February 14, 2008
The answer of Professor Maurice Iwu, the Chairman of the Independent Electoral Commission (INEC) to questions put to him by lawyers to Abubakar Atiku, on interrogatories in the proceedings on Atiku's petition against the conduct of the April 21, 2007 presidential election has provoked serious controversy.
In answer to the question whether he awarded a contract for the printing of ballot papers to a South African company when the company awarded the contract earlier declined on the ground of unrealistic delivery date, Iwu had answered that he neither awarded nor ever discussed any such contract.
The controversy here is that Iwu had on several occasions prior to this publicly acknowledged that the ballot papers were printed in South Africa and air freighted to Nigeria on the eve of the election. This much was admitted in the pleading of Yar'Adua, the President, who was declared winner of the election by INEC.
WHO PRINTED THE BALLOT PAPERS?
The explanation that INEC has placed in the public domain for the apparent inconsistency was that INEC indeed awarded the contract to Nigerian Security Printing and Minting Company (NSPMC), which on its own re-awarded it to a South African company when it could not meet up with the deadline for delivery of the ballot papers. However this explanation seems to have been offered without the Commission considering pages 30-31 of the INEC Official Report of the election which Iwu has been presenting before audiences round the world in justification of the conduct of the elections. Those pages contain the following statement:
'He (former President Obasanjo) followed this up by providing Presidential Jet for relevant officials of the Commission to travel to South Africa to negotiate for the immediate printing of the ballot papers"
Indeed, there cannot be any controversy that the ballot papers for the presidential elections were printed in South Africa. This has been acknowledged even at the presidential/diplomatic level when Thabo Mbeki, the South African President visited Nigeria and publicly acknowledged the appreciation offered to him and his Government by the Nigerian Government for bailing Nigeria out during the presidential election through the printing of ballot papers in South Africa at very short notice.
DID IWU LIE ON OATH?
The questions that have arisen at this point are whether Iwu lied on oath and if so, what the consequences are. The narrow question for the purpose of the petition is the effect of Iwu's answer on the petition.
It is an offence, known as perjury, for anyone to make a false statement on oath. Iwu's claim is that his statement is not false having regard to the specific question he was asked i.e. whether he awarded a contract to a South African company to print ballot papers. From Iwu's point of view, that the ballot papers were eventually printed in South Africa on arrangement between NSPMC and a South African company is completely irrelevant to the question.
It has already been stated that the INEC Official Report of the general election was to the effect that the Commission's staff travelled to South Africa to "negotiate for the immediate printing of the ballot papers" in South Africa. This fact raises a serious question as to whether the NSPMC on its own re-awarded the contract for the printing of the ballot papers to a South African company or it was a case of NSPMC proving incapable of delivering at such short period forcing INEC to seek salvation in South Africa with or without the collaboration of NSPMC.
This is a matter for investigation that may lie beyond the capabilities of the petitioner, Atiku. In any case, it is not his burden; it is the burden of the entire nation. This is because if Iwu is seen to be denying on oath the contents of the Official Report of the elections that he has been bandying about around the world, it spurns a credibility crisis, which goes beyond Iwu to the nation itself. If it is revealed that INEC officials actually negotiated with a South African company for the printing of the ballot papers in a manner that creates a contractual relationship between INEC and such company (even if the money had to come from NSPMC in refunds of money paid to it in advance for a job it could not do) then Iwu's answer would represent a direct interference with the administration of justice.
It is therefore a challenge for the entire nation to protect and enhance the credibility and integrity of the judicial process in Nigeria by investigating the true circumstances of the printing of ballot papers in South Africa and prosecute Iwu for perjury if his answer is found to be false.
EVIDENCIARY EFFECT OF IWU'S RESPONSE
The second issue of the impact of Iwu's answer on Atiku's petition has to be appreciated against the background of the function of interrogatories which are questions which a party puts to his opponent and which that opponent has to answer in writing. In Iwu's case, the Supreme Court directed that the questions should be answered on oath. The purpose of interrogatories is for a party to obtain admissions from his opponent and so narrow the field of dispute. Thus, its ultimate advantage in a suit is to define accurately the issues on which the parties disagree and so save precious judicial time. See Karibi-Whyte J.S.C.(as he then was) in FAMUYIDE v RC IRVING & CO (1192) 7 NWLR (PT. 256) 639 at 653.
Having regard to the function of interrogatories, it hardly needs to be stated that the party interrogated must answer truthfully and directly. An answer that is evasive may be deemed insufficient. However, a major flaw in the interrogatories delivered to Iwu is that due to objections of Yar' Adua's lawyers which were upheld by the Court of Appeal, sitting as the Election Tribunal, the interrogatories had to be answered at the close of evidence upon the intervention of the Supreme Court. This robbed the interrogatories of their major advantage of assisting the party interrogating to know in advance the issues on which he needs to adduce evidence at the trial. For instance, it is not clear whether the INEC Official Report mentioned earlier was put in evidence as it was published subsequent to the filing of the petition and so could not have been pleaded.
IMPACT ON ATIKU'S CASE
It is not surprising therefore that counsel to Yar' Adua has argued that Iwu's answers have weakened the case of Atiku at the Tribunal (which is that ballot papers arrived too late and in insufficient quantity to reach a majority of voters and that he was excluded from the presidential election) on the premise that Iwu's answer being on oath he must be taken to have testified on behalf of the party who asked him those questions so that his answers now form part of the case of Atiku.
It would be interesting to see how the Court of Appeal would react to this submission. However, it seems clear enough that interrogatories perform a different function from evidence during trial proper where evidence of any witness called by a party (even if that witness were his opponent) would be deemed to be evidence against that party.
Nwachuku is of Indemnity Partners.
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