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Why Presidential Election Petitions Fail (II)

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Every outcome of an election in Nigeria has been subject to dispute even way back in the 50s. In this report, AHURAKA YUSUF ISAH examines various legal disputes brought against the elections of President by the opposition and why such suits or actions failed.

This discourse was commenced last week under the aegis of ‘’Chronicling Post-Election Disputes in Nigeria’’, by which all manners of disagreements that trailed various elections conducted since 1952 to 1993 were examined.

In strict sense of the words, the country began to establish Presidential Election Petition Tribunals and other forms of Tribunals against the backdrop of 1979 general elections. In the foregoing, the discourse is further to examine why none of the petitions instituted before all the presidential election petition tribunal has succeeded from 1999 till date. Besides, it becomes pertinent to take a cursory look at how far Atiku Abubakar can go with his current petition.

1999 Presidential Election

On April 27, 1999, Chief Samuel Olu Falae) contested against General Olusegun Obasanjo in the presidential election in which Obasanjo and his Peoples Democratic Party (PDP) recorded 18,739,154, while Falae and his All People’s Party (APP) got 11,110,287 votes.

Dissatisfied with the result, Falae filed a nine-point petition before the Presidential election petition tribunal at the Court of Appeal

Falae told the court that Obasanjo being a member of a secret society, ‘’the Ogboni’’ was not qualified for election to the office of President. That Obasanjo was similarly not qualified as he has been adjudged guilty of treason and/or treasonable felony by a Tribunal.

Obasanjo being a public officer by virtue of being a member of the National Council of States was not qualified to contest the election. That Obasanjo was disqualified from being elected to the office of president for noncompliance with Decree No.35 of 1998, Decree No.6 and INEC guidelines. That the election was voided by corrupt practices or offences at the elections contrary to the provisions of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No. 6 of 1999. That the 4th respondent so deliberately misconducted itself in the preparation, conduct and supervision of the election such that there were widespread irregularities throughout the country.

Justice Dahiru Musdapher who delivered lead judgement held that Falae’s petition lacks merit and ought to be dismissed and the appeal court dismiss it in its entirety.

However, Falae later set aside his plan to appeal the tribunal judgement at the Supreme Court `I have decided not to take further legal actions on this matter,’’ Falae told a news conference in Lagos.

2003 Presidential Election.

Presidential elections were held on April 2003. 20 political parties contested the election. The result was a victory for incumbent Olusegun Obasanjo of the People’s Democratic Party (PDP), who defeated his closest opponent Muhammadu Buhari of All Nigeria Peoples Party (ANPP) by over 11 million votes. Voter turnout was 69.1%.

Specifically, while Obasanjo scored 24,456,140 (61.94%), Buhari was said to have polled 12,710,022 (32.19%), just as Chukwuemeka Odumegwu Ojukwu scored 1,297,445 (3.2%) to come third.

Dissatisfied with the result INEC announced, Buhari filed a petition in the Court of Appeal challenging the declaration of Obasanjo as duly elected.

In the petition, Buhari alleged that the election was not conducted in compliance with substantial provisions of the Electoral Act, 2002 ; that it was fraught with malpractices, violence and corruption and that at the time of the election, Obasanjo was not eligible to contest for the post of the President having occupied that position twice and thus contrary to the provisions of section 137(1)(b) of the 1999 Constitution. The Court of Appeal nullified the elections in some parts of the country. Specifically, the court nullified the election in Ogun State and some Local Government Areas in some other States of the Federation.

But the court unanimously annulled the election results declared in Ogun State, the president’s home state. The court cited various reasons for its decision including that members of a certain ethnic group were prevented from voting and were denied their right to vote at the election; that there was corrupt practice of distribution of money at the election; that there was intimidation by military and police presence, and that the result announced for the state did not emanate from the due electoral process in the state became bias.

In the result declared by INEC in the state, Obasanjo and his deputy got 1,360,170 while all the governorship candidates who contested election in the state, the same day and the same time received 747,296 votes altogether.

By sheer calculation, the presidential candidate received 615,873 over and above all the votes cast for all the governorship candidates.

The Justices of the Appeal Court who unanimously queried the yawning gap between votes recorded for President Obasanjo and those assigned for all gubernatorial candidates in the state said it was indefensible especially when both the presidential and gubernatorial elections were held simultaneously.

In the exact words of Justice F F Tabai who read the lead judgment, he said “all allegations in Ogun State were criminal in nature. They ranged from violence, fingerprinting, official intimidation, bias and falsification of results.”

