Elections worldwide are guided by laws. They are not conducted on a whim. The laws cover the contestants, the voters and the umpire. The laws are not for decoration; they are to ensure the credibility of the exercise.
Elections are serious business. They are fought with all that the contestants have – money, men and materials. While the contestants strategise on how to win, the umpire worries about the freeness and fairness of the exercise.
The umpire is key to the success and transparency of the election. The umpire could be an individual or an institution and integrity must be the umpire’s watchword. In Nigeria, the Independent National Electoral Commission (INEC), which has become known by various names under different stages of our political evolution, handles elections.
The umpire has never come under fire as it is now experiencing. What are its sins? While not defending INEC, it must be stated that in most cases, many of its accusers are just criticising the agency because they lost. Where they won, their verdict usually is, it did well. Sadly, they have transferred their aggression to the court, which is now being dragged all over the place for following the law stricto sensu.
The laws guiding elections are unique. This is why election cases are described as sui generis (in a class of their own). To win an election case, the petitioner must prove that it was not conducted in substantial compliance with the law. But in most cases, this has become a dilemma. In the circumstance, the court has no choice than to throw out the case.
That the court cannot take the place of the electorate is not debatable. It is not the court’s duty to elect people, but it is its job to determine the winner of an election in any dispute before it. It is not an interference when the court does that, but part of the process as enshrined in law. It is like that too in other parts of the world. But unlike us, most times, their elections end up at the polls and not in the court. Losers accept defeat and move on.
Who do we blame that the reverse is the case here? Nobody, as it is the right of the loser to go to court. However, what is not right is not to accept the court’s verdict and then resort to malign the judges, with lawyers in full support. The judges did not enact the law; their job is to interpret it and in doing so, if they observe any flaw, they can point it out. One interesting aspect of the Electoral Act which has come under intense scrutiny of late is Section 63.
It is on the strength of this provision that the tribunal sitting in Kano invalidated the election of Governor Abba Yusuf of the New Nigerian Peoples Party (NNPP). The tribunal found that 165,000 ballot papers did not bear the INEC seal nor were they signed by the presiding officer at the polling units where they were used. As a way of maintaining the integrity of the election, the law empowers the court to invalidate such votes and deduct them from the total scores.
The tribunal did precisely that and Yusuf’s total votes dropped sharply. His loss became the gain of Nasiru Gawuna of the All Progressives Congress (APC), who the tribunal subsequently declared winner of the election.
To some senior lawyers, such as Femi Falana, that amounted to sanctioning 165,000 voters for some electoral officers’ error. How? He did not say. Does he have evidence that the electoral officers issued those ballot papers? Did they match the ones in INEC’s booklet? Where did they come from, if they were not issued by the electoral officers and did not match those in the booklet? Did Falana consider all these before lashing the tribunal for invalidating Yusuf’s election because of the unsigned ballot papers, which may eventually turn out to be fake?
I can see where Falana is coming from, though. His thinking is that the voters could not have come into possession of those ballot papers without the electoral officers’ knowledge. This will be true to the extent that the ballot papers were obtained at the polling unit and from the right source. But where the process is compromised and party faithful allowed to take over at polling centres, can the court be blamed for invoking the law accordingly?
Clearly, something went wrong in those polling units, which may be beyond the power of the presiding officers, except if they were part of it. Where then is the fault of the tribunal in all these? I hope Falana is not saying that it should have looked the other way and aided and abetted electoral offence in clear violation of the law?
According to Section 63 (1) of the Electoral Act: Subject to subsection (2), a ballot paper which does not bear the official mark prescribed by the Commission shall not be counted. In Section 65 (1), the law allows the returning officer to take final decision on the issue subject to a review within seven days by INEC. After seven days, INEC becomes functus officio and can no longer so act, leaving only the court with the power to do so as contained in Section 65 (2):
A decision of the returning officer under subsection (1) may be reviewed by an election tribunal or court of competent jurisdiction in an election petition proceedings under this Act.
The Kano tribunal acted under the ambit of this provision. To say that the court should shut its eyes to the use of unsigned ballot papers is to encourage electoral malpractice. The user and the provider of such ballot papers should answer for their action and the beneficiary deprived the fruit of an unjust victory.
