Still seething over alleged irregularities and massive rigging that robbed him of victory in the February 23 presidential poll, the presidential candidate of the Peoples Democratic Party (PDP) Atiku Abubakar must gird his loins for an epic legal duel.
With all plaintiffs who have embarked on this endeavour drawing blank since 1979, legal practitioners insist that Abubakar must be ready to provide such incontrovertible, undisputable evidence to buttress his claims, as the journey is fraught with tight legal traps.
Except he changes his mind, Abubakar has less than three weeks to file a petition against President-elect Muhammadu Buhari, his All Progressives Congress (APC), and the Independent National Electoral Commission (INEC) for declaring Buhari winner of the February 23 presidential poll.
The urgency, precision and challenges of providing watertight oral, documentary and electronic evidence to upturn election results, lawyers said, makes election petition a Herculean task.
Yesterday, the former Vice President after rejecting the result of the poll citing several malpractices, inaugurated his legal team to challenge the result of the presidential election. The team is headed by Dr. Livy Uzoukwu, SAN.
Last Thursday, Abubakar listed the malpractices to include the use of the military to perfect voter intimidation and suppression in PDP strongholds, connivance of INEC officials, security agents and the ruling party to manufacture bogus figures and outright falsification of the returns from the polling units.
Consequent upon all these, he gave notice that he would use all available legitimate means to challenge the result of the election.
His meeting with members of the National Peace Committee Thursday night prompted concerns in some quarters that he may have been prevailed upon to abandon litigation.
But all that came to naught after he declared yesterday: “I have just inaugurated my legal team and charged them with the responsibility of ensuring that our stolen mandate is retrieved.”
“I am encouraged by the presence of fearless men and women of the Bench. The judiciary, which had in the past discharged itself ably is once again being called upon to deliver judgment on this matter that will be untainted by lucre and unbowed by the threat of immoral power,” he added
Abubakar assured Nigerians that sooner than later, these noble dispensers of justice will give a judgment that will represent a historic denunciation of electoral fraud and mandate.
Relatedly, as the onslaught on his aides and family members continue, Abubakar has assured Nigerians that under no circumstance will he mortgage the mandate they freely gave him on February 23, 2019.
He gave the assurance against the backdrop of the invasion and arrest of Alhaji Babalele Abdullahi, son in-law and finance director of his group of companies in Abuja, yesterday.
Officials of the Economic and Financial Crimes Commission (EFCC) at about 8.30am invaded the Maitama residence of Abdullahi, but were denied access into the house until Abdullahi’s lawyers arrived.
The EFCC agents numbering about two dozen came in two regular vehicles, an 18-seater Toyota bus with registration number- Abuja CS 522 RSH, and a Hilux van.
Sources in the know of the impending legal fireworks hinted The Guardian that two Senior Advocates of Nigeria (names withheld) were threatened with reprisals should they enlist in the legal team of the PDP presidential candidate.
Section 285 (5 – 8) of the 1999 Constitution (as amended) provides the time frame within which a petition can be pursued.
It states: “A. An election petition shall be filed within 21 days after the date of declaration of results of the election. “B. An election tribunal shall deliver its judgment in writing within 180 days from the date of the filing of the petition.
“C. An appeal from a decision of the election tribunal or court shall be heard and disposed within 60 days from the date of the delivering of the judgment of the tribunal.
“D. The court in all appeals from election tribunals may adopt the practice of first giving its decision and reserving the reasons thereto for the decision to a later date.”
The implication of the law is that once an election petition is not concluded within 180 days from the date the petition was filed by the petitioner, an election tribunal no longer has jurisdiction to hear the petition and this applies to rehearing.
The period of 180 days also starts counting from the date the petition was filed.
Legal experts are of the view that petitioners will have to surmount immense hurdles to prove their cases at the tribunals. One of such big hurdle is the admissibility of card reader evidence introduced by INEC, through mere electoral guideline.
