The Court of Appeal, Owerri Division, recently nullified the election of Governor Okezie Ikpeazu as the winner of the April 12/25 governorship elections in Abia Sate. That judgment, like the ones by the Election Petition Tribunals in Taraba, Akwa Ibom, Rivers and Ebonyi, threw up suggestions of external influence and corruption in the adjudication of election disputes in the present dispensation. The nation awaits the Supreme Court to clear the fog on those matters.
Despite well-known legal maxims that whoever alleges must prove, analysts believe that instead of purported winners of disputed elections, the Independent National Electoral Commission (INEC) ought to the body to be sued. They contend that this way, the electoral umpire would be made to bear the brunt of its conduct of elections and reduce the incidence of corruption whereby politicians try to preserve victories wrought in connivance with INEC officials. But while the stiff requirements of the law of evidence in criminal cases make things hard in electoral petitions, the benefit of doubt, which ordinarily should incline towards the voters or tailored in such a way to uphold the ballot as the final arbiter in electoral contests, are given to beneficiaries of INEC’s ineptitude or complicity.
It has also been found that in most cases, judges fall for technicalities instead of the justice of the petition before them. That may be why the Chief Justice of Federation (CJN) Justice Mahmud Mohammed, cried out recently against conflicting judgments.
But while laymen are wont to point to influence of corruption and influence, there are reasons to believe that laziness on the part of lawyers and judicial officers can lead to what the CJN described as conflicting judgments. A legal activist, Ifeanyichukwu Okonkwo pointed out that there is a provision in the Court of Appeal rule that requires judges to circulate their judgments to other divisions. He noted that though the Court of Appeal cannot sit on a matter decided by a coordinate jurisdiction, it could review the judgment, comment on it and make a different ruling. “If the matters have the same facts, the judge is expected to read the earlier judgment, comment on it and state if he was going to rule differently,” he explained pointing out that lawyers who know of any case could bring the matter to the knowledge of the Court. “But not many lawyers read, nowadays, with due respect,” he declared.
Despite the issue of capacity, allegations of corruption had been associated with some tribunal and Appeal Court judgments. For instance after the Abia State National/State Assembly Election Petition Tribunal ruled against the petition filed by the All Progressives Grand Alliance (APGA) senatorial candidate for Abia North, Dr. David Onuoha-Bourdex, the APGA Youth Vanguard took out an advertorial on some national newspapers where they disclosed how the panel was compromised. Alleging that the judgment was purchased, the APGA Youth Vanguard disclosed that a certain State Chief Judge from a neighbouring state was used as go between to reach the judges on the panel.
Despite the fact that the card reader initiative was ostensibly to checkmate election rigging, the levity with which its effective deployment at elections is being treated at the tribunals raise new concerns. Is it easy to just allege card reader failure to explain over voting without providing commensurate number of incident forms to back up the claims? Does the absence of the incidence forms not evidence rigging and circumvention of the due process? In the Ebonyi governorship election for instance, no incidence form was presented to back up the claim that card reader malfunctioned.
A glaring example of disparity in ruling is that while governorship Election Petition Tribunal in Ebonyi, with Theresa Igoche as chairman, held that the INEC Electoral Guidelines and manuals have no judicial weight that of Rivers State reposed probative value on them. The allegation of bias in the Ebonyi governorship trial at the Appeal Court stems from another divergence. While the appellate court in Enugu for instance overlooked the Card Readers, election manuals and guidelines as subsidiary legislations, the Abuja division of Court of Appeal differed. Ruling on the Rivers and Akwa-Ibom governorship appeals, the Court nullified the elections for not complying with those stipulations.
What the CJN was saying would hold water when placed side by side with what Justices J.O Bada, T.S Yakubu, M.A. A Adumein, B.G Sanga and Justice Adeoye, did in Enugu. Opponents of the Card Reader find shelter under the canopy erected by the Supreme Court ruling in the case of Jimi Agbaje vs Adewunmi Ambode, where the court held that the Election Guidelines and Manuals have no force of law since according to them no sanctions were spelt out against those that breach its stipulations. But perhaps the Judges failed to reflect on judgment of the Court in Kayode Fayemi vs Segun Oni, which declared that “it must however, be restated that the election manual had not been issued for the mere fun of doing so. Like rules of court and practice directions, the manual has a purpose to serve and as held in all the cases alluded to by the learned senior appellant Counsel; breach of the provisions of the manual can lead to fatal consequences.
In the case of Abia State, the bone of contention is that the Court of Appeal threw out the result of the governorship election in Obingwa, Osisioma and Isialangwa North local government councils. PDP contends that the cancellation of the results that showed its candidate in clear lead provided the window for the Court to award Dr. Otti, victory he could not garner from the ballot. But not minding that Governor Ikpeazu won in those councils, the Court decided to subtract the votes scored by Ikpeazu and Otti in the cancelled local government areas. It was against this background that the five-man panel led by Justice Oyebisi Omoleye went ahead to declare Otti winner. PDP supporters believe that it was a plot hatched outside the law stressing that there was no evidence upon which the Court of Appeal based its decision to cancel the election. But the appellate court had dismissively asserted that “there was over voting in the Obingwa, Osisioma and Isialangwa North local government areas.” Yet it was obvious that over voting can only happen when the number of accredited voters is less than number of votes cast in the election. It should be examined whether votes are cast at polling units or at ward or local government council level.
Perhaps to wriggle out of the puzzling situation, the appellate court depended on the card reader accreditation and decided that the total number of votes cast was more than the total number of accredited voters. On the face of Section 49 of the Electoral Act, it should be noted that voters could be accredited without recourse to card reader, provided that incident forms are filled.
But on the face of recorded evidence that so many people were accredited when the card readers malfunctioned, does it mean that this large population of voters was not taken into account when the Court computed the number of accredited voters? The protest out there is that if they had been taken into account, the court would have found that there was no over voting. Furthermore PDP complains that in order to determine over voting, units register of polling units ought to be tendered at the trial to show accreditation done by card reader and through the incident form.
Another leg of the bitterness in Abia is the claim that both Dr. Alex Otti and his running mate, Mrs. Uche; hail from the same federal constituency. PDP feels that such a lopsided political arrangement would offend geopolitical balance in the state and keep the people on the path of war and acrimony. “Apart from Aba North and Aba south, the other seven local government councils in Ukwa/Ngwa area voted massively and overwhelmingly for PDP and Governor Okezie Ikpeazu,” PDP asserted, stressing that ever since the state was created, nobody from the entire Ukwa/Ngwa has been governor.
All these constructions now await the decision of wise men at the Supreme Court. Will the refining wisdom settle the discrepancies and restore the power of the voter as the final arbiter of democratic selection?