Salient Issues In The 2011 Presidential Election Tribunal: By UMAR ARDO, Ph.D

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In line with my principle of upholding the truth and advancing the cause and course of democracy and social justice in Nigeria, devoid of any subjective stance of partisan politics, I deem it necessary to write this piece and bring to light some salient issues that played out in the prosecution of the Election Petition before the 2011 Presidential Election Tribunal, which in my opinion went a long way to determine the final verdict of the tribunal. Now that the presidential election petition matter has been finally decided, I believe it will be useful to bring to light the observations of some of us who closely monitored and studied the proceedings in the hope that lessons will be learnt in the interest of the nation and of posterity. It may also further justify my earlier call for the removal of Prof. Attahiru Jega as Chairman of INEC on the ground that he has proven himself to be a bias and subjective umpire. He demonstrated this not only in the conduct of the 2011 general elections, but more importantly in his untoward conduct during the trial of the CPC Petition before the Presidential Election Tribunal.

 


I would like to state from the outset that all the facts referred to in this write up, are either facts deposited before the Presidential Election Tribunal by the various contending parties, or in the proceedings of the tribunal, or of common public knowledge. Let me also state at this stage that I am neither for nor against any of the parties involved; I only want to make public what I consider to be the truth of a crucial national matter for the purpose of avoiding same in the future. Perhaps I may also add that although no court judgment by itself is beyond criticism, we are however all bound by all judgments no matter how fallible.

 

As can be recalled, the Presidential election result was declared on the 18th day of April, 2011. Dissatisfied with the outcome, the Congress for Progressive Change (CPC) wrote a letter to INEC demanding, among other things, for relevant electoral materials used in the conduct of the election in the exercise of its right to such materials as established by Section 77 of the Electoral Act, 2010. INEC responded to the CPC letter and undertook to make available copies of electoral materials to the party upon payment of the necessary fees. But surprisingly, for no any cogent reason INEC seemed to have blatantly retracted its decision by apparently refusing to cooperate with the CPC lawyers. Thereupon, CPC caused additional letter dated the 20th April, 2011 to be written to INEC when its demand for election materials was not addressed.  Still, in spite of the provision of the law, Prof. Jega refused to comply. Hence, CPC was forced by this flagrant refusal of INEC to file its election petition before the Presidential Election Tribunal without the luxury of availability of the demanded election materials. This then gave the PDP the leeway to file preliminary objection on the competence of CPC’s petition. Although this objection was overruled by the Justice Salami-led Presidential Election Tribunal, so much time was however wasted in the course of hearing the objection before eventually being overruled. Thus, knowing full well that the Election Tribunal matter was time-bound, INEC’s misdemeanour put CPC at a position of serious disadvantage in prosecuting its petition. Whether that was deliberate or not, Jega’s INEC’s actions (or inactions) had adversely affected CPC’s case before the tribunal.

 

But this is only the beginning of the problem as subsequent actions of Jega’s INEC in the course of prosecuting CPC’s case at the tribunal were more damning. After having withered the huddle Jega first put on the Petitioner’s way at the tribunal, through the sheer efforts of the CPC lawyers and forensic experts, the Presidential Tribunal granted an order for access and inspection of documents and materials in the custody of INEC on the 24th May, 2011. The terms of the Order provides as follows:

 

1.       An order that INEC shall grant the Petitioner and any other party in the petition their counsels, agents or experts access to the biometric Database created by the DDC machines for register of voters, used at the Presidential Election held on 16th April, 2011. INEC shall give notice to parties as to time, date and place for such exercise provided that the absence of a party duly notified shall not delay such exercise.

 

2.      AN ORDER that INEC shall grant access to the Petitioner and any other party to the petition, their counsels and their experts, to inspect and take Certified True Copy (CTC) of election materials, i.e.

 

a)      Register of Voters used in all the Polling Units at Presidential Election held on 16/04/2011.

 

b)     Electoral Forms EC8 A, B, C, D & E

 

c)      Manual for the Election

 

d)     List of Officials of INEC including adhoc staff who participated in the conduct of the election.

 

e)      Records of Ballot papers distribution throughout the Federation.

 

f)      Ballot papers used in the Presidential Election held on 16/04/2011.

 

3.      Access for inspection and taking of copies of the election materials shall be at the statutory location of such election materials, i.e.

 

(i)     Custody of Resident Electoral Commissioners in various states.

 

(ii)   Custody of Chairman of INEC.       

Provided all necessary official fees for such certification are paid. 

 

Here again Jega’s INEC made it impossible for this Court Oder to be executed. Several attempts made by CPC’s lawyers towards the execution of the order by way of demanding information on database specifications and copies of ballot papers were frustrated by INEC. CPC’s lawyers wrote a letter to INEC dated 27th May, 2011 in which they sought information on the structure of data base, its tables, columns, definitions and relationship between tables. The letter was never responded to by INEC.  They then wrote another letter dated 16th June, 2011 notifying it of their intention to get CPC’s forensic experts visit the Commission on Monday, 20th day of June, 2011 but the letter was equally not responded to by INEC.  

 

The petitioning party was compelled by these frustrating attitude of INEC to write to the Counsel to INEC vide a letter dated the 20th day of June, 2011 seeking his intervention in making the meeting of the lawyers and forensic experts of all the parties possible, so as to agree on the modalities of executing the Tribunal’s Order. Chief Awomolo SAN (INEC’s Counsel), wrote to CPC lawyers and suggested for the convening of a meeting at the conference hall of INEC on the 24th day of June, 2011. At that meeting, held between lawyers and forensic experts of all the contending parties in the suit, it was agreed that all parties shall meet on July 11th to commence the execution of the Court Order.

