With the Ekiti Gubernatorial Election just few hours, the issue of violence in our elections is once again dominating public discussions. And Governor Fayose, a leading actor in rigging, election violence and political theatrics is working very hard to ride the wind of opinions to curry public sympathy. Incredibly, another top beneficiary of election violence, Governor Wike of Rivers State, is lending Fayose moral support in his “battle” for a violence free election in July 14 Ekiti election.

What though is the position of the law with respect to election violence? The case between Chief Wike and Dr Dakuku in the Rivers’ 2015 gubernatorial election is quite revealing.

Rivers state was listed as the top violent state by all election observers in the 2015. Hence, it was no surprise that one of the grounds for the petition to annul Wike’s election by his opponent, Dr Dakuku, read as follows;“That the election and return of Wike Ezebunwo Nyesom were void by acts which clearly violated and breached various provisions of the Electoral Act (as Amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, thuggery, abduction, coercion of opponents, non-compliance with the provisions of the electoral act, manual for election and the guidelines as well as unlawful interference in the electoral process by political office holders.”

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In his Petition, Dakuku devoted over 100 paragraphs detailing specific acts of violence and mentioned certain individuals that were involved. However, before the commencement of the substantive case, the Rivers Election Tribunal struck out those paragraphs and made a consequential order against the calling of evidence of some individuals, police, other security agencies and unknown persons mentioned in those paragraphs.

Nevertheless, the issue of violence turned out to be intricately woven into the case that the Tribunal had no option but to take evidence on violence from witnesses, both civilians and security personnel.

A set of 6 witnesses said they were police officers deployed for the conduct of the election in Tai, Khana, Ahoada East, Obio/Akpor and Ahoada East local government areas respectively. All the witnesses testified on the authority of a subpoena served on the Inspector General of Police. That they patrolled in the local governments assigned to them and provided security for at INEC LG offices and assisted in the distribution of election materials to INEC offices. That in the course of their duties, they observed and came across road blocks by hoodlums, shootings by hoodlums, hijacking and snatching of election materials by thugs, people terrified, saw and arrested many people including corps members INEC staff, PDP agents thumb printing ballot papers in some areas and the security agents watching the illegal act, arrested the leader of the Icelanders with AK 47 rifle and observed that no credible election holding and collation of results.

Another set of 4 witnesses said they were officers of the Department of State Security Services (DSS) deployed for the conduct of the election in Asari Toro, Okrika, Ogu/Bolo and Andoni local government areas. They all testified on the authority of the subpoena served on the DG of DSS. That the RAC office in Kalabari National College was set on fire by thugs and electoral material burnt and as such election held in only 3 wards of Asari tori local government area. That they received so many reports of irregularities that they were overwhelmed.

One very interesting witness (PW40) was the Head of Election and Party monitoring Department, INEC Rivers State. He said that he was more competent than anybody else to say what transpired at the election and gave his reasons. He said he visited 8 local government areas in company of 3 INEC National Commissioners and his staff monitored the elections in 19 LGAs of the state and wrote a report tendered as exhibit. He described the election as a warfare, militant terrorism, a sham and a kangaroo, mockery of democracy as it was characters by large scale violence, disruption of polls snatching of election materials and all kinds of impunity.

As to the credibility or otherwise of the above witnesses, the tribunal held:
“We observed that the respondents rigorously crossed examined all the witnesses of the petitioners in an attempt to impugn the veracity or character of the witnesses which in many instances resulted to giving credence to their testimonies as to what they observed at the election. The witnesses maintained their ground on failure of the election and contended that the new facts they introduced in their evidence was as a result of the questions they were being asked by the respondents which they actually knew happened though not contained in their deposition. In our view, the witnesses cannot be impugned for answering questions about what they knew. We watched the witnesses when in the witness box and we do not see any element of untruthfulness in their demeanour. They testified directly as to what they observed at the election and such evidence remain credible and reliable”.

INEC called 16 witnesses, all of them were electoral officers and presiding officers. They testified to the effect that the governorship election was conducted in all the local governments and polling units peacefully, free and fair in their evidence. But the judges determined that all 16 witnesses but one when crossed examined were rendered manifestly incredible and unreliable.

