From Abdulaziz Bako
Public Forum
Elections are won and lost at the polls, or so we were told. The sacking of the governor of Kano State, Engr. Abba Kabir Yusuf, by the Kano Governorship Election Petition Tribunal, makes it unambiguously clear that we are transitioning into a new era in our quasi-democratic system. Except if something is done to stop it, we are entering an era where judges can simultaneously transmute into party agents, presiding officers, and returning officers, receive some unexamined documents tendered to them from the bar, unilaterally examine the documents in the absence of any of the parties involved in the electoral dispute, and declare whomever they so wish as the winner of the election. We are transitioning into an era where elections will always be won and lost in the courts rather than at the polls.
On March 18, the Independent National Electoral Commission (INEC) conducted a governorship election in Kano, which was contested by several candidates. Engr. Abba Kabir Yusuf of the New Nigeria Peoples Party (NNPP), who won a total of 1,019,602 votes, was declared as the winner of the election by INEC. Dr. Nasiru Yusuf Gawuna of All Progressives Congress (APC), who scored 890,705 votes, congratulated the newly elected governor and decided not to contest the outcome of the election in the court. However, unsatisfied with the outcome, APC headed to the court to challenge NNPP’s victory. Their major grounds for the petition were that Abba Kabir Yusuf was not a member of the NNPP as at the time of the election, there was substantial non-compliance with the provisions of the Electoral Act, and that the NNPP was not elected by the majority of lawful votes.
In an attempt to substantiate their claim that NNPP were not elected by the majority of lawful votes cast at the election, the APC made a grotesque allegation claiming, in their own words, that “… in the election to the Office of the Governor of Kano held on 18th March 2023 unlawful ballot papers that did not have the signature, stamp, and date of the election were used in casting votes for the 2nd Respondent [NNPP] in all the polling units in the underlisted local governments.”
Given this wild allegation made by the APC, the next logical question one would ask is, where is the evidence? Well, that’s where things start getting messy. One would think that the APC will present these ballot papers in an open court to allow the INEC and NNPP’s lawyers to cross-examine the evidence, as is consistent with the rules of practice and procedure in Nigerian courts. Well, that did not happen. Instead, the APC tendered certified true copies of over 165,000 ballot papers from the bar, claimed that all of them were unmarked ballot papers and dumped them in the court on the last day of the trial, without giving the NNPP and INEC the opportunity to check the ballots and ascertain that each of those ballot papers are certified true copies of the ballot papers used in the election, they are unmarked, they were used to vote for the NNPP, they were not rejected, and they contributed to the total votes scored by the NNPP. To add insult to injury, the judges accepted the documents, sat in their chambers, and claimed that had gone over and verified all the documents tendered to them from the bar and reached a conclusion that indeed those over 165,000 votes should not have been counted for the NNPP. Therefore, they deducted 165,616 votes from NNPP’s votes and declared APC as the winner of the election.
The judges may have relied on at least two problematic provisions added to the Electoral Act, 2022, which were not available in the Electoral Act, 2010: Section 137 and paragraph 46(4) of the First Schedule to the Electoral Act, 2022. Section 137 states that “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”
So, one may ask, can the Supreme Court, for example, overturn or invalidate these provisions of the Electoral Act, thereby declaring the actions of the tribunal Judges illegal? One jurisprudential definition of law holds that “the law is what the court says it is the law.” It is worthy of note that in the spirit of separation of powers, the Supreme Court cannot invalidate a legislative decision (such as the Electoral Act), willy-nilly. However, if the provisions of a law passed by the legislative arm of government contradict the procedures of the practice of the courts, such provision can be invalidated by the courts because of the same principle of separation of powers (the legislature cannot dictate how the judiciary should operate). Also, if certain provisions of the Electoral Act, for example, come into direct conflict with the Constitution or a superior law (such as the Evidence Act, 2011), the court will very likely overturn those provisions.
In the instant case, the provisions of section 137 and paragraph 46(4) of the first schedule to the Electoral Act of 2022 are likely in direct conflict with rules of practice and procedure of our adversarial justice system, which require the demonstration of documents tendered in open Court. These provisions also potentially interfere with the discretion of courts on matters before it, as enshrined in the Nigerian constitution (Section 6(1)(2) and 6(a)).
In the past, the Supreme Court has declared sections of a new Act unconstitutional because it conflicted with the provisions of a superior law. For example in Anene v. State (2022) LPELR-57326 (CA) (Pp. 15-16 paras.B-B), the Court declared that certain provisions of the Administration of Criminal Justice Act 2015 (ACJA) have to give way to the provisions of the Evidence Act (2011) since the Evidence Act (2011) is superior to ACJA (2015). Giving judges the license to unilaterally examine documents in the absence of petitioners and respondents will push our legal system away from the adversarial system we practice toward a cloistered system of justice. Moreover, the Sui Generis nature of election petitions in Nigeria will not allow courts to deliver justice as far as they are expected to investigate documents dumped on them from the bar.
