At last, one Election Petitions Tribunal last Saturday rose to the defence of Nigeria’s democracy.
The tribunal empanelled to determine the issues and complaints that trailed the Rivers state governorship election, headed by the very Honourable Justice Suleiman Ambrosa, took a clear departure from the onslaught his colleagues in so many other governorship tribunals had been mounting on Nigeria’s efforts to deepen her democracy, with very laughable pronouncements.
In judgements that pretended that the matters before them were about 2003 or even 2007 elections, the judges completely disrespected the kernel of the historic 2015 elections: Card Readers and INEC’s guidelines on their use.
In a jurisdiction where lots of judges had been compromised by politicians in the past, it is difficult not to conclude that many of the tribunals sold justice to the highest bidder and thereafter sought to tie their judgements to technicalities.
Take as example the same case of Rivers state election tribunal. Justice Suleiman Ambrosa was not the original chairman of the panel. It used to be headed by a judge called Mu’azu Pindiga. But he was later removed by the President of Court of Appeal. (The Court of Appeal President is the officer who constitutes members of state election tribunals). And that removal was not for want of what to do. Sahara Reporters reported that Mr Pindiga was bribed by Nyesom Wike, the PDP governor of Rivers state whose declaration by INEC was being challenged by the APC candidate in the election. That report by Sahara Reporters stated that Pindiga was bribed with N200 million to thwart justice and uphold Wike’s election. The report also said that the Department of State Security had a proof of this bribery, and they showed it to the Court of Appeal President before he got convinced to remove Pindiga as the tribunal chairman.
Curiously, such publication bothers on defamation of character, and a judge so accused, if innocent, would be expected to seek redress in court. Justice Pindiga hasn’t uttered a word since then, which suggests admission of guilt. It is likely that the evidence against him is weighty, and to save himself further embarrassment, he took to silence, hoping the news gets forgotten soon.
You can tell that if Muazu Pindiga had been allowed to continue with the case, he would have upheld Nyesom Wike’s election – adjudged by both local and international observers to have fallen short of every known standard for a free and fair election. And in upholding it, he would have had the law as an easy excuse. ‘The petitioner could not prove his case beyond reasonable doubt’. And as has always happened in the past, the rest of us will be advised to look elsewhere for whom to blame, that the law is an ass, and that the justices of the tribunal did the right thing.
Since the judgements started pouring in, one could sense that some sections of the judiciary are reluctant to cleanse themselves of their immediate past; a past steeped in corruption.
It is inconceivable that with the success we made of the 2015 elections, certain tribunals boldly rejected a special recognition of the single factor behind the success of that election.
When Justice Theresa Egoche of the Ebonyi governorship petition tribunal was reading her judgement upholding the election of the PDP governor in the state, she made a strange pronouncement that would have been laughable, but for the seriousness of the matter. Her tribunal held that the INEC electoral guidelines were mere instructions and had no force of law against the offenders/defaulters and as such cannot be a ground to challenge an election. She noted that a breach in the electoral guideline as alleged by the petitioner cannot be a ground to nullify the election.
In other words, INEC guidelines should be discountenanced in an election that only INEC is the only lawfully empowered institution to organize. Nobody should bother to heed INEC’s rules. If you can kill everybody to get elected, please do; the courts are there to help you insist that only the wordings spelt out in the Electoral Act have the force of law. See how far people can go in trying to justify the unjustifiable!
Apart from Justice Theresa’s pronouncement, another tribunal of interest was that of Akwa Ibom. Ishaq Umar of the governorship petition tribunal, while reading his judgement of confusion, made a pronouncement that reduced the card readers to naught, dismissing INEC press statement that mandated the use of card readers as the only legitimate means of voter verification.
This judge declared before an open court, that INEC’s ‘’press release concerning the card reader report is null and void, as it offended (?) the provisions of Section 49 of the Electoral Act which deals with the process of accreditation in an election.’’
Of course he went ahead to nullify elections in 18 out of 31 local governments of the state, but remained silent on whether or not the governor – who doesn’t have the constitutionally required 25% of votes cast in two-third of the constituent LGAs of the state – should vacate seat or not. In a state with 31 LGAs, a governor needs to have scored 25% of votes cast in at least 20 Local Governments, as well as the majority of valid votes cast, before being declared winner.
