ISAIAH BENJAMIN in this report writes on the twist and drama in the ongoing Kaduna Governorship Election Tribunal
There is no point repeating the fact that the March 9th, 2019 Governorship election in Kaduna state produced the incumbent Governor, Malam Nasir el-Rufai and his running mate, Dr. Hadiza Balarebe, of the All Progressives Congress (APC) as winners having been declared by the Independent National Electoral Commission (INEC) as winners.
But dissatisfied with the result of the election, the gubernatorial candidate of the Peoples Democratic Party (PDP), Isa Ashiru, opted to challenge the outcome at the election petitions tribunal. Ashiru alleged militarization of the electoral process in various parts of the state, arguing that, “military personnel were used to intimidate voters, particularly in the areas where his party had an overwhelming strength and support.”
The PDP gubernatorial candidate addressed a press conference at his Kaduna home, few hours after the declaration of el-Rufai as winner, and also alleged that Smart Card Readers (SCR) were not used during the elections in many polling units in Giwa, Birnin Gwari, Kaduna North, Igabi, Zaria, Lere and Ikara local government areas.
“I wish to state without any fear of contradiction that reports obtained by our party from across the state indicate that the elections were marred by a lot of irregularities”, Ashiru has said, adding that it was on that basis that his party, in a petition to the State Resident Electoral Commissioner of the Independent National Electoral Commission, INEC, rejected the results and called for its outright cancellation.
He added that reports have shown that Smart Card Readers were not used during the elections in a lot of polling units, noting that the non-usage of the Card Readers have rendered the results from these areas invalid and should have been canceled.
He noted that: “Based on this and other irregularities, I hereby stand by the position of my party to challenge the concocted results at the election tribunal to get back our stolen mandate.”
At the opening of the tribunal, the PDP candidate sought for a vote recount in an application he filed on May 14. His application was however opposed by the INEC and the governor. Justice Bako had to adjourn to Saturday, May 25, 2019 to allow the three respondents in the PDP petition, governor el-Rufai , APC and INEC to file their responses. After the appeal was filed at the resumed hearing, the election petition tribunal again adjourned to Tuesday, May 27, 2019 for ruling on the motion for recount of ballot papers brought before her by Ashiru.
The Chairman of the tribunal, Justice Bako again adjourned the sitting after hot debate for and against the recount motion filed by the PDP’s governorship candidate.
Counsels to Independent National Electoral Commission (INEC), Governor el-Rufai and the All Progressives Congress (APC), Messr Aliyu Umar SAN, Abdulhakeem Mustapha SAN and Lawal Bawa argued against the recounting motion at the resume of the pre-trial.
Also, at the resumed hearing in the motion which is part of the pre-hearing sittings, the PDP applied to amend its earlier application for the recount of the entire ballot to 12 local government areas mostly in the central and northern parts of the state. The petitioners however applied for the recount in Kaduna North, Kaduna South, Igabi, Birnin Gwari, Giwa, Zaria, Sabon Gari, Makarfi, Kudan, Kubau, Soba and Ikara local government areas, mostly won by the APC. Counsel to the applicant Mr. Emmanuel Ukala (SAN) told newsmen after the adjournment that: “What we have done this morning is to move the motion for the ballot recount, which is to recount the ballot papers in certain local government areas where we are saying that votes were simply allocated.
However, Counsel to INEC, Mr. Aliyu Umar (SAN) said there was a motion asking for recount by the petitioner, but was opposed to by the respondents.
“We opposed the recount because, in all legal contest especially election matters, you are supposed to state the fact upon which you are challenging the election.
“There are normally three grounds to challenge the outcome of an election, which are non-compliance, corrupt practices or the person declared was not elected by majority of lawful votes. They now lump up these three processes together.” Umar said.
Mr. Abdulhakeem Mustapha (SAN), Counsel to el-Rufai also told newsmen that: “ We also opposed to that application because it is not in consonance with the extant provisions of the relevant electoral laws.
The Kaduna State governorship election petition tribunal eventually struck out PDP’s application for the recount of votes of March 9 governorship election declared to have been won by the APC in the state.
In his ruling, the Chairman of the tribunal, justice Bako noted that the court did not have the power to grant the application for the recount of ballot papers. This was even as the tribunal fixed June 15, 2019 for continuation of hearing on the case.
However, speaking to journalists after the court’s ruling, counsel to Ashiru, Elesha Kurah (SAN) said the legal team would study the ruling and take necessary action. Kurah, who frowned at the ruling said it was strange because other tribunals have done that in the past and also with court of appeal in a number of cases. According to him, “We wonder at this stage why the tribunal would say it doesn’t have the power to recount. We have to take it up so that the issue will be trashed out”, he said.
