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Mark Walks The Tightrope

March 5, 2008

Makurdi Since assuming office last May, David Mark, President of the Senate, has been widely lauded for his exemplary leadership of the upper legislative chamber. This is on account of the smooth working relationship between the executive and legislative arms of government.


But in Benue, his home state, the political elite remain unimpressed by his recently acquired profile. They accuse him of bending the process that won him his current position. Mark’s kinsman and main opponent in the senatorial election, Alhaji Usman Dan Maishanu Abubakar of the All Nigeria Peoples Party, ANPP, dragged Mark to the Benue State Election Petitions Tribunal sitting in Markurdi, on grounds that the Senate President did not win the election in the first place.
 
Abubakar’s lead counsel, Chief Wole Olanipekun, SAN, who led 19 lawyers, urged the tribunal to declare his client winner. He said election took place in seven out of nine council areas that constitute Benue South Senatorial district. Abubakar polled 172,029 to Mark’s  98,029 of valid votes cast. Olanipekun contended that since the Electoral Act 2006 allows candidates with simple majority to be winners of the senatorial election, results collated by the Independent National Electoral Commission, INEC, showed that Abubakar met the requirements of the Act. He, therefore, asked the tribunal to declare Abubakar winner.
 
Mark’s lead counsel, Chief Damian Dodo, SAN, prayed the tribunal to uphold his client’s victory because Mark won the election free and fair by the total votes cast in the nine local government areas. Dodo said election took place in the nine council areas and accused Abubakar of disputing the results of the two councils because his client lost there. The disputed councils are Okpokwu and Agatu. Okpokwu is the home of former Senate President, Chief Ameh Ebute, and President Umar Yar’Adua’s campaign coordinator for Benue State, Comrade Abba Moro.

After eight months of legal jousting, the four- man Election Petitions Tribunal nullified Mark’s election. Delivering judgment on Abubakar’s petition in Makurdi, Tribunal Chairman, Justice C.I. Uriri, voided Mark’s victory and ordered a fresh election in the  Agatu and Okpokwu councils within 60 days. Uriri also upheld the prayers of the petitioner to the effect that elections held in only seven out of the nine council areas in the senatorial district. The tribunal also ruled that Abubakar, ANPP, came tops with 172,029 votes while Mark, PDP, trailed behind with 98,029 votes.
 
The tribunal, however, failed to grant Abubakar’s prayer that he be declared winner on the strength of the results of the seven local councils. Declaring Abubakar winner, said the tribunal chairman, would amount to disenfranchising the voters in the councils where elections did not take place.

Shortly after the annulment, President Yar’Adua, his deputy, Goodluck Jonathan, and the leadership of the National Assembly expressed solidarity with Mark. Political analysts believe that for such sympathy to achieve the desired political goal, it should have come from prominent citizens of Benue State, especially Mark’s kinsmen.

The verdict raised a hail of dust in Benue and beyond. Ranking Senators from North Central, the geo-political zone to which the Senate Presidency was ceded by the PDP, are said to have started jostling for Mark’s job. Their thinking is that the flaws associated with Mark’s election are too substantial for the Appeal Court to upturn the ruling of the lower tribunal. As at press time, Senator Nuhu Aliyu from Niger State, and his counterpart from Nassarawa State, Abubakar Sodangi, have reportedly started scheming for Mark’s job.

In Otupko, Mark’s hometown, his supporters were understandably downcast. When this magazine visited Abubakar’s home, a stone’s throw from Mark’s, his security guards were busy beating back waves of his supporters. In an interview with TheNEWS, Abubakar said the tribunal dampened his joy by refusing to declare him winner. Abubakar has instructed his lawyers to cross-appeal the judgment of the tribunal. According to Olanipekun, he will ask the court to declare his client winner having scored simple majority of over 170,000 votes in the seven councils whose results were declared valid by the tribunal.

Similarly, Mark has vowed to appeal the judgment. His lawyers are expected to persuade the Appeal Court sitting in Jos to uphold the voided results of the two local government areas, which gave him victory. Speaking with newsmen shortly after the nullification, Mark described it as a strong judgment. “The judgment is strong. My opponent, Usman Abubakar, is only exercising his democratic freedom but I know that at the end of the day, victory will be mine and democracy’s. I will not lose focus because I am confident that justice will prevail. Benue State is Peoples Democratic Party, PDP’s and I know that my people voted for me massively. The ruling was a strong one but I will triumph,” Mark declared.
 
