By, Dr. Charles Omole
This was a technical judgement by the Tribunal & the Judges must be commended for the effort and hard work that went into this case. To make my comment easier to the layman; I will not comment on all aspects of the case but the salient points to me.
The tribunal rejected all of Atiku’s claims: that the election was marred by irregularities, that he received more votes than Buhari and that the president did not have a secondary school certificate, a basic requirement to contest the election.
On Case Management: First of all, Both PDP & APC made too many useless applications in this case. This led to a bloated legal case that was needlessly time consuming & laborious. The nonsense about Atiku not being Nigerian & INEC saying that Atiku’s lead counsel, Livy Uzoukwu is not a legal practitioner called to the Nigerian Bar. These were distractions in my view and the Tribunal gave them short shrift by rightly dismissing these spurious claims. And then the many objections filed by both parties enlarged the volume of work for the case.
It seems politicians throw every charge possible into the ring to see which one will stick. This is not efficient. In Kenya, Presidential Election was conducted in Aug 2017 & their Supreme court gave a final ruling on d election petitions in Sept 2017. That is efficiency.
General Observation: Anyway, let’s get back to Nigeria, Overall the Tribunal verdict seems correct in my view. Let us be open minded about this. The PDP’s failure at the Tribunal is due to a combination of some own goals by the PDP in making some mistakes in its prosecution of this case as well as the limit imposed on the Tribunal by the Constitution & current Electoral Act which meant only manual procedures are valid in law. In my analysis; INEC was edging its bet when it saw that d new Electoral Act was passed by the 8th Senate, which would have allowed electr transmission. But PMB vetoed new Act at d last minute; thus forcing INEC to scrap all its anticipatory electronic procedures that would have been lawful under d proposed Act. This anticipatory preps could have led to confusion about Server or no server.
On the allegations of police and military interference Read more: The PDP also alleged violence by the Police & Military was used to support rigging by the APC. But the PDP failed to join the Police & Military as parties in the suit. Hence, the Police & Military could not defend themselves in court as required by law. PDP’s claimed that as agents of the Govt, security forces acted on its behalf. So the Govt is vicariously liable. But Vicarious Liability is not known to Criminal Law. It applies only to civil wrong.
In criminal law; it is the soul that Sineth that may die, not the parents of the sinner. The court says it will be improper to decide on the issue without hearing from the parties which have been accused. So my question is; why did PDP not join d security forces as parties?
PDP claimed that many of their agents situated in various polling units were harassed & prevented from doing their job by APC who connived with security agents to conduct massive rigging. PDP also alleged that no real voting took place in for instance Dekina LG area among others. The court however found that the PDP FAILED to call the polling unit agents who would have testified to the fact that they were arrested, harassed or affected by the violence pictured by the petitioners. By not calling any direct eye-witness; PDP got this WRONG.
On d use of smart of card readers & Server: On d Server issue; D Tribunal’s verdict was forced by provisions of D Electoral ACT that 2019 election was based on. If d amended ACT passed by d 8th NA was signed into law; PDP would have most likely won this element of the case.
PMB dealt a fatal blow to improved election in Nigeria by not signing the new Act last year. But the current Electoral act validates only MANUAL transmission of result. So the Tribunal had no choice but to find against PDP, despite its sympathy with many of Atiku’s argument.
The Tribunal rightly stated that there is no law in place in Nigeria that allows electronic transmission of results or d transmission of result using card reader. There is no provision under the current Electoral Act authorising INEC to transfer election results to any of server.
There is also nothing allowing them to use d smart card reader for the collation of results. So the existence of any server or not is irrelevant. Even if INEC transmitted results to a server; it would not have been admissible and will be invalid in law as it is unlawful to do so.
Focusing so much on the server issue was misguided. Don’t get me wrong; INEC probably transmitted some results to a server as test cases (& lied about it); but this would not have been a lawful step that can be used to validate an election.
Hence the result presented by Atiku based on a supposed INEC website could not have been accepted as he claimed they were electronically transmitted. PEPT was correct in its decision in my view.
On qualification of President Buhari: The Army stated that Buhari was enlisted with his WASCE. The PDP did not adequately challenge the Army’s claim; especially since they failed to summon the Army secretary as witness on the matter but only relied on newspaper reports.
Many of the authorities relied on by PEPT were already decided cases at the Apex court. So its hands were tied by these binding precedents. For example, it was already decided in previous cases that a candidate DOES NOT need to show school certificate.
It was also already decided by precedent that a candidate DID NOT NEED TO HAVE PASSED ANY EXAM; but only sat for it. So PMB did not need to present any certificate. Hence it was found that PMB was qualified to contest. I agree with this.
On Possible Perjury: On whether Buhari gave false information (about his educational certificate) in an affidavit submitted to INEC. D Tribunal DID NOT give a convincing reason for not finding in favour of PDP in my view. Even though he did not have to produced a certificate but the moment PMB presented an affidavit that stated his certificate was with the Military (but the Military on oath said they do not have it), a possible crime may have been committed. Instead of asking PMB who made the affidavit to substantiate his claim in the face of Army’s denial, The Tribunal went on a frolic of its own to fill in the blanks for itself. This is a suspicious step & an overreach. So d issue here is not whether he had a certificate or not; but whether he lied on oath about it being with the Army.