Wike called 24 witnesses to testify. This is what the judges said of 20 witnesses of those witnesses
“all the witnesses we observed spoke in perfect English, adopted their depositions or subpoenas issued in their favour and tendered the Permanent voters cards in evidence but whenever they were confronted with exhibits A9 with respect to the polling units which they said they voted or the voters register of the polling units which they said was used to accredit them, or the result sheet for the polling unit which they said the result was announced in their presence, the witnesses will turn around to refuse even the reading of the documents claiming that they have nothing to do with INEC documents or that their sight was impaired. All the witnesses will deliberately and willfully decline reading the documents even upon insistence by the petitioners. The act of the witnesses in our observation indicated that the witnesses were not witnesses of truth with respect to the conduct of the election. Their characters had been successfully impugned as a result of cross examination. We were equally not impressed by their conduct on the way and manner they conducted themselves when being cross-examined by the petitioners. One of them was even shown to have voted twice in the voters’ register of his polling unit and the excuse he gave was that his voter card got missing and it was replaced”.

It was at the Supreme Court that the issue of election violence in the eyes of the laws was completely stripped naked. First, the Apex Court held that the result declared by INEC “enjoys a presumption of regularity. In other words, they are prima facie correct. The onus is on a petitioner to prove the contrary.” This may appear to be reasonable on the surface until you delve into the mountainous obstacles put on the way of a petitioner to prove that INEC was wrong in declaring a result.
For instance, on the issue of violence as a ground for demand for the nullification of an election, the Supreme Court ruled
“that disenfranchised voters from the affected polling units ought to have been called to testify.” In the words of the Court in the Rivers’ case;
“For evidence of disruption, violence and corrupt practices to warrant the nullification of an entire election in Rivers state, the 1st (Dakuku) and 2nd (APC) respondents had to first prove the non-compliance polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election.”
That requirement of the law can never be met. In the case of Rivers, there are over 4000 polling units and over one million people allegedly voted in the gubernatorial election in 2015. Given that election cases are time bound, it was impossible to call the number of disenfranchised voters that the Supreme Court would deem adequate to prove that the Electoral Act substantial compliance requirement had not been met. For Rivers with 2,537,590 registers voters in 2015, a petitioner would have been required to call at least 1.5m (60%) disenfranchised voters to successfully ask the Court to nullified the gubernatorial Election.
Meanwhile, ln the Rivers’ gubernatorial case, only 96 witnesses were called by all parties. Yet it was a time management nightmare for the judges to take evidence from them. At some point, the Chairman of the tribunal had to restrict each witness to a time slot so as to ensure that judgement would be delivered within the period prescribed by the electoral law.
In addition to the above constraint, the Supreme Court held that alleged perpetrators of violence during an election must be joined a in a petition to prove allegations of violence beyond reasonable doubt. In order words, it is not just enough to say there was violence, no matter how obvious it is to all and sundry, the perpetrators must be catalogued and joined in a petition. The question is, how can a petitioner go about such a task in the midst of the kind of violence were lives are at risk. Now, if such requirement cannot be met in a state wide election, how can it be ever met in a country wide presidential election. Now you can understand why no election matter that got to the Supreme Court has ever been resolved in favour of a petitioner that alleges rigging occasioned by violence.
Interestingly in the case of Rivers 2015, all the reruns ordered by the Appeal Courts were stalled for a very long time. The same INEC which strongly argued in various courts that the 2015 elections in Rivers were peaceful, free and fair refused to go back to Rivers to conduct the reruns. Reason given was insecurity. It took a resolution of the National Assembly to coerce INEC to do the reruns in December 2016 amidst fresh violence.
Moreover, all the Rivers Election Tribunals sat in Abuja rather than in Rivers due to the apprehension over insecurity. Yet the Supreme Court “closed its eyes” to the carnage that took place in Rivers and its impact on the election.
It is for these reason that politicians of every political party love to engage in violence so as to rig. They understand that it is Herculean to prove rigging. The facts adduced in this piece is a tip of the problems faced by election petitioners. Criminal cases are much easier to handle than election petitioners. It appears that election petition provisions of the law were deliberately “written” in favour of riggers.
But for the lower courts, no petitioner will ever win a case that alleges rigging. However, it may not be long before the lower courts toe the line of the Supreme Court in their judgements. And that will be a recipe for complete disaster.
Election Violence And Rigging: The Position of the Law May Surprise You.

