WAITING FOR OSUN TRIBUNAL VERDICT

By NBF News
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With the pronouncement of the Court of Appeal in Ibadan a year ago ordering a retrial of the case of the Action Congress governorship candidate in Osun State, Rauf Aregbesola, and the further order that he should be allowed to tender from the bar, a document called 'Final Police Report on April 14, 2007 Election in Osun State', it was expected that the petitioner would briskly tender the document, call a few witnesses and close his case.

However, it took Aregbesola six months to call 82 witnesses and tender several documents. When he closed his case in January 2010, his lawyers did not tender the police report which he had informed the Court of Appeal was 'very vital to his case.' Police authorities had earlier last year arrested Aregbesola for forgery of the report and are trying him for the offence at the Federal Capital Territory High Court, Abuja.

All the parties adopted their final addresses on April 19, 2010 with Oyinlola and the other respondents asking the tribunal to dismiss the petition because Aregbesola had failed to prove his case with credible evidence. Aregbesola on the other hand, asked the tribunal to declare him as the winner of the election.

As the judgement of the election tribunal is being awaited, the usual media fireworks that have been the hallmarks of electoral and judicial contests in the South West have started. The first salvo, predictably was fired from the camp of the Action Congress candidate, who has inundated the media with write -ups containing some figures with which it wants the tribunal to give it  judgment. There are also on-going efforts to mount very serious attacks on the Ekiti tribunal judges who dismissed AC's petition on Tuesday 4th May, 2010 ostensibly as a way of putting the Osun tribunal judges under pressure. The fire works are on.

Aregbesola is challenging the election of Oyinlola on the grounds of violence, ballot box snatching, stuffing and thuggery which he said marred the polls in 12 out of 30 local governments.

At the end of the pre-trial conference, the tribunal asked parties to the case to formulate issues for determination which they did. At the end of the exercise, the tribunal in its final pre-trial report issued pursuant to paragraph 3(10) of the election tribunal and court practice directions 2007 and signed by all its members distilled two issues for determination. The first was whether Oyinlola was validly elected or not by majority of lawful votes cast in the April 14, 2007 governorship election in Osun state having regard to the totality of the evidence, oral and documentary before it. The second issue the tribunal distilled was whether the election was vitiated by corrupt practices substantially enough to cancel it and order a fresh election.

From the two issues distilled by the tribunal, it is clear that awarding the governorship to Aregbesola was not considered at all. However, despite the fact that copies of this report were given to all parties, Aregbesola inclusive, his camp has continued to feign ignorance of these issues while trying to draw parallels with cases in other states.

At the end of the trial of the case which started about a year ago, Aregbesola called 82 witnesses while Oyinlola called 62. Both tendered several documents to support their case. The police and INEC did not call witnesses basing their decision on what they described as Aregbesola's battered evidence which did not support his case.

Basing its media judgement on reports of persons called as experts by him, Aregbesola has made an elaborate presentation of votes he called lawful and unlawful. However, Oyinlola through his lawyers in his final address, has stressed that it does not lie in the mouth of Aregbesola to declare some votes lawful or unlawful. That is the exclusive preserve of the tribunal, they said.

As a direct response to the calling of expert witnesses by Aregbesola, Oyinlola also called his own experts who faulted the conclusions of Aregbesola on the elections.   Aregbesola's final address on the case summed up the totality of how he had prosecuted an election petition premised on violence, ballot box snatching, multiple thumbprinting and stuffing. He did not plead over-voting throughout his petition, yet in his final address and in the media, he made a lot of efforts to complain about over-voting which he said his expert found in some polling units.

Aregbesola who clearly challenged the validity of the election held in 12 local governments in his petition, later in his final address affirmed that he meant to challenge elections in 10 not 12 local governments. But it was too late to amend the petition.

Forensic expert, Dr Ndara Ekong, was called by Oyinlola to contradict the report of Paul Jobbins who came as a replacement for the late Adrian Forty for Aregbesola. Ekong, when cross-examined as to his classifications of impressions on finger-prints from his observations, such as smudged, faint, partially clear, clear and no vote, the witness clearly explained that smudged ballot papers are those which have application of too much ink or those that voters used the tips of their figers to press on and which would therefore not show the correct finger-prints. He also said that partially clear impressions are those that do not have the finger impressions on the ballot applied properly.

The expert made it clear to all that, since forensic analysis involves comparative analyses it is important to have 16 points of finger prints identification. And that the implication of his analyses on the ballot papers is that, for one to be able to say that there is a multiple vote, one must be able to compare one finger print on a ballot paper with another finger print on another ballot paper and come to a just conclusion.

The witness explained that his team employed the use of physical, visual and instrumental analyses of the original finger print impressions on the ballot papers as opposed to scanned copies used by PW80, Paul Jobbins, to avoid distortion. He went further to explain to the tribunal that to have correct impression through finger print, it is very essential to use ink that does not appear wet or shiny. He even went further to demonstrate how the finger should be held at 45 degree to the inklet and is rolled over from one side to the other.

To fault the conclusions of Aregbesola's other expert, Tunde Yadeka, Oyinlola called  Babatunde Lateef Adeleke, a professor of statistics, data analyst, planner and software data analyst, engaged by Oyinlola to critically examine all relevant electoral documents used at the April 14th, 2007 elections in Osun State in order to scrutinize the claim and reports of PW 82, Tunde Yadeka and to confirm the correctness or otherwise of the said reports presented before the  tribunal.

Babatunde, who testified as RW 62 narrated to the tribunal under cross-examination what informed his expert view and conclusion that PW82, Tunde Yadeka based his compilation of ballot paper serial numbers on the erroneous assumption that ballot papers were distributed polling unit by polling unit and in sequential order of ballot papers serial numbers. He very importantly drew the tribunal's attention to the fact that the AC candidate duplicated serial numbers of ballot papers which he spread across over 200 units when he (the AC witness) admitted that it was not possible for two ballot papers to have same serial number.

Adeleke concluded that since the data in reference, (PW82, Tunde Yadeka's report) was presented in a disorderly manner, it was not verifiable with ease and as such PW82's Statement on Oath and the reports attached thereto cannot hold because of the wrong premise upon which they were based.  And that, since the listing of serial numbers of ballot papers by PW82 was done haphazardly without due adherence to the fundamental principles of descriptive statistics, his presentation of serial number of ballot papers is clearly faulty and could mislead the Tribunal moreso, when he is not a trained statistician. While the fireworks go on, the judgement is eagerly awaited

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Oguntoye writes from Osogbo.