Under the Electoral Act 2006, an appeal should be filed within 21 days from the day of the verdict of the lower tribunal. Mark will remain in his seat pending the determination of the appeal. In matters arising from National Assembly election petitions, the Appeal Court is the final point of adjudication. If the appellate court upholds the ruling of the Makurdi tribunal, Mark’s election stands cancelled. He automatically loses his seat because he has to vacate the office to stand for a fresh election in the two disputed council areas. If Mark wins, he will be returned as a senator and not as Senate President. Within the period of the election, senators, according to watchers of National Assembly politics, are expected to elect a new Senate President. Mark’s probable ouster would mean that Benue State will miss out on the Senate Presidency. This is particularly so because the other two senators from the state – Senator George Akume, PDP, representing Benue North West, and his Benue East counterpart, Senator Joseph Akergerger, had their mandates quashed by the same tribunal.
Both men have appealed the judgment.

To avoid this scenario, Benue State Governor, Gabriel Suswam, in collaboration with the paramount ruler of Idoma land, His Royal Highness Elias Ikoyi Obekpa, Och Idoma IV, are working on Abubakar to withdraw his cross-appeal. They also intend to persuade Abubakar not to appear in court when Mark’s appeal will be heard. Their thinking is that if Abubakar is lukewarm in pursuing the case, the Appeal Court may throw it out.
Already, the Idoma Traditional Council has scheduled a meeting between Mark and Abubakar at the Och Idoma’s palace. Those expected at the parley are Governor Suswam, his deputy, Chief Steven Lawani; General Geoffrey Ejiga, General Lawrence Onoja, former Senate President, Chief Ameh Ebute, Chief Audu Ogbeh and General Chris Garuba. Others invited to the meeting include Chief Mike Onoja, Chief John Ochoga, Professor Ochapa Onazi, Chief Obande Obeya, Mr. Agbo Emmanuel, Dr. Audu Achigili and Comrade Aba Moro and all members of the National Assembly of Idoma ancestry.
 
Those who know Abubakar say he would not shift ground. They cite how the Och Idoma failed in 2007 to make Abubakar withdraw his petition. Abubakar himself gave a hint of his readiness to fight till the end. “Nothing on earth will make me slack on the petition. The fight is far above me. It is not a fight between Young Alhaji and David Mark, but a battle between the electorate versus David Mark. If it were a personal war, I would have withdrawn my case especially after the Och Idoma pleaded with me,” Abubakar said.

The Mark camp, however, is confident that Abubakar would be trounced at the Appeals tribunal. In the event of the court upholding the sack of Mark, they are confident that the Senate President will win a fresh election.  David Idoko, a supporter of Mark and member of the House of Representatives from Benue State, boasted that ANPP is limp in the state.

“There is no ANPP in Benue. Our state is a total PDP state with ANPP not able to control a local government. Benue has 23 local councils and they are all controlled by us. So in Okpokwu where I come from, Mark will sweep the poll any day,” Idoko boasted. Mark’s supporters also believe that Governor Suswan will back him. With the Governor’s nod, they reckon, reclaiming the controversial mandate will be cakewalk.  But why would Suswan, who is an Akume man, support Mark? A source said Suswam would support Mark so he could use the Senate President when the time for re-election comes. “David Mark is the strongest politician in Benue today. Governor Suswam needs him for his second term project. And that is why both men dine and wine together against all odds,” the source said. But this magazine’s checks revealed that the probable fresh election may be too close to call. This will not benefit Mark, who has a deficit of over 80,000 votes.

Mark’s weakness is that he has fallen out with Comrade Aba Moro, one of his strongest backers during the election. Moro, a former governorship aspirant and Okpokwu Council Chairman for over six years, was dumped by Mark when he needed the Senate President most. The two men reportedly parted ways when Mark, who had earlier nominated Moro for a ministerial appointment, decided to nominate Dr. Jerry Agada, now Minister of State for Education. Agada and Abubakar hail from the same Orokam District of Ogbadibo Local Government Area of Benue State. A source in Mark’s camp said the Senate President had thought that Agada’s appointment would have placated the Orakam Community to persuade Abubakar to drop the petition. Secondly, during the last council polls in Benue State, Moro’s men were schemed out of contention, forcing Moro to allegedly sponsor some of his loyalists in the Action Congress, AC. In fact the councillor representing his Ugbokolo Ward is of the AC stock.