With the Ekiti Gubernatorial Election just a few hours away, the issue of violence in our elections is once again dominating public discussions. And Governor Fayose, a leading actor in rigging, election violence and political theatrics is working very hard to ride the wind of opinions to curry public sympathy. Incredibly, another top beneficiary of election violence, Governor Wike of Rivers State, is lending Fayose moral support in his “battle” for a violence free election in July 14 Ekiti election.
What though is the position of the law with respect to election violence? The case between Chief Wike and Dr Dakuku in the Rivers’ 2015 gubernatorial election is quite revealing.
Rivers state was listed as the top violent state by all election observers in the 2015. Hence, it was no surprise that one of the grounds for the petition to annul Wike’s election by his opponent, Dr Dakuku, read as follows;
“That the election and return of Wike Ezebunwo Nyesom were void by acts which clearly violated and breached various provisions of the Electoral Act (as Amended), including but not limited to rigging and manipulation of election results, unprecedented acts of violence, thuggery, abduction, coercion of opponents, non-compliance with the provisions of the electoral act, manual for election and the guidelines as well as unlawful interference in the electoral process by political office holders.”

In his Petition, Dakuku devoted over 100 paragraphs detailing specific acts of violence and mentioned certain individuals that were involved. However, before the commencement of the substantive case, the Rivers Election Tribunal struck out those paragraphs and made a consequential order against the calling of evidence of some individuals, police, other security agencies and unknown persons mentioned in those paragraphs.
Nevertheless, the issue of violence turned out to be intricately woven into the case that the Tribunal had no option but to take evidence on violence from witnesses, both civilians and security personnel.

A set of 6 witnesses said they were police officers deployed for the conduct of the election in Tai, Khana, Ahoada East, Obio/Akpor and Ahoada East local government areas respectively. All the witnesses testified on the authority of a subpoena served on the Inspector General of Police. That they patrolled in the local governments assigned to them and provided security for at INEC LG offices and assisted in the distribution of election materials to INEC offices. That in the course of their duties, they observed and came across road blocks by hoodlums, shootings by hoodlums, hijacking and snatching of election materials by thugs, people terrified, saw and arrested many people including corps members INEC staff, PDP agents thumb printing ballot papers in some areas and the security agents watching the illegal act, arrested the leader of the Icelanders with AK 47 rifle and observed that no credible election holding and collation of results.

Another set of 4 witnesses said they were officers of the Department of State Security Services (DSS) deployed for the conduct of the election in Asari Toro, Okrika, Ogu/Bolo and Andoni local government areas. They all testified on the authority of the subpoena served on the DG of DSS. That the RAC office in Kalabari National College was set on fire by thugs and electoral material burnt and as such election held in only 3 wards of Asari tori local government area. That they received so many reports of irregularities that they were overwhelmed.

One very interesting witness (PW40) was the Head of Election and Party monitoring Department, INEC Rivers State. He said that he was more competent than anybody else to say what transpired at the election and gave his reasons. He said he visited 8 local government areas in company of 3 INEC National Commissioners and his staff monitored the elections in 19 LGAs of the state and wrote a report tendered as exhibit. He described the election as a warfare, militant terrorism, a sham and a kangaroo, mockery of democracy as it was characters by large scale violence, disruption of polls snatching of election materials and all kinds of impunity.

As to the credibility or otherwise of the above witnesses, the tribunal held:
“We observed that the respondents rigorously crossed examined all the witnesses of the petitioners in an attempt to impugn the veracity or character of the witnesses which in many instances resulted to giving credence to their testimonies as to what they observed at the election. The witnesses maintained their ground on failure of the election and contended that the new facts they introduced in their evidence was as a result of the questions they were being asked by the respondents which they actually knew happened though not contained in their deposition. In our view, the witnesses cannot be impugned for answering questions about what they knew. We watched the witnesses when in the witness box and we do not see any element of untruthfulness in their demeanour. They testified directly as to what they observed at the election and such evidence remain credible and reliable”.

INEC called 16 witnesses, all of them were electoral officers and presiding officers. They testified to the effect that the governorship election was conducted in all the local governments and polling units peacefully, free and fair in their evidence. But the judges determined that all 16 witnesses but one when crossed examined were rendered manifestly incredible and unreliable.

