Presidential Election Tribunal: All eyes on the judiciary

The Presidential Election Petition Tribunal (PEPT) sitting at the Court of Appeal in Abuja will, this week, deliver judgment in the petition brought before it by the presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, challenging the return of Muhammadu Buhari of the All Progressives Congress (APC) as the winner of the February 23, 2019 election. Sunday Ejike reports what has been happening at the tribunal.

 

Dissatisfied with the declaration of President Muhammadu Buhari of the All Progressives Congress (APC) as the winner of the February 23, 2019 presidential election by the Independent National Electoral Commission (INEC), the presidential candidate of the Peoples Democratic Party (PDP) in the election, Alhaji Atiku Abubakar, and his party petitioned the Presidential Election Petition Tribunal, challenging the return of Buhari by the umpire.

INEC had, on February 27, declared that Buhari garnered 15,191,847 votes to defeat Atiku, his closest rival, who it said polled 11,262,978 votes.

Atiku and his party, in their petition, insisted that data they secured from INEC’s server revealed that they clearly defeated Buhari with over 1.6 million votes.

The petitioners had hinged their grouse on five grounds. They want the five-member panel of justices, headed by Justice Mohammed Garba, to declare that Buhari was not entitled to be returned as the winner of the election.

They alleged that INEC had, at various stages of the presidential election, unlawfully allocated votes to Buhari and adduced oral and documentary evidence to show that the results of the election as announced by the electoral body did not represent the lawful valid votes cast.

Atiku alleged that in some states, INEC deducted lawful votes that accrued to him, in its bid to ensure that Buhari was returned to office.

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In one of the five grounds of the petition, Atiku and the PDP maintained that Buhari was not qualified to run for the office of the president, as he does not possess the constitutional minimum qualification of a school certificate. They argued that proper collation and summation of the presidential election results would show that contrary to what INEC declared, Atiku garnered 18,356,732 votes, ahead of Buhari who they said got 16,741,430.

They urged the tribunal to hold that Buhari was not duly elected by a majority of lawful votes cast in the said election and, therefore, his declaration and return as the president of Nigeria in that election was unlawful, undue, null, void and of no effect.

They prayed the tribunal for an order directing INEC to issue certificate of return to Atiku as the duly-elected president of Nigeria.

In the alternative, the petitioners prayed the tribunal to nullify the February 23 presidential election and order a fresh poll.

The tribunal was set up by the president of the Court of Appeal, Justice Zainab Bulkachuwa, to adjudicate on any matter arising from the conduct of the February 23 election.

The five-member panel was initially headed by the Court of Appeal president, but Atiku and his party, through their lead counsel, Dr. Livy Uzoukwu, SAN, challenged her membership of the panel and filed a motion for her to recuse herself, which she did ‘on personal grounds.’

The petitioners alleged bias on the part of Bulkachuwa, because her husband was not only a strong member of the APC, but also won a senatorial election on the ticket of the APC, which is a respondent in their petition. After Justice Bulkachuwa recused herself, Justice Mohammed Garba was appointed to head the tribunal, which promised to handle all the petitions against Buhari’s election in accordance with the law.

Garba, who was drafted from the Court of Appeal, Lagos Division, insisted that the tribunal’s practice direction would be strictly followed.

Atiku and his party had, on July 19, closed their case in their petition, after calling 62 witnesses as against the 400 they had planned to call within the 10 days allotted to them to substantiate their claims.

The 62 witnesses called included an Information, Communication and Technology (ICT) expert from Kenya, David Ayu Nyango; and a local data analyst, Joseph Gbenga, to buttress testimonies of their agents at the unit, wards, local government and state levels of the alleged abnormalities during the conduct of the presidential poll, which according to the petitioners’ last witness, Osita Chidoka, was the costliest election ever conducted in the country.

While INEC declined to call any witness in the matter, Buhari shocked the tribunal when he abruptly closed his defense after calling seven witnesses. Although the tribunal allotted six days to the president to open his defense in the petition, challenging his academic qualification for the election and the general conduct of the poll by INEC, Buhari spent only two days, after calling seven witnesses and tendered some documents.

The APC, represented by Lateef Fagbemi, SAN, in another dramatic turn, announced that the party would also close its defence.