The legal luminary argued that tribunal has an inherent powers to grant the recount, saying that the court of appeal has even agreed that they have the powers. He said the claim of the court not to have powers to grant the application and to assume that there is no specific provision in the electoral act that talks about recount is strange.
While quoting section 6 (17) of the constitution, he said the inherent powers of the court is clear, explaining that judicial powers conferred on the court to do justice to the case and this one can not be an exception.
But Mustapha (SAN) expressed satisfaction with the ruling, saying the PDP’s motion lacks merit.
According to him, the court found no merit in the application and it was dismissed.
Dissatisfied with the ruling, PDP and its gubernatorial candidate appealed the verdict at the Court of Appeal, their appeal was however not successful as it was dismissed.
The Kaduna Division of the Court of Appeal dismissed the appeal of the PDP and its gubernatorial candidate, Alhaji Ashiru against the refusal of the Kaduna State Governorship Petition Tribunal to order for the recount of votes.
Delivering judgement on the vote recounts, Justice Hussaini Muktar affirmed the orders of the tribunal, refusing to order for a recount. It will be recalled that the tribunal had earlier struck out the petitioners’ request, seeking for a recount of votes cast in the governorship election for lack of merit.
Chairman of the tribunal, Justice Bako who ruled on the motion on May 29, said that the tribunal has a time frame of only 180 days to complete its assignment.
Justice Bako also refused the application for amendment of the motion seeking to narrow the votes recount to only 12 local government areas of Kaduna state. Specifically, the petitioners had asked the tribunal to order the votes recount in Kaduna North, Kaduna South, Igabi, Giwa, Zaria, Sabon Gari, Makarfi, Birnin Gwari and Ikara amongst other local government areas.
When the application for vote recounts was dismissed, the petitioner their case with witnesses testifying. Twelve witnesses started by informing the Tribunal that the March 9 governorship elections did not hold in many polling units of Kaduna North Local Government Area of the state.
The witnesses, who testified on behalf of the petitioners, the Peoples Democratic Party (PDP) and its candidate, Ashiru, also said phantom votes were added to the declared winner of the governorship elections by INEC in Polling units where elections held.They also added that elections was disrupted and marred by irregularities in some polling units where the polls was held.
Recall that Mr. Zakari Muhammed, the Collation officer for Kaduna North local government in the March 9th 2019 governorship elections had declared that the Candidate of the All Progressives Congress (APC), Malam Nasir el-Rufai polled a total of 97, 243 while his PDP counterpart scored 27, 665. But witnesses at the resume hearing said INEC officials did not show up at many polling units in the local government on March 9th when the election held.
Another witness, Mr. Benjamin Augustine who served as agent of the PDP at Hayin Banki Ward collation centre, said phantom votes were added for the APC based on the purported INEC certified result sheet which was different from the pink copy given to him at the end of the collation exercise. He tendered the pink copy given to him by collation officer to the court and it was adopted by court as exhibit.
Another witness, Aliyu Mohammad who served as PDP agent, in polling units 006, told the Tribunal that “election did not take place in my polling unit, but surprisingly, I was later shown the result of the election purported to have emanated from INEC without the official stamp.”
Dan-Auta Mohammed, a witness told the court that elections did not take place at polling Unit 003, adding “I was surprised that INEC announced the result of an election that never took place.”
Witness Simon Kester, also said “election did not hold in my polling unit 018, but INEC released a result from that same polling unit which had no stamp or signature on it.”
Also, Sani Musa Danburan of polling unit 009 said “as agent of my party, I can confirm elections did not hold in my polling Unit on March 9.
“Even the result from INEC didn’t have stamp of the presiding officer,” he said.
All the 11 witnesses who served as agents of the petitioners In Kaduna North told the tribunal that INEC officials never showed up at their polling units on the March 9th 2019 governorship elections.
Meanwhile, the Justice Bako-led Tribunal again adjourned to June 20th for continuation of hearing after taken 12 witnesses of the petitioners. About 30 witnesses from Zaria and Kaduna North Local Government Areas testified against the INEC.
The Appeal Court also dismissed PDP’s suit on forensic expert. The appellants had gone to court challenging the ruling of the tribunal for refusing them to allow a forensic expert to testify before it due to the expiration of the 14 day time frame given to them to present witnesses. The Appeal Court upheld the ruling of the tribunal on arguing that the time line for the appealants to produce witnesses had lapsed on the day of the ruling.