Director at the Human Right Law Services (HURILAWS), Mr. Collins Okeke believes that INEC’s decision to use the smartcard reader without the National Assembly amending Section 49 of the Electoral Act, 2010 (as amended) to accommodate it may be a big issue in the election petition, just like in 2015 when such cases were dismissed.
This, he said is because the 2019 Electoral Act Amendment Bill had remedied the deficiency by recognising that card readers must be used to verify voters, but unfortunately, the President declined assent to the bill. “That would have checked over-voting had the president signed it into law,” said Okeke.
Lawyers also noted that another issue that needs to be taken into account is electronic evidence. Going by the level of videos circulating on the social media showing different levels of violence and electoral malpractice, it would be imperative to determine if the Evidence Act accommodates all manner of electronic recordings.
A professor of law and expert in law of evidence, Taiwo Osipitan (SAN) said accepting electronic evidence will depend on who did the recording and the device used.
He said: “It doesn’t matter whether the recording was professionally done or amateurish. The petitioner must prove that the recording was done by a device used regularly for that purpose; that the device was in good working condition and the person went to the polling unit to take it. That is when the evidence can go in.
“Whether the device is hi-tech or low-tech will only affect the weight of the evidence. So, when you are a total stranger to a video recording, you cannot tender it. This is because you cannot give evidence about the trustworthiness of the device used in the recording. Even if the video goes in, there would be the issue of weight as to the whereabouts of the person who did the recording during cross-examination. So, it is better to get recordings from sources that can certify them.”
He pointed out that a petitioner who is alleging irregularities such as over voting, ballot box snatching, cheating, (which he said is like corruption) or vote buying has the burden of proving them.
“And in proving, he would have to rely on oral evidence of the people around. He can also rely on documents. For instance, if there are 1, 000 registered voters in a polling unit and the result shows that recorded votes is 1, 200, it raises a red flag in terms of over voting.
“Also, the evidence of fingerprint experts can be relied on in a case of alleged multiple thumb printing. The expert could examine the ballot papers, establish multiple thumb printing through scientific skills, and show publicly, the kind of experiment he conducted in coming to that conclusion. That will establish such malpractices that may lead to outright cancellation of affected polling units.
“So, a petitioner can rely on documentary evidence, oral evidence or electronic evidence, as well as evidence of experts. This includes evidence of statisticians,” he explained.
On the issue of availability of documents, Osipitan said if a petitioner needs documents from INEC to support his action, he must before the commencement of the hearing, apply to the tribunal for a leave for an order compelling INEC to make those documents available to him, adding that the petitioner must be sure of the documents he wants.
“You cannot go on a fishing expedition, but must identify those documents. And if you want to examine INEC documents before front loading your petition, you must get an order in advance to inspect the documents in custody of INEC. INEC would have no choice than to make those documents available to you, otherwise its officials would be liable for contempt of court.
“So there are ways of doing what they call discoveries and also administering interrogatives.
“From past experiences, petitioners always join INEC. So, it will be unwise to call INEC staff to give evidence in your favour because INEC tends to always defend the results it declared…”
According to former Dean faculty of law, University of Lagos (UNILAG), Prof. Oyewo Oyelowo, a petitioner needs to understand the nature of election petition procedures to be able to equip himself with required evidence.
“The Evidence Act is the one that will provide for the procedures for tendering those documents. So, if such documents or video recordings are able to meet the requirements, they go in. But the bottom line is that when you see such things, they don’t in themselves prove anything. That’s why the Evidence Act in itself requires a foundation laying before the evidence in itself can go in.
“Those who have those electronic evidence will have to prove how they got them from polling units. In fact, the bottom line is that it is not everything that can go in at the tribunal. There are evidential burden that have to be borne, before those documents can come in,” he pointed out.
