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Ekiti: Electoral Justice vs Judicial Robbery

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Many people -party faithfuls of the AC, the media and human rights activists , including someone like me celebrated the recent enthronement of the new Ekiti Governor Dr Kayode FAYEMI following the judgement of the court of Appeal under Justice Salami-The President of the court..   As it is usual in Nigeria, the celebration means many things to many people. Some - For example the AC faithfuls genuinely felt that the struggles of over 3 years has paid off for their candidate and so its time to reap the benefits, some   like us, felt some injustice at the polls have been redressed as the popular believe was that the PDP candidate Engr Segun Oni was rigged into power, some the holoi polloi -the masses would ordinarily jubilate because   some members of the ruling class have lost their high   position and so had hit the ground.

  Many of us really had not read the the judgement to see the reasoning for enthroning Fayemi and removing Segun Oni as we all relied on the media which merely celebrated the judgement without giving the details

Having now gotten the full details of the judgement as published in some media, and reading the reaction of the PDP   also as published in the media, I believe there is need to properly examine   the judgement and see whether in the popular legal parlance, justice is seen to have been done.

  What Indeed gave me some   initial worries as a non partisan political activist whose interest is free and fair politicking is the elaborate preparation of the AC leaders for the   victory which was precisely one of the complaints arising from the aftermath of the victory. The AC SEEMS TO HAVE FOREKNOWLEDGE OF THE POSITIVE OUT COME. There was Aso Ebi prepared for the inauguration of their candidate, . Much more worrisome is that the Inauguration of Fayemi as Governor barely 12 hours of the judgement had an elaborate and well deigned   colourful   programme of several pages which would take the ingenuity of the best printers in the land to produce in 2 weeks!

  But that is beyond the issue that has arisen from the phenomenon , of the judgement itself which is the seeming   achievement of electoral justice through judicial robbery.

  Against the popular perception of rigging and electoral malfeasance in Ekiti,   the court found nothing of such   and what   decided the fate of Segun Oni was the sins of other institutions connected with the election- The INEC and Security agencies. I read the judgement several times hoping to see evidence of proven cases of ballot stuffing, ballot snatching , falsification of the   result sheets on behalf of Segun Oni, or the   PDP. I saw none!

The main reason for the nullification of votes of four wards of Ido osi   and therefore crushing of 15000 votes of Segun Oni was hinged on   NON PRODUCTION OF VOTERS REGISTER   used for the accreditation of voters   on election day by the INEC which contended that it was burnt by hoodlums of the AC   at about 600pm   .

  The court held that ''…………….' the effect of the failure to produce the voters register for the wards in question for instance is that there cannot be any proof that the requirement of accreditation was complied with. Similarly even with the production of forms EC8A,EC8B for ipoti wards A&B. the withholding or absence of forms EC25,EC40C being used and unused ballot papers allegedly used in both wars would not give credence to the deficiency created in Ipoti warsd rerun election. The same vice has also infected the rerun electionsin four wards of Ido Osi local govt wherein the respondent tendered forms EC8A for the majority of the units constituting the four wards ….. As rightly submitted by   the learned senior counsel for the appellants in the absence of accreditation, the purported result for the polling units   in forms EC8A and tendered   are seriously plagued and vitiated.'

  The tribunal thus rejected the findings of the lower tribunal which stated that''   it is our opinion that forms EC8A   (the real votes cast at the polling booths')tendered by the 1 st and 2 nd respondents   are acceptable and form the basis of this election notwithstanding the absence of voters register which has been burnt by the petitioners agents and supporters'

  The issue now led to the cancellation of the   15,000 votes of the people of Ido Osi the home base of Engr Segun Oni thereby affording victory for Fayemi.