Wike called 24 witnesses to testify. This is what the judges said of 20 witnesses of those witnesses
“all the witnesses we observed spoke in perfect English, adopted their depositions or subpoenas issued in their favour and tendered the Permanent voters cards in evidence but whenever they were confronted with exhibits A9 with respect to the polling units which they said they voted or the voters register of the polling units which they said was used to accredit them, or the result sheet for the polling unit which they said the result was announced in their presence, the witnesses will turn around to refuse even the reading of the documents claiming that they have nothing to do with INEC documents or that their sight was impaired. All the witnesses will deliberately and willfully decline reading the documents even upon insistence by the petitioners. The act of the witnesses in our observation indicated that the witnesses were not witnesses of truth with respect to the conduct of the election. Their characters had been successfully impugned as a result of cross examination. We were equally not impressed by their conduct on the way and manner they conducted themselves when being cross-examined by the petitioners. One of them was even shown to have voted twice in the voters’ register of his polling unit and the excuse he gave was that his voter card got missing and it was replaced”.

It was at the Supreme Court that the issue of election violence in the eyes of the laws was completely stripped naked. First, the Apex Court held that the result declared by INEC “enjoys a presumption of regularity. In other words, they are prima facie correct. The onus is on a petitioner to prove the contrary.”

This may appear to be reasonable on the surface until you delve into the mountainous obstacles put on the way of a petitioner to prove that INEC was wrong in declaring a result.
For instance, on the issue of violence as a ground for demand for the nullification of an election, the Supreme Court ruled “that disenfranchised voters from the affected polling units ought to have been called to testify.” In the words of the Court in the Rivers’ case;

“For evidence of disruption, violence and corrupt practices to warrant the nullification of an entire election in Rivers state, the 1st (Dakuku) and 2nd (APC) respondents had to first prove the non-compliance polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election.”

That requirement of the law can never be met. In the case of Rivers, there are over 4000 polling units and over one million people allegedly voted in the gubernatorial election in 2015. Given that election cases are time bound, it was impossible to call the number of disenfranchised voters that the Supreme Court would deem adequate to prove that the Electoral Act substantial compliance requirement had not been met. For Rivers with 2,537,590 registers voters in 2015, a petitioner would have been required to call at least 1.5m (60%) disenfranchised voters to successfully ask the Court to nullified the gubernatorial Election.

Meanwhile, ln the Rivers’ gubernatorial case, only 96 witnesses were called by all parties. Yet it was a time management nightmare for the judges to take evidence from them. At some point, the Chairman of the tribunal had to restrict each witness to a time slot so as to ensure that judgement would be delivered within the period prescribed by the electoral law.

In addition to the above constraint, the Supreme Court held that alleged perpetrators of violence during an election must be joined a in a petition to prove allegations of violence beyond reasonable doubt. In order words, it is not just enough to say there was violence, no matter how obvious it is to all and sundry, the perpetrators must be catalogued and joined in a petition. The question is, how can a petitioner go about such a task in the midst of the kind of violence were lives are at risk. Now, if such requirement cannot be met in a state wide election, how can it be ever met in a country wide presidential election. Now you can understand why no election matter that got to the Supreme Court has ever been resolved in favour of a petitioner that alleges rigging occasioned by violence.

Interestingly in the case of Rivers 2015, all the reruns ordered by the Appeal Courts were stalled for a very long time. The same INEC which strongly argued in various courts that the 2015 elections in Rivers were peaceful, free and fair refused to go back to Rivers to conduct the reruns. Reason given was insecurity. It took a resolution of the National Assembly to coerce INEC to do the reruns in December 2016 amidst fresh violence.
Moreover, all the Rivers Election Tribunals sat in Abuja rather than in Rivers due to the apprehension over insecurity. Yet the Supreme Court “closed its eyes” to the carnage that took place in Rivers and its impact on the election.

It is for these reason that politicians of every political party love to engage in violence so as to rig. They understand that it is Herculean to prove rigging. The facts adduced in this piece is a tip of the problems faced by election petitioners. Criminal cases are much easier to handle than election petitioners. It appears that election petition provisions of the law were deliberately “written” in favour of riggers.

.

ads

But for the lower courts, no petitioner will ever win a case that alleges rigging. However, it may not be long before the lower courts toe the line of the Supreme Court in their judgements. And that will be a recipe for complete disaster.

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