Election tribunals and substantive justice

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Justice Zainab Bulkachuwa, President Court of Appeal

The defeat of the Peoples Democratic Party (PDP) by the All Progressives Congress (APC) is historic for many reasons. Firstly, the feat was the first of its kind. Parties holding the seat of government at the centre have always used the power of incumbency to defeat the opposition and retain power.

Secondly, it was a product of a free and fair election. This latter reason was hugely enhanced by the use of Card Reader Machines. The use of the card reader machines to a substantial extent prevented the use of the old methods of rigging like over voting, stuffing of ballot papers, alteration and manipulation of results in that they collate at the polling units and transmit to a dedicated sever at the INEC Headquarters details of all voters verified and those not verified.

Information transmitted to the server will enable INEC to audit results from polling units, as well as do a range of statistical analysis of the demographics of voting. Collation officers will also be able to use information transmitted by the Card Reader to audit polling unit result sheets and determine whether accreditation figures have been altered.

The use of the card reader for the purpose of accreditation of voters was, therefore, one of the innovations introduced by INEC to improve the integrity of the electoral process. It greatly added value to the process in line with the yearnings of Nigerians for credible elections, and accorded with international best practices.

The importance of the card reader did not end with the conclusion of the election. It extends to the resolution of ongoing election petitions across the country. Since the job of election tribunals is to audit and answer the question whether or not the challenged elections and returns were done in accordance with the electoral laws, the card reader machines will come in handy in that respect.

Since INEC conducted the election and had before and during the elections told Nigerians that only voters who were captured by the card readers were those who actually voted, it may be right to conclude, even without the knowledge of the law, that any result declared by INEC that is at variance with the details in the INEC’s sever, is a conclusive proof that that result was not a product of a lawful election and therefore void.

It is the knowledge of the consequences of discrepancies between the card reader details and the results with which winners have been returned in the last governorships and legislative elections that has bred the sort of energy that defence lawyers are putting in preventing the admission of the Certified True Copies of the data from the INEC servers.

The acrimonious attitude of defence lawyers is therefore understandable. What will however be strange or against the grain of justice is if tribunals jettison the CTCs of the card readers’ server on the excuse of technicalities.
Over the years, tribunals have used strict adherence to technicalities as an excuse to deny litigants fair hearing and justice. But one would have thought that the attitude of the Supreme Court to technicalities as against substantial justice would have changed all of that.

Decisions after decisions, the appellate court has been reversing decisions that were reached on the grounds of technicalities. But that is not the case in the ongoing petitions across the country. A petition was dismissed by the tribunal in Kogi State on the grounds of non compliance with provisions on prehearing session and scheduling in the First Schedule to the Electoral Act, 2010.

The case of a tribunal dismissing a petition on account of non compliance with the procedural rules is not limited to Kogi State. A petition has also been dismissed in Kebbi State for the same reason. A petition has been dismissed in Lagos State for counsel to the petitioner failing to tick the name of the lawyer who signed the petition. The chairman of the same Lagos tribunal was thereafter taken to Gombe where again, he dismissed a petition on account of counsel to the petitioner failing to use his full names as they appear on the roll of legal practitioners in announcing himself during the pretrial sessions and trial.

The tribunal in Gombe also denied petitioners in the other subsisting petition from bringing in as evidence, report of inspection of electoral materials and even refused an application for the recounting of ballot papers. A substantial part of the 14 days allocated to the petitioners to present their case was lost on account of all sorts of objections and applications raised and filed by the defence counsel.

Even an INEC official was refused to give evidence on the reason that the subpoena was not personally served on the officer to whom it was addressed to. The petition against the APC in Imo State was dismissed on the ground that the petitioner did not pay for the answers to the prehearing questionnaire.

All of these decisions were reached in spite of provisions of the same rules enjoining the tribunals to hear and determine objections to the hearing of petitions along with the substantive petition. It will be an infernal tragedy if the successes recorded by Nigerians at the polls are reversed by tribunals.

That is why the decision of the Court of Appeal to reverse and set aside a ruling of the National Assembly and House Assembly Tribunal sitting in Kogi, nullifying a petition without hearing it on the merit is most welcoming.

With utmost respect to the tribunals, any dismissal of an election by a tribunal on non compliance with the procedural rules in the First Schedule to the Electoral Act is against the letters and spirit of the constitution and parties’ right to fair hearing.

The sum total of the recent decisions of the Supreme Court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the court.

Yes, the law is blind. But justice cannot be blind, especially to injustice. It is therefore hoped that the appellate courts will act promptly to reverse this dangerous trend.

Sule Mohammed Mairuwa wrote from Karmanje near Funtua, Katsina State

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