By Aloy Ejimakor
In Nigeria, forgery and perjury, by whatsoever other names called in our different statutes, are serious offenses under both the Criminal Code and the Penal Code. The law of evidence and other subsidiary legislations also contain clear provisions on them. Yet, even as we have, in recent times, witnessed a litany of forgeries and perjuries before electoral tribunals, it appears that very little attention is being paid to prosecuting the offenders, even as we are seemingly immersed in constant pursuit of a path to a credible electoral regime.
The intention of this piece, therefore, is to call attention to this national tardiness and thus make a vigorous case for arraying the extant statutes against those that have been tendering forged documents and otherwise suborning false evidence before election tribunals.
Evidence is the hallmark of all legal proceedings. It is thus of great importance for its sanctity to be protected. A tribunal before whom the electoral contest is fought is unconnected with the material facts that propelled the dispute. Thus, the capacity of such tribunal to resolve the electoral dispute based on the facts/truth as presented by the disputants depends to a large extent on the veracity of the evidence adduced by the parties.
Weighing the probative value of the evidence of the disputants and their witnesses (documentary or oral) depends on the limited forensic skills of the tribunal in observing the demeanor of those witnesses and gauging the truth or falsity of the documents they purvey. So, the basis for prescribing punishment for forgers and perjurers is underscored by the inherent danger that lies in validating a candidate that succeeded in adducing false evidence – a monumental fraud on the electorate.
Now to the black-letter law. Section 465 of the Criminal Code defines the offense of forgery as follows: ‘A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in the state or otherwise, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the state or elsewhere, is said to forge the document in writing’.
The word “document” includes any book and any paper, parchment, or other material whatsoever, used for writing or printing, which is marked with any letters of marks denoting words, or with any other signs capable of conveying a definite meaning to persons conversant with them. There’s no doubt that all electoral materials, written as they were, including the results sheets of such elections, unambiguously fall under the purview of the foregoing definitions.
To be sure, there have been many reported instances of candidates and their witnesses seeking to introduce documents before tribunals that were later determined to be false or forged. Such documents have often come in the form of forged false results, purported to have emanated from INEC. It is further reported that the worst hit in the country are the election tribunal proceedings now ongoing in Rivers State.
Each and every incident of such is prosecutable because the elements of the offense are met once (a) the document is false; (b) knowledge that the false document or writing is false; (c) intention that same be used or acted upon as genuine; and (d) to the prejudice of any person or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act.
It goes without saying, therefore, that the offense is vested and completed by the ultimate intention that the subornation or tendering of such forged document is to sway the tribunal’s gavel to fall in favor of the proposition the document is purporting to prove.
Under Section 467 of the Code, the offender is liable to three years imprisonment. But in the case of forgery of electoral materials, the punishment might be as severe as seven years imprisonment or even more as further provisions in the Code appeared to indicate.
If implemented, even in fits and bounds, these punishment milestones are deterrence enough and thus will go far in strengthening the judicial phase of our electoral process.
Further, and in addition to facing charges for forgery simpliciter, prosecution can also proceed, even concurrently, for the offence of perjury under Section 117 of the Criminal Code.
The above Section states, inter alia, that ‘any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of an offense, which is called perjury. It is immaterial whether the testimony is given on oath or under any other sanction authorised by law. It is immaterial whether the false testimony is given orally or in writing. It is immaterial whether the person who gives the testimony is a competent witness or not, or whether the testimony is admissible in the proceeding or not.’
From the forgoing, it is clear that a ‘proceeding’ before an election ‘tribunal’ qualifies because Section 113 of the same Criminal Code states that ‘In this chapter, the term “judicial proceeding” includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may or may not be taken on oath’.
Further provisions in the Criminal/Penal Code, especially as regards the offense of forgery, specifically made references to government or public documents/records, to which electoral materials unarguably belong. It is pertinent to mention that all the relevant provisions are copious, unambiguous and grave. Thus, the near-absence of prosecuting offenders is not for lack of the legal mandate but for lack of prosecutorial will.
Therefore, it is strongly recommended that, going forward, all instances of acts of forgery and perjury before any election tribunal be taken up and prosecuted to the hilt.
Barrister Ejimakor writes from [email protected]