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In a normal democratic setting, the votes of the people determine the electoral choice of the people. It represents the voice of the people. That is why periodically, people troop out on Election Day to cast their votes. After this voting process, the man the people want becomes their representative, their chairman or their Governor as the case may be. So in the real sense, the peoples Governor must come from the votes of the people, the same way the military Governor come from the barrel of the gun. Today the judiciary has identified ways of installing their own Governors; call them the JUDGE-MADE GOVERNORS! Before now we had these following states that emerged from the court verdicts: Rivers, Edo and Ondo states. Ekiti has joined the bandwagon of ‘Judgment Governors’, courtesy of the rubbishing of the electoral process one way or the other and also with utter disregard to the sufferings of the masses that trooped out on the election day.

Whichever way one looks at it, any process that puts the votes of thousands of people in jeopardy for whatever reason and implants the votes of five judges, whether corruptible or incorruptible, put democracy in jeopardy. The truth is that the judiciary is gradually bringing itself into politics by playing on the greed, the intolerance and the desperation of the political class. In doing this, the judges have continued to use legal technicalities to over-turn the wishes of the people, by playing on the psyche of the press and human rights community. The psychology of the people as reflected by the media and civil rights groups all the time is to see one man up there or a” big man” hit the ground. It doesn’t’ matter whether it has merit or demerits. Also the minority is known always to attract the sympathy of the masses and the Media. It is against this background that we should examine the recent jubilation of party faithful and the orchestrated hysteria in the media and the human rights community that heralded the new Judge-made Governor of Ekiti Dr. Kayode Fayemi.

Trooping out into the streets or celebrations after a change of Government is really not a sign of popularity or acceptance in our country. It is indeed a celebration of the fall of the political elite by the masses and also saying another one bites the dust. Members of the political class, be they governors, legislators or presidents were heralded by one jubilation or the other when they came in. It may be Omeiha, Osunbor yesterday or Agagu and Oni tomorrow. The fact is that in a few months to come, Oshiomhole, Mimiko or Fayemi may receive their own jeers and boos in the streets. Our recent political history is replete with moments of jubilation after a change of Government and coup d etat. Every military leader from Aguiyi Ironsi to Gowon, Buhari, IBB and Abacha were heralded with jubilations in the streets but no sooner had they settled that they were derided in the streets. True, nobody should deny any one the joy and thrills of any victory, however it was got, because victory is victory.

But before the euphoria wanes, let us examine the colour of this victory and the truth exposed from the aroma of propaganda. As stated earlier, Fayemi is a beneficiary of the latest trend of judicial process, which gradually has taken over from the role traditionally reserved for the judiciary which is to merely interpret the law and apply the facts of the law. Election matters have however provided an opportunity for the judges to play their own politics with the law, thus rewriting electoral jurisprudence. In fact it seems our judges have keyed into the psyche of Nigerians which is to applaud any decision that favors the opposition parties. However, whether sound and fair, any judgment that favors the ruling party is derided and seen as unjust. At a recent NBA conference, a judge bemoaned this trend and his statement was pathetic; “if a judge gives judgment that favours PDP or Federal Government based on sound judicial reasoning, the press and human rights lawyers will vilify and call him names and the general feeling is that he has been compromised, but if opposition party gives a judge bribe and get judgment in their favour, the press hails the corrupt judge and the human rights community celebrates him to high heavens. We are also human beings….’’

At this point, let’s recap the Ekiti electoral debacle that has led to removal of a Governor few months to the end of his tenure setting back the fortunes of a people whichever way we look at it. The 2007 election in Ekiti was fought in an acrimonious tone with the AC and ANPP on one side opposing the PDP. The tension soaked election led to cancellation of voting in Efon LG and Okemesi. INEC declared the result which gave victory to the PDP in 10 local governments and AC swept majority votes in 5 LGs. The AC dissatisfied with the verdict challenged the result of the election at the tribunal, which sat for upwards of one-year taking evidence from all the areas challenged by the AC. At the end, the tribunal having evaluated all evidence came to the conclusion that the allegations of rigging, stuffing of ballot and other malpractices were not proved relying on time-tested precedence.

The tribunal set the law as it is today based on law and precedence: “by the provisions of s 135,138 and 141 of the Evidence Act, the petitioner bear the evidential burden of proof. He must in addition in spite of proving the existence of the electoral malpractices or corrupt practices prove: 1: That the respondent who was declared as having won the election personally committed the alleged corrupt practices 2; that where the alleged act was committed through an agent the said agent must have been authorized by the respondent 3 that the corrupt practices affected the conduct and outcome of the election and how it affected it. 4; The petitioner must go further to prove that but for the malpractices he would have won the election: Nwole vs Iwuagwu 2005,Oyegun vs Igbinedion, Balami vs Bwala 1993. On the issue of non compliance with the Electoral ACT, the tribunal stated that for a party to establish acts of non compliance he must not only plead and prove the acts of non compliance but that same substantially affected the result of the election see S146 (1) Electoral Act 2006. Dissatisfied the AC again went to the court of Appeal to challenge the verdict and curiously against the weight of evidence, the Court of Appeal headed by Dantijo Mohammed voided elections in the ten areas where the PDP won the election, and to give credence to those who have alleged underhand dealings with the judges, the tribunal added areas where elections were not even conducted and where the AC did not challenge- places like Okemesi and Ilawe! The court which held that various allegations of malpractices were not proved, by Fayemi, had in annulling the elections stated that proper accreditation was not done for the voters in the 10 local governments because the tickings or accreditation were done with red biro instead of blue biro stipulated in the electoral manual.