 

Amazingly, and in complete contravention of the provision of the Electoral Act 2010, which stipulates that election materials shall be given out by INEC on the orders of an Election Tribunal for the purpose of evidence, Chief Wole Olanipekun, SAN, counsel to President Goodluck Jonathan and Vice President Namadi Sambo, wrote a letter dated 27th June, 2011 stating that no data should be taken which might reveal a particular fingerprint of any particular individual. CPC lawyers were shocked by this new twist of events. Nevertheless, the scheduled meeting of 11th July, 2011 was held for the purpose of the forensic exercise, but not surprisingly the exercise did not commence but was forwarded to the 26th day of July, 2011. However, in that meeting INEC also took to the position of the President’s lawyers when Chief Awomolo, SAN stated that it is the stand of his client (INEC) that no party can go beyond viewing of the database and that there will be no scanning of ballot papers. In addition, the Director Legal Service of INEC, Mr. Ibrahim Bawa, further reiterated that the electronic voters registration copy contained in the INEC database was not used in the election and did not form part of election materials and so cannot be accessed based on the Court Order. If this is true, then the question is which voter registration did INEC use to conduct the 2011 general elections?  

 

CPC lawyers were frustrated and compelled by these apparent twists, turns and contradictions to write to the INEC Chairman himself drawing his attention to the condescending attitude of his legal team in collaboration with the President’s lawyers associated with the execution of the Order of the Court relating to forensic exercise. While expecting a response from the INEC Chairman resolving the matter, Jega ignored this very significant CPC’s letter. Instead, the position was further compounded by a letter from Dr. Alex Izinyon, counsel to PDP, dated 25th July, 2011, a day before the commencement of the exercise, in which he resolved also that the issue of Database of voters’ register is a no go area.  

 

Basically, in defiance to the Court Order and in breach of the Electoral Act 2010, a position was taken by the Presidency, INEC and PDP that come what may they would not concede to the scanning of thumb impression on a ballot paper for the purpose of matching same with voters’ thumb impression in INEC’s data base as this would automatically reveal all multiple and irregular votings in the 2011 Presidential election. Their position was supported by members of INEC forensic team who added that taking information contained in the database will impinge on privacy rights and would show how each voter voted, thus violating section 125 (3) of the Electoral Act. But this was just a flimsy excuse because the Electoral Act is very clear; that INEC must avail a petitioner any election material on the Orders of a Court for the purpose of proving an election case before a tribunal. Since in the instant case both conditions were made, CPC lawyers had no other option but to run back to the tribunal again and report this INEC’s flagrant disobedience of its Oder and seek compliance.

 

However, at the tribunal itself, serious twists of fundamental consequences had occurred – its Chairman and the President of the Court of Appeal, Justice Isa Salami, who granted the Order in the first place, was removed at the instance of the President on the recommendation of some members of the National Judicial Commission. In his place a new Chairman was appointed, who immediately reconstituted the membership of the tribunal. By the time CPC lawyers arrived before the new panel, everything had changed, and things had taken a new turn! The new panel did not agree with the petitioning lawyers on virtually every issue and the previous Order was practically reversed on the simple definition of the word “access”. The previous Salami-led panel had earlier on subpoena INEC to testify on certain issues including the assertion of its Director Legal mentioned before, but the new tribunal agreed with INEC’s lawyers that the security situation in the country could not warrant the Commission to allow the Court’s bailiff into its premises to serve the tribunal’s own Order; thus the Court’s subpoena Order was rendered ineffective and INEC literally ‘got away with murder’.  At the end of the day, not a single election material, not least the critical biometrics data, was admitted in evidence by the new tribunal, and thus CPC lost its petition way up to the Supreme Court. All, as they say, is now history.

 

The point being argued here is that INEC, under Prof. Jega, did not act in the manner expected of an unbiased umpire. I went to this great length in relating the findings of my study of this case so as to demonstrate the unprofessional conduct of the INEC leadership in the course of prosecuting an important petition such as a Presidential Election petition. If Prof. Jega knew that INEC would not use the biometrics registration data for the general election why did he expend so much Nigeria’s money to undertake the exercise? If indeed the biometrics database was not used during the election, as asserted by Mr. Bawa, which registration database did INEC use to conduct the 2011 general elections? And if in fact INEC used the biometrics data as the basis for the conduct of the election, is it not then part of the election materials contemplated by the Electoral Act, 2010 to be supplied for the purpose of evidence before an Election Tribunal? Why then did the INEC Chairman, in seeming collaboration with the PDP and President’s lawyers, deny CPC access to the database? Or is it that INEC does not really have a National database upon which the 2011 general elections were conducted? If so, why, and if it has, why didn’t INEC conduct the electronic voting Prof. Jega promised Nigerians?

 

With all these heavily weighing against him, how can Prof. Jega not be adjudged as a bias and unreliable person not worthy of heading INEC for another election in 2015? I strongly contend so. And on the basis of these and many more, I again call on Prof. Jega and his team to invoke academic honesty and human dignity and resign their appointments forthwith, failure of which I demand of the President to relieve them of their respective offices in the best interest of the nation. This is a call to national duty as Nigeria must not afford to have disputed elections again in 2015; we cannot come out of it any better.

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