By Chuks Nwachuku
My little experience in election petitions is that most elections are rigged, not by politicians but by lawyers and our judges. Politicians sometimes are awed by the magic that lawyers and the courts are able to work for them. Check out the Lawan v Machina case. Who rigged the process? Was it Lawan who was only a party before the court or the court who awarded victory to him by simply refusing to attend to the complaint against him that in the plain view of the world, he did not contest the senatorial primaries which took place in May because he participated in the presidential primaries that took place in June?
This Lawan magic is what happens 70% of the time in election petitions. Sometimes, it works to the satisfaction of majority of the people who simply say “serves them right” and forgive the truncation of expected outcomes. An example is the case of Amaechi v INEC where Amaechi, who went to court for a Declaration that he was the right person to contest the Governorship election, went home from the Supreme Court with a Declaration that he participated in the election which took place during the court action, with Omehia as the candidate of the PDP, and won. The people did not seem to mind very much at the time because there was sympathy for Amaechi who they felt was cheated out of the primaries of his party.
Election rules are clear and designed to give almost a fool proof result. However, by interpretation, the courts in most cases disable the rules and permit a situation where INEC and the winning candidate could get away with any infraction to declare a result that is in most cases debatable. I will give an example. INEC rules require candidates to attach to their application forms certificates as evidence of any qualification that they claim. However, the courts have ruled that the Constitution itself makes no direct provision for such and that since the Constitution is superior to the rules of INEC, it means that the infraction is of no consequence.
This, in my respectful view stands the rules of constitutional interpretation on the head. It is an axiom that the Constitution only provides a skeletal framework. It does not provide the detailed rules. If it did, which is impossible, there would be no need for the legislature. So, the legislature provides in a law the detailed rules for driving the provisions of the Constitution. Sometimes, the rules made by the legislature in the substantive law are not detailed enough and therefore the body set up by the law is given the power to make further rules of minute details in the form of regulations. When made, the regulations have the force of law as if they were made by the legislature directly except where they are inconsistent directly or indirectly with the parent law. In the case of INEC, both the Constitution and the Electoral Act give it the power to make the detailed and minute regulations required to drive the process of elections.
Therefore, the approach in reconciling the regulations of INEC with the provisions of the Constitution is not to ask whether any regulation of INEC is contained in the Constitution – with due respect, that is begging the question. The correct question is whether or not it is inconsistent with any provision of the Constitution, directly or indirectly. In the case of attachment of certificates to the application form, it is not inconsistent with any provision of the Constitution. On the contrary, it aligns with and drives the provisions of the Constitution regarding educational qualifications. If a candidate does not attach any certificate claimed to his application, it simply means that he has not shown that he possesses such qualification. The requirement of INEC has not imposed any extra requirement on a candidate. The surprising interpretation provided by the Supreme Court indirectly disables the Constitutional provisions relating to minimal educational qualifications and submitting a false certificate to INEC by making it lawful for a fraudulent and unqualified candidate not to present any certificate at all to INEC.
We can go on and on. The rules about recording of votes at the polling unit are detailed. For instance, cancellations must be interrogated and explained and such explanations must be recorded. Where that is not done, the result should be rejected. At the end of the result form EC8A, there should be a summary of the results showing number of accredited voters, valid votes, void votes, spoilt ballots, total ballots collected, total unused ballots and total votes cast. You don’t need to be extra bright to know that all these figures must tally. However, it is only with respect to what is called over voting, that is, when the total votes cast exceed the number of accredited voters, that the rules of INEC expressly state that the result should be cancelled. With respect to other cases, they say that the situation should be investigated and the report provided. You will expect that the court would put on INEC or the person that wishes to rely on a result that is obviously irregular on its face, to provide an explanation for the discrepancy. The courts do the opposite. What the parties then do is to tamper with results with cancellations or provide total fakes taking care that the number of votes cast is less than the number of accredited voters. You therefore have a common situation where the total votes cast is less than the number of accredited voters. This obvious indication of tampering with the results is what the INEC Chairman gloated over before the whole world as having shown, in the case of Ekiti State, that there was no over voting.
