By Ekemini Udim, Esq
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The National Assembly wishes to amend the Electoral Act to place the burden of proof in election matters on INEC (Independent National Electoral Commission), as against placing it on the petitioner. This has been widely publicised. The discussion for amendment is ongoing and the Electoral Act, Nigeria’s most amended piece of legislation since Independence, will most likely be amended any time soon and passed into law by the two chambers of the National Assembly and by the President.
The petitioner in the Election Petition Tribunal is like the plaintiff in the regular court. Nigeria already has a national legislation on evidence. That law is the Evidence Act. The Act has already settled the issue of burden of proof in all cases, civil and criminal. It says that the burden of proof shall be on the party that asserts the affirmative and the party that would lose or fail if no evidence is adduced on either side. That party is the party that approached the court; the plaintiff, the prosecution, the petitioner. It is this party that bears the legal burden of proof. He must establish his case first before the party sued, the defendant or respondent, can respond. I am afraid that the Electoral Act cannot be amended to replace this long standing position of the law, no matter how well intended. The Electoral Act cannot provide for evidence. It is the Evidence Act alone that can do so.
In the last three general elections in Nigeria, I have served either as lead counsel for petitioners or lead counsel for the respondents. I have also appeared for my clients at the Court of Appeal and have been led by my seniors at the Supreme Court. I am this familiar with what occurs at the election tribunal I know as a fact that the principal code of evidence at the Tribunal is usually the Evidence Act. It is this Act that regulates the conduct of cases regarding who calls evidence first and who follows thereafter. Should any issue arise in court in this direction, such issue is always resolved by resort to the Evidence Act.
If the National Assembly truly wants to change the burden of proof, it must first amend the Evidence Act.
Moreover, I do not see how the change in who bears the burden of proof will change any bad election in this country. What we need as a nation is free, fair and credible election; a truly transparent exercise where everyone can say that the election was won and lost fairly without any adulteration of the electoral process. When we reach the point that Ghana has reached where Dr. Bawomia as sitting Vice President could call the opposition candidate and congratulate him, hours to the close of polls, because the process was manifestly transparent, then, we would have gotten it right in the elctoral process. Any other thing is cosmetic.
It is not the burden of proof that will give us free and fair election. If it is true that INEC can alter figures to favour some candidates, the placement of the burden of proof on INEC will not change this evil. INEC will still come to court with certified true copies of the results and defend what is written on the result sheets. This will be done whether they are to start first at the Tribunal, as the new bearers of the burden of proof, or talk last as it has always been the case for years now. After all, it is the result sheets as presented by INEC that the Tribunal will accept as being the authentic result and as coming from proper custody.
The National Assembly should look beyond the issue of placement of the burden of proof. They should rather amend the Electoral Act to give the needed guarantees for the deployment of technology to the electoral system.
Following the annoucement of Bola Ahmed Tinubu as the winner of the last presidential election, Atiku Abubakar and Peter Obi approached the Tribunal to challenge the results. Their petitions were predicated largely on non-compliance with the election guidelines, particularly as regards the realtime transmission of results through the IREV. The court held that the guidelines cannot provide more than the Electoral Act. That if the legislature intended that the results should be transmitted realtime via IREV, the Act should have said so. Atiku and Obi went home dissapointed. I would love to see the National Assembly amend the Electoral Act to cure disturbing issues like this particular one.
Any cosmetic amendment of the Electoral Act will not lead us anywhere. The amendment must be wholistic and intentional and must be done in conjuction with the real experts in the field of election. The National Assembly must also be honest and selfless in its amendment exercise. In all honesty, the problem is beyond the placement of burden of proof.
Ekemini Udim is a legal practitioner, author, public affairs analyst and social commentator. He is reachable on – ekeminiudimforjustice@gmail.com
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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