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Edo: A tribunal’s curious definition of over-voting

By Nosa Omorodion

AFTER six months of competitive legalese and high drama with doses of comic relief, the Edo State Governorship Election Petition Tribunal on April 14, 2017, delivered judgment in the petition filed by Pastor Osagie Ize-Iyamu and the Peoples Democratic Party, PDP, challenging the declaration  by INEC that Mr. Godwin Obaseki of the All Progressives Party, APC, won the 2016 Edo State Governorship Election. The respondents in the petition, were INEC, Obaseki and APC as first, second and third respondents, respectively.

The petitioners had anchored their petition on alleged electoral infractions namely: improper accreditation/non-accreditation and over-voting in the election that held on September 28, 2016, and  which they submitted contravened the Electoral Act 2010 (as amended) and the 2016 INEC Election Manual – an official guide for the conduct of the election. And ultimately, they sought the leave of the Tribunal to declare Pastor Osagie Ize-Iyamu as the validly elected governor of Edo State in the election under contention.

It was not unexpected that the judgment would go either way of the petitioners or the respondents. But the manner in which it was delivered and the emergent presumptions upon which the judgment was based could be said to be novel and of questionable standard.

The Tribunal Panel of Judges chaired by the Kano State born Justice Ahmed Badamasi in his  ruling, dismissed the petition on the grounds that it lacked merit, saying that the Petitioners had not addressed the issue of malpractice which they had canvassed at pre-trial. The Tribunal in a bid to justify itself, apparently indulged in the trivialisation of the weighty issues of electoral non compliance which the petitioners by right and by legal direction had adopted, having canvassed and listed same at pretrial, to pursue the reliefs sought.

The Tribunal while dismissing the petition averred  that: (1) the issue of accreditation and manner of conducting it, is an administrative exercise which goes to no issue as a ground for challenging the conduct of the election; and (2) that the petitioners’ manner of proving their allegation of over-voting does not subsist on what constitutes over-voting in an election.

While many people have found the expressions of the Tribunal on these two critical elements of the petition doubtful, its definition of what constitutes over-voting, in particular, has thrown up a controversy within the legal circle and the court of public opinion. Indeed one could say the Tribunal has caused a semantic confusion which has left many wondering if over-voting in judicial lexicon is different from the literal meaning of the word or the contemplation of the extant law.

Quite vividly, the petitioners had gone the length to prove that the election was characterised by incidents of over-voting, and for which they sought appropriate remedy, by presenting before the Tribunal, certified true copies of the election units results sheets showing discrepancies that tended towards inflation of votes. They also presented ninety-one witnesses within the constraint of the fourteen days alloted them, to testify in their favour while adopting written depositions that were already before the Tribunal.

Furthermore, the petitioners had also caused the Tribunal to subpoena ballot papers used in four of the eighteen local government areas for a recount in a bid to justify their claim of over-voting. However, the recount exercise which the Tribunal permitted, could not be concluded before the time allocated to the petitioners for presentation  of evidence elapsed. Nevertheless, the results of the recounted ballot papers in Etsako West, among others, exposed the fact that there was massive over-voting, such that the result of that area had virtually been illegally doubled. Whereas INEC declared a result of about 17,000 votes for Etsako West, only about 8000 ballot papers were found upon verification by the court ordered recount.

This was an ample evidence of reprehensible non compliance that characterised the election and which in spite of the inconclusive recount, was captured in the documentary evidence made available to the Tribunal in the form of certified true copies of results sheets and voters registers used for the election. The Tribunal which had by its order led to this revelation and kept a record of it made no mention of it in its judgment.

Interesting enough, while the Tribunal gave the impression that the witnesses called by the petitioners were not sufficient to justify their allegation, it made no issue of the fact that the 1st respondent, INEC failed to present any witness despite having been allocated ten days for its defence.

In a curious twist, however, while delivering judgment, Justice Ahmed Badamasi swept the incredible ballot paper revelations under the carpet by not giving judicial attention to the relevance of the documentary evidence before the Tribunal, which  are the controversial result sheets, the result of the partial recount at the Tribunal and the chart of the contested polling units produced by the petitioners for the  direction of the Tribunal.

Instead, the Tribunal launched into a weird definition of the concept of over-voting in order to shoot down the petition. Contrary to the commonly held opinion, Justice Ahmed Badamasi with his co-panelists, ruled that over-voting as contemplated by the Electoral Act, is a situation whereby the result declared for a polling unit of an election is more than the number of all the voters registered for that unit. This is obviously in stark contrast to the popular belief that over-voting is a situation whereby the votes recorded for a polling unit is more than the number of voters that had actually voted in a particular election.

The questions arising from the Tribunal’s rather queer assertion are: (1) How could the Tribunal’s idea of over-voting have been contemplated when it is basically illogical and without precedence for all registered voters in a polling unit to participate in the voting process? (2) How logical could the Tribunal have been when it is common knowledge that we have never had a more than sixty percent voter participation in the five general elections held since 1999? (3) Does it mean that in a unit where for instance we have 1000 registered voters, 250 voters were accredited and declared to have voted but 300 votes were recorded by the INEC officials, over-voting does not subsist? (4) Could the absent voters on the register be included in the number of persons that voted? These are questions, among others, that presently agitate the minds of Edo people while they await the judgment of the Appeal Court when the case shall have made its round of that superior court.

Meanwhile, the Tribunal’s ruling that the accreditation exercise is discretional and of no consequence to determining the credibility of the conduct of an election in Nigeria is another nagging issue that the people are eager to see the Appeal Court and, of course, the Supreme Court resolve. Of what value is the accreditation of voters if not to keep record of the actual number of voters that participated in the election?

The Tribunal by its judgment has served the Appellate Courts a delicate dish of definitions which run contrary to popular understanding. While the factors that may have influenced the Tribunal to redefine over-voting and the essence of voters’ accreditation remain a matter for speculation, it is expected that the Appeal Court, being availed of the facts of the petition and upon having reviewed the judgment of the inferior court against available evidences, will either concur or disagree with the Tribunal’s definitions and overall judgment. However, until then, the feeling that the Tribunal erred in its judgment just refuses to go away.

*Mr. Omorodion, a political analyst, wrote from Benin City, Edo State.




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