The courts further disable these provisions by their rules asking the complainant to provide a witness from every polling unit where this happened. You can imagine how burdensome this could be for a petitioner. I did an election petition with just one witness because I had less than 48 hours from the time I was briefed to present the petition. I collected all the results from each polling unit up to the final collation. By the time I isolated mutilated results and those with these sorts of descipances and corrected wrong tabulations, I was able to show that my candidate won the election. However, the courts introduced one of their absurd rules of “dumping” results on the court. They said that I did not provide witnesses from every polling unit to “speak to” the results of that unit. The rule is absurd because (1) it is a misconception of what constitutes dumping. Dumping is practised on an opponent by providing him much more information than is required in the hope that he will miss the most vital piece. It is not upon the court since the lawyer is going to summarize his case and point out to the court the parts of the evidence that he wishes the court to take into consideration, (2) the law is that you do not require oral evidence to explain a document. You don’t need anyone from the polling unit to point out errors on a result sheet obtained from INEC, and (3) the results are certified documents from INEC. They don’t require further proof. On the contrary, the rule should have been that INEC make the results availabile to every election tribunal. Nobody should be put into the extra trouble of securing them from INEC.
The seriousness of the challenge that I mounted to these absurd rules have led to new provions in the election petition rules that give legal recognition to my approach. I know however, that those laudable innovations will also not survive the interpretation of the courts.
What could be the confidence of the APC regarding the non observance of a critical provision of the Electoral Act requiring electronic transmission of results from polling units, which is a provision over which there was much struggle led by the INEC Chairman before it was passed into law? The President declined assent twice before he finally relented. It was promoted as the game changer and really changed the attitude of Nigerians who came to believe that finally their votes would count.
APC that had vowed to disable the BVAS innovation is the party taunting those complaining to go to court. What could be the confidence of an obvious wrong doer in the courts? Their confidence is the manner that our courts interpret rules of the election process. They are confident that the courts will again disable the BVAS and electronic transmission provisions. Thus, without the confidence that our courts breathe into politicians, they would never be so daring to glaringly rig elections and disregard electoral rules.
The manner in which the Supreme Court of Nigeria is likely to disable the provisions for real time electronic transmission of results from polling units is not in doubt. They are projected to apply another absurd rule which is a corruption of the common law rule (now codified under the Interpretation Act) of presumption of regularity of official actions. This common sense rule states that official actions are to be presumed regular. Without the rule, officials would have to spend valuable time any time that any particular action is called into question, explaining themselves. Official work would be hampered. However, the rule is not a cloak for abuse of and fraudulent exercise of official power. There are therefore common sense safe guards. Firstl, the rule is only a presumption, it therefore can be rebutted by contrary evidence. Secondly, the rule is applied only when the official action is shown to be substantially regular on its face.
The rule therefore does nothing more than place on a person challenging official action the initial burden to prove that the action was irregular. It therefore places on a petitioner challenging the result of an election the initial burden to show that it was irregular. The corollary of the rule becomes self-evident – where the official action has not been carried out in substantial compliance with the rules or where the irregularity of the official action is evident on its face, the initial burden to prove that the action is irregular is discharged and the burden shifts to the person wishing to uphold the official action to show that despite the obvious non compliance with the rules, the action is substantially regular. The meaning is that where, as in the case of the non compliance with the provisions of the Electoral Act to electronically transmit results, the fundamental nature of which is underscored with provisions making the non compliance a crime, the evidential burden is on INEC to show that despite the book compliance, the election was substantially free and fair. It would be for INEC to produce all the results from the over 176, 000 polling units and show one by one that they represent the results declared at the polling units. This is because they missed the protection of the rule of presumption of regularity by failing to comply with a critical requirement of the rules.
However, INEC has since lost any restraint because its flagrant breaches of its own rules and other abuses over the years have been covered up and regularized by the courts with faulty, if not corrupt, interpretations and decisions. The underlying reason behind the boldness to launch a cyber attack on the nation and disable critical ICT infrastructure, which is defined as an act of terror under the Terrorism Prevention Act and the Cyber Crimes Act, is the confidence that the Supreme Court of Nigeria will consider it its duty to regularize the fraud with the excuse that election results are too be considered regular until the contrary is shown.
Chuks Nwachuku can be reached on [email protected]
