The second part of this piece was published yesterday
By Femi Falana
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.
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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.”
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 trabnsmission of lection results by electronic means election petitions ought to be proved by a few witnesses who may be required to tender relevant documents.
IN Atiku Abubakar & Anor v INEC & Ors LER (2019) CA/PEPC/002/2019) the petitioner was given only 10 days to prove the allegations that Presidential Muhammadu Buhari did not validly win the 2019 presidential election. In the circumstance, he called a few witnesses and tendered volumes of documents. But the Court of Appeal ruled that the documents were dumped and refused to consider them in its judgment. The verdict was upheld by the Supreme Court based on decided authorities. It is submitted that documents which have been pleaded and front loaded and tendered in evidence cannot be said to have been dumped on a trial court.
Indeed, it is misleading to discountenance documents which have been admitted in evidence by election petition tribunals. No provision of the Electoral Act precludes a court from using and relying on documents which were properly tendered, admitted in evidence and marked as exhibits. It is submitted that by the combined effect of sections 109, 111 and 112 of the Evidence Act, public documents like INEC forms can even be tendered from the bar without calling the makers of the document. Similarly, section 132 of the Evidence Act read together with section 76 thereof states that no oral evidence can be given to prove the content of a document. In Bayo vs. Njida (2004) FWLR ([Pt.192) 10 at 71, the court per Nzeako JCA, stated thus: “Like any evidence before a trial court, a document tendered in court is subject to scrutiny on the lines of the evidence proffered in court, to ascertain its essential value. It is my respectful but firm view that the tribunal as part of its duty to evaluate evidence before it was entitled to examine the document. In my view, it did not descend to arena as complained by the Respondent.”
It is pertinent to recall that the Supreme Court put paid to the needless conroversy over dumping of documents in the case of Arabambi vs. Advance Beverages Industries Limited (2006) All FWLR (Pt.295) 581 at 603, where Niki Tobi J.S.C. of blessed memeory held inter alia: “Learned Senior Advocate submitted that the learned trial judge was not entitled to conduct private investigations on documents tendered, and on which no evidence was led and thereby arrived at conclusions adverse to the other party. It was further submitted that the trial judge has no power in its duty to do cloistered justice by privately going into Chambers to examine documents and start to find faults therein. This is a new one … That a learned judge privately went into Chambers to examine documents is not improper. That is the normal practice and that is how a judge discharges his judicial functions. A judge takes all evidence given in court. i.e. oral and documentary et al, and at the end of the day after evidence have been concluded, he retires to his Chambers or even his residence as it is always the case, to consider and appraise all the evidence. He cannot, and he is not expected to do this in open court, and in the process of hearing the case or trial … A learned trial judge while evaluating evidence is at liberty to examine and peruse most carefully documents and if he fails to do so he is failing in this duty. In fact, even where necessary, a judge ought to comb to ensure that the credibility of the evidence is ascertained and applied towards the just determination of the case. If doing that is what the learned senior counsel say is tantamount to private investigation, then it is most unfortunate.”
With the above decision, an election petition tribunal has the duty to look at exhibits tendered before it and make necessary findings. A judge can, however, be excused for making a wrong conclusion from exhibits but cannot be pardoned for failing to look at admissible documentary evidence. Our election petition tribunals are urged to jettison the dangerous practice of rejecting documents on grounds that witnesses have not been called to recite their contents. In the alternatively, the Electoral Act should be amended to compel election petition tribunals to rely on documents which might have been tendered and admitted in evidence by petitioners and respondents. In Torti v Ukpabi 1984 SCNLR 184 the Supreme Court held that what was paramount was the relevance of a public document even if it was stolen.
Elections are declared inconclusive by the INEC even when clear winners have emerged in governorship and legislative elections. During the 2019 general elections, governorship elections were declared inconclusive by the INEC in 6 out of 29 states. It has been said that the phenomenon of inconclusive elections constitutes a threat to the democratic process. The danger would become apparent whenever a presidential election is declared inconclusive. But INEC does not share the public perception that inconclusive elections are a manifestation of a defective electoral system. According to National Commissioner and Chairperson of the INEC Electoral Institute, Mrs Amina Bala Zakari, inconclusive elections are a product of a strengthened electoral process which is robust and has progressed steadily. She however acknowledged that inconclusive elections are caused by “Direct intimidation of voters and INEC staff not to use the Smart Card Reader to force over voting; perpetrate violence through the use of weapons including guns to scare away voters in an attempt to influence outcome of elections; disruption/ obstruction of elections in an opponent’s stronghold by whatsoever means possible and infiltrating the system through attempts at bribing election officials.”