Moro is not the only politician who may frustrate Mark. There is also Ebute, who is said to have started campaigning for Abubakar. Ebute once described Mark as too “domineering.”  It was Mark who punctured his senatorial dream in 1999, when Ebute ran on the platform of ANPP. He and Chief Obande Obeya, another political rival of Mark, are believed to be godfathers of the Okpokwu Council Chairman, Barrister Matthew Ogwuche.

In Agatu, both Mark and Abubakar are popular, with the former having a slight edge. He has the support of the Commissioner for Water Resources, Mr. John Ugbede, among other political bigwigs in that area. 

The tribunal encountered a series of controversies. In some cases, panelists openly disagreed on Practice Directive of the tribunal. The climax of this disagreement was the removal of the then Chairman, Justice Bukar, and his replacement with Justice Uriri. And as Nigerians were pondering over what had gone wrong, a major scandal that nearly shook the foundation of the tribunal surfaced. The tribunal bailiff, Daniel Aho, and clerk, James Ochiwu, had last January, after the tribunal had concluded the trial and resumed from the Christmas recess, alleged that exhibits were tampered with.

In a two-page letter addressed to Justice Uriri, the duo wrote: “The bags which were stacked in rows on top of each other, with their mouths stapled, were scattered on the floor and some of the bags were no longer stapled.” They also complained that some of the exhibits were marked by someone other than them. “This is strange as only two of us were responsible for marking exhibits.” Mark capitalised on the theft and asked the tribunal to embark on the retrial of Abubakar’s petition. But the Justices unanimously overruled Mark because, according to them, the “irregularities in Exhibits” were some of the contentious issues to adjudicate upon by the tribunal.

Mark’s problem with his kinsmen started in 2003 when the elite led by former PDP National Chairman, Chief Audu Ogbeh opposed his re-election. In his place, they wanted the late Dr. Adah Uga. It took the intervention of Akume to swing things for Mark. After the election, Mark was declared winner. The same Abubakar who was the United Nigeria Peoples Party, UNPP, candidate for that election challenged Mark’s victory up to the Appeals Tribunal. 
In the build-up to last year’s election, the same elite, including the state PDP Executive ganged up against Mark, who quickly approached ex-president Olusegun Obasanjo. To get Mark out of the jam, the former president allegedly facilitated the dissolution of the party leadership and created a replacement, with Alhaji Sule Audu as Chairman. Audu, a former Deputy Speaker, is the arrow head of Mark’s loyalists.

 Audu’s emergence meant that a hurdle had been scaled, but there were boulders ahead, particularly at the nomination stage, which featured three retired Army Generals: Mark, Lawrence Onoja and General Chris Garba. Part of the PDP guidelines was that for any aspirant to be declared the flag bearer, he must muster 50 percent, of the total votes cast.

Unfortunately, Mark and Onoja who had more votes than Garba fell short of the guideline. A run-off was to be conducted between Mark and Onoja. When Mark sensed that Garba had stepped down for Onoja, he rushed to Abuja for help. And the PDP national headquarters, Abuja announced him as the candidate for Benue South. The action, a source told TheNEWS, further damaged Mark’s relationship with majority of the elite who see  him as an impostor.
However, counsel to the Senate President, David Mark, Mr. Paul Erokoro, SAN, described the judgement as flaw-ridden and said his client will test its veracity at the Appeal Court .

According to him, even in the seven councils the tribunal claimed elections were properly conducted, it refused to credit votes for the Senate President in one of the councils. Also disputed by Mark’s counsel is the tribunal’s declaration that the Returning Officer had the powers to cancel the results of Agatu and Okpokwu, while refusing to follow its earlier ruling that the polling unit forms the basis of election. They claim that there was little attempt to examine the elections at the polling units of the district, as it did for Adoka/Ugboju State Constutuency, where it upheld the election of Augustine Awodi, a PDP member in the House of Assembly.

 Even in that case, the petitioner had claimed that the results of two wards were cancelled by the Returning Officer.

Counsel to INEC, Amaechi Nwaiwu, SAN, said there are several grounds of Appeal in the judgment. He argued that the tribunal based its judgment on the reports of three police officers, who were never cross-examined to ascertain the veracity of their reports.

The issue of forgery, which formed the fulcrum of the tribunal’s judgment, was resolved in favour of the petitioner. The tribunal agreed completely that there were forgeries on the result forms tendered by the petitioner to prove his case, but certified by INEC staff, specifically its administrative officer, Lawal Jari, with the legal advice of the then Benue State Legal Officer of the commission, Mrs. Carol Okpe.