Delivering Judgement, Justice M. A. A Adumein stated that the tribunal has no powers to extend the timeline given to parties to produce witnesses. According to the judgement, any attempt to extend the date will amount to a nullity. It will be recalled that PDP and Ashiru had called a forensic expert to give evidence against the documents that were used by the Independent National Electoral Commission(INEC) on the March 9 election. Both counsel to Governor el Rufai and APC had raised objections to the motion, arguing that they were only served with the witness’s statement shortly before the court session began.
According to the counsel, they needed time to read the statement in order to prepare for cross examination, pleading that the tribunal should stop the witness from testifying. Counsel to PDP, Dr Paul Ananaba had rejected the objections on the ground that he had informed the tribunal that he will subpoena a forensic expert. Ruling on the matter however, the Tribunal Chairman , Justice Bako said that the petitioners failed to present the statement within the stipulated time frame, therefore the witness has lost the right to give testimony.
Between the time frame of the dismisal and refusal for votes recount, and refusal for forensic expert, the PDP in a statement alleged that INEC was under pressure to tamper with Kaduna election materials.
The allegation was contained in a statement by the party’s Publicity Secretary in Kaduna State, Abraham Alberah Catoh.
INEC which is also the first respondent at the tribunal opened and closed her case after presenting one witness. Testifying before the tribunal, Alhaji Umar Ibrahim Fagam, head of operations at Kaduna State INEC office, said that he received reports from all his officers on the field on election day. Under cross examination by Mustapha (SAN), counsel of the second respondent, Governor el-Rufai, the witness said that no local government INEC staff raise any objections about the conduct of the election. Alhaji Umar said that although he supervised the entire election, “I didn’t physically visit all the polling units in Kaduna state,” adding that he visited only a select few.
According to the witness, “the report of my staff and my observation informed the evidence before the tribunal that elections held all over Kaduna State on March 9.” The witness further said that electoral materials were distributed all over the 23 local government areas of the state, adding that “at no time did PDP or its gubernatorial candidate complain that there was disruption of election.”
Fagam further said that PDP submitted a list of agents with their photographs. He however denied when a sample of agent’s tag was shown to him, as submitted by PDP as exhibit.
According to him, “this is not the card that was issued by INEC to party agents. Party agent’s card is an ordinary paper, with a passport of the agent, a space provided for the name of the polling unit and a provision for local government electoral officer’s signature. Under cross examination by the petitioner’s lawyer, Elisha Kurah(SAN), Alhaji Fagam admitted that he is a deputy director at INEC.
He further said that he was at the office for about three hours on election day. The witness reiterated that he was not at all the local governments on election day, neither did he visit all the wards and local government collation centers in Kaduna state. He authenticated a document presented by the counsel (exhibit 235), which is a letter addressed to the REC of Kaduna state, emanating from PDP secretariat. Similarly, Barrister Kurah stated that the witness listed polling units which he didn’t visit on paragraph 33 of his deposition.
Then it was time for the Second reapondent Governor el Rufai to open his defence which commenced on July 23, an avenue for the second respondent to arraign more witnesses at the hearing. The second respondent who opened his defence was able to arraign just one witness before moving for adjournment.
Counsel to Governor Nasir El Rufai who is the second respondent, Mr A. U Mustapha(SAN), moved a motion for adjournment to enable him arraign more witnesses, which the tribunal granted.
When the.trihunal resumed hearing after the adjournment, the second respondent closed his case after calling two witnesses. The second witness who gave evidence was Forensic and a Hand Writing expert, retired DSP Olufemi Ayodele.
Mr. Ayodele who adopted his written statement as evidence before the tribunal, explained that only a few witnesses signed the documents of the petitioner, based on his findings.
“After analyses of the signatures on the statement of oath, it was found out that only three persons were responsible for the signing of about 624 signatures of the petitioner. One of them was solely responsible for signing 471, another person signed 144, the third person signed nine signatures, “ the witness said.
Under cross examination, Ayodele said that he is not a consultant but a professional. However, the petitioner’s counsel, Mr E. Y Kurah (SAN), referred him to paragraph five of his petition where the witness referred to himself as a principal consultant.
Ayodele clarified that he had referred to himself as a consultant in the document as a way of introduction but as a witness in court, he is a professional.
The petitioner’s counsel asked him whether he was paid to do the job of a Forensic Analyst and the witness answered in the affirmative but refused to disclose his professional fee.
Mr. Ayodele also said that he has no allegience to the person who hired him, adding that his testimony was to assist the tribunal as best as he can.
When asked if he knew the theory of forensic analysis which suggests that analysts tend to favour those who hired them, the witness said that he is not aware of it.
The witness however agreed with the petitioner’s counsel that accidental and natural variations occur in signatures.
