Poll a farce � Minority judgement From Lillian Okenwa in Abuja, 12.21.2004
The Presidential Election Tribunal sitting at the Court of Appeal Abuja yesterday dismissed the petition filed by the All Nigeria People's Party's (ANPP) presidential candidate, Gen. Muhammadu Buhari, in which he was challenging the re-election of President Olusegun Obasanjo in the April 19, 2003 elections. The court in a three to one verdict said though there are allegations of wide spread irregularities, the petitioners have not been able to prove their case beyond reasonable doubt. One judge, however, disagreed with his colleagues. Justice Francis Tabai who delivered the lead judgment with the assent of Justice Umaru F. Abdullahi and Mahmud Muhammad in the petition described as the longest in the history of election petition in Nigeria however nullified the election in Ogun state. Justice Sylvester Nsofor who read the dissenting minority judgment described the presidential election as a farce while maintaining that there is enough reason to nullify the entire thing. The Court in its majority judgment held: "Results in Ogun state stand cancelled. Petitioners maintained the figure in the result were repugnant. That is the 1st respondent's (Obasanjo) 930,000 votes more than the votes cast and the 632,000 votes for the governor. There is evidence of internal manipulation of figures in favour of PDP as given in evidence by Chief Bisi Lawal, ANPP's gubernatorial candidate in the state." "If the petitioner should score 1,537 votes from 146 polling units, is there any reason why he should score less in 3,270 polling units? It is clear that the results were manipulated. "I do not agree that because the election in one state of the federation is nullified, the whole election should be nullified. My own suggestion is that we have seen the petition; we have seen all that petitioners put in this petition. The number of briefs because of this presumption of these irregularities. It is almost near impossible to prove an election petition unless the Electoral Act is amended," he added. Justice Tabai also said there are a number of local governments and wards in other states where elections have been cancelled. Speaking on the allegation that officials of the Independent National Electoral Commission (INEC) breached section 18 of the Electoral Act 2002 by not swearing to an oath of allegiance, Tabai cited a related judgment of the Supreme Court and said: "Failure to take oath is in my view not sufficient to stop Nigerians from exercising their right to cast vote." He also observed that since Nigerians cast their votes INEC's failure to administer the necessary oath of allegiance and neutrality on the officials who conducted the election is not enough to nullify the election. On failure to certify electoral documents prior to use at INEC offices by party agents, he said polling agents are the ones to certify materials and at the polling units in ward distribution and collation centers "and hence have no business at the INEC office." Asserting that the petitioners misconstrued the principles of proving the issue of non-compliance with the Electoral Act beyond reasonable doubt on an election petition of this nature, he said there was no complaint against the conduct of elections by Gidado Abubakar, Resident Electoral Commissioner, Gombe State. "Whether or not the onus shifts to a respondent to prove allegation of non-compliance did not affect the result," he said. On wide spread violence and killings, he said: "Instances of the brutal killings were numerous with the most important part being it happened in the presence of policemen or were reported and never investigated. This trend is a serious treath to our democratic ideals as it poses a serious case of having license to kill." "The court has no choice but to accept the petitioner's allegation of widespread violence but according to the principles of presumption of irregularities in the absence of evidence in the 24 states, the court resolves in favour of the 24 states. Also the nullification of elections in 36 states under section 34(1) of the Constitution will amount to absurdity. I do not agree that elections in the entire country should be nullified simply because the election result of one state is nullified unless the Electoral Act is amended. On the whole, the petition is dismissed and a cost of N5, 000 be paid to each of the respondents." Elections were also canceled in some local government areas among which is Akamkpa Local Government Area of Cross River State due to proper proof of evidence, the court said. In his supporting judgment, Justice Umaru Abdullahi, President, Court of Appeal said the refusal of INEC to comply with the court's order to produce the certified true copy of election results for the purpose of the determination of the petition in court "is condemned by me as an act of recklessness. It does not appear to me to be the right approach to an issue by a body which claims itself to be an independent body." He, however, said the petitioner ought to have proved beyond reasonable doubt that the irregularities substantially affected the outcome of the elections to such an extent as to have affected majority of the votes cast. This, he said, can be proved by producing the correct results alongside the wrong ones. "The absence of this did not give the court enough