  As a layman (and the opinion of laymen   have been given judicial stamp by the legal concept of …. In the eyes of an ordinary man) this decision in a democracy where the   votes of the people must count is judicial robbery   in a process of maintaining electoral justice! The votes of the people must never be crushed as the Appeal court did on the altar of legal technicalities. What   is not in dispute-   and the various media which covered it have proved it, also observers of various kinds and persuations have testified to it-is that people from the area came out to vote, and being the stronghold of the PDPcandidate , they   voted massively for the their son.   From facts available , the registered voters in the 13 towns and villages of the local government is about 52,000 which for the rerun only about 15 000 was cast in all, which means many people could not even vote and there are many reasons (-the violence, one man one vote,   or   apathy! etc)

  The sin of   INEC that could not produce   the voters register or that   the INEC collation centre was burnt   could not and should never have been visited on the PDP candidate or the people of Ido osi as the court of Appeal did.    The Supreme Court was known and acknowledged to have stated that legal technicalities should not override substantial justice particularly in deciding the rights of the people, and in election matters.

For the   sanctity of elections in Nigeria, the crushing and cancellation of votes which has now been the penchant of the judiciary must   be confronted by us all. We are unwittingly creating a situation where five persons called judges who are also human beings ,Nigerians with all our foibles ,pretences and prejudices have been given overriding power   to decide on the   fate of thousands of electorates who troop out on election day to make their choice. They now have absolute power to use some clever legal words to change or manouvre their own preferences into power either for corrupt enrichment, for cronysm or both.  

  Politicians are their own undoing and because of their own greed and desperation have surrendered the political process to the hand of judges who now milk them dry. All it takes   is for a very weak candidate to do little campaigns ,and wait in the wings ,foist a few destruction and violence in his opponents area, secure huge funds to pay lawyers and judges and pronto, he would in a matter of time displace the peoples candidate who indeed won the popular votes.

  If we look at the Ekiti case critically, in the 2007 elections, Fayemi won majority in 6 local governments out of 16. Engr Oni won in 10 local governments . Now in the first tribunal cases, the court of Appeal VOIDED the elections in 10 local governments   won by the PDP   on this same issue of lack of proper accreditation, because the court said the proper biro was not used to mark the voters register   by INEC officials, a situation which was all over the state. So the court blinded its eyes to the situation in 6 local government won by the AC and voided only those of the PDP and ordered   a re-run in the 10 local governments.

  It is these 10 local governments that the   people again voted and ONI emerged   victorious. The court of Appeal have again robbed the majority of the electorate by cancelling the votes   on the flimsy excuse of non availability of voters register which evidence shown that it was burnt. Not by the man who indeed would like to protect the votes of his stronghold or the people who wanted their own in power but it could only have been by those who wanted   to rob Oni of his home advantage. Here lies   the absurdity and the injustice in the Salami reasoning of voiding votes based on technicalities

I think the role of the judiciary in adjudicating on electoral matters have opened a new window of corruption and foisting of new laws beyond the imagination of the legislature which would not have contemplated what is now happening to the   Electoral Act. The time tested electoral jurisprudence rests on    ''proving   cases beyond reasonable doubts by petitioners and substantial compliance by INEC'. As per   new Salamic law of elections, the winner must now suffer if election agencies are at fault in their duty, AND HE MUST PROVE THAT HE WON not by votes cast but by production of Voters register which is never in his custody!

The TRIBUNAL stated the law itself
  ' 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 authorised by the respondent

3that 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'

''On the issue of non compliance with the Electoral ACT, the tribunal stated the law: 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.''

It does not take any technical legal knowledge to show any reasonable man that this judgement was absurd and did not follow its own precedences. Oni lost his position to judicial politics and not for any electoral crime or lack of popularity. For instance, how was it proved that the absence of voters register substantially affected the result of the stated in s146 of electoral act.?

As the people have to contend with the fact of a judicially imposed Governor,    the National assembly has to amend the law to preclude the judiciary from awarding victory in an election that was adjudged fatally flawed or irregularly conducted. Only in cases where rigging and electoral malfeasance was proved should the culprit candidate be made to lose his seat.

Ayo Adesodun president of Transparency and Justice in Nigeria   forum(TAJIN) writes from Warwick, England