Barrister Kurah(SAN) tendered a document titled “Adversarial Allegiance amongst expert witnesses, which was opposed by counsel to the first, second and third respondents.
At the resumed hearing Barrister Suleiman Umoru, counsel to Governor el Rufai who is the second respondent, also prayed for an adjournment.
According to him, “we are unable to proceed today due to the fact that we are facing logistics challenges in bringing our proposed or intended witnesses to court. In view of this, we apply for an adjournment to tomorrow, being the 24th of July. “
Neither the petitioner’s counsel nor the counsel of the Independent Electoral Commission of Nigeria (INEC) and lawyers of the All Progressives Congress (APC) objected to the prayer.
The tribunal then adjourned to enable the third respondent, the All Progressives Congress (APC), to continue with its defence the next day.
Speaking after the proceedings, Barrister Mistapha (SAN), counsel to the second respondent, noted that what matters most is the quality of witnesses and not the number.
Thereafter the court adjourned sitting in order to allow counsel to file written addresses and responses in line with the Electoral Act.
Delivering a ruling on a motion by counsel of the third respondent, Barrister Ibrahim Bawa (SAN), Justice Bako urged parties to abide by the schedule.
According to the schedule, 10 days have been given for the respondents to file their written addresses, starting from Thursday.
He further said that the petitioners also have seven days to respond, adding that they also have five days to reply on matters of law. Afterwards, counsel will adopt their written addresses, Justice Bako further ruled.
By that ruling, the respondents have been given up to August 4 to file their written addresses while the petitioners have up to August 11 to respond. In addition, the petitioners have up to August 16 to reply on points of law. On August 19, counsel will adopt their written addresses.
Earlier, Barrister Bawa (SAN), had prayed for the tribunal to grant counsel dates for final written addresses on the petition filed by the Peoples Democratic Party(PDP) and its gubernatorial candidate, Alhaji Isa Ashiru, challenging the March 9 election.
According to Bawa (SAN), he had reviewed his earlier stand of arraigning 15 witnesses, adding that the third respondent has resolved to close its case by not calling other witnesses.
Bawa (SAN), who is the counsel of the third respondent, said that he was guided by the provision of paragraph 46 of the 1st schedule of the Electoral Act, sub paragraph 11 to 13.
It will be recalled that the third respondent only arraigned two witnesses at the tribunal, including Samaila Ibrahim Paki, the chairman of APC in Ikara local government who testified on Wednesday and Alhaji Suleiman Abdu Kwari, the senator representing Kaduna North senatorial district at the National Assembly.
Giving evidence on Thursday, Kwari said that he was the state collation agent of APC, adding that he didn’t visit all the polling units in Kaduna state.
Under cross examination, he told the tribunal that he knew all the results through APC ward agents and that he didn’t notice any anomaly in the results.
However, counsel to the petitioner, Barrister E. Y Kurah(SAN) pointed out that the results of Forms EC8A and EC8B in Madami ward in Zaria local government are different.
According to Kurah(SAN), APC and PDP scored 243 votes and 53 votes respectively on Form EC8A while APC got 608 votes as against PDP’s 23 votes on Form EC8B.
In his explanation, Kwari said that such a situation can arise if results of voting points are not added to the mother polling unit.
When the tribunal resumed again, In a short ruling delivered, Justice Bako adjourned hearing on the petition to Thursday, July 17.
Earlier, counsel to the first respondent, Barrister Umar told the tribunal that his witnesses were not in court.
Barrister Umar who is the lead counsel to Governor el-Rufai, told the tribunal that the respondent had listed 10 witnesses, including nine INEC officials and a hand writing expert.
However, he apologized over the inability of the witnesses to appear before the tribunal which he said was due to circumstances beyond the control of both counsel and witnesses.
“They are absent because INEC is in a process of reviewing the 2019 elections. But I have been able to talk to the Resident Electoral Commissioner of Kaduna State and I have been assured that my witnesses will be in Kaduna by the resumed sitting on Wednesday(July 17), Barrister Umar pleaded with the tribunal.
Counsel to both the second and third respondents did not object to the application. Although Barrister Kurah, lead counsel to the petitioner did not object to the application, he however asked the court to adjourn hearing to 12 noon on the said date.
While el-Rufai has constituted his cabinet and hit the ground running, the PDP and her candidate, Hon. Ashiru are of the opinion that he is acting on a stolen mandate which they hope to claim.
What should the good people of Kaduna State expect when the tribunal resumes and to what extent will this challenge go? Will the PDP reclaim the mandate and at what level will that be? On the other hand, will the incumbent governor defend his re-election accordingly? Only time will tell.