However, the court declined to nullify the entire election on the grounds that the non-compliance complained of by the petitioners were not substantial enough to cause such nullification. And also that the effect of the acts of violence and corruption proved in parts of the country was not substantial enough to lead to the election in the whole nation being nullified. The court held that the provisions of section 135(1) of the Electoral Act, 2002 stipulates that not only must non-compliance with the Act be proved, it must be shown that the noncompliance is substantial enough to affect the results of the election. The court also held that Obasanjo was not disqualified from contesting the election. The petition was consequently dismissed, with Nsofor JCA dissenting.

Justice S A Nsofor annulled the April 19, 2003 presidential election in its entirety on the grounds that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, especially section 134 (1) (b).

“May Nigeria never and never again see a black Saturday like April 19, 2003. The presidential election is hereby nullified by me. I award a cost of N1.5 million against the first set of respondents (President Obasanjo and his vice, Alhaji Atiku Abubakar) and a cost of N3.5million against the second sets of respondents.

Dissatisfied still, Buhari appealed to the Supreme Court, seeking the court to set aside the majority judgment of the Court of Appeal and to order INEC to conduct fresh elections.

After more than two years of legal battle, the Supreme Court on July 1st, 2005 upheld the judgement of the tribunal and dismissed Buhari’s petition, saying the Electoral Act 2002 was substantially complied with.

The then Chief Justice of Nigeria (CJN), Justice Mohammadu Uwais, who presided and delivered the lead judgement had with him in the 7-man panel, Justices Salihu Modibbo Alfa Belgore, Idris Legbo Kutigi, Akintola Olufemi Ejiwunmi, Dennis Onyejife Edozie, Ignatius Chukwudi Pats-Acholonu and Sunday Akinola Akintan.

It should be noted that two of the justices who wrote the tribunal judgment, Justice George Oguntade and Justice Francis Tabai, were immediately promoted to the Supreme Court. Two others were elevated, or rather rewarded by being appointed justices of the Supreme Court by Obasanjo while the one who came with the minority judgement was never elevated until he retired as the Court of Appeal judge.

Perhaps, the most intriguing is the United States of America cable released by Wikileaks in 2011 that revealed how former Obasanjo mounted pressure on the former CJN, Justice Uwais and other Supreme Court Justices over the 2003 presidential petition brought by General Muhammudu Buhari (rtd.)

In the report, Wikileaks revealed how the former CJN had approached the then United States Ambassador to Nigeria, Mr. John Campbell to intimate him on Obasanjo’s interference with the judiciary. According to the report “Nigeria’s former Chief Justice, Muhammadu Uwais, was so highly fearful of Obasanjo’s interference with the judiciary that in 2005, he sought a meeting with the new American ambassador, Mr. John Campbell, so that someone knows what is happening here in case something happened to him.”

The report explained further how Uwais had told Mr. Campbell that “he and other Supreme Court justices were experiencing “pressure and harassment” from President Obasanjo because the presidency was concerned that the court might not do his bidding beginning with complicated effort of James Ibori, the Delta State governor, to run for the governorship again in 2003 against the background of his alleged conviction for stealing roofing materials years earlier.”

According to the cable “at a point in the complicated process that involved all kinds of interests and political manoeuvres, Justice Uwais told Mr. Campbell that the Ibori case had been followed by attempts to deposit large sums of money into his bank account in order to implicate him.

As the legal challenge against President Obasanjo by the ANPP’s General Muhammadu Buhari over abuse of security forces, lapses in voting procedures and other elements of the severely flawed 2003 elections of Obasanjo’s election drew to a close in 2005 with the Supreme Court gearing up to announce its decision, pressure on the judiciary and other participants mounted.

It further stated that the former CJN “told Ambassador Campbell that attempts had been made to bribe, blackmail, intimidate and threaten him

2007 Presidential Election

The 2007 presidential elections alongside with the National Assembly were held on April 21, 2007. Governorship and State Assembly elections had been held on 14 April.

Umaru Yar’Adua of the ruling PDP won the highly controversial presidential election with 24,638,063 (70%) votes with Buhari and Atiku said to have polled 6,605,299(18%) and 2,637,848 (7%) votes respectively.

Election observers from the European Union described the elections as “the worst they had ever seen anywhere in the world”, with “rampant vote rigging, violence, theft of ballot boxes and intimidation.

It would be recalled that on May 16, 2006, Senate voted to block a constitutional amendment which would have allowed Obasanjo to proceed on third term. Atiku refused to support him for the third term agenda. In late December 2006, 50,000 assault rifles were ordered to help the military maintain order during the election.

