The Supreme Court has resolved the controversy over card reader and its status in electoral jurisprudence. It has held that the machine has not effectively replaced manual accreditation of registered voters in an election.
It also said the card reader’s report alone was insufficient to prove allegations of over voting and non-compliance.
The court is of the view that for a petitioner to prove electoral irregularities or non-compliance with the Electoral Act, he must call at least a witness from every polling unit affected, who must tender election results from the polling unit and be cross-examined.
The court gave this explanation while making public its reasons for upholding the election of Dave Umahi as governor of Abia State in its earlier January 27, judgment. It gave its reasons on February 5 in the appeal marked: SC/1004/2015 brought against Umahi by Labour Party’s Edward Okereke.
Okereke had, in his petition at the election tribunal, alleged non-compliance and over-voting. The tribunal and the Court of Appeal dismissed the petition on the ground that the petitioner failed to prove his case – a decision the Supreme Court upheld on January 27.
Justice Nweze said the apex court chose to uphold the lower court’s decision because Okereke failed woefully to prove his case. He noted that the appellant failed to tender, along with card reader reports, voters’ register.
He said Okereke failed to call witnesses from each of the voting points affected, but merely dumped result sheets from the polling units on the trial tribunal without calling the makers of such documents as witnesses.
Justice Centus Nweze, who read the lead judgment, explained that since the National Assembly has not deleted the provision of Section 49 of the Electoral Act (2010), which allows manual accreditation, it would be wrong for any petitioner to seek to rely solely on the report of the card reader (which is intended as a supplementary measure to the already provided means of accreditation) to prove over-voting.
“Even with the introduction of the said device, that is the card reader machine, the National Assembly, in its wisdom, did not deem it necessary to bowdlerise the said analogue procedure in Section 49 of the Electoral Act so that the card reader procedure would be the sole determinant of a valid accreditation process. It stands to reason that the card reader was meant to supplement voters’ register and was never designed or intended to supplant, displace or supersede it.
“Put differently, what the lower court was saying, in effect, was that the petitioner failed to prove his allegations of non-compliance because he did not tender the voters’ register, statement of results in the appropriate forms, which would show the number of registered accredited voters and the number of actual voters; and he did not relate each of the documents (he tendered) to the specific areas of his case in respect of which the documents were tendered, and show that the figures representing the over-voting , if removed, would result in his victory,” Justice Nweze said.
Justice Nweze’s position in the Okereke case was earlier taken by the court in its January 8, 2016 judgment in the appeal marked: SC/907/2015: Shinkafi and another vs Yari and others (over the Zamfara governorship dispute).
Justice John Okoro, who gave the lead judgment in the case, noted that the grouse of the appellants was mainly that there was over-voting and that because of that there was substantial non-compliance with the Electoral Act.
“To prove over-voting, the law is trite that the petitioner must tender the voters’ register. The court must also see the statement of result in the appropriate forms which would show the number of registered accredited voters and number of actual voters, and must also relate each of the documents to the specific area of the case in respect of which documents were tendered,” he said, adding that an appellant must also show that figures, representing over-voting, if removed, would result in victory for the petitioner.
“There is no doubt that a petitioner is entitled to contend that an election or return in an election be invalidated by reason of corrupt practices or non-compliance with the provisions of the Electoral Act.
“For a petitioner to succeed on this ground, he has to prove (a): that the corrupt or non-compliance took place: (b): that the corrupt practice or non-compliance substantially affected the result of the election.
“There is need for a petitioner, who alleges over-voting to lead concrete evidence to show that there was indeed over-voting and that it inured to the winner of the contest.
“Without doubt, over-voting in an election can be in favour of either the appellant, the respondent or other contestants, who participated and lost out at the election, but are not parties to the petition.
“Therefore, the onus is on the petitioner to show that the over-voting was in favour of the respondent and that it was as a result of the over-voting that the 1st respondent won the election. This is why the law requires the petitioner to lead evidence right from the polling unit in order to show that the alleged over-voting was solely to the advantage of the respondent,” Justice Okoro said.