This may be a point explorable at the Supreme Court. PDP may have an arguable case on this ground at the Supreme Court.
On Atiku’s Citizenship: The Tribunal ruled that its power does not include determining the qualification of a petitioner in an election dispute, adding that its powers was to determine whether a person elected to d office of the president was validly elected and not to query the qualification of the petitioners to have contested the election, whose outcome was being queried. So this was clearly a spurious claim and definitely not a post election matter for the Tribunal. So this claim was rightly dismissed in Atiku’s favour.
On alleged malpractices in the Presidential election: The allegations by PDP include: compromised printing of election materials, manipulation of ballot boxes, manipulation of card readers, manipulation of accreditation and collation, manipulation of security agencies and militarisation of election, manipulation of election materials’ delivery, arbitrary arrest of petitioners’ supporters and massive thumb-printing of ballot papers, etc. These are grave allegations which needed to be proven to the required evidentiary standard.
The Tribunal found that the evidence put forward by the witnesses called by Atiku & PDP was not sufficient to prove the grave allegation of electoral malpractices claimed. I found this chocking. There were evidence provided by PDP, so I disagree with the tribunal on this.
However, I do not think the evidence was sufficient to prove “Substantial Non-compliance”. It merely proved some non-compliance. For me, the issue is not if some malpractices took place or not. But did PDP bring enough proof that was beyond reasonable doubt?
From what I saw; PDP did provide some evidence; but I cannot in truth say the evidence produced represents a “Substantial Non Compliance” of the election in a way that will reverse the winner of the election. This is also a matter of subjective legal view of the Judges.
Looking Ahead: You all need to understand that the burden on PDP was to proof its case BEYOND A REASONABLE DOUBT. This is a very high threshold. Which means in my view you need at least 90% certainty that a claim is true.
The Tribunal verdict is not to say they did not believe many of the claims of PDP; it simply means they could not be certain beyond reasonable doubt. So a 70% believe is not sufficient. PDP must accept some errors made in this case as well.
The problem many Nigerians have is that we are thinking logically when we have an illogical constitution and obsolete Electoral Act. Signing the new Electoral Act MUST now be a priority for PMB. He needs to work with the complaint 9th Assembly to get this done.
We cannot conduct any election under the current one again. It is therefore disappointing that PMB has yet to sign the new Electoral ACT; thus meaning the Kogi and Bayelsa elections in November will be conducted under the current discredited and obsolete Electoral Act.
PMB said he did not sign d Act bcos it was too close to the 2019 elections; so why did he not sign it immediately he was sworn in in May; knowing we have elections in November. This calls into question the truthfulness of d reason d President gave for not signing the Act in 2018.
In the end, what this case shows is the need for parties to have sufficient Evidence in court. Knowing that the election will certainly be rigged by Both sides in their respective areas of influence; I would have expected a better evidence collection exercise.
Secret Video & audio recordings; undercover agents, infiltration of the opposition camp, named witnesses that will give evidence in court etc. These are essential to win cases, not just outrage and noise making. It’s like a policeman demanding and forcing you to pay Bribe. we all knows that happens & hence will believe u. But to prosecute that officer; ur story and our believe of ur story is not enough; EVIDENCE is needed. So if what happened, is believed & true but cannot be proven in court with Evidence, then it did not happen in d eyes of d law.
As for PDP; I will advise they Appeal this verdict to the Supreme Court on the basis of possible Perjury by PMB. Any other ground will be shaky. In the end, I see the Supreme Court affirming this Tribunal verdict. The unanimous natures of the PEPT verdict creates a bid headache for d Apex court. It is difficult to say 5 of ur most senior colleagues were ALL wrong. So, Overturning d PEPT verdict will be infeasible & implausible, although not completely impossible They may yet win; or at the least they will help develop our electoral laws.
We must be careful not to Over-legislate our elections. There is a problem when we try to put in place laws that will stop All possible human creativity to break d rules. Until we change our value & polity as a Nation; more laws will simply create more innovation at breaking them.
Even d Perjury claim will be hard to prove due to Presidential immunity but it’s d only leg I can see possible to challenge this verdict. What PEPT reveals is that irregularities have to be linked to each Polling Unit concerned. U cannot claim general irregularities PEPT decided.
PDP offered lots of evidence of irregularities; but what the Tribunal wanted was each allegation linked to specific polling station with witnesses to support. A general finding of wrongdoings cannot support “Substantial Non-compliance” if its quantum cannot be decided.
In the end, PDP and APC are both part of the problems of Nigeria. I believe the nation deserve better.We need visionary leadership. This will be a long term project. If you have to see your vision come to pass then your thinking is small. Truly great visions outlive the visioners.
Great leaders think about d next generation; Bad leader think of only d next election. What is d 50-100yr vision for this Nation? That is the mark of a great leader.
As an Eastern proverb says: Great leaders are those who plant Trees under whose shade they know they will never sit. Are Nigerians truly ready for greatness? We all have a part to play. And the work starts NOW.
Personally these are my basic understanding of the verdict. There are technical issues I have taken a simplified approach to to make this easier to grasp. There are no fixed right or wrong in law. It will vary from case to case based on peculiar facts.
So others will have a different take and that is ok. All plausible scenarios are potential verdicts depending on the legal bend of the judges. So let’s discuss and disagree if needed. But let’s also find a way to move Nigeria forward.