Issue 2 Of The Presidential Election Petitions Tribunal Judgment

Issue 2 Of The Presidential Election Petitions Tribunal Judgment

… The Height of Judicial Façade of Stupidity that Legalized Lawlessness in the Conduct of General Elections in Nigeria

By Nwankwo T. Nwaezeigwe, PhD, DD

Part 1

Opinion:Let me begin by reminding Nigerians what the Justice system in Nigeria looks like and how decomposed the Judges and the judicial system are.

 When I noticed that Fred Ajudua, one of the most notorious 419 Fraudsters in Nigerian history, who incidentally hails from my hometown—Ibusa, has never been convicted in any Nigerian court of law with his plethora of criminal cases before Nigerian judges, I come to the agreement that justice in Nigeria is never meant for the just but the unjust. Otherwise why should a mob take the laws into its hand by lynching an armed robber if the ordinary people have the desired confidence in the Police and judiciary?

On November 3, 2014, Mr. Fred Ajudua was arraigned together with Miss Oluronke Idowu Rosulu at a Lagos High Court of Justice for defrauding the former Nigeria’s Army Chief of Staff Lt. General Ishaya Bamaiyi of the sum of 8.4 million US dollars ($8, 400,000), while he was in Kirikiri Prison, in the name of Chief Afe Babalola’s professional fee. Miss Oluronke Idowu Rosulu was then the High Court Registrar to the then Hon. Justice Joseph Olubunmi Kayode Oyewole of the Lagos High Court, who is currently a Justice of Court of Appeal, Enugu Judicial Division.

On December 21, 2015, Miss Rosulu was jailed 10 years for the crime of accomplice. She later appealed the judgment to the Federal Court of Appeal which unfortunately upheld her sentence by the High Court. Meanwhile, Mr. Fred Ajudua is still in a Lagos State High Court for the same facing trial for the same offence and moves around freely as a free citizen of the Federal Republic of Nigeria. The last time the matter was mentioned in court according to EFCC website was December 3, 2021, when Justice Josephine Oyefeso of Lagos State High Court adjourned the case to February 15, 2022.

Mindful of the fact that this was the same crime committed by the same persons—Fred Ajudua and Oluronke Idowu Rosulu, prosecuted by the same agency—EFCC, and tried in the same court of law—Lagos State High Court, but granted two different systems of trial, it is therefore impossible to imagine that the Five Justices of the Presidential Election Petitions Tribunal led Justice Haruna Tsammani would act like ones coming from the moon and not part of the same Nigerian judicial system.

I want to assert that as a professional historian I reserve the audacious authority to critically examine, commend and condemn any piece of judgment emanating from the court of law. The undeniable reason is that every process of trial in the court of law from the proceedings to judgment is predicated on historical precedents. In other words, beyond issues that border on legal technicalities, the trial of any matter in the court of law from the customary level to the Supreme Court rests on the fulcrum of historicity.

First, because a crime committed yesterday and brought to court today has become a subject of history. Second, the presiding judge must rely on evidence gathered from the witnesses whose accounts are already subjects of history. Third, in weighing the plethora of evidence before him, the judge again relies on historical precedents relating to the case, as well as on extant laws, all of which are subjects of history. It is against this background that I will take a historical promenade into “Issue 2” as recorded in the judgment.

In their judgment, the Justices informed us that “Issue 2” was anchored on:

“Whether having regard to the evidence adduced by the parties the Petitioners have established that there was sufficient non-compliance with the provisions of the Electoral Act, 2022, and that the non-compliance substantially affected the results of the election.” (See page 188 of the judgment).

Note, the crux of the above thesis is “evidence of sufficient non-compliance” and not whether INEC was at liberty to use or discard any of the provisions of the Electoral Act, 2022 or its regulations and guidelines, which were established pursuant to Electoral Acts, 2022. In other words, to what extent did INEC’s non-compliance to its own regulations and guidelines affect the authenticity of the results of the Presidential election? Now, let us take a look at what Section 148 of the Electoral Act, 22, says with regard to the constitutionality of the INEC regulations and guidelines in relation to the subject of the non-compliance in dispute:

“The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of the Act and its administration.”

The questions which legally and morally arise from the above section of the Electoral Act, 2022 are:

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First, does the Electoral Act, 2022, in granting INEC the powers to issue regulations, guidelines, or manuals for the conduct of elections equally grants the same INEC the powers to disobey or disregard the same regulations, guidelines, or manuals for an election without regard to its cost and implications, the integrity of the election, its transparency, and its effects to the candidates and electorates?

Second, what were the aims and objectives of the regulations, guidelines or manuals issued by INEC and to what extent were these aims and objectives met in the conduct of the 2023 Presidential election?

Third, if the aims and objectives of the regulations, guidelines or manuals were majorly to ensure transparency and enforce the smooth conduct of the elections within the framework of the Electoral Act, 2022, under which other framework should the transparency of the last Presidential election have been judged?

