By Kenneth Okonkwo
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The presidential election petition Tribunal’s judgment was delivered on the 6th of September, 2023 and has caused quite a stir around the whole world. We will try to round off this series today, still elucidating on the issue of non-compliance of all the institutions involved in the conduct of the 2023 presidential election with the relevant laws. The contention of the Petitioners was that the Independent National Electoral Commission (INEC) did not comply with the Electoral Act and all the relevant laws in the conduct of the election and such non-compliance was substantial enough to affect the validity of the results announced by INEC. The presidential election petition court however held that the Petitioners were not able to prove this point.
Strictly speaking, this position of the court should not be surprising to any careful observer of the proceedings of the court. At the beginning of this Petition, the Petitioners, having a premonition of the possibility of an adverse and harsh legal environment against them, applied to the court that the court’s proceedings in this petition, be live streamed for the whole world to watch. The court vehemently rejected the application and held that it was against extant laws to live stream the proceedings. The court even went further to claim that the grant of the right to live stream the proceedings is a policy issue which they do not have the power to grant. This became a ruling of the court, which is binding on everybody, including the court itself and became the position of the law, unless overturned on appeal. It’s unfortunate, that during the delivery of judgment, which is part of the proceedings of a court, that this court failed to follow its own decision, which had not been overturned on appeal, or even set aside by it, and decided illegally and unlawfully, that the court will deliver the judgment live. A court that has no respect for its own order, ruling and decision, will hardly be expected to have respect for statutory laws and other judicial precedents. Immediately it somersaulted in its own decision, every reasonable person expected it to somersault in every other decision they intend to make.
That decision to broadcast the judgment live, as against all other previous proceedings, also exposed the lack of equal playing field for every party in the proceedings. How can a court disallow the world to see how the lawyers and the parties presented their cases before the court so that the world would make their own independent judgment on how fair or unfair the court was to the Petitioners or the Respondents during the presentation of their cases, but turned around unlawfully, in the same case, to allow the live streaming of the judgment proceeding, where only the judges have the right to present their own side of the case, without interference from the Petitioners and Respondents. During the delivery of the judgment, the Petitioners behaved themselves in accordance with the law, without interfering with the judgment of the court, even when the judgment was against them. It was still a Respondent that publicly interrupted the judgment proceedings, not once, but twice, and got a casual reprimand from the court. You and I know what would have happened to the Petitioners, if they had interrupted the judgment of the court two times during the process.
Following from the above narrative is the anti-people stance of the judgment of the PEPC which run contrary to the decision of the Supreme Court in Oyetola vs INEC. The Constitution made it clear that the participation of the people in their government shall be ensured. It is to ensure that the people participate in the election process that the law mandated INEC to transmit electronically and upload the scanned copies of the polling units results unto the INEC Result Viewing Portal (IREV) for the viewing pleasure of the public. Even INEC made it clear to the whole world that the law compels them to do it and it codified it in para 38(i)(ii) of the INEC regulations and guidelines for the conduct of election. The Supreme Court at page 24 of the lead judgment in Oyetola’s case decided that transmission of election results and uploading it onto the IREV portal for the viewing pleasure of the public are now part of the election process which are mandatory. This is to ensure that the people participate in the election process as guaranteed by the Constitution to make the election more credible. Yet the PEPC judgment proclaimed these processes as discretionary, thereby destroying the right of the people to enjoy viewing the results transmitted and uploaded from the polling units in real time on election day making the judgment, unequivocally anti-people, who are the source of power in a democracy.
This judgment also, if allowed to stand, will make proving election cases impossible. The Legislature are the politicians who are wearing the shoes of election petitions and they came up with provisions in our laws to make proving election cases very simple. Yet the judgment of the PEPC expressly went against the laws, making proving presidential election cases impossible. The law is that when it comes to the issue of the presidential election, the entire country is one constituency. The final results and the winner, is announced by the Chief Electoral Officer of the Federation, who is the INEC chairman. After the announcement, the law is that all the polling units results should be updated by INEC at its headquarters and the results immediately given to any person or party that wants them. Please see Section 62(2)(3) of the Electoral Act. It was very surprising that the PEPC bypassed this clear position of the law and held that the Petitioners needed to go round the 36 states of the Federation and the FCT to search for election results, citing Section 74 of the Electoral Act as the basis of its decision, when at the face of the provision, it was expressly stated to be election conducted for the states not the presidential election. Indeed, the provision talked about Resident Electoral Commissioner which the Act defined as the Commissioner deployed for the time being to a state.
In order to make the process of proving the election petition even further easier, Section 137 of the Electoral Act expressly states that “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged”. If these provisions are followed according to the law, election petition can be proved within 60 days and by one court, the Supreme Court, before swearing in of any purported winner. But the PEPC boycotted all these provisions in its judgment. It held that oral witnesses still needed to be called to prove the veracity of polling units results before they will have probative value. It still held that tendering documents without calling oral witnesses amount to dumping the documents before the court and as such should be discountenanced. This was how the PEPC threw out the documents tendered by the PDP to prove their case.
Summarily, this is how the PEPC unlawfully established the impossibility of proving a presidential election contrary to the overwhelming provisions of the law. First, it decided that presidential election must be proved on polling unit basis. Nigeria has more than 176,000 polling units. It decided that Petitioners must adduce oral testimony, in the 176,000 polling units if they are questioning the whole election to prove their petition. It decided that the Petitioners must file the witness statement on oath of all the 176,000 witnesses within 21 days granted them to file the petition no matter how adverse the witnesses are to the Petitioners. A court that refused the Petitioners 7 weeks to call 50 witnesses and settled for 3 weeks is deciding that Petitioners must call 176,000 witnesses to prove their petition. This is clearly impossible and runs contrary to the express provision of Section 137 of the Electoral Act. Also the Law cannot admit the impossibility. If this PEPC judgement is allowed to stand, it will be a futile effort for any petitioner to petition a court like this for redress in any election petition matter. In other words, presidential election petition is dead.
The issue of civil forfeiture of $460,000.00 by the presidential candidate of APC as proceeds of narcotic trafficking and money laundering and how the court treated it is there for the whole world to see. The court practically endorsed drug traffickers and money launderers to be allowed to occupy the highest offices in the land to the embarrassment of Nigerians and leaders all over the world. The Petitioners brought a case against a Respondent under Section 137(d) of the Constitution but the court insisted that it must read Section 137(d) and (e) together to arrive at the decision it did. The question is whether the drafters of the Constitution were drunk or illiterate when they separated the sections. The duty of the court is to give ordinary meaning to the clear provision of a Statute, not to add to any law that is very clear to understand. Even the Supreme Court has defined civil forfeiture as punishment for crime, yet the PEPC judgment decided that until a person is convicted in a criminal proceeding personally and sentenced, he is a saint that should occupy any political position he likes even if it’s proved that he made all his money through crimes and has been punished to forfeit them through civil forfeiture because the deciding authority couldn’t lay hold of him personally. Both parties agreed and admitted that the civil forfeiture was a punishment for offences of drug trafficking and money laundering and the law to our understanding is that such a person is disqualified from contesting to be President, period!!
• CONCLUDED
NIALS' Compendia Series: Your One-Stop Solution For Navigating Nigerian Laws (2004-2023)
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