On his own part the INEC Chairman, Professor Yakubu Mahmoud has stated that “insecurity as a result of violent disruption of processes was the major reason why a number of elections had to be declared inconclusive. There is therefore an organic link between security and the conduct of peaceful elections”. Since inconclusive elections are largely caused by violence the INEC and security agencies should ensure that elections are not disrupted by violence caused by criminal elements who intimidate electoral officers, snatch electoral materials and unleash violence on voters.” To stop the dangerous practice the INEC helmsman has reiterated his call for the establishment of an Electoral Offences Tribunal. Until the Tribunal is put in place INEC has indicated its wish to apply Section 53 of 2010 Electoral Act which deals with over voting and section 26 which deals with postponement due to threat of violence and other emergencies.
According to INEC Guidelines, if the number of registered voters in areas where elections are cancelled are more than the margin with the candidate with the highest number of votes was leading the runner up such election would be declared inconclusive. It is doubtful if the position of INEC is in accord with section 179 (2) of the Constitution which provides that a candidate to the office of the governor shall be deemed to have been elected where, there being two or more candidates- (a) he had the highest number of votes cast at the election; and (b) he has not less than one quarter of all the votes cast in each of at least two thirds of all the local government areas the state.”
In Honourable Faleke v INEC (2016) WRN/SC. 648 Prince Abubakar Audu who had won the APC governorship primary election nominated the appellant, Hon. Abiodun Faleke as his running mate and both names were submitted to the Independent National Electoral Commission (INEC), the 1st respondent herein, by the APC as its candidates for the Governorship Election. The election was held as scheduled on 21/11/2015. At the close of the polls, the Prince Audu/Faleke ticket was leading with 240,867 votes while the Peoples Democratic Party (PDP) was in second place with 199,248 votes. Before the announcement of the results of the election Prince Audu passed on. The news of his demise was communicated to the 1st respondent (INEC) vide a letter dated 23rd November 2015. The INEC requested the APC to substitute the deceased with a suitably qualified candidate. The APC substituted the deceased with the 2nd respondent, Yahaya Bello, who had come second in the party’s primaries and notified the 1st respondent accordingly. In the supplementary election the 2nd respondent scored 6,885 votes as against 5,363 votes scored by the PDP, its closest rival.
The votes were added to the votes earlier scored by the respective parties on 21st November 2015 and the 2nd respondent was declared the winner of the election and returned as the duly elected Governor of Kogi State. The case filed by the appellant was dismissed by the election petition tribunal and upheld by the appellate courts. It was even said that the appellant had no locus standi to have filed the petition before the election petition tribunal! The apex court took that stand in a bid to justify a departure from its earlier decision in the case of PDP v. INEC 1 NWLR (PT 6226) 200 where the appellant who was a deputy governor-elect was ordered to be sworn as the governor and authorized to appoint a deputy governor endorsed by the house of assembly. In view of the erroneous judicial endorsement of inconclusive elections the relevant INEC Guideline should be reviewed with a view to reflecting the letter and spirit of the Constitution.
Review of the decisions of the Supreme Court
Contrary to the views credited to many lawyers, the Supreme Court was not requested to review its judgment in the case of PDP & 2 Ors. V. Biobara-Kuma Degi-Eremienyo & 3 Ors. (Unreported Suit No: SC/1/2020) by Aare Afe Babalola and Chief Wole Olanipekun SAN. Both Applicants had prayed the apex court to set aside its judgment delivered on February 13, 2020 on the grounds that it was erroneously based on the belief that the Federal High Court had disqualified the governorship candidate of the APC whereas it only disqualified the deputy governorship candidate. In dismissing both applications the Supreme Court said that its judgment “was final in the real sense of the word, final, and no force can get this court to shift from its decision.” Amina Augie JSC who read the leading judgment of the of the court accused the two senior counsel who filed the applications of “desecrating the sanctity of the court”. As if that was not enough the apex court ordered both counsel to pay N60 millions costs to the 3 respondents.
However, the application for the review of the judgment of the Supreme Court in the case of Senator Hope Uzodinma & Ors. V. Rt Hon. Emeka Ihediora & Ors. (Unreported Suit No: SC/140/2019) was dismissed in spite of its merit. Speaking for the Court, Kayode Ariwoola J.S.C said that “Certainly this court has no inherent power to grant what is being sought, it is beyond the powers of this Court. There is no Constitutional provisions for this court to review its own judgment. To say the least, this court has no competence and lacked power to sit on appeal in its own decision. Finality of the Supreme Court is entrenched in the constitution and inherent power can only be invoked where there is law to do so. This court cannot under any guise alter any judgment under any inherent power, as doing so would bring the court into disrepute and ridicule.” Surprisingly, the applicant’s lawyers were not ordered to pay costs!
