JIME Vs ORTOM: SO FAR, SO GOOD

By Nathaniel Ikyur I’ve taken time to look through the tribunal proceedings with various reporters who covered the Benue State Governorship Election Petition Tribunal between Hon Emmanuel Jime (APC) against Governor Samuel Ortom (PDP) thus far. The comparison of notes and what you hear the APC supporters write on social media is completely at variance with the reality. But what you get to hear everyday, and everywhere is this force of faith in the APC camp. It goes with a hashtag, #SeMbaNgohol. Translated simply to mean: ‘we’re taking back our mandate.’ But here are some of the issues i can conveniently say are ‘unpardonable mistakes’ of the APC. One, there are more than 3000 polling units in Benue state. The APC is complaining in ONLY 626 polling units. They attempted to fault elections in 384 Polling Units out of the figure they complained about. Even at that, the party called a miserable 59 witnesses. Two were disqualified leaving them with 57. Out this figure, only 31 were Polling Unit Agents as witnesses. Yet, of this number, twenty of the APC Agents/witnesses complained during cross examination that they didn’t sign their results sheets. Which means this could be a deadly blow to the success of their petition. Assuming even the 31 witnesses’ testimonies were admitted, they will not be able to give evidence in all the Polling Units across the state. A lawyer confided in me that for a witness to successfully prove any electoral infractions during elections, such agent must have been at a particular polling centre for the testimony to be considered worthy. This means whatever they may have said could simply be said to be ‘hearsay’ because they couldn’t have witnessed elections in all the polling units, wards, or local governments in the state at the same time. Secondly, going through the piles of the documents of the petition throws up some serious legal gaps. The Form EC8D which is for the declaration of results for each local government must be correctly filled and no mistake must not be found on it. Any mistake on the form renders the case invalid. In this instant case, there are more than 30 of such mistakes on the Form EC8D with results from the 23 local governments. Even the tendered documents in the 2019 elections by the two ‘star’ Witnesses; Barr Jime, the petitioner and Barr Joe Abaagu, the APC State Returning Officer cannot be guaranteed since they were not in all the polling units, wards or local governments during the elections. This means they were not the makers of the tendered documents and so cannot be relied upon. On the allegations for the disparity in number of votes between the Smart Card Reader and the total votes count in the elections, it’s instructive to know that the Supreme Court has more than 15 decisions which rejected the Card Reader. But supposing the Card Readers should be tendered, the law stipulates that it must be done through the Makers. In this case, maybe the IT staff from the electoral body. Unfortunately, the APC tendered the Card Reader through a local government Agent from Guma local government. The APC supporters have celebrated the admission of Card Reader by the Tribunal more than anything. For the avoidance of doubt, law is based on precedents. This now takes me to the 2016 decision by a seven-man panel of Justices of the Supreme Court, which was led by the former Chief Justice of Nigeria, Justice Mahmud Mohammed in the petition against the election of Ebonyi State Governor, David Umahi and why the court upheld his election. The panel explained why it did not accord any ‘probative value’ on reports from Card Reader Machines. Justice Chima Centus Nweze who delivered the lead judgment said, that though the use of the Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 general elections, he maintained that the device was never “intended to supplant, displace or supersede” the Voters’ Register. Justice Nweze, while giving more reasons why the apex court dismissed the appeal notably faulted the reliance on the card reader by the appellant when he said: “Exhibit GP 45 (The card reader Report) is incomplete, unreliable and incapable of proving the appellant’s allegation of improper accreditation/over-voting. Thus, any attempt to invest it (Card reader Machine procedure) with such overarching pre-eminence or superiority over the voters’ register is like converting an auxiliary procedure into the dominant procedure- of proof, that is, proof of accreditation.” By this decision, the apex court hoped that practitioners and all other courts will begin to appreciate the position of the said Card Reader Machine, and the reports generated therefrom, in election litigation. With the advantage of hindsight, the court noted that INEC, pursuant to its powers under the said Electoral Act, authorised the deployment of the said Card Readers. “Even with the introduction of the said device,” Justice Nweze pointed out that “the National Assembly, in its wisdom, did not deem it necessary to bowdlerise the said analogue procedure in section 49 from the Act so that the Card Reader procedure would be the sole determinant of a valid accreditation process. Contrariwise, from the Corrigendum No 2, made on March 28, 2015, amending paragraph 13(b) of the Approved Guidelines, it stands to reason that the Card Reader was meant to supplement the Voter’ Register and was never designed or intended to supplant, displace or supersede it,” Nweze stated. Interestingly, this decision by the supreme Court has not been overturned by any other decision by the apex court. Going by those glaring gaps in the APC Petition which the defendants noticed, Gov Ortom, PDP and INEC chose to close their defence earlier than anticipated. Sebastine Hon, SAN, who’s leading Gov Ortom’s legal team in an interview with journalists the day his team closed the defence, explained; “through the act of cross examination, in our humble estimation, we did justice to the case of the second respondent. So under our laws, the petitioners have the sole and singular duty of proving their case. We don’t have any duty at all to prove anything except if they prove to some extent then we have a s duty to disprove. But they have not proved. So on that note, we decided to close our case.” It’s note worthy here that rather than choose to utilise the Voter’ Register, to show the entire gamut of the voters, the APC rather is over relying their case on what may end up not to be accurate, sufficient and comprehensive enough to be relied upon in proof of the allegation of over voting or non-compliance with the Electoral Act, 2010, as amended. I wish them luck. Ikyur is a journalist and writes from Abuja
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