Politicians sometimes are awed by the magic that lawyers and the courts are able to work for them. Check out the Lawan v Machina case? Who rigged the process? Was it Lawan who was only a party before the court or the court who awarded victory to him by simply refusing to attend to the complaint against him that in the plain view of the world, he did not contest the senatorial primaries which took place in May because he participated in the presidential primaries that took place in June?
This Lawan magic is what happens 70% of the time in election petitions. Sometimes, it works to the satisfaction of the majority of the people who simply say “serves them right” and forgive the truncation of expected outcomes. An example is the case of Amaechi v INEC where Amaechi, who went to court for a Declaration that he was the right person to contest the Governorship election, went home from the Supreme Court with a Declaration that he participated in the election which took place during the court action, with Omehia as the candidate of the PDP, and won. The people did not seem to mind very much at the time because there was sympathy for Amaechi who they felt was cheated out of the primaries of his party.
Election rules are clear and designed to give almost a foolproof result. However, by interpretation, the courts in most cases disable the rules and permit a situation where INEC and the winning candidate could get away with any infraction to declare a result that is in most cases debatable. I will give an example. INEC rules require candidates to attach to their application forms certificates as evidence of any qualification that they claim. However, the courts have ruled that the Constitution itself makes no direct provision for such and that since the Constitution is superior to the rules of INEC, it means that the infraction is of no consequence.
This, in my respectful view, stands the rules of constitutional interpretation on the head. It is an axiom that the Constitution only provides a skeletal framework. It does not provide detailed rules. If it did, which is impossible, there would be no need for the legislature. So, the legislature provides in law detailed rules for driving the provisions of the Constitution. Sometimes, the rules made by the legislature in the substantive law are not detailed enough and therefore the body set up by the law is given the power to make further rules of minute details in the form of regulations. When made, the regulations have the force of law as if they were made by the legislature directly except where they are inconsistent directly or indirectly with the parent law. In the case of INEC, both the Constitution and the Electoral Act give it the power to make the detailed and minute regulations required to drive the process of elections.
Therefore, the approach in reconciling the regulations of INEC with the provisions of the Constitution is not to ask whether any regulation of INEC is contained in the Constitution – with due respect, that is begging the question. The correct question is whether or not it is inconsistent with any provision of the Constitution, directly or indirectly. In the case of the attachment of certificates to the application form, it is not inconsistent with any provision of the Constitution. On the contrary, it aligns with and drives the provisions of the Constitution regarding educational qualifications. If a candidate does not attach any certificate claimed to his application, it simply means that he has not shown that he possesses such qualification. The requirement of INEC has not imposed any extra requirement on a candidate. The surprising interpretation provided by the Supreme Court indirectly disables the Constitutional provisions relating to minimal educational qualifications and submitting a false certificate to INEC by making it lawful for a fraudulent and unqualified candidate not to present any certificate at all to INEC.
We can go on and on. The rules for the recording of votes at the polling unit are detailed. For instance, cancellations must be interrogated and explained and such explanations must be recorded. Where that is not done, the result should be rejected. At the end of the result form EC8A, there should be a summary of the results showing the number of accredited voters, valid votes, void votes, spoilt ballots, total ballots collected, total unused ballots and total votes cast. You don’t need to be extra bright to know that all these figures must tally. However, it is only with respect to what is called overvoting, that is, when the total votes cast exceed the number of accredited voters, that the rules of INEC expressly state that the result should be cancelled. With respect to other cases, they say that the situation should be investigated and the report provided. You will expect that the court would put on INEC or the person that wishes to rely on a result that is obviously irregular on its face, to provide an explanation for the discrepancy. The courts do the opposite. What the parties then do is to tamper with results with cancellations or provide total fakes taking care that the number of votes cast is less than the number of accredited voters. You, therefore, have a common situation where the total votes cast is less than the number of accredited voters. This obvious indication of tampering with the results is what the INEC Chairman gloated over before the whole world as having shown, in the case of Ekiti State, that there was no over-voting.
The courts further disable these provisions by their rules asking the complainant to provide a witness from every polling unit where this happened. You can imagine how burdensome this could be for a petitioner. I did an election petition with just one witness because I had less than 48 hours from the time I was briefed to present the petition. I collected all the results from each polling unit up to the final collation. By the time I isolated mutilated results and those with these sorts of discrepancies and corrected wrong tabulations, I was able to show that my candidate won the election.
However, the courts introduced one of their absurd rules of “dumping” results on the court. They said that I did not provide witnesses from every polling unit to “speak to” the results of that unit. The rule is absurd because (1) it is a misconception of what constitutes dumping. Dumping is practised on an opponent by providing him much more information than is required in the hope that he will miss the most vital piece. It is not upon the court since the lawyer is going to summarize his case and point out to the court the parts of the evidence that he wishes the court to take into consideration, (2) the law is that you do not require oral evidence to explain a document. You don’t need anyone from the polling unit to point out errors on a result sheet obtained from INEC, and (3) the results are certified documents from INEC. They don’t require further proof. On the contrary, the rule should have been that INEC makes the results available to every election tribunal. Nobody should be put into the extra trouble of securing them from INEC.
The seriousness of the challenge that I mounted to these absurd rules has led to new provisions in the election petition rules that give legal recognition to my approach. I know, however, that those laudable innovations will also not survive the interpretation of the courts.
What could be the confidence of the APC regarding the non-observance of a critical provision of the Electoral Act requiring electronic transmission of results from polling units, which is a provision over which there were many struggles led by the INEC Chairman before it was passed into law? The President declined assent twice before he finally relented. It was promoted as the game changer and really changed the attitude of Nigerians who came to believe that finally, their votes would count.
APC which had vowed to disable the BVAS innovation is the party taunting those complaining to go to court. What could be the confidence of an obvious wrongdoer in the courts? Their confidence is the manner in which our courts interpret the rules of the election process. They are confident that the courts will again disable the BVAS and electronic transmission provisions. Thus, without the confidence that our courts breathe into politicians, they would never be so daring to glaringly rig elections and disregard electoral rules.
Chuks Nwachukwu Esq.
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