Nkereuwem Udofia Akpan
Yesterday I watched with dismay as a whole swarth of population, communities, and geo-political zones reacted in diverse ways over the judgement of the Presidential Election Petition Tribunal that threw out the various petitions filed by a slew of political parties, notable the People’s Democratic Party and the Labour Party and others against the election and inauguration of President Bola Tinubu and Vice President Kashim Shettima of the All Progressive Congress.
Firstly I was shocked to the marrow when I realized that a chunk of those I spoke to on the streets and in public spaces, including some highly placed political gladiators, actually believed that one or two of the Petitions would succeed and they expected that the Tribunal will not only sack the President but declare one of the other political party’s candidates as duly elected. I must say that I was not that optimistic.
I was more worried about such a high level of optimism in a cross-section of the population in a matter that was doomed to fail from the get-go due to a combination of factors
I have said this before elsewhere in my works that Nigeria is the only country left in the world when we swear a president into office and then battle in court to remove him. My argument has always been that the election cases should be concluded before inauguration. When a man is sworn into office such as the imperial Nigeria Presidency such a man will not sit idly by and allow himself to be embarrassed out of office. With the sheer glut of humans and resources at his disposal, the incumbent can hire the best legal team who can conduct fantastic research as well as mobilize the media, men, and materials given the power of incumbency to his ultimate advantage. Self-preservation like they say, is the first law of nature, and let’s face it, this President is not a pushover.
So once the alleged winner of an election by whatever means, whether by hook or crook is declared duly elected and sworn into office, it’s a mountain to climb to dislodge the purported winner.
The Electoral Act itself was scripted to favour the alleged winner. The entire electoral process is structured in such a way that it’s practically impossible to prove the negative – an evidential albatross ordinarily. The odds against a petitioner become tripled or even quadrupled, when INEC, the electoral umpire tactically supports the alleged winner by doing everything possible to frustrate the alleged losers from the get-go. INEC claimed there were ‘, technical glitches” when the server was simply turned off. INEC had no plausible explanation for why the national assembly elections held on the same day were not affected by the alleged phantom technical glitches
The 2023 elections would have not been so controversial or disputed had someone in the server room at INEC HQ, probably a mole, specifically planted for that same purpose, not deliberately switched off the servers to truncate the process of electrical transmission of results in real-time all calculated to frustrate the process
While the evidence ought to have been preserved by the BVAS, the same INEC approached the courts for an order to reformat the BVAS and essentially destroy the records that would have been relied upon to prove that there were widespread irregularities
In the absence of the BVAS the mass of badly mutilated and heavily doctored Result sheets used at the polls which were manually transmitted from the voting units to the collation centers and from there to INEC HQ were deliberately supplied so blurry and unreadable as to be practically worthless to tender in the PEPT and refer a Witness to it. What was the excuse for submitting CTC of deliberately blurred documents to the Petitioners? How was a witness able to identify and comment on a blurry and unreadable piece of evidence? Of what evidential value will such a piece of evidence be to the parties, the trial, or at all
When you remember that the loser is expected to prove that there was substantial non-compliance with the aid of documents made available by the same INEC then you’ll understand the scale of the problem. It’s like seeking the support of an accused person to provide information that might lead to his conviction. You are asking INEC to essentially come to court and confess.
The Report of the European Union Observers was thrown out because it wasn’t tendered by the maker and there was no evidence of irregularities because as already mentioned the Result sheets were blurry and unreadable for “lack of ink” in INEC photocopiers – the same INEC that spent billions preparing for the election and paid out billions to lawyers after the election couldn’t get clean photocopies out for CTCs
Now with regards to the issue of the alleged conviction of the 2nd Respondent in the USA for drug-related crimes and forfeiture of $US480,000, the Tribunal agreed there was indeed a forfeiture of drug-related funds of the president but it was a “civil trial”. This is very worrisome and damaging to us as a country. I say so because the fact that half a million in cash of drug money was seized from my president is a lot of stigma in itself and should be a big problem for his handlers. I do not know how such a stigma can be whitewashed or swept under the rug.If I were on the President’s legal team, I would do everything legally possible to upturn this embarrassing decision on the drug money issue at the Supreme Court but what do I know about stigma, shame, and embarrassment?