Let’s ignore the error and move into his reasoning of INEC’s guidelines being a nullity.
There are two issues here: INEC Press Release concerning Card Reader use and provisions of Section 49 of Electoral Act.
Now, the Press Release in question is the one by INEC, emphasizing the content of its published Manual For Election Officials wherein it insisted that voter accreditation would only be performed with the use of Card Readers. A judge declared that null and void. And then his reason for so doing was that it contravened Section 49.
First, the bedrock of voting is voter verification. If a voter is not verified, how will an electoral officer know that he registered in the particular polling unit where he wants to cast his ballot? It is the process of this verification that is called accreditation. During accreditation, the
INEC presiding officer wants to first ascertain that you are the true owner of your voter’s card and that the Polling Unit where you intend to cast your vote is actually where you registered to vote. INEC also wants to make it impossible for people to vote in more than one polling unit. In summary, the idea was to institute the practice of one man, one vote. To achieve this, INEC insisted, for the sake of transparency, that it would perform its accreditation with the help of technology.
And in doing that, INEC derived its powers from Section 153 of the Electoral Act. Here’s what that Section says; ‘The commission (INEC) may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this
Act and for its administration thereof.’
From the above, we can agree that INEC has the powers to make guidelines.
Let’s then look at Section 49 which the Akwa Ibom tribunal claimed INEC’s guidelines contravened.
49 (1). Any person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the register that the person has voted.
There’s no provision as to ‘how’ to be satisfied in this Section. INEC, with sixteen years’ experience of voter verification had become certain that the capacity of some Nigerian politicians for mischief was limitless. The Commission had conducted many elections that turned out to lack credibility because of cases of impersonation during accreditation. This led to their decision to convince the Nigerian government to invest massively in technology to aid in voter verification during the 2015 election; hence the introduction of Card Reader.
The card reader machine is a device used to scan the Permanent Voters Card (PVC) to confirm its ownership by the presenter. It stores the voter’s information such as physical attributes, thumb prints and others. These information can only be read and accessed electronically
with the card reader. If you throw away the card reader, the permanent voter’s card is useless, because the information it has cannot be read/accessed by just looking at it with your eyes.
It was for the purpose of giving effect to the provisions of Section 49 that INEC insisted on procuring the ‘’how’’ of satisfying their officers that a voter’s name is in the voter’s register.
How then did the use of technology to verify voters contravene a section of the Electoral Act that gives INEC officers the powers to allow only those verified as having their names in the register to vote? How does enhancing the electoral process contravene the Electoral Act?
And, in any case, what is wrong with the INEC guidelines? Will any party in the election get hurt if INEC properly accredits voters first before allowing them to vote?
From the standpoint of the society, will it hurt Nigeria to insist that only genuine voters be allowed to vote? Why should anybody seeking to govern any part of Nigeria have issues with INEC’s rules insisting that only those properly accredited will be allowed to vote?
To underscore the weight of the powers INEC has to issue guidelines and rules for elections, the Supreme Court in 2011, in the case between CPC Vs INEC, declared; “By force of law, the Independent National Electoral Commission has the duty of conducting elections. Besides the constitutional provisions, it is guided by the Electoral Act, 2010 (as amended) and the Election guidelines and Manual issued for its officials in accordance with the Act. These documents embody all steps to comply with in the conduct of a free, fair and hitch free election.”
The Supreme Court has the final say on these issues, and it already had said that in 2011. By next year when these cases drag to the apex court, the Justices there will be bound by the earlier pronouncements of the same court. The Supreme Court will not reverse itself, especially when doing so will make mockery of the efforts of the entire nation for democratic evolution.
Our yearnings for credible elections is facing its final battle in the hands of the judiciary. It survived the other two tiers of government before the election. The executive under President Goodluck Jonathan initiated it. The legislature approved of it. Some elements in the judiciary are bent on frustrating it. This is why the Supreme Court has a duty to save the country from receding into the dark days of massive electoral fraud by the political class.
But while we await the apex court to play this patriotic role, we must first thank the progressive judges of the Rivers governorship tribunal for their foresight and the courage to do the right thing. At the end of the day, it will become clear to those who still doubt the soundness of the judgement that it was the best thing that happened to the 2015 elections, after Card Reader itself.
Chinedu Ekeke can be directly engaged on twitter as @Nedunaija