Two documents submitted by an official of the National Independent Electoral Commission (INEC) may jeopardize Senate President Bukola Saraki's political future, according to our legal correspondent monitoring the sitting of the National Assembly Election Petition Tribunal in Ilorin, the Kwara State capital.
Tagged “Exhibit D1” and “Exhibit D2,” the two documents, declaring Mr. Saraki the winner, were both signed on March 28, 2015, the same day elections were held. “The documents clearly suggest falsification of results, because it was not until two days later that INEC began to declare the results,” said a legal expert who inspected the documents that were obtained by SaharaReporters.
The two controversial documents were admitted in evidence by the tribunal led by Justice Joshua Majebi. After reviewing the documents, legal experts described them as “a bizarre but unintended act of political self-immolation.”
Mr. Hassan is a longstanding ally of Senator Saraki’s, and once served as chief of staff to then Governor Saraki. In addition, Mr. Hassan represented both the senator and the All Progressives Congress (APC) as a party agent during the March 28, 2015 elections.
In an ironic twist, Mr. Hassan was the only witness called by the APC, the second respondent in the electoral petition, to testify in Mr. Saraki's favor. Senator Saraki neither appeared to testify for himself nor did he call any other witness in his defense.
Abdulrahman Abdulrazaq of the Peoples Democratic Party (PDP), who was declared the runner-up to Mr. Saraki, filed the petition against the Senate President, the APC, and INEC. His lawsuit claims disputes INEC’s declaration of Mr. Saraki as the winner of the Kwara Central Senatorial District.
Mr. Abdulrazaq’s petition, argued by Francis Obumse of the law firm of Ambali and Co., claims that Senator Saraki’s election did not comply with various provisions of the Electoral Act as well as INEC's election regulations and procedures. He also insists that he, not Senator Saraki, scored a majority of the lawful votes cast at the election.
Mr. Abdulrazaq’s claims include widespread abuses in relation to the electronic card reader used for voter accreditation and “deliberate wrong entries (of votes)” by INEC staff. He is urging the tribunal to annul Mr. Saraki's victory, and declare him as the genuine winner. In the alternative, the petitioner seeks a cancellation of the election altogether and a fresh poll.
In its response, Mr. Saraki’s legal team, which has 70 lawyers led by a Senior Advocate of Nigeria Yusuf Ali, among them five Senior Advocates of Nigeria, urged the tribunal to dismiss the petition, declaring it to be unfounded and in violation of key provisions of court rules as well as mandatory provisions of the Electoral Act.
The hearing began July 22, 2015, with Mr. Abdulrazaq testifying for himself and calling three other witnesses, including Tunde Salako, the head of INEC's legal unit in Kwara State, and Ms. Nkolly Obumse, a Lagos-based forensic analyst, who provided a four-volume analysis of voting materials and results from polling units.
At a hearing, Mrs. Obumse testified that the accreditation process was flawed, adding that electronic card readers were widely by-passed. She added that there were widespread over-voting and wrong entries of voting scores in favor of Mr. Saraki.
But it was Mr. Hassan’s testimony, as the only witness called by the APC, that threw up what a lawyer described as “a knotty and awkward problem.”
Even though he testified that the election was hitch-free, the election results tendered by Mr. Hassan, as Exhibit D1 and Exhibit D2, raised questions. Our correspondent noted that Justice Majebi pointed to the problem himself at the close of hearing when he asked the two sides to advise the tribunal in their submissions.
At issue, according to Justice Majebi, was the fact that the two forms tendered by Mr. Hassan, Exhibit D1, being the summary of results from local government areas collation at senatorial district level, and Exhibit D2, the “Declaration of Result of Election,” were both apparently signed and dated on March 28, 2015—the very day of the election.
In addition, only two persons, Mrs. Mulkah A. Ahmed, the collation and returning officer, and Mr. Hassan, signed Exhibit D1. Other party agents did not participate in the ostensible collation exercise.
Mrs. Ahmed also signed Exhibit D2, which contained the final results of the election that declared Mr. Saraki as the validly elected candidate. However, it remained unclear to whom she made the declaration or if she posted it on INEC's notice board, as required by law. Neither the media nor anybody else reported the declaration.
Since Mr. Abdulrazaq's petition was dated April 19, 2015, Justice Majebi’s also raised the question of the tribunal’s competence to hear the case since both section 134 (1) of the Electoral Act, 2010 and section 285 (5) of the 1999 Constitution provide that an “election petition shall be filed within 21 days after the date of the declaration of results of the elections.” If the documents Mr. Hassan submitted are declared valid, then the petition would fall one day outside the statutory time frame.