In all my years as an active litigation lawyer, I’ve never seen a judgment so confusing. In fact the more I try to understand the rationale for each of the legal principles therein, the more confused I get.
Take, for instance, it’s an elementary principle of law that subpoenaed witnesses do not depose to Witness Statement on Oath. Certified True Copies of Public Documents can be tendered from the bar. To insist that only the maker can tender Public Documents cannot fly because it then means that only judges or Registrars of Court can tender Judgments and Orders- a logistically impossible nightmare
To say that Shettima did not “knowingly” engage in double nomination is laughable because the man was going for Senate before he abandoned that race and became VP candidate. Most shocking of all to hold that a presidential candidate who forfeited half a million dollars in drug money has no problem because it was ‘his account and not himself ” that forfeited the money not only defies logic but doesn’t accord with common sense
Every page I turned everything kept making a mockery of my intellect. I wonder if I’ve suddenly gone stupid or if the principles of law as we knew it were changed overnight. Sincerely I’m not able to navigate through this confusion and I must say that this is embarrassing.
Of particular concern is the fact that the judgment seems to have by implication made the introduction of innovation such as the electronic transmission of results and the billions of taxpayer’s money spent on BVAS a complete waste. In fact, the sole purpose of the 2022 amendment of the Electoral Act and the entire process of implementing it is an exercise in futility. It is elementary law that the court cannot interpret an Act in such a way as to defeat the purpose for which the act was enacted in the first place. I really don’t care about Party politics but I’m deeply worried that this judgment had done violence to the Electoral Act so much that it seems to give to INEC the impetus to exercise discretion over mandatory provisions of the Electoral Act and that’s a real albatross for future elections. Those rejoicing today will be crying and gnashing their teeth soon.
Ultimately democracy succeeds where there’s confidence in the system otherwise it is a recipe for bad governance and totalitarian regimes or even full-blown dictatorships
I find it rather sad, unfortunate, and truly disturbing that the petitioners and their counsel did little or nothing to lower the expectations of their clients and followers with all the red flags and bumps along the way that manifested during the trial.
On the proper interpretation to be accorded the provisions of the Constitution with regards to the vexed issue of the 25% of votes to be garnered in the FCT by a candidate, I think it will be upturned at the Supreme Court unless the Supreme Court decides to overrule it’s former decisions on the point.
INEC had a great opportunity with adequate resources to get it right on February 25th, 2023 but blew it. Let me conclude this piece by stating and quite frankly that it would have been a miracle if the Presidential Election Petition Tribunal had upheld any of those petitions not because the lawyers performed below par as the findings and conclusions of their lordships seems to suggest but simply because the cases were designed to fail from the get-go. I say so because the electoral Act and the whole election process and system are structured to favour the alleged winner.
Secondly having regard to the cardinal principles of our adversarial system of adjudication with particular reference to the burden of proof resting on he who asserts and same hanging on the neck of the Petitioners like the proverbial sword of Damocles, there was nothing spectacular the lawyers could have done differently. Well maybe they would have called an official from the European Union to tender their Report but nothing else. So I think the petitioners’ legal ten did well and I accordingly shall respectfully disagree with their lordships that the lawyers performed poorly.
Rather than these heated debates on TV, on the pages of Newspapers, on street corners, and beer parlours, I strongly believe an appeal should be lodged at the Supreme Court so that these issues, a chunk of which are recondite, can be decided once and for all and reported in our ubiquitous journals and Law Reports for future reference.
While we are at liberty to disagree with the decision or part thereof, I share the view that there is no need for any call for and or threat of violence, casting aspersions, pouring invectives and vituperations, or making unguarded utterances, whether directed at opponents or the learned justices on the panel. I say so because recent events over disputed polls across the continent have triggered Military coups in Niger Republic and Gabon
One thing is certain, the Electoral Act 2022 has been substantially repealed, electronic innovations are worthless, INEC is all-knowing and is under no law. Election petitions will be impossible to file and the only option open will be to win at all costs and let the losers GO TO COURT.
Nkereuwem Udofia Akpan, a Constitutional Lawyer /Human Rights Activist writes from Abuja.
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