstance? The result of that fraudulent election should have been cancelled. The minority judgement delivered by Justice Basir exposed the entire weakness of the majority judgement because it takes cognisance of the interest of the petitioner, respondents and the electorate,” he said.

 

Alao-Akala’s former boss, Senator Rashidi Ladoja, also lamented the judgement, saying it had set another dangerous record again. This is the first time that we are having a dissenting judgement in all the governorship elections so far determined by the election petitions tribunal across the country. Then, watching the delivery of the judgement by the panel’s chairman, Justice Teni Yusuf-Hassan, one would want to ask why the judge was panicky and the judgement was not flowing compared to the delivery of the dissenting judgement. But if that is how the judgment will go, the judiciary has to take full responsibility for whatever happens,” Ladoja said.

 

In all these, what appears quite apparent is that Nigerians, for whom these decisions represent a signpost of how their country desires to develop a sound democratic ethos, are not only watching with keen interest, but are recording the performances of the tribunal. At the end of the day, those that would go into the dustbin of history and those who would etch their names in gold in the record books can only be determined by them. For now, the beat goes on.  

 

 

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