But Cletus Nweze J.S.C was convinced that his learned brothers and sisters had erred in law. He pointed out that the Supreme Court could reverse itself in fulfilment of justice. His Lordship categorically asserted that: “This Court once set aside its own earlier judgment and therefore cannot use time frame to extinguish the right of any person. This Court has powers to over rule itself and can revisit any decision not in accordance with justice”. In reviewing the judgment his Lordship said that without evidence of meeting other constitutional provisions, the court misled itself into declaring Uzodinma as governor of Imo State. Having found that the results computed by the court showed that the number of voters surpased the number of accredited voters the jurist concluded on a note of dire warning to the effect that: “This decision of the Supreme Court will continue to haunt our electoral jurisprudence for a long time to come”.
I wish to submit, with profound respect, that the position of Nweze J.S.C on the inherent powers of the Supreme Court to review its decisions cannot be faulted. In fact, in the celebrated case of Adegoke Motors Ltd. v. Adesanya  13 NWLR (Pt.109) 250 at page 275, Justice Oputa had this to say: “We are final not because we are infallible; rather we are infallible because we are final. Justices of this Court are human-beings, capable of erring. It will certainly be short sighted arrogance not to accept this obvious truth. It is also true that this Court can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”
Illegality of awarding costs against lawyers by Nigerian Courts
In line with the Rules of Procedure applicable in the Supreme Court the highest cost that can be awarded against a litigant is N50,000. But in the case of Ugba v Suswan (2012) WRN/SC.191/2012 the appellants’ lawyers were ordered to pay N1 million for filing an application for the review of the judgment of the Supreme Court. Since then the apex court has been awarding aggravated costs against lawyers for filing applications which are considered frivolous or vexatious by their lordships. Other courts have engaged in the award of prohibitive costs against counsel. Apart from the Administration of Criminal Justice Act, 2015 which empowers a trial court to award costs against lawyers who delay the prosecution of pending criminal cases no other law or rule of procedure of any court in Nigeria has empowered any court to impose fines or award costs against counsel for performing their professional duties of filing suits on behalf of their clients.
Last year, two high courts ordered some public interets litigation lawyers to pay skyrocketing costs. In my criticism of the disturbing trend I said that : “In recent time, some High Court Judges have imposed fines ranging from N5 million to N10 million on concerned citizens whose cases were struck out for want of locus standi…Even in the award of costs litigants and their counsel are given fair hearing by judges. Why then are fines imposed on lawyers without allowing them to make any representation? Since access to court has been guaranteed by sections 6 and 36 of the 1999 Constitution and article 7 of the African Charter on Human and Peoples Rights Act it is illegal and unconstitutional to impose fines on aggrieved citizens who approach the courts to challenge the illegal official policies or unconstitutional legislations under the current democratic dispensation.”
Not a few members of the legal profession have commended the Supreme Court for protecting its integrity by directing Aare Afe Babalola SAN and Chief Wole Olanipekun SAN to pay N30 million each to the respondents in the two separate applications which were dismissed for want of jurisdiction. The fines imposed on both senior Counsel reminds me of the abortive attempt by the defunct military junta to criminalise legal practice in the area of public interest litigation in Nigeria. After the 1992 NBA crisis in Port Harcourt, Rivers state, the Ibrahim Babangida junta enacted the Legal Practitioners Amendment Decree No 21 of 1993 which authorised the Body of Benchers to constitute a caretaker committee to suprintend the affairs of the NBA. The Decree barred the institution of actions by any person or by any legal practitioner connected with or arising from the management of the affairs of the NBA or the exercise or preparation by the Body of Benchers of the exercise of the powers conferred upon it.
In addition to the usual ouster clause the Decree declared abated, null and void all pending matters peratining to the affairs of the NBA. In particular, the Decree provided that “A person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to a fine of N10,000 or to imprisonment for a term of one year or to such fine and imprisonment.” In a prompt reaction to the Decree the Ikeja branch of the NBA, by a popular resolution, instructed our law frm to challenge the validity of the ouster clause and the criminalisation of instituting a legal action against the caretaker committee. And sequel to the instruction we instituted a suit at the Lagos sate high court challenging the violation of the fundamental rights of the plaintiffs to the freedom of association and assembly guaranteed by sections 39 and 40 of the unsuspended provisions of the Constitution and articles 10 and 11 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.