On May 22, 2007, Atiku, Buhari and Ojukwu separately filed petitions against Yar’Adua’s victory at the Court of Appeal, asking the court to annul the April 21, 2007 election and order a re-run due to what they called “several anomalies” including unlawful exclusion of candidates, non-compliance with the electoral law, corrupt practices and arbitrary allocation of votes by INEC to the 25 presidential candidates that ran in the poll.

The tribunal had earlier on May 14, 2007 ordered INEC to release all electoral documents used during the presidential elections to Buhari and Atiku for their inspection. It also granted an application by ANPP that INEC put into writing, all materials that are not available for inspection and give same to the parties.

But on February 26, 2008, Appeal Court Justices James Ogenyi Ogebe, John Afolab1 Fabiyi, Abubakar Ai3dulkadir Jega, Uwani Musa Abba Aji and Raphael Chikwe Agbo, in unanimous judgments, threw out Buhari and Atiku’s petitions respectively and upheld Yar’Adua’s election.

The tribunal claimed the petitions were plagued by want of evidence and that the alleged non-compliance and corrupt practices which they alleged were not substantial enough to warrant the nullification of the election. The tribunal was of the view that there was no shred of evidence to substantiate the alleged irregularities in the presidential election.

They all held that there was no credible evidence before the tribunal to grant the prayers of the petitioners. “It is not just all miniature complaint that can lead to the nullification of the election”, Fabiyi who delivered the lead judgement held.

When Buhari’s counsel, Mr. Mike Ahamba (SAN) was asked to deliver his impression, in a livid rage, he told the justices to search their “bags of conscience” and then took his seat.

The tribunal also dismissed Atiku’s case because according to it his allegations were not substantiated. According to Fabiyi, where “a petitioner alleges malpractice, corrupt practice and non-compliance to the provisions of the Electoral Act, he has a duty to prove. It has not been demonstrated in this court how these allegations affected the outcome of the election”. The tribunal said even though INEC attempted to exclude the petitioner, the Supreme Court judgment of April 16, 2007 cleared the coast for him. It therefore dismissed his claim that he was excluded from the exercise. The tribunal therefore held that the discrepancies in the conduct of the presidential election were not sufficient to warrant the nullification of the election.

It needs to be mentioned that Yar’Adua elevated Justice Ogebe to Supreme Court bench a week to deliver judgement in Buhari and Atiku’s petition against him.

Dissatisfied with Justice Ogebe-led panel judgement, Buhari and Atiku appealed against it at the Supreme Court on the grounds that the election failed to comply with the provisions of the Electoral Act, 2006 and on account of corrupt practices.

On December 12, 2008, in a split decision of 4-3 of the 7-man panel, the Supreme Court upheld the election of President Yar’Adua.

Justices George Oguntade, Aloma Maryam Mukthar and Walter Samuel Onnoghen, while delivering their judgments in respect of Buhari’s appeal, held that there was substantial non-compliance with the Electoral Act 2007, which vitiated the election.

The trio held that failure by the electoral commission to use serialised ballot papers bound in a booklet meant that the election was not conducted substantially in tandem with the Electoral Act 2006.

“The inevitable conclusion I arrived at is that the failure of the 1st respondent (INEC) and the Chief National Electoral Officer, Maurice Iwu, to use serialised ballot papers bound in a booklet is clearly a non-compliance, which shows that the 2007 presidential elections were not conducted substantially in accordance with the principles of the Electoral Act 2006,” Oguntade said in the dissenting judgment.

They consequently set aside the judgement of the Appeal Court, which had earlier upheld the election, and its place nullified the presidential election. But, the remaining four members of the panel, namely, the Chief Justice of Nigeria, Justice Idris Kutigi, Justice Iyorgyer Katsina-Alu, Justice Niki Tobi and Dahiru Musdapher upheld the election.

Justice Tobi, who delivered the lead majority judgment in Buhari’s appeal, said there was no proof that the non-serialisation of the ballot papers used for the election conferred advantage of Yar’Adua. He said, “How can this court come to the conclusion without proof that the alleged non-serialisation of ballot papers substantially affected the result of the election? This court lacks the competence or jurisdiction to do so. After all, this is not one of the matters that this court can take judicial notice within the provision of section 74 of the Evidence Act.”

2011 Presidential Election

On April 18, 2011, INEC declared that ex-President Goodluck Jonathan and PDP won the April 16, 2011 presidential election by polling 22,495,187 votes against 12,214,853 votes for Muhammadu Buhari of the Congress for Progressive Change (CPC) that came second.

