Tribunalisation of democracy in Nigeria (3), By Femi Falana

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The second part of this piece was published yesterday

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BUT unlike election petitions which are defended by lawyers hired by the INEC no arrangement is made for the prosecution of electoral offenders. Unlike in the past, judges have abandoned the duty of recommending that sanctions be meted out to electoral officers implicated during the trial of election petitions.

In 2011, the Attahiru Jega-led INEC chairman introduced the Permanent Voters Card with the biometric data of every voter as well as an electronic device in smart card reader. With the device every registered voter was verified before casting their vote with a permanent voter card.

The system reduced the rigging of the 2011 general election. But the Supreme Court curiously held that the accreditation of voters by the use of smart card reader was illegal. As I did point out the learned Justices did not advert their minds to section 52 of the Electoral Act which has empowered the INEC to use any procedure deemed fit for the conduct of any election. (See Femi Falana: The Legal Validity of Card Readers).

Even though every election records cases of snatching and snuffing of ballot boxes, snatching of result sheets and other election materials, falsification of results and announcement of election winners under duress the perpetrators of electoral offences are never brought to book.

The crisis has been compounded by the involvement of the military and police in the rigging of elections. In 2014, a military officer gave details on the criminal activities of a detachment of the army in subverting the wishes of the people of Ekiti State during the gubernatorial election.

A subsequent investigation by the army headquarters led to the retirement of a brigadier-general and other officers who were indicted in the electoral fraud. However, reports of local and international observers confirmed the use of members of the security apparatus in thumb printing and ballot snuffing during the 2019 general election in many parts of the country.

Before the 2019 elections, the National Assembly had passed a bill that legitimised electronic collation and transmission of results. President Buhari rejected the amendment on the ground that it could only come into effect after the election. It is hoped that the proposed amendment of the Electoral Act will  introduce digital voting and transmission of election results. But in an atmosphere of official lawlessness electronic voting will be abused by criminal elements. For instance, in 2016 and 2018 the election of the officers of the Nigerian Bar Association by e-voting was compromised by a cabal in the national secretariat of a party. In 2017, Kenya’s presidential election was anulled by the country’s Supreme Court because the result was hacked. Therefore, unless there is the political will to deal ruthlessly with electoral offenders the proposed digital voting will be compromised by the desperate political class in Nigeria.

In the past, the law was interpreted in a manner that electoral offenders were punished. But they are now celebrated as they are allowed to take part in rerun elections which are ordered by election petition tribunals and the Court of Appeal. This surely is against the equitable maxim – nullus commodum potest de injuria sua propria (no one can gain advantage by his own wrong). This position was castigated by Oguntade JCA (as he then was) in Falae vs. Obasanjo (1999) 4 NWLR (Pt.599) 476 at 510-511, where he lamented in this mournful soliloquy: “What in my view, is not so easy to comprehend is why the law would allow the beneficiary of a campaign carried out on the day of election, in breach of the law, to carry away the prize of the election just because he had not himself been shown to have authorized the act. The law cries out loudly for alteration.”

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In view of the decision of the Supreme Court in Amaechi vs. INEC (2008) 5 NWLR (Pt.1080)227 to the effect that elections are won by political parties and not individual candidates, it is submitted that once it has been proved that a political party has marred an election with the aid of thugs its candidate should not be allowed “to carry away the prize of the election.” In many instances, election riggers have been allowed to take part in rerun elections by the INEC on the grounds that they have not been disqualified by election petition tribunals which indicted them.

In order to sanitize the electoral system election petition tribunals and courts should henceforth recommend the prosecution of electoral officers and politicians and their agents who are found to have been involved in the rigging of elections or manipulation of the electoral process. Similarly, political godfathers and party chieftains who subvert internal democracy in the political parties should be sanctioned.

Proof of election petitions

It is trite law that election petitions are sui generis and as such have peculiar features. They are neither civil nor criminal in nature. But election petitions are decided like criminal cases by election petition tribunals. In particular, petitioners are required to prove allegations of electoral fraud beyond reasonable doubt. Many petitions which raise serious allegations of electoral malfeasance are dismissed on technical grounds such as failure of lawyers to endorse petitions or affix stamp and seal to them. Notwithstanding that election petitions are time bound petitioners are required by tribunals to tender documents and speak to them.

Thus, through the wrong application of rules of evidence, certified true copies of official documents tendered and admitted in evidence are not considered by tribunals on the grounds that they were dumped during trial. In the past, winners of disputed elections were decided by election petition tribunals on proof beyond reasonable doubt but on the balance of probability. Omoboriowo vs. Ajasin (1984) 1 SCNLR 108.

In view of the difficulty encountered by petitioners in proving the rigging of elections beyond reasonable doubt the wishes of the electorate have been subverted by election petition tribunals. In another forum on electoral jurisprudence I had suggested that the onus of proving that valid and lawful election has been conducted should be discharged by the INEC.

This is the requirement in cases of arrest and detention where the onus is placed on the detaining authorities to justify their actions in court. Once a petitioner shows that an election was marred by irregularities, violence, inadequacies of election materials, etc. the onus of proving that the election was conducted in accordance with the law should be discharged by the INEC. In Buhari v. Obasanjo (2005) 19 WRN 1 at 166 Tabai JCA (as he then was) held “In this situation someone has to do more to show the veracity of his position. In my view, the party to do more to show the veracity of his position, should be the one who tried to show that election was held in accordance with the laws”.

In Buhari vs. Obasanjo (2005) 2 NWLR (Pt.910) 241 the Supreme Court held that not less than 250,000-300,000 witnesses are required to prove that a presidential election was not properly conducted. But with the aid of technology through the use of card readers for accreditation of voters and transmission of election results by electronic means election petitions ought to be proved by a few witnesses who may be required to tender relevant documents.

To be concluded…

VANGUARD

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https://www.vanguardngr.com/2020/03/tribunalisation-of-democracy-in-nigeria-3-by-femi-falana/

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