INEC, in a motion, argued that Mrs. Okpe and Lawal Jari, among other staff, allowed the petitioner to take INEC documents to his home, where he stayed with same for two weeks, only to return same for Jari, the administrative secretary to certify them. The petitioner, then tendered these copies which were totally different from the election result forms elicited from polling agents. The tribunal admitted in its judgment that the forgeries must have been carried out at the INEC office by the staff who certified the results for the petitioner, even after the documents were altered.

The ruling by the tribunal that the Senate President is also being questioned. What the petitioner had done, they noted, was to alter INEC results to tally with his petition. Otherwise, the petitioner would not have had the evidence to substantiate allegations of over voting. The only way he could substantiate this was to collude with INEC’s officials to alter the results. Mark’s lawyers argued that if the tribunal had been circumspect, it would have seen clearly that the purpose of the criminal acts was to bring the petitioner’s petition in line with his pleadings.

‘‘Reasonable Nigerians must ask the question why would an opponent alter the results of an election illegally to favour his opponent? Unfortunately and in sheer perversity of justice, the tribunal did not ask itself the question,’’one of Mark’s lawyers remarked.

Ironically, the tribunal ruled that the Senate President stood to benefit from the forgeries carried out at the INEC office, for which it eventually ruled in favour of the petitioner.

Currently, the Benue State Police Command is investigating those behind the sad manipulation of the process, which was key to the judgment of the tribunal. Five staff of the INEC, including its legal officer, Mrs. Okpe and administrative officer, Lawal Jari were arrested and interrogated, giving the police useful clues that led to the arrest and quizzing of Abubakar last Friday. The petitioner on Friday responded to police queries on what he knew about the forgeries of INEC documents.

Interestingly, the tribunal that reserved judgment on the petition as a result of the issues of forgeries raised, delivered ruling on the matter, even as the police was close to uncovering those behind the fraud.

 Mark’s men argue that statements made to the police by INEC staff have shown that Abubakar and his men took custody of INEC’s result sheets for a week. When compared with INEC’s book record, the results returned by Abubakar, they affirmed, were altered. Political observers say that the tribunal hurried into judgment because of the date set aside for the judgment in the presidential election petition.

‘‘In the first instance, the tribunal refused to allow counsel to the Senate President and INEC the opportunity to demonstrate to it, how the petitioner stood to benefit from the forgeries, yet the same tribunal, resolved that it was the Senate President and INEC that stood to benefit from the forgeries, which it agreed were perpetrated in INEC office after the elections were concluded, results released and duplicated in different areas from which the tribunal could easily decipher the actual results,’’ a lawyer regretted.

The Benue State chapter of the Conference of Nigerian Political Parties, CNPP, a body of opposition political parties, has called on the Police to fully investigate those involved in the crime, prosecute them to serve as a deterrent to others who may be nursing the ambition of conniving with politicians to influence the judicial process.

 Benue State CNPP chairman, Baba Agan, said it would be detrimental to the nation’s democracy for the issue of fraud and those involved in it  to be swept under the carpet, simply because the tribunal was in a hurry to wind up like its counterparts across the nation.

Aside the issue of forgeries, there is also the exclusion of Oju Local Government Area from the result of the Senate President. The tribunal upheld the cancellation of the results of Agatu and Okpokwu, but made no comments on Oju which was at no time in dispute, but could not be collated by the District Returning Officer, Lawrence Osungoruwa, whose life was threatened. TheNEWS was told that the tribunal totally forgot to collate the result for the Senate President, leaving him with results in six councils, though Oju was not cancelled at any point, nor was the result challenged.

‘‘Therefore, in the tribunal’s reckoning, the petitioner, Abubakar, was qualified to earn results in seven councils of the district, while the Senate President, David Mark, was confined to the ‘predicament’ of six councils, denying him the over 37000 votes from Oju, which constitutes 12 percent of the registered voters of the district. During the trial, counsel to the Senate President had tendered the Oju Local Government result.  Invariably, by the tribunal’s calculations, these 37000 voters should be shut out from the decision to elect a senator for Benue South, because the Returning Officer placed a dash in the PDP column as a result of confusion at the collation centre.

The issue of witnesses called by the two parties is of utmost importance. Mark’s lawyers claim that Abubakar shied away from calling witnesses, choosing to rely on reports that were never put to the strictest proof as required by the Electoral Act 2006. He called only three witnesses, none of who was his polling agent at the election. The police officers’ reports were simply tendered, but none of them was called to be cross-examined.


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