Not satisfied, the CPC on Sunday May 6, 2011 filed a petition before the presidential tribunal seeking to nullify the April 16, 2011 presidential election in which Jonathan was declared a winner.

Buhari had before then vowed that he would not embark on what was beginning to appear like a “routine-after-election-litigation orgy”, his party brushed aside his sentiments and proceeded to the tribunal.

CPC alleged that PDP connived with INEC officials and rigged the election in favour of Jonathan. It expressly challenged all the results that were garnered by the PDP in all the 17 states in the South, as well as in Sokoto, Kaduna, Plateau, Kwara, Benue, Adamawa, Nasarawa states in the North and FCT, even as it has beseeched the tribunal to annul the election and order a re-run between it and the PDP.

This is just as the appellant alleged that the ballot papers meant for certain polling units were illegally diverted to other units and subsequently used for ballot stuffing, even as it beseeched the tribunal to declare that president Jonathan failed to fulfil the requirement of section 134 (2) of the 1999 constitution by scoring 25% in 2/3rd of 36 states.

The panel on that day, ordered INEC to grant the petitioner access to both the biometric database created by the Direct Data Capturing machines, as well as all the ballot papers used during the April 16 presidential poll.

On August 1, CPC approached the tribunal, complaining that INEC blatantly refused to grant it access to any of the materials used during the election. The party had in a separate application, sought and secured an order that compelled INEC to seal all the direct data capturing (DDC) Machines, and ballot boxes used for the presidential elections, which CPC said it would subject to an extensive forensic analysis with a view to proving that the poll was rigged by the PDP.

Besides, the CPC had equally prayed the tribunal for an order, directing INEC to allow its biometric experts access to all the Biometric data base of every registered voters in Nigeria for the purpose of cross-checking finger prints on the face of the ballot papers cast in states, local governments, wards and polling units across the 36 states of the federation and the Federal Capital Territory, Abuja, with what was captured in INEC’s database.

It urged Justice Salami to direct INEC Chairman, Jega, to furnish it with the list of all the local contractors that were engaged by electoral body to print ballot papers used for the presidential election, as well as, oblige it with copies of the contract papers executed by the electoral body, as evidence that the said contracts were actually awarded by INEC.

Though Justice Salami-led panel accordingly granted the request, but INEC refused to comply with tribunal order until Justice Salami himself was suspended by the National Judicial Council (NJC) on August 18, 2011.

Though NJC held that Justice Salami was suspended as the President of the Court of Appeal because he refused to apologise to the council and the CJN, Justice Aloysius Katsina-Alu after a panel of the council found him to have lied against the CJN, but it was obvious that it has to do with CPC suit. Unconfirmed report stated that Jonathan’s lawyers advised that if he didn’t remove Salami, Salami would remove him.

By September 6, 2011, a reconstituted panel (after Salami’s ouster) at the tribunal, dismissed the application seeking tribunal’s order to compel INEC to allow the petitioner to take copies of the ballot papers used in the conduct of the presidential poll.

However, on December 28, 2011, the Supreme Court affirmed tribunal judgement and dismissed CPC petition on the grounds that even where irregularities occurred during the election that gave Jonathan a fresh four-year term, the CPC, and its flag bearer, Buhari, failed to prove them.

“The judgment of the lower court is affirmed and consequently the third respondent (Goodluck Jonathan) …won the election conducted on 16 April 2011,” Justice Olufunmilayo Adekeye, the lead judge said.

2019 Presidential Election

In 2015, ex-President Goodluck Jonathan surprisingly conceded defeat to President Buhari after INEC had declared the later as winner of that year’s presidential election.

But all entreaties from various quarters, individuals, peace committee and several stakeholders asking Atiku to take a cue from Jonathan by conceding defeat to Buhari went awry. Instead, Atiku vowed to contest the presidential election result, INEC had announced on Wednesday February 27, 2019 in which Buhari and APC polled 15,191,847 votes to defeat Atiku and PDP that secured 11,262,978 votes.

Atiku said he would challenge these results as mere falsification before the Presidential Election Petition Tribunal which had already been constituted at the Court of Appeal in Abuja.

Atiku and his PDP however filed an ex-parte application before the Presidential Election Petition Tribunal on March 5, 2019, seeking an order to compel INEC to allow them to inspect materials used for the conduct of the poll.

The petitioners, through their lawyers, Chief Chris Uche (SAN), filed the ex parte application before the Presidential Election Petitions Tribunal located on the premises of the Abuja Division of the Court of Appeal.