Based on the urgency of the matter the Lagos State High Court presided over by Obadina J. (as he then was) granted our motion ex parte and issued an order restraining the Body of Benchers from setting up any caretaker committee pursuant to the Decree pending the determination of the motion on notice. Dissatisfied with the order, the Body of Benchers appealed to the Court of Appeal in the case of Williams v. Akintunde (1995) 3 NWLR (PT 381) 101. Even though Nigeria was then under the most fascistic military junta the full panel of the Court of Appeal upheld our submissions and annulled the obnoxious provision contained in the Decree on the grounds that it was “manifestly inconsistent with the provisions of section 33 of the 1979 Constitution which guarantees as a fundamental rights the citizen’s access to court for the determination of the civil right. It is therefore void.”
It is therefore submitted, without any fear of contradiction, that the Supreme Court lacks the power either under the Supreme Court Act or Rules of Procedure to impose costs against lawyers for filing appeal or application on behalf of their clients. To that extent, the costs of N60 million imposed on both senior counsel in PDP & 2 Ors. V. Biobara-Kuma Degi-Eremienyo & 3 Ors. (supra) ought to be challenged either at the African Commission on Human and Peoples Rights Commission in Banjul, The Gambia or at the Community Court of Justice (Ecowas Court). It ought to be pointed out that the violation of community citizens by any national court can be challenged at the Ecowas Court. In Sam Sumana v. Republic of Sierra Leone (ECW/CCJ/APP/38/16) the Community Court found that the Supreme Court of Sierra Leone had ratified the purported removal of the Applicant as the Vice President of that country without affording him the opportunity to state his case. Consequently, the Ecowas Court upheld our submission and proceeded to quash the decision of the Supreme Court for breaching the human right of the applicant to fair hearing protected by aricle 7 of the African Charter on Human and Peoples Rights.
The Way Forward
In order to minimise the involvement of judges in election relate cases and prevent them from imposing candidates on the people we are compelled to suggest as follows:
1. Registration of voters, accreditation of voters, voting and computation of results of elections shall be by electronic means. Results of elections hall be trnasmitted electronically.
2. Certificates relied upon by candidates shall be submitted together with nomination forms to the INEC. Any candidate who submits a forged certificate shall be disqualified and prosecuted for forgery by the INEC.
3. An Electoral Offences Tribunal shall be established to deal with thuggery and violence, fraudulent declaration of election results, snatching and stuffing of ballot boxes, subversion of internal democracy in political parties and other electoral offences.
4. Election petition tribunals shall be constituted by retired judges. All pre-election matters and election petitions shall be determined before elections while election petitions shall be concluded before the inauguration of of incoming governments.
5. All appeals arising from pre-election matters and election petitions shall terminate at the Court of Appeal. Election disputes shall be decided and concluded before the inauguration of winners of elections.
6. The proof of election petitions shall be based on the balance of probability and not proof beyond reasonable doubt.
7. Petitioners and respondents in any election petition may rely on oral or documentary evidence. Documents tendered and admitted in evidence during trial shall be considered by election petition tribunals.
8. An election shall not be declared inconclusive once a winner has emerged in accordance with the provisions of the Constitution.
9. The Nigerian Bar Association should collaborate with the INEC in the prosection of electoral offenders.
From the foregoing, it is indisputable that Nigerian courts and lawyers have developed a unique electoral jurisprudence based on technicalities and dubious legal doctrines. Such legal principles include : (i) Proof of rigging and electoral fraud beyond reasonable doubt; (ii) proof of allegations of fraudulent declaration of results and manipulation and inflation of election figures beyond reasonable doubt; (i) evidence of rigging must be so substantial to vitiate election results; (iv) illegality of accreditation of voters by card; (v) courts are precluded from examining documents tendered in court to prove rigging because they have been dumped; (vi) police and military personnel who aid rigging of elections must be named in election petition; (vii) to prove rigging of presidential or governorship election a petitioner must call between 250,000 and 300,000 witnesses; (viii) candidates are not required to produce and submit the certificates allegedly possessed by them to INEC; (ix) candidates and political parties that won elections cannot be penalised for electoral offences committed by their agents.
Based on the manipulation of the electoral process by the political class the election petition tribunals and the courts are required to play a leading role in the election of the representatives of the people. But by resorting to aforementioned technicalities in the interpretation of the relevant provisions of the Electoral Act and the Constitution the democratic process has been subverted by the judiciary. In order to respect the democratic wishes of the electorate, there has to be a new electoral jurisprudence. Whenever the winner of an election is disqualified an order for fresh elections should be made. On no account should an election be cancelled or declared inconclusive due to disruption of election in a few polling units by criminal elements. The proposed amendment of the Electoral Act should prescribe punishment for institutions and individuals who manipulate the democratic process.