Wednesday, October 7, 2015 6:36 am
Court papers made available to TheNEWS have sensationally revealed that Senate President Bukola Saraki was fraudulently declared the winner of the Kwara central senatorial district by the Independent National Electoral Commission, INEC.
Exhibits tendered at the National Assembly Election Petition Tribunal sitting in Ilorin, the Kwara State capital, alleged that INEC forged the result for the election held 28 March, 2015.
The two documents, admitted in evidence as “Exhibit D1” and “Exhibit D2” by the Justice Joshua Majebi-led election tribunal, were tendered by Alhaji Ladi Hassan in what would appear to be a bizarre but unintended act of political self-immolation.
A long-standing ally, Alhaji Hassan was once the Chief of Staff to the then Governor Saraki, and represented him and the All Progressives Congress (APC) as Party Agent during the 28th March 2015 election.
Alhaji Hassan was ironically the only witness called by the APC as Second Respondent to testify in Saraki’s favour, who himself neither appeared nor called any other witness in his defence.
Alhaji Abdulrahman Abdulrazaq of the Peoples Democratic Party (PDP), who was declared the runner-up to Dr Saraki, sued the latter as well as the APC and the INEC at the election Tribunal, claiming that the purported declaration of Dr Saraki as the validly elected Senator for Kwara Central Senatorial District was massively flawed.
The Petition was mainly anchored on six grounds involving alleged widespread noncompliance with various provisions of the Electoral Act, 2010 (as amended), and INEC’s election regulations and procedures, insisting that the Petitioner rather than Saraki scored majority of the lawful votes cast at the election.
Alhaji Abdulrazaq claims in particular that there were widespread abuses in relation to the electronic card reader for accreditation to the advantage of Dr Saraki, and that Saraki’s purported victory was the “product of deliberate wrong entries (of votes) made by” INEC’s election workers.
He, therefore, urged the Tribunal to annul Saraki’s alleged victory, and declare him as the genuine winner instead; or, in the alternative, to annul the election altogether and order a fresh poll.
Dr Saraki, on his part, not only challenged Alhaji Abdulrasaq’s various claims of election irregularities as unfounded, but also vigorously urged the Tribunal “to strike out the Petition for being incompetent … in its entirety”, having allegedly being “filed
in flagrant violation of the applicable provisions of the Federal High Court Rules and the mandatory provisions of the 1st Schedule to the Electoral Act, 2010 (as amended) — ie, “Rules of Procedure for Election Petitions”, among other grounds.
The battle, having been effectively joined, was fiercely fought at the Tribunal mainly between a modest legal team from Ambali & Co led by Francis Obumse for Alhaji Abdulrasaq, and an intimidating platoon of five SANs and some 70 lawyers led by
Yusuf Ali (SAN) for Dr Saraki.
At trial, which began on 22nd July, Alhaji Abdulrasaq, the Petitioner, testified for himself and called three other witnesses, including Mr Tunde Salako, the Head of INEC’s Legal Unit in Kwara State; and Mrs Nkolly Obumse, a Lagos-based forensic analyst, who provided a 4-volume analysis of voting materials and results polling unit-by-polling unit.
Mrs Obumse testified that the accreditation process was flawed, with the electronic card readers massively by-passed; and that there were also widespread over-voting as well as wrong entries of voting scores in favour of Dr Saraki.
It was the testimony of Alhaji Hassan, the only witness called by the APC and the Respondents side, that was to throw up a knotty and awkward problem, however.
Though he testified that the election was hitch-free, the election results Alhaji Hassan tendered (Exhibit D1 and Exhibit D2) gave rise to a triple problem, which became apparent only after Justice Majebi raised it suo moto at the close of hearing and called on the parties to advice the Tribunal in their submissions.
In law, suo moto (Latin for on its own motion) or its approximate equivalent of sua sponte (of his, her, its or their own accord) means an act of authority taken without formal prompting from another party.
The term in legal parlance is thus mostly applied to actions by a judge taken without prior request or motion from the parties. Though courts the world over have taken up notable suo moto cases, the extent to which the court should exercise this authority
remains a matter of political debate.
At issue, according to Justice Majebi, was this: “Whether this Petition is competent putting into consideration the date of declaration of the result of Kwara State Central Senatorial election vis-à-vis the date of filing this Petition.”
The Exhibit D1 (ie, INEC Form EC 8D (I) being the “Summary of Results From Local Government Areas Collation at Senatorial District Level”) and Exhibit D2 (ie, INEC Form EC 8E (I) being the “Declaration of Result of Election” to the Senate) that Alhaji Hassan tendered in evidence were both apparently signed and dated on the 28th day of March 2015 — the very day of the election.
Exhibit D1 or INEC Form EC 8D (I) was however signed by two people alone — Dr
(Mrs) Mulkah A Ahmed, the election’s Collation and Returning Officer, with the concurrence of Alhaji Hassan. Other party agents were said to be unaware of the collation exercise.
Exhibit D2 or INEC Form EC 8E (I), which contained the final results of the election and purportedly declared Dr Saraki as the validly elected candidate was signed by Dr (Mrs) Ahmed as the Returning Officer. It was not clear to whom she made the declaration or if she posted it on INEC’s notice board, as required by law; for it was never reported by the media or anyone else.