Atiku had through his lawyer, Chief Chris Uche (SAN), asked the tribunal to make an order for INEC to permit him to inspect the Voters Registers, the Smart Card Reader Machines, ballot papers and other documents used for the conduct of the poll.

However, Justice Abdu Aboki-led 3-man panel, including Justices Peter Ige and Emmanuel Agim who delivered its ruling on the ex-parte application on March 6, 2019, ordered INEC INEC to allow Atiku and PDP access to all the materials used for the February 23 presidential election, for inspection.

The tribunal declined to allow Atiku and PDP to conduct forensic test, scanning and taking forensic experts with them to inspect the election materials, stressing that such request was outside the scope of Section 151 of the Electoral Act, as amended.

Justice Aboki who delivered the lead ruling, held that Atiku’s request for experts to be permitted to conduct forensic audit on the election materials, could not be regarded as “examination”, as stipulated in section 151 of the Electoral Act. The tribunal said it would only order INEC to grant the Applicants access to examine and obtain Certified True Copies of election materials used for the presidential election.

Atiku and his party, told the tribunal that the essence of the request was to establish that the presidential election was fraught with manifest irregularities; including multiple thumb printing of ballot papers. They expressed determination to engage forensic experts to scrutinize all materials that INEC deployed for the election.

It would be recalled that the Congress for Progressive Change (CPC) which challenged the victory of President Goodluck Jonathan at the April 2011 Presidential election had in the like manner requested similar tribunal to make an order for INEC to allow it to access and inspect all electoral materials used for the conduct of 2011 presidential election.

On May 24, 2011, the tribunal ordered that the CPC and other parties in the petition be allowed access to materials used by the electoral body in the conduct of the presidential election. The order was based on the agreement reached by lawyers representing parties in the petition which the court adopted as the order of the court.

Consequent upon this agreement and the order made by the court, the CPC attempted to access the biometric database of the electorate collated by INEC through the massive deployment of the Direct Data Capturing Machines across the nation in the build up to the last general election, but was refused the opportunity to scan all the contents of the electoral body’s database. The party protested and consequently applied to the court to enter judgment in its favour due to the frustrating antics of the INEC to frustrate the effect of a valid order of the court.

CPC’s lawyer, Oladipo Okpeseyi , a senior advocate of Nigeria told the four- man panel of the Court of Appeal led by Justice Lawal Garba Muhammed that what INEC offered to them were photocopies of ballot papers and argued that this is not good enough for his client, the petitioner, who intends to engage a forensic expert to analyse the ballot papers with a view to establishing multiple voting.

Mr. Okpeseyi argued that photocopy material will affect the outcome of forensic analyses of the electoral materials and that what the CPC wants is an electronic or soft copy of all the contents of the Database of materials used for the conduct of the presidential election.

Relying on an earlier case decided by the appellate court in Mudashiru vs Abdullahi as recorded in 2011, 7th Nigeria Weekly Law Report, Okpeseyi insisted that photocopied materials are not appropriate for forensic matters and insisted on having the original contents of the biometric database scanned electronically and further asked the court to enter a default judgment in CPC’s favour in view of the attitude of the electoral body in response to a valid order made by the Tribunal on the 24th of May.

In opposition to the application made by the CPC, INEC through its lawyers, Kehinde Ogunwumiju (now a SAN), told the court that the only issue for determination in the application moved by CPC is the definition of the term “Access” as contained in the order in question and informed the court that allowing the CPC an electronic copy of INEC’s database will breach section 125 of the 2010 Electoral Act as amended. The provision provided that only the electoral body is empowered to be in custody of the database and argued that allowing CPC to have an electronic copy of the biometric data of all registered electorate will expose the electorates’ bio details, work information and addresses as well as reveal which party they voted for thereby breaching the confidentiality provision and will expose the nation to a great security risk as identities of persons and the parties they voted for will then become public.

After listening to their arguments, Justice Garba in consonance with other members of the panel, reserved ruling on the petitioners motion sine-die (indefinitely).

On September 6, 2011, a reconstituted panel at the tribunal, dismissed the application, and went ahead to authorize INEC not to allow the petitioner to take copies of any of the ballot papers used in the conduct of the presidential poll. Clarifying the previous order made by the ousted PCA, Justice Ayo Isa Salami, on May 24, the new panel told CPC that the order was not an express permission for it to “take copies” of any of such electoral materials, noting that it could only be allowed to inspect them.

 

The current tribunal told Atiku and PDP that the access granted was just for inspection, as they would not be allowed to conduct forensic test, scanning and taking forensic experts with them to inspect the election materials.

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