Although many petitioners have complained abourt the inadequacy of time, lawyers have however agreed with the apex court’s position on the requirements of proof, but disagreed on the time limitation for the determination of election petitions.
Joseph Nwobike (SAN) blamed the appellants for their failure to make strong cases before the court. Sebastine Hon (SAN) suggested a relaxation of the time limit for the determination of election petitions.
Nwobike was of the view that the Supreme Court’s decisions so far amounted to an endorsement of INEC’s improvement in the conduct of election. He said the apex court deserved commendation.
“To my mind, INEC did a wonderful job in 2015. I say so because apart from being a voter myself, I participated in a number of election petitions, both those involving the National Assembly and governorship elections. So, I can say with all sense of responsibility that INEC did a wonderful job.
“It is some of the tribunals and some of the panels of the Court of Appeal that were trying to confuse issues. But what the Suprme Court did was to validate what INEC did, in most cases, and to encourage INEC to continue to do a better job.
“For the avoidance of doubt, the card reader is not part of our electoral system as set out in the provisions of the Electoral Act. Card reader accreditation regime was introduced as an addendum. And the Supreme Court stated that point very clearly – to the effect that the none-use of the card reader cannot be used to support an allegation of the none-compliance with the Electoral Act.
“The non-use of the card reader cannot, in any way, be a basis for an election to be nullified. So, I think what the Supreme Court did is fantastic and we must continue to pray for them and to bless them so that they will continue to render good judgments in Nigeria,” Nwobike said.
He disagreed with those who think the 180-day provision limits the opportunity for petitioners to prove his case. He argued that a serious petitioner should always maximize the time allocated to him.
“The primary responsibility of proving allegation of commission of crime is that of the person who alleges. So, if you are a petitioner and the ground of your petition is that there were malpractices at the polling stations or voting points, it is your responsibility to prove. How you go about it is not the business of any person.
“The time limit is sufficient. There is no time constraint at all. I was involved in it. In fact, some tribunals sat from 9am to 9pm, with only an hour break. So to suggest there was insufficient time is to beg the question,” Nwobike said..
On his part, Hon argued that decisions reached by court of law are based on many factors, which include the quantum of proof (which is the most decisive of all the factors), the position of the law, and the idiosyncrasies of the Justices.
“My experience shows that there could be public outcry against certain decisions, but when it comes to tendering of evidence and proving and disproving of facts, it is a different ball game. For instance, the court has held several times that, for you to prove electoral malpractices, you must call witnesses from each of the polling units affected, either voters or people, who witnessed what you are complaining about.
“What we have seen are instances where a petitioner calls just one witness to prove irregularities in several local governments or polling units. Clearly, that was insufficient.
“In spite of public outcry, the Justices cannot use their private knowledge of certain facts to reach decisions. Connected to that is that precedents have been laid down. They have to follow these precedents, except they are formally invited to overrule themselves. In none of these cases have the Supreme Court been invited to overrule its previous positions on those issues.
“Looking at the issue from the surface, one may query why it appears the Supreme Court is giving a stamp of authority to what INEC did. But you should know that what happens on the field is different from what happen in the courtroom.
“Sometime, you could field your star witness and when he gets to the witness box, he messes you up. He messes up the entire case. But, the man on the street, who did not know what happened within the courtroom, thinks that these things actually happened, why is this particular decision being reached this way?
“So, that is the best explanation I can give. I do not think the Supreme Court has decidedly resolved to toe a particular line by refusing to remove a sitting governor, or so. I believe that when a strong case is made, the court will decide otherwise,” Hon said.
On the argument that there is little a petitioner could do within the few days allocated to him within the 180 days the tribunal has to determine a petition, Hon argued for the need to review this provision to allow parties sufficient time to present cases.