Fagbemi told the tribunal that APC was satisfied with the cross-examination of witnesses, other documents and evidence put forward by Buhari to defend himself in Atiku’s petition, adding that the APC was satisfied and would not call any witness to open any defence.

The tribunal chairman then ordered the respondents to file their final address and the petitioners, upon receipt of the address, to have seven days to file theirs to the three respondents.

Justice Garba also ordered that INEC, Buhari and APC should have two days to respond on point of law to issues that might be raised by Atiku and PDP and that filing and exchange of processes ought to end on August 16.

The tribunal chairman subsequently fixed August 21 for all parties in the petition to adopt their final addresses, after which judgment date would be fixed.

In line with the order of the tribunal, Atiku and his party, on August 14, filed their final written address. The petitioners insisted that  Buhari was not qualified to have contested the February 23 poll and, as such, should be disqualified by the tribunal.

Besides, they insisted that they had proved all allegations contained in their petition against the conduct of the February 23 presidential election by INEC, which is the first respondent in their petition.

In the 43-page address, Atiku and PDP claimed to have established the fact that Buhari did not possess the requisite academic qualification for the position of president of Nigeria.

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They said even Buhari›s own witnesses, under cross-examination, admitted that Buhari did not possess a school certificate, being the basic requirement for contesting for the office of the president.

«We, therefore, submit that all the purported evidence by the second respondent (Buhari) to prove that he attended a secondary school or a primary school or that he attended some courses is irrelevant, because he did not rely on any of those purported qualifications in exhibit P1. He relied on primary school certificate, WASC and officer cadet.

«Equally futile is his attempt to prove that he can speak and write in the English language. That is all irrelevant to his inability to produce his primary school certificate, secondary school certificate or WASC and his officer cadet qualification, whatever that means. Officer cadet is neither a qualification or certificate under the Constitution and Electoral Act; nor is it known to any law,” the petitioners said.

On the purported Cambridge University certificate tendered by Buhari before the tribunal, the petitioners asked why «it was easier for Buhari to go all the way to Cambridge in the United Kingdom to obtain a bogus documents that his own witnesses said was not a certificate, instead of just driving down the street in Abuja to the Army headquarters or placing a phone call to the secretary of the Military Board in Abuja to hurry over with his certificate or certificates?»

Still on the Cambridge University documents, the petitioners submitted that; «a comparison of the purported Cambridge Assessment International Education Certifying Statement of the purported West African Examination Council (WAEC) certificate and a certified true copy of the purported confidential result sheet of the University of Cambridge West African School Certificate of 1961 for the Provincial Secondary School, Katsina reveals many discrepancies in the supposed result.

“One listed eight subjects that the candidate therein mentioned, one ‹Mohamed Buhari,› allegedly sat for. The other listed six subjects. Both documents are, therefore, unreliable, as they cannot be correct. The contradiction must count against the second respondent,” they said.

Another false claim by Buhari, according to the petitioners, is that he attended “Elementary School, Daura and Mai Aduwa 1948 to 52. Elementary School Daura is totally different from Mai Aduwa. Their locations are totally different.”

He also claimed he entered Middle School, Katsina in 1953. However, the petitioners submitted that by 1953, the Middle School system had been abolished in the Northern region of Nigeria.

On the claim that his certificates were with the military, the petitioners submitted that Buhari failed woefully to prove the claim, «rather, the petitioners’ evidence to the contrary was neither contested nor challenged.”

It is also the case of the petitioners that they have successfully proved that the Nigerian Army had denied being in possession of Buhari’s alleged certificates.

“One of the strongest evidence on the issue was given by the second respondent›s own witness, RW1, General Paul Tafa, (rtd), who, under cross examination by the first respondent (INEC), told the court firmly and unequivocally that the Army did not collect the certificates of military officers. He added that there was no such thing,” they said.

On the issue of rigging and non-compliance with the Electoral Act, the petitioners said with the plethora of evidence tendered and witnesses called, they had been able to show to the tribunal that Buhari›s election was invalid.

They added that analysis of results from 11 states showed how INEC, in connivance with Buhari and the APC, wrongly and unlawfully credited Buhari with votes not valid or lawful.

According to them, documents tendered before the tribunal showed huge discrepancies between collated results as contained in the tendered certified true copies of forms EC8A and polling units.