Fourth, if compliance to INEC regulations, guidelines or manuals was mandatory to both the electorates and candidates, what happens if any electorate or candidate contravenes them, particularly as applied to Sections 114, 115,116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, and 129?

Fifth, how can equity in law be defined in the context of the Electoral Act, 2022, when INEC flagrantly disobeys the same regulations and guidelines it enacted as a mandatory compliance for candidates and the electorates? In other words, does the Electoral Act, 2022, and the Constitution of the Federal Republic of Nigeria make it optional for INEC to comply with regulations and guidelines made by it?

Sixth, can the provisions of section 134 (2) of the Electoral Act, 2022, similarly apply to INEC’s non-compliance to its own regulations and guidelines made pursuant to the provisions of the same Electoral Acts, 2022, and for the fundamental purpose of enthroning transparency in the 2023 Presidential election?

For purposes of clarity, Section 134 (2) states: “An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”

Seventh, could INEC be said to have complied with the provisions of sections 26 (1) and 120 of the Electoral Act, 2022, in the conduct of the 2023 Presidential Election, putting into consideration its biased roles both in the deliberate disobedience of its own regulations and guidelines, and during the trial of the petitions, as well as its core values?

Again, for purposes of clarity, Section 26 (1) of the Electoral Act, 2022, which harps on the oath of loyalty and neutrality, states inter alia:

 “All staff, electoral officers, presiding officers, returning officers and security officials taking part in the conduct of an election shall affirm or swear to an oath of loyalty and neutrality as in the Second Schedule, indicating that they will not accept bribe or gratification from any person, and shall perform their functions and discharge their duties impartially and in the interest of the Federal Republic of Nigeria without fear or favour.”

On the other hand, Section 120 which harps on dereliction of duty on the part of INEC officials states:

“Any officer appointed for the purposes of this Act, who without lawful excuse commits any act or omits to act in breach of his or her official duty commits an offence and is liable on conviction to a maximum fine of N500, 000 or imprisonment for a term of 12 months or both.”

Furthermore, paragraphs 1 to 8 of INEC Core Values state:

INEC shall be guided by the following values in the performance of its duties:

 Autonomy: INEC shall carry out all its functions independently, free from external control and influence.

Transparency: INEC shall display openness and transparency in all its activities and in its relationship with all stakeholders.

Integrity: INEC shall maintain truthfulness and honesty in all its dealings at all times

Credibility: INEC shall ensure that no action or activity is taken in support of any candidate or political party.

Impartiality: INEC shall ensure the creation of a level playing field for all political actors.

Dedication: INEC shall be committed to providing quality electoral services efficiently and effectively, guided by best international practice and standards

Equity: INEC shall ensure fairness and justice in dealing with all stakeholders.

Excellence: INEC shall be committed to the promotion of merit and professionalism as the basis for all its actions.

These were the seven fundamental questions of legal and moral jurisprudence that should guide any Judge of unbiased tradition in approaching the two questions raised by the judgment as “Issue 2”, which indeed constituted the foundation on which the entire petitions were anchored.

For instance, there is no way the correct number of legal votes obtained by the candidates could have been legally decided by the tribunal without reference to the regulations and guidelines that stipulated the transmission of the election results through the process of BVAS. In other words, only results transmitted or transferred through the BVAS could give legal backing to any election result transmitted or transferred by analogue means or in the form hard copies. Under this circumstance, the second question raised in “Issue 2” becomes stale because the mere non-transmission of the results through BVAS rendered the entire process a nullity and consequently any result coming through another window other than BVAS a nullity.

Indeed, the non-compliance by INEC to its own regulations and guidelines with respect to the transmission or transfer of the Presidential election elections by means of BVAS was likened to a situation where the same king-makers who enacted the traditional kingship coronation rites deliberately bypassed the same rites to coronate a new king. The arising fundamental question is will such coronation be deemed legal in both law and tradition? Again, will the king-makers insist on their powers to disobey the coronation rites based on the claim of being the ones who enacted them? These were the morale questions founded on justice and equity on which “Issue 2” was anchored and which Justice Haruna and his colleagues clandestinely feigned ignorance.

Or could it implied that it was either Justices Haruna Simon Tsammani, Stephen Adah, Monsurat Bolaji-Yusuf, Moses Ugo, and Abba Ibrahim were not learned enough to appreciate this fact or, were fully aware but clandestinely aided the defence legal teams by concurring hook, line and sinker with their submissions through questionable technicalities founded on mischievous interpretations of the Electoral Act, 2022, INEC regulations and guidelines, and wobbling reliance on stale legal precedents that were based on analogue General Elections. To prove this point, I will x-ray the opinions of the judgment on the submissions of the respective defence counsels, beginning with A. B. Mamoud, SAN. (To be continued in part 2).

Nwankwo T. Nwaezeigwe, PhD, DD

Odogwu of Ibusa, Delta State

Institute of African Studies, University of Nigeria, Nsukka

Leader, Coalition against Christian Genocide in Nigeria (CAC-GEN)



NB: This Opinion in any way does not reflect the thought of Portfolio Media but that of the author.

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