The issue of document dumping is fundamental, and the Supreme Court has consistently rejected the practice of dumping documents on the Courts. I believe the Court will continue to reject document dumping even though certain provisions of the Electoral Act (2022) permit such practice.
Of note, these provisions (Section 137 and paragraph 46(4) of the first schedule to the Electoral Act, 2022) have not been tested in the Supreme Court so far. So, it may be risky for the NNPP to heavily rely on the inadmissibility of the documents dumped on the court from the bar by the APC. Rather, the NNPP lawyers should also work hard on proving to the court that even if those documents are admissible in the courts, they are insufficient to warrant deducting votes from its candidate. In the later parts of this article, I will provide detailed arguments to support the fact that the documents submitted by the APC, even if admissible, do not provide evidence that warrants the deduction of 165,616 votes from the NNPP.
Some people have argued that in the Supreme Court case of Oyetola vs. INEC Anors (2023), the Supreme Court has already ruled that documents submitted without oral evidence to back them up are not admissible in the court. I humbly argue otherwise. What happened in Oyetola vs. INEC was that Oyetola sent some documents retrieved from the INEC’s backend server, rather than directly from the BVAS machine, to demonstrate evidence of over-voting. The Supreme Court ruled that information from INEC’s backend server is not similar to information directly retrieved from BVAS machines. So, they ruled that all the documents provided by Oyetola were not relevant.
The Supreme Court further held that Oyetola’s oral witnesses were also not qualified to serve as oral witnesses because, among other things, they were not the makers of the documents, and one of the witnesses testified that he has some close ties with Oyetola; therefore, the court ruled that his analyses cannot be deemed to be impartial. Hence, the inadmissibility of Oyetola’s evidence seems to be primarily related to the fact that he brought the wrong documents as evidence, and the failure to admit the accounts of his oral witnesses only served as the icing on the cake. On this note, I want to reiterate that it will be dangerous for the NNPP to rely on an issue that has never been tested in the courts before. No one wants to be a Wistar rat in a battle for the survival of the fittest.
In addition to appealing all the judgments the trial tribunal issued against them, I expect that the NNPP will put these pertinent issues forward for determination by the appeal court. Since the judges served as active investigators in this case, it is only fair if the upper courts allow NNPP to put these issues forward for determination at the appeal court.
Whether the trial tribunal judges were right in admitting copies of 165,616 ballot papers, even though the admissibility of these ballot papers was not demonstrated in open court.
Whether the trial tribunal judges were right in admitting copies of 165,616 ballot papers, even though the detailed polling unit by polling unit breakdown of the ballot papers allegedly affected by lack of stamp, signature, or date has never been provided in the petition.
Whether the trial tribunal judges were right in admitting witness accounts of PW32 (APC’s expert witness) even though he never used form EC.40G and EC.40A to ascertain that the ballot papers actually contributed to the total votes scored by the NNPP. The witness acknowledged in his written deposition that his only source of data was the certified true copies of the unmarked ballot papers. But it is not enough to just say that an unmarked ballot paper was used to vote a particular candidate. One also has to prove that those unmarked votes contributed to the total votes scored by the candidate.
Whether the trial tribunal judges can reasonably be able to, within a span of 29 days (about 42,000 minutes), perform the task of ascertaining that each of those ballot papers are unmarked, they were used to vote for the NNPP, they were not rejected, and they contributed to the total votes scored by the NNPP.
Whether the trial tribunal was right when it declared that ballot papers not bearing the presiding officer’s name are invalid.
Without an iota of evidence, the learned justices claimed that the NNPP, whom they described with words like “bandits” and “terrorists” had threatened their lives and “threatened to bring unrest and banditry to Kano State”. I want to note that the judge has no proof whatsoever that those who allegedly threaten the judges are members of the NNPP. The same judges who ruled that Abba Kabir Yusuf is not a member of the NNPP are now presuming that people wearing the iconic red cap are not only members of the NNPP but the sole representatives of the party whose actions and statements certainly represent the official position of the party.
It should be noted that the NNPP is a political organization with a robust organizational structure. It has officials saddled with the responsibility of communicating its official position to the public. It is absolutely wrong to assume that statements made by someone wearing a red cap represent the official position of the NNPP. How can the actions of a few individuals who are not even legally proven to be members of the NNPP be generalized to the whole party?
By the statements of this judge, it can be concluded, with a great level of certainty, that the judge cannot be impartial in his judgment. It is my humble opinion that the NJC should take NNPP’s complaints regarding the tribunal judge seriously. The court is supposed to be a place where justice is served and not a place where judges will be given the liberty to settle scores with their imagined adversaries. In an ethical society, the judge would have recused himself from the case because of a potential conflict of interest. His hate and contempt toward the NNPP were as clear as day.
• Dr. Bako wrote in from Kano