He is a former Commissioner for Justice and Attorney General in Oyo State. Michaeal Lana, who has handled dozens of election petition cases, describes the proposed amendment recently passed by the Senate as one that will not address the critical challenges facing the country’s electoral process. He speaks to DARE ADEKANMBI.
THE Senate has proposed some amendments to the Electoral Act, 2010 as part of clamour to tidy up the country’s electoral problems. Do you see these changes as fundamental enough to address most of these challenges?
The amendments being proposed will not address critical issues that need to be effectively dealt with to clean up our electoral process. First, when INEC introduced card readers in the last election, the Supreme Court did not give any effect to it. On paper, what the introduction of the card reader is supposed to curb is that previously when there is over voting, the petitioners will have to display to the court that in a unit for instance where there are 500 registered voters, over 700 votes were recorded for the unit. To prove this, you will have to look at the number of tickings on the voter’s register. But in many cases, we found out that some unscrupulous INEC officials would tamper with the register by adding fictitious names to the register and all would be ticked. So, card reader was introduced to ensure that if INEC officials tamper with the register, they won’t be able to compromise the data from the card readers which will send information from the polling units to the central database in Abuja.
But these people have forgotten that human beings are manning the database in Abuja. I can’t confirm seriously for you, but there was an issue in the Abia State governorship election matter where there were two different results from the card reader. In fact, we were told that the guys who did it were caught, but INEC buried the case from becoming public. So, it became a case of who was faster to ‘reach out’ to the guys manning the database. This is why the data is manipulated by INEC officials and will still be manipulated by them. So, the issue of electronic voting does not guarantee transparent voting in the country.
Secondly, INEC has the key to the card readers. In the last election, we had instances where the code to the card readers had been given to some people by INEC official. Politicians who were given the code in the last election would get to any polling unit and press the necessary buttons to ensure the card readers do not read any card or could read all cards, including fake ones. Those who are destroying the electoral process in Nigeria are INEC officials and not the politicians. The only thing politicians do is to give them money. Only INEC officials are trained how to programme and de-programme any gadgets for election. It is better to use things that can be seen physically. When it comes to going electronic, INEC will be given the powers they don’t deserve. They culture that has been entrenched in election litigation now is for politicians to just ensure they are declared winners by INEC by whatever dubious means. They courts will always maintain those so declared. The politicians ensure they pump a lot of money to INEC to manipulate all the processes in their favour. That is the impression that those of us handling election petitions now have. In the last election petition in Anambra State where we went, we discovered that it was INEC’s candidates that were announced as winners of elections and not the candidates voted for by the electorate. We have so many facts on this. But they amounted to nothing.
The law the National Assembly can make is a law to criminalise a lot fo the things that INEC is doing before, during and after elections. For instance, it was mooted that at the Senate that the burden of proof in an election petition should be shifted from the candidates to INEC. It is the officials of the commission that should prove the credibility of their election and not the candidates. INEC has all the processes. In the current amendments being proposed, the Senate has criminalise non-release of documents for inspection and all that. That will not stop anything because immediately INEC knows a petition has been filed, its officials will look at the petition and ensure they manipulate all the records to defeat the petitioner. This happened in a state in the South-West in the last election. They started calling some Electoral Officers from local governments to come and sign fake result sheets which are different from the authentic ones they gave out to the party that lost at the polling units. Some EOs refused, others came and started signing the new ones and not the one signed on the field.
When we say an election in not in compliance with the law, it is an indictment on INEC that they did not do what they ought to do. The law should be made that INEC should be the one to prove, once the credibility of the election is questioned. If INEC could not prove the validity of its election, then that election should be voided. That is the only way. All these amendments are cosmetic and will not give us the desired transparency in our elections.
In the proposed amendments, INEC is to keep an electronic voter register in addition to the manual register. Do you think this will address some of the concerns you have raised?
It will not address anything. If Europeans or Americans who speak the truth a little are going to be the INEC officials, I will say electronic register of voters and everything electronic about our elections should be embraced. On paper, the card reader was fantastic. As long as INEC is peopled by Nigerians, forget about transparent elections. Who will man the computer unit that will keep the electronic register? Will they be Nigerians? In Abia State, we saw situations in which only one person could be found in the voter register INEC brought before the tribunal as belonging to that unit. Is that possible? Is some places, only two people. What we wanted to prove was that some people were denied the rights to vote. But their names were not in the voter register brought to the tribunal by INEC so that there is no evidence that they were registered in the first place. If they could do this on the manual voter register, who told you they can’t do it on the proposed electronic register or database?
So, you believe the dice is always loaded against candidates who file petitions before tribunal to challenge the validity of elections?
It is heavily loaded against them, even the rules made by the court is against the petitioner and it is as if those who made the rules had already predetermined that once INEC declares a person as winner, the person should just go ahead and complete his or her four years in office. For instance, for whole federation the presidential candidate is given 21 days to gather evidence and collate all the things that happen during the election. Even in a state as big as Oyo, how can a candidate get all he needs to prove his case within 21 days? We have argued there should be an extension of time, they said “no.” Limiting the span of election petition tribunal to six months is injurious and causing more injustice. That is why you see petitioners’ counsel arguing that though malpractices happened in most units, I will prove some and present the evidence for others for the tribunal to do its own job because of time factor. But in their ruling, the tribunal will say you have dumped evidence and not demonstrated same. If a state has about 6,000 units and I want to challenge 2, 000, do I call 2,000 presiding officers? Within the allotted time, you may only be able to call about 20. In their judgment, the tribunal will tell you even if they remove the results from the 20 units you have proved, they are not enough to discredit the election. So, both the court and INEC have ab initio ganged up against the petitioner and that has been the attitude from tribunal to the Supreme Court. This does not give the public the confidence they ought to repose in the judiciary. Once they throw away evidence like that, the public will look at them as judges who have been bribed. That is the only conclusion they will draw.
Why doesn’t INEC allow the 2019 elections to hold in 2018 so that we will have one year to exhaust the litigation arising from the election before the winners are sworn in. But if we retain six months, lawyers will come with preliminary objections which will go from the tribunal to the Supreme Court and before you come back, the 180 days will have expired. So, where is the justice of the case? If your health is not very strong, you may have hypertension in election petition matters. There is no confidence in the tribunals and panels and that is why there are conflicting judgments. It is only in election petition cases that we have conflicting judgments. We do have such in contract, marital, labour cases. This is why people are saying those handling election matters are corrupt because the rules do not allow the judge to do a good job.
There is also the allegation that only judges favoured judges are empanelled for election petition tribunals
The only body I will say should recommend judges for election tribunals is the Nigeria Bar Association (NBA). It is the chief judge of a state that recommends judges to the President of the Court of Appeal. In many states, there are rumours that only the judges who are in the good books of the chief judges are recommended to the PCA. In a state, you a judge who is empanelled for every election petition tribunal and so many judges who have never been so empanelled. That means something is wrong in such a situation and looks as though there is a return to the chief judge from such a judge that is always going for election tribunal.
If we therefore want transparency, the national executive council of the NBA should be saddled with the responsibility of picking judges. If they do this, the issue of returns will not arise since the judges are not answerable to the NBA.
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