grounds to accept the allegation by the petitioners to annul the end results declared," he said. Abdullahi pointed out that since electoral officers who took part in the election were not joined as respondents in the case, "based on the principle of fair hearing, it will be difficult to annul election results because of the lack of compliance by a public officer who was not even joined as a respondent in the case." He condemned the intolerant nature of the political class and advised "the right thing to be done when it comes to electoral process in this country is enjoin electoral officers to display high level of transparency in the discharge of their duties." Justice Nsofor in his dissenting judgment acknowledged that there was widespread irregularities in which case the entire April 2003 election should be cancelled." He said based on the failure of INEC to obey the court order to produce the certified true copy of election results for the purpose of determination of this petition, the appeal succeeds. "Had INEC obeyed the court order, the statement of the results would have conclusively shown as alleged by the petitioners that the scores of the candidates were assigned. So I hold that the petition on this one ground alone succeeded and rendered the entire election by INEC on April 19th, 2003 no election. Consequently, the election stands annulled." He said he was convinced that ANPP agents were not given opportunity to certify election materials as required by law. "There was a purported election on April 19th 2003. That was not what Nigerians want and deserves to have. All I'm striving to say is that there was no compliance with section 63 and 67 of the Electoral Act and this rendered the Presidential election of April 19th, 2003 a farce, pure and simple. So it means there was no election," Nsofor said. The petition, was first mentioned on May 23, 2003. Described as the longest in the history of election petition in Nigeria, a total of 365 witnesses appeared while 311 exhibits were taken. Chief Afe Babalola (SAN) counsel to Obasanjo told the court that ANPP did not tender election results which they alleged were falsified to show that they were either lawful or not and that the allegation of corruption and criminal conduct has not been proved beyond reasonable doubt. "Allegation of 100% voting, wide spread violence, executive violence, stuffing of ballot boxes, over voting are all allegations involving crime and which must be proved beyond reasonable doubt. "All this argument fails because the petitioner failed to join the electoral officers involved. The allegations are not enough to void a national election. They failed to show the effect of the alleged non-compliance or corrupt practices on the total election," said Babalola. In his concluding address, Buhari�s counsel, Mike Ahamba (SAN), said he has discharged the onus placed on his side by law to warrant the success of the petition and to invalidate the return of Obasanjo and Vice- President Atiku Abubakar. The ANPP presidential flag bearer who reiterated that Obasanjo and his team employed undue influence on the armed forces, law enforcement agents as well as INEC to win the election added that they also flouted a substantial part of the Electoral Act 2002. "The 1st and 2nd respondents (Obasanjo and Atiku) being guilty of undue influence, a case of corrupt practice has by virtue of the provisions of Section 129 of the Electoral Act, been established against the two respondents. "With a substantial number of states invalidated either by concession by INEC or by proof of fundamental non-compliance, the 1st respondent is not capable of meeting the requirements of Section 134(2)(b) of the 1999 Constitution to qualify for a return assuming without conceding that the election was generally conducted in substantial compliance with the Electoral Acct." Meanwhile, there was tight security as all roads to the court was blocked by policemen and plain clothe security men under the direction of the Commissioner of Police in charge Federal Operations, Mr. Lawrence Alobi. In court were also the PDP Board of Trustee Chairman, Chief Anthony Anenih, Governor of Nasarawa State, Adamu Abdullahi, General Buhari, Sule Hamma, Buba Galadima, Chairman of ANPP, Don Etiebet, the deputy National Chairman, Jerry useni, PDP National Secretary, Prince Vincent Ogbulafor, PDP National Auditor, Barrister Ray Nnaji, APGA Chairman, Chief Chekwas Okorie among others. The brief further states: "The petitioners have made out a case of substantial non-compliance with fundamental provisions of the Electoral Act, particularly: �Failure to certify electoral documents prior to use, which, as conceded by the pleadings of 1st and 2nd Respondents are necessary to render the election authentic; �Employment by the 1st Respondent of Resident Electoral Commissioners who are members of the 1st Respondent's party, the PDP; �Failure to administer the necessary Oath of allegiance and neutrality on the officials who conducted the election; �Failure by the 3rd Respondent and the 4th Respondent (INEC and INEC Chairman) to hold a collation of results from the states before announcing any final result; �Deployment of armed men during the election as conceded in the 1st Respondent's reply; and inter alia; �Corporate manifestations of bias by INEC.
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