They further alleged that 2, 906,384 votes were cancelled across the country, while 2, 698,773 Nigerians were disenfranchised.

According to them, the two figures exceeded the 3, 928,869 differential between the votes as stated in INEC form EC8E.

Buhari and the APC, in their final written addresses, urged the tribunal to dismiss the petition by Atiku and his party on technicalities and evidential grounds.

The respondents had described Abubakar’s address that urged the tribunal to sack Buhari and affirm him president as “a wild goose chase.”

They alleged that PDP erroneously allowed a candidate who was not a Nigerian by birth to contest for the highest position, in violation of the constitution. The president and his party, therefore, prayed the tribunal to invoke Section 131 (a) of the constitution to dismiss the petition.

Section 131 (a) of the constitution strictly holds that a person must be a citizen of Nigeria by birth to qualify to contest the office of the president.

They claimed that Atiku was born on November 25, 1946 in Jada, a former Adamawa Province of Northern Cameroon, before a plebiscite was conducted in 1961 that now made the enclave part of Nigeria.

The parties therefore, alleged that Atiku was not qualified to enter the contest as the constitution forbade him from canvassing for votes to become Nigeria’s president.

“We pray that the tribunal will see this constitutional reason and go ahead to uphold the election of the second respondent (Buhari) forthwith,” they prayed.

On evidence admitted from the petitions, the two respondents said they were empty, as none had substantially proven series of the allegations made against the conduct of the election.

They said the petitioners had tried to mislead the tribunal and public that results from the election were transmitted electronically to a central server managed by INEC.

The respondents maintained that it was public knowledge that the February 23 general election was conducted in line with the Electoral Act of 2010, as amended.

“Moreover, the laws in Nigeria do not recognize, but actually prohibit transmission of results electronically. Sections 52 and 78 of the Electoral Act 2010 have categorically addressed the issue. The only means of transmitting election results under the law are through Forms EC8 series. Form EC8A conveys results from polling units.

“It is only through these approved forms that election results can be challenged or proven and not through server, imaginary or real,” they submitted.

The parties, therefore, submitted that the petitioners’ allegation on the use of server by INEC to transmit results was “criminal and misguided.”

“Atiku Abubakar and the PDP have failed in their attempt to stridently prove their petition. The petitioners failed woefully to establish by credible evidence, the existence of the imaginary server belonging to INEC,” they argued, adding that most of the witnesses presented by the petitioners attested to the fact that they signed all the forms that contained the results of the election without coercion.

Buhari and APC, therefore, averred that such testimonies of truth from the petitioners’ witnesses further bestowed legitimacy on the outcome of the election.

On Buhari’s educational qualification, they said that the petitioners failed to adduce credible and reliable evidence to establish that he (Buhari) forged his certificate.

“While it is appropriate to debunk such baseless, mendacious and spurious assertion, it suffices to bring to fore the unequivocal provision of the constitution. The constitution is clear on this as it states the requirement for a candidate to contest the presidential election and occupy the office of the president.

“Section 131 (d) provides that a person shall be qualified for election into the office of the president, if he or she has been educated up to, at least, school certificate level or its equivalent.

“More so, the consequence of submitting a forged document to INEC is grave. It therefore, requires precise evidence and proof beyond reasonable doubt, which the petitioners have not been able to establish,” the respondents said.

Drawing reference from the constitution, the respondents defined a secondary school certificate or its equivalent to mean: Secondary school certificate or its equivalent or Grade II Teacher’s certificate.

They listed others to include: City and Guild certificate or education up to secondary school certificate level or primary school leaving certificate or its equivalent and service in the public or private sector in the federation in any capacity acceptable to INEC for a minimum of 10 years.

“It is apparent that from the pleadings and evidence adduced by the petitioners, there is no scintilla or iota of evidence to prove that the president was at the time of the election not qualified. It is trite that he who asserts must prove, we have clearly seen that the petitioners had failed woefully in this matter. In the circumstance, we urge the tribunal to dismiss the petition on the grounds of both technicalities and evidential failure and to affirm the election of the president,” they submitted.

The general expectation is that the judiciary, as the last hope of the common man, will be dauntless in addressing the substance of Atiku’s petition in the collective quest to retrieve a stolen mandate through the legal process.

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