Making reference to the provisions of the law in respect of resolving election disputes, Oyelowo said the tribunal is constitutionally empowered to adjudicate on election issues and is the only body that guarantees anybody aggrieved by the outcome of an election.
For, Professor of Law, Oluwole Smith (SAN), any would be petitioner must master the circumstances under which votes were cast in any polling unit, just as there must be orderliness in the voting process and that the card reader must be working.
“So, if the card reader is not functioning and there is no alternative, it means voters we’re not verified. That means that there cannot be voting. Therefore, where voting took place without verification, it becomes irregularities and those votes will not count. Where there were ballot box snatching, or where voting was aborted because it was not possible to vote and count the votes accordingly, such an election would have to be rescheduled.
“When an election petition is brought in respect of these categories, they have to be proven. We all know also that the court will determine whether votes will count or not, or whether those votes recorded were done to favour party A or B because those are infractions of the electoral process.
“The court would have to take cognizance of the fact that there was no voting according to the regulations. So the petitioner has to establish those irregularities. It will be proper for the court to cancel or discard those votes having established irregularities within a particular polling unit. The court would also try to establish whether the totality of the votes cancelled in a polling unit will be substantial enough to affect the overall outcome of the election,” he stated.
In his submission, Lagos-based lawyer and election petition litigator, Kunle Adegoke said that winning an election petition remains an arduous task and every lawyer involved must be physically and mentally prepared.
According to him, as a field where technicality reigns supreme and lots of legal traps lie all along, no room should be left for tardiness as every step is not only time-bound, but must be done with precision.
“Documents in election petitions don’t just speak for themselves contrary to popular legal principles, but must be tied and related to every allegations that they are meant to prove. You must call witnesses for every polling unit you are challenging and their testimonies must meet the sui generis (unique) nature of election petitions,” he asserted.
For Chuks Nwachuku, the presidential candidate of All Grassroots Alliance (AGA) in the just concluded election, “for a petition based on substantial irregularity otherwise known as rigging to succeed, it must show that the irregularity affected the result of the election.
In practical terms, the court would want to know if when the votes attributed to rigging are cancelled or subtracted or if, in the case of a complaint that certain voters were unfairly stopped from voting, the total votes expected from those areas were added to the votes of the challenger, you would arrive at a conclusion other than that the declared winner actually won.
“In the just concluded presidential election, one international analyst told me that the margin of rigging was 30 per cent.
Thirty per cent of the 15m votes attributed to Buhari comes to about 4.5m votes, which is more than enough to cancel the less than four million votes by which Buhari is said to have defeated Atiku.
So, there might be something here for Atiku. But irregularities are difficult to prove because the acts or omissions relied on (violence, ballot box snatching, fake results and fake collation, etc) are for the most part criminal requiring strict standards of proof that the petitioner often lacks the means to meet, especially within the limitation of 180 days from the time of filing the petition to the time of final determination at the Supreme Court.
Few petitions succeed on this ground, and for a presidential election, it is a taller order. May be, evidence from smart card reader of total accredited voters might help out.”
While some prominent Nigerians are advising Abubakar against going to court, Nwachuku said, “I do not believe in legal contest of the outcome of elections except where there are clear, narrow and well defined reasons why the challenger should be declared winner of the election in the place of the declared winner. I do not believe in election reruns except in cases of clear inclusiveness of the elections – where it is impossible to declare a winner.
However, even in such cases, in presidential elections, the court must go ahead to uphold the election on the ground that the challenger has failed to prove that he ought to be declared winner.
The cost of conducting elections is prohibitive and to conduct a presidential election afresh is bound to have national security implications, particularly in a country like ours.
“So, I should ordinarily be counseling Atiku not to challenge the results of last Saturday’s presidential election in court. But I’m not. I am in fact counseling him to do the opposite. The reason is one: Buhari has so much sold himself as a man of integrity and all sorts of scam artists and crooked elements have hung on it by association with Buhari to deflect scrutiny of their own lives.