Both section 134(1) of the Electoral Act, 2010 (as amended) and section 285(5) of the 1999 Constitution (as amended) provide thus: “An election petition shall be filed within 21 days after the date of the declaration of results of the elections.” This places the filing of the Petition one day outside the statutory time frame, and Saraki’s lawyers went full blast to urge the Tribunal to strike it out on this ground.
But precisely why Justice Majebi raised the matter at the close of evidence, but then refused further scrutiny of the issue as requested by the Petitioner’s lawyers is unclear. This may well raise questions about fair hearing at appeal, depending on how the verdict goes.
Meantime, Abdulrasaq’s lawyers have shown from several other election result forms admitted by the Tribunal that Exhibit D1 and Exhibit D2 were in effect criminal forgeries. Collation of results at ward level, they argued, were still going on in several
places across the Senatorial District on 29th March 2015 as exemplified by Annex 1- 9 and the table below; whereas Dr (Mrs) Ahmed and Alhaji Hassan had apparently prepared and declared the final election results showing Dr Saraki as the purported winner the day before.
The credibility of the 28th March final return is further eroded by the fact that nowhere throughout Nigeria did INEC announce any final Senatorial election return that day.
In fact, the Vanguard on 30th March quoted Kwara INEC’s spokesman Jacob Ayanda as saying the previous day that the election results won’t formally be known until next day, as “only (the) results from Isin and Oke-Ero out of the 16 local governments had arrived the Commission’s headquarters as at about 3:00pm” on 29th March.
It was on that 30th March 2015 that the results of the Presidential and National Assembly elections in Kwara State were indeed released by the State’s Presidential election Returning Officer and the Resident Electoral Commissioner respectively.
These were accordingly reported in the media.
Incidentally, Dr Saraki himself was the first person to reveal the results of the Kwara Central Senatorial election on his Facebook page on the morning of 30th March, which he accompanied with a picture of himself holding for the camera what appears to be the election’s result sheet.
Dr Saraki then released a statement by 19:24 that same day through his media aide, Bamikole Omishore, conveying his reaction to the results. How and why he and his lawyers came to insist on the 28th March 2015 poll results remains to be explained.
The Petitioner’s lawyers in their final written address insisted however that the 28th March results are fakes, and therefore a nullity, which the Tribunal lacks the power to affirm or modify. Citing a celebrated English case by Lord Denning, they said that the
Tribunal cannot build something on nothing!
Dr Saraki’s star-studded entourage of lawyers, by contrast, remain upbeat, playing down the troubling significance of the dodgy documents, but without offering any convincing explanation for them.
Instead they argued in their response that even if the results collated on 29th March were each deducted from the sum total votes of 118,879 for Saraki and 66,864 votes for Abdulrasaq — which will be absurd since it would amount to deducting twice the votes in issue — Saraki would still be the winner.
Whatever the Justice Majebi-led Tribunal decides, legal and political pundits think it will inevitably have to face and resolve three key knotty issues without ultimately producing a legal absurdity:
* One, if it has power to legitimise an essentially fraudulent and criminal act, as Exhibit D1 and Exhibit D2 were arrived at in manifest breach of section 69 of the Electoral Act, 2010 (as amended), which stipulates that all validly cast votes for each candidate in an election must count before a return is made;
* Two, if in the face of clear contrary evidence it still accepts Exhibit D1 and Exhibit D2 as valid, it will have to strike out the Petition; and
* Three, if on the other hand it finds the exhibits to be forgeries or illegal, it cannot simply proceed to ignore the fact and rule against the petition on other grounds.
There are no indications where the Tribunal’s verdict is headed, especially with the other issues in contention. What seems almost certain however is that the case might hit the Court of Appeal, where it will ultimately be determined.
Sources familiar with the case say Abdulrasaq would appeal if he loses because he is driven by a deep sense of grievance at what he sees as Saraki’s intolerable excesses, arrogance and perverse sense of entitlement. Crucially, he is convinced that the slow-moving wheel of justice would inevitably turn in his favour.
There is little, if any, doubt too that Saraki would go the same way, if only to hang on to his Senate presidency a bit longer. The man, say some pundits, is a political insurgent, with a keen sense and skills of a political street-fighter who would always fight his way to the last ditch.
Others, however, reckon that Dr Saraki might cut his losses and reconcile with his party in the event of defeat rather than press on, if only to get some respite from his mounting political troubles. All the moreso as he may want to avoid the prospect of triggering criminal investigation into the conduct of Dr (Mrs) Ahmed and Alhaji Hassan, which is certain to sweep him along.
Section 124(6) of the Electoral Act, 2010 (as amended) is clear in this regard: For the purposes of this Act, a candidate shall be deemed to have committed an offence if it was committed with his knowledge and consent or the knowledge and consent of a person who is acting under the general or special authority of the candidate with reference to the election.
In the event that Dr (Mrs) Ahmed and Alhaji Hassan are investigated, charged and convicted for offences related to their conduct over the election, both as well as Dr Saraki could well be looking at spending up to three years in jail, and/ or faced with hefty fines into the bargain.