20 March 2017

Nigeria: Edo Tribunal - Who Is Afraid of the Ballout Count?

In the attempt to prove their allegation before the Election Petition Tribunal sitting in Benin City, that the Edo State Governorship Election of September 28, 2016 was seriously marred in some areas by over-voting, the petitioners, Pastor Osagie Andrew Ize-Iyamu and the Peoples Democratic Party, PDP, caused the Tribunal to subpoena Independent National Electoral Commission, INEC, to present the entire ballot papers reportedly cast and recorded in four of the eighteen local government areas, namely: Akoko Edo, Egor, Etsako East and Etsako West, for the purpose of a recount and verification. The court obliged the petitioners. This was to the chagrin of the first, second and third respondents, namely INEC, Godwin Obaseki and the All Progressive Congress, APC, respectively.

The respondents had objected vehemently to the idea of recounting and recording the ballot papers in question. This was in spite of their having given the impression that all was well with the way INEC conducted the election.

Their objection was overruled by the Tribunal, which thereafter ordered a recount as requested by the petitioners. However, the request came three days to the end of the time allocated the petitioners to present their case. Given the volume of the ballot papers, the exercise could not be concluded in the two days remaining for the petitioners to close their case. The reluctant and frustrating attitude of the respondents' agents who joined the counting exercise also significantly contributed to its slowing down. In a manner of speaking, they could only scratch the surface.

The Tribunal did not allow the counting exercise to proceed beyond the official hours of the Tribunal sessions. It also did not allow it beyond the time allocated the petitioners to close their case. According to the chairman of the Tribunal, Justice Ahmed Badamasi, the Tribunal lacked the power to extend the time allocated to the petitioners. He however, permitted the recording of the outcome of the recounted ballot papers, which the Tribunal received and also gave to all the parties involved in the trial.

Although the recounting exercise was significantly inconclusive, so much was revealed which tended to justify the petitioners' allegation of over-voting or votes recorded that were more than the numbers of voters recorded as having been accredited to vote. All the units successfully counted, save for two, showed gross discrepancies. It is noteworthy that in Etsako West Local Government Area, for instance, the final result declared by INEC for three wards was discovered to be about eight thousand in excess of the actual certified ballot papers found in the Tribunal ordered recount.

The damning discovery nonetheless, the first, second and third respondents seemed to have taken solace in the fact that the exercise was substantially non-conclusive. Their relief from this situation, is that the abortion forestalled the potential disclosure of more damning evidence as well as provide the ground for the respondents to oppose the use of the result of an uncompleted process to arrive at any decision regarding the subpoenaed ballot papers.

Nonetheless, the petitioners, undeterred, appealed to the Court of Appeal seeking to convince the superior court to compel the Tribunal to effect the completion of the ballot count which the Tribunal had started but aborted. The Court of Appeal is now expected to give direction on this matter upon hearing the petitioners' appeal.

A twist was however, introduced into the appeal by the respondents on the day the petitioners were to be heard. The third respondents' counsel, Lateef Fagbemi (SAN) speaking on behalf of the respondents, told the court that they had filed a cross appeal which was before the court and that they wanted it consolidated with the petitioners' appeal. According to the learned counsel, the respondents are challenging the decision of the Tribunal to have permitted the recount and to have taken note of the result of the ballot papers that were counted.

The curiosity stirred by the trenchant opposition of the respondents to the ballot count in parts or in the whole is predicated on their claim that the election was properly conducted and that it is in substantial compliance with the Electoral Act 2010 (as amended). Deriving from this are, the following questions. If INEC is truly confident that the election it conducted was not tainted by over-voting or that figures were not inflated, why should it object to the recount of its own ballot papers? Why would the second and third respondents, Obaseki and APC object to it if they could dare to do what INEC ran away from by putting witnesses on the stand to argue that there were no incidences of over-voting as alleged by the petitioners?

In conclusion, one might ask: What more revelations are in the sacks of the yet to be counted ballot papers that the respondents seem in morbid fear of? We may soon know or never know. The key to our knowledge is now in the hands of the Court of Appeal. Will they open the door or leave it shut?

Nigeria

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