Presidential Election Petition Tribunal and the cause of justice

THE ruling on Tuesday February 25, 2008 by the Presidential Election Tribunal to the effect that the polls were free and fair, was not just shocking, but robbed our beloved country of the chance for a fresh start and to show that we can do things better. It also plays up the stereotype that incompetence and electoral fraud is acceptable in Nigeria. The Justice James Ogebe-led presidential election petition tribunal had unanimously held that the former Head of State Muhammadu Buhari, who was the presidential flag bearer of the All Nigeria Peoples Party (ANPP) in the April 21, 2007 presidential election and his counterpart in the Action Congress (AC) Alhaji Atiku Abubakar, former Vice-President in the Obasanjo Administration, had failed to prove their claim that the election which brought Alhaji Umaru Musa Yar'Adua to power on April 21, 2007 was not conducted in substantial compliance with the Electoral Act, 2006.

"In conclusion", the tribunal's judgment, which was read by Justice John Afolabi Fabiyi (JCA), forcefully declared, "this petition has been plagued by want of evidence in proof of virtually all the allegations contained therein", adding that "even if I were to accept all the excluded evidence proffered by the petitioner, which evidence relates only to four states of the federation, the petitioner would still have been unable to establish this petition..."

The April 14 and 21 general elections, which were bungled by the inept and inordinately partisan so-called Independent National Electoral Commission (INEC), presided over by Prof. Maurice Iwu, were universally condemned as a plague, a national disgrace and a reproach to the collective aspirations of all Nigerians. Max Van Den Berg, the European Union (EU) Chief Observer of the said elections, had this to say: "The EU observers witnessed many examples of fraud, including ballot box stuffing, multiple voting, intimidation of voters, alteration of official result forms, stealing of sensitive polling materials, vote buying and under-age voting", adding that "INEC's selectivity and inconsistency with regard to the application, and enforcement of electoral laws and court orders were apparent in a number of instances..." Local commentators were just as critical of the farcical exercise called April 2007 general elections. Even the greatest beneficiary of the elections, President Musa Yar'Adua, openly acknowledged the flaws in the elections. But the Presidential Election Petition Tribunal glossed over all this to the utter consternation of the public.

If anything, the ruling of the Tribunal has re-affirmed the notion that the law is indeed an ass. It is common knowledge that every judgment is as good as the quality of submissions made before the judge, who, more often than not, may twist legal gaffes and hiatuses in the law in the interest of some socio-political considerations. Unfortunately, the Tribunal overplayed its hands in this instance. For example, the tribunal claimed that the counsel to the petitioners failed to abide by the provisions of the election tribunal and court practice directions 2007, a failure which proved fatal to their case against the major respondents, President Umaru Yar'Adua and Vice-President Goodluck Jonathan.

Section 83 of the Evidence Act (Cap. 112, laws of the federation of Nigeria, 1990) provides that "an affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner". The court held that the corpus of the affidavit evidence tendered by the petitioner's counsel on behalf of the petitioner was sworn before a notary public who was also counsel to the petitioner. No doubt, the court's decision in this regard as well as in other instances amounts to using narrow technicalities to subvert substantial issues in the case. Besides, Section 146 (1) of the Electoral Act, 2006, offered the tribunal considerable latitude in how to wriggle through the labyrinth of law and facts that may militate against any election candidate, who complains of non-compliance with the provisions of the act. This noxious and footloose section could serve as literal bait on offer to any judge or group of judges to apply some extraneous canons of statutory interpretation to construe the law, with an eye to the main chance.

In all probability, the learned justices of the Court of Appeal may, under the doctrine of consequences, have weighed the cost of fresh elections in both human and financial terms, in addition to a possible upsurge of socio-political disturbances in the body politic, before crafting the judgment that is completely silent on the highly discredited elections and on the cruel theatrics of what was intended to be their unbiased umpire. If indeed their Lordships had chosen to give a ruling on these grounds, it perhaps would have been better if they had said so, expressly.

The kernel of the matter, however, is as follows: Their Lordships may have delivered legal justice relying heavily on technicalities, but substantial justice has not been done. Reading the details of their ruling, they seemed to have been more interested in ridiculing the Counsel to the petitioners. There were urgent issues which their Lordships simply wished away. One, counsel to the petitioners had complained that they were ambushed by their Lordships who had prevented them from presenting oral evidence in support of their pleadings, only to turn around to castigate them for failing to do so. So irritated was the counsel to General Muhammadu Buhari, Chief Mike Ahamba, SAN that he enjoined the Justices to search their "bags of conscience." Many Nigerians, in reacting to the ruling, have expressed more or less the same view.

Secondly, there was the issue of missing serial numbers on the ballot papers for the election. Again, the Justices did not consider this material enough. Thirdly, one of the petitioners had insisted that there was no level playing field in the elections. In this regard also, the ruling gave the impression that the April 21 election was free and fair. Thus, the tribunal sought to confer legitimacy on an election that was universally considered fraudulent. The hands of the tribunal may have been tied and their Lordships may have been interpreting the law, strictly as it is, but the responsibility of a Court of law is to do justice and for it to be seen to have done justice, even if the heavens fall.

The general outcry and public disquiet that have attended the tribunal's ruling are proof enough of how an uninspiring judgement from the Bench can erode confidence in the judicial system. It is the judiciary that has been placed on trial. Perhaps the most galling aspect of the entire episode is its advertisement by INEC as a confirmation of its success in the April 21, 2007 election. We decry this cheap and hollow opportunism on the part of INEC. What is clear from the outcome of the presidential election petition so far, is that law alone cannot enthrone a fraud-free and transparent electoral process in Nigeria. Even so, we are persuaded that all the laws relating to elections in Nigeria including the constitution, the Evidence Act and the Electoral Act 2006 should be reviewed with the minimum delay.

It is hoped that the Electoral Reform Commission set up by the president will look into the Electoral Act 2006 as well as other laws relating to the electoral process. We are also persuaded, above all, that INEC should be drastically overhauled, with efficient speed. In the meantime, the petitioners have vowed to take their case to the Supreme Court on appeal. The entire nation awaits the intervention of the Supreme Court, with the hope that it will help to dispel the confusion, ridicule and danger that the ruling of the Presidential Election Petition Tribunal has brought into Nigeria's democratic space.