Seizing on that prospect, Mr. Saraki's lawyers urged the tribunal to strike the petition against their client.
But our legal source wondered why Justice Majebi raised the contentious matter at the close of evidence, but then refused to permit the petitioner’s lawyers’ request to further scrutinize the issue. “Depending on how the verdict goes, this development could raise questions about fair hearing at appeal,” the source said.
The source added that the most significant development is that Mr. Abdulrazaq's lawyers “have shown from several other election result forms admitted by the tribunal that Exhibit D1 and Exhibit D2 were, in effect, criminal forgeries.” The petitioner’s lawyers showed that the collation of results was still going on at ward level in several places across the senatorial district on March 29, 2015, even as Mrs. Ahmed and Mr. Hassan had apparently prepared and declared the final election results showing Mr. Saraki as the purported winner the day before.
The credibility of the March 28 final return is further eroded by the fact that nowhere throughout Nigeria did INEC announce any final senatorial election return that day.
In fact, on March 30, 2015, Vanguard newspaper quoted Kwara INEC's spokesman, Jacob Ayanda, as saying the previous day that the election results would not be formally known until the next day, adding “only (the) results from Isin and Oke-Ero out of the 16 local governments had arrived [at] the Commission’s headquarters as at about 3 p.m.” on March 29, 2015.
“It was on that 30th March 2015 that the results of the Presidential and National Assembly elections in Kwara State were indeed released by the State's Presidential election Returning Officer and the Resident Electoral Commissioner respectively. These were accordingly reported in the media,” our source disclosed.
Our correspondent noted that Mr. Saraki was the first person to reveal the results of the Kwara Central Senatorial election on his Facebook page on the morning of March 30, accompanied with a picture of himself holding for the camera what appears to be the election’s result sheet.
The same day, the senator released a statement at 19:24 through his media aide, Bamikole Omishore, expressing his reaction to the results. “How and why he and his lawyers now came to insist on the 28th March 2015 poll results remains to be explained,” said our source.
In their final written address, the petitioner's lawyers described the March 28, 2015 results as fake and a nullity, adding that the tribunal lacks the power to affirm or modify them. Citing a celebrated English case decided by Lord Denning, they argued that the tribunal could not build something on nothing.
Mr. Saraki's star-studded entourage of lawyers played down the troubling significance of the dodgy documents, but did not offer any convincing explanation for them. Instead, they argued that, even if the results collated on March 29 were each deducted from the sum total votes of 118,879 for Saraki and 66,864 votes for Abdulrazaq, Mr. Saraki would still be the winner.
Our legal expert stated that the Justice Majebi-led tribunal “must resolve three key knotty issues without ultimately producing a legal absurdity.” “One, the tribunal must resolve if it has power to legitimize an essentially fraudulent and criminal act, as Exhibit D1 and Exhibit D2 were arrived at in manifest breach of section 69 of the Electoral Act, 2010 (as amended), which stipulates that all validly cast votes for each candidate in an election must count before a return is made. Two, if, in the face of clear contrary evidence, it still accepts Exhibit D1 and Exhibit D2 as valid, it will have to strike out the petition. And, three, if, on the other hand, it finds the exhibits to be forgeries or illegal, it cannot simply proceed to ignore the fact and rule against the petition on other grounds.”
A source close to Mr. Abdulrazaq’s lawyers told SaharaReporters that their client would appeal if he loses, adding, “The merits of the petition are not in question.” He added that the case should trigger a criminal investigation both of Mrs. Ahmed and Mr. Hassan. “Once the investigation takes off, you will see that Dr. Saraki was the instigator of this clear fraudulent act.”
Given his skills as a political fighter, our legal analyst said he expected Mr. Saraki to also file an appeal should he lose at the tribunal. “The only thing that will stop him is the threat of criminal investigation. I don’t think he would want to trigger a criminal investigation into the conduct of Dr. (Mrs.) Ahmed and Alhaji Hassan, which is certain to sweep him along. Section 124 (6) of the Electoral Act, 2010 (as amended) is clear in this regard,” he said. According to him, "the section stipulates that a candidate shall be deemed to have committed an offence if it was committed with his knowledge and consent or the knowledge and consent of a person who is acting under the general or special authority of the candidate with reference to the election."