Notwithstanding the evidence before the court that only few units in some of the wards was affected, which according to the INEC witnesses at the lower court was due to malfunctioning of some of the biros and shortage of the biros, The judgement in FAYEMI V ONI raises genuine concerns of how an election could be annulled on the ground of the use of a wrong biro to tick names of voters, a situation which only affected not up to 10 percent of voting units. Also only areas where the PDP won the elections were considered when the same kind of biros were used all over the state Could this have substantially affected the result of the election? . Nonetheless, Segun Oni was made to vacate his seat and the stage was set for a rerun election in the areas ordered which eventually held under a most rancorous and tension soaked atmosphere perhaps never known in any election. The seed of bitterness and violence which had been imported into Ekiti by the Fayose brand of politics germinated fully and was fertilized by the propaganda politics of Tinubu of Lagos. The AC strategy, it seems was to foist violence and tension on the strong hold of the PDP and home base of the Governor. Ido osi and Oye will forever remain a reference point in election violence and propaganda politics! Sensing it had lost election at the close of polls, the AC asked its most senior official then the Acting speaker Saliu Adeoti to move to Ido Osi collation centre and from facts presented before the courts and corroborated by the Police which later arrested him, the INEC collation centre was burnt down later in the night on election day, but the INEC officials were able to salvage the election results from the polling booths and wards recorded on forms EC8a and form Ec8b. Oni again was declared winner under a barrage of orchestrated propaganda and media battle foisted on Ekiti by human rights activists, understandably so because Fayemi ‘s only known career was managing of an NGO! Again the AC challenged the declaration of Oni as the winner before the Justice Barka Tribunal which came up with a split decision, the majority judgment evaluated the evidences and came to the conclusion that ‘’the election was held in substantial compliance with the electoral law and that the irregularities alleged did not materially affect the outcome of the elections’.

The AC moved on to the court of Appeal, which had now given judgement in its favour. The reasoning this time is again on voters register. This time it was not the red biro but its unavailability having been burnt by AC hoodlums. The tribunal ruled that the absence of voters registers which evidence before the court shows was burnt at INEC ido osi was proof that the election was not properly conducted and that it could not be proved that accreditation was done, hence, it held that the onus to prove that election was properly conducted rested on the Respondents. The learned judges shifted the burden of proof from the party which alleged irregularity. The legal maxim that “he who alleges must prove” is too well known and supported by plethora of decided cases. Even if the case was to be proved on preponderance of evidence, the petitioners should still have failed by not calling evidence in most of the units, while the Respondents called several witnesses and were able to produce result sheets, from polling units to the wards. The presumption of regularity, in the absence of any counter evidence avails the Respondents in this case. The issue now is that the Court of Appeal has created new laws for election matters by relying more on the Voters register and not the real votes cast which represent the popular mandate of the people. Now court of Appeal by denying a candidate the votes of his home base has done injustice to thousands of people including the candidate who should not have been punished for the mischief of his opponents. Of course it is not the duty of the candidate to produce the voters register or to protect it. It is the duty of INEC and the security agencies. More dangerous is the trend of allowing the opponent to profit from its own mischief. That the AC burns down election materials and wins based on this destruction is travesty of Justice! This is in spite of various contradictory judgement and precedence now available on election matters which unfortunately ends at the Court of Appeal level and no one is sure of what position of the law is on any election matter. Putting so much weight on voters register has vitiated the issue of substantial compliance. New opportunities for voiding popular elections have been created. A candidate who is weak in an area need not labour too much if he can lay hands on the voters register and destroy it. Ballot snatching is no longer important but voters register destruction. Now that a new amendment is being done to the constitution and the Electoral law, it is a good opportunity to clip the wings of the judges who have found a way of making Governors at the expense of popular votes. The judgment on election matters must end at ordering a re-election in proven case s of irregularity or non-compliance with electoral law and not to install another person. How can judges claim electoral irregularity and yet allow one person to benefit from the irregularity? Also the attempt being made by the National Assembly to extend jurisdiction to the Supreme Court on electoral matters of Governorship is a welcome one at least to clear the mess now fouling the court of Appeal. Notwithstanding, the call by the PDP to the NJC to investigate allegations of corrupt practices, bias and leakage of judgment to the opposition should be taken seriously in the interest of the image of the judiciary. The perception and overt celebration of influence peddling at the level of the court of Appeal by some notable political figure should not be ignored .The legal maxim is that justice must not only be done, but must be seen as being done! Akinrinsola, a lawyer is a member of Electoral Mandate Group (EMG).

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