Legal experts yesterday examined the outcomes of presidential election petitions over the years and suggested reasons why Nigeria’s incumbent presidents always win at the tribunals and at the Supreme Court despite the weight of evidence adduced by petitioners.
The legal experts, comprising five Senior Advocates of Nigeria (SANs) and one other lawyers, spoke exclusively with leadership weekend, in the aftermath of this Tuesday’s presidential election tribunal’s verdict which upheld the victory of President Goodluck Jonathan and his deputy, Namadi Sambo.
The legal luminaries were: Chief Richard Akinjide, a Second Republic minister of justice and attorney-general of the federation, Professor Itse Sagay, Professor Taiwo Osipitan, Yusuf Ali, Mr. Tayo Oyetibo, as well as Katsina-based legal practitioner, Mr. Alasa Ismaila.
Chief Akinjide, whose daughter is a member of the Federal Executive Council, justified the victories of incumbent presidents on the grounds that no petitioner in presidential poll has ever been able to muster enough evidence to prove his case.
Akinjide recalled that, in his time as the AGF, nine out of the ten judges who sat over the case filed by Chief Obafemi Awolowo against Alhaji Shehu Shagari dismissed the late Unity Party of Nigeria (UPN) presidential candidate’s petition on the grounds of non-compliance with the electoral law.
“Can you call that a good case?”Akinjide asked.
But Professor Taiwo Osipitan, who teaches law at of the University of Lagos, blamed the defeat of presidential election petitions at the tribunal on the insufficient time given to the petitioners to prepare their cases.
Osipitan stated that given the magnitude of the documents and witnesses the petitioner is expected to assemble in order to prove their cases, they should be given more time to prepare their cases.
“Secondly, the issue of burden of proof is a serious factor. The constitution should be amended to substitute a “proof of balance of probability” for a “proof of beyond reasonable doubt” that is demanded of the petitioner when in fact it is not a criminal matter.
“In addition, the requirement that the petitioner who is alleging electoral malpractice should show that the malpractice has affected the outcome of an election substantially should be discountenanced once the petitioner is able to establish that there are election malpractices.
In the same vein, Professor Itse Sagay, a constitutional lawyer who works at the University of Benin, said that petitioners at presidential tribunals have always lost out because the tribunals or courts have not found the courage to annul presidential elections for political reasons.
Sagay pointed out that the reasons given for most of the court pronouncements since the days of Shagari in 1979 till date were purely political in nature.
The law professor said that judges in last Tuesday’s judgment given in favour of President Jonathan worsened the situation when the tribunal shut itself out for evidence to prosecute the CPC case.
He said, “Contrary to the Electoral Act of 2010, the tribunal refused to allow the petitioner to scan ballot papers required of the petitioner to support his petition. Without scanning the ballot papers, you cannot establish that there was multiple voting.
Without the forensic analysis, nobody would know the contents of the ballot boxes.
“When the court closed that avenue, it became impossible for the petitioner to prove his case.? In conclusion, Nigeria is apparently not yet ripe to overturn presidential elections in the courts,” Sagay stated.
But in his reaction, Mr. Tayo Oyetibo, SAN, a Lagos-based legal practitioner, blamed the defeat of presidential petitioners on the magnitude of evidence the law requires them to produce in order to prove their cases against the incumbent.
“The simple reason is that for you to be able to prove electoral malpractice, you need to hire lorry loads of witnesses and documents to establish that even such malpractices adversely affected the outcome of the election.
“Of course, the number of lorries to be involved has to line up from Abuja to Minna in Niger State and I pity the petitioners in presidential elections in Nigeria,” Oyetibo said.
Also, Yusuf Ali, SAN, said that the presidential election petition trial was a complex matter that needed expertise and diligence on the part of the petitioner. He said it was also necessary for the petitioner to get his witnesses and a perfect lawyer to handle such cases.
“When the petitioner alleges irregularity, it is criminal in nature and he has to prove his case beyond reasonable doubt. This is unlike the Second Republic case of Awolowo vs Shagari, in which Awolowo, the petitioner, wanted to know? what constitutes 2/3 of 19 states.
“All other petitioners are asking the court to resolve so many disputes. For example in Buhari against Obasanjo, he alleged irregularities in so many things but was unable to justify any of them.
“In arguing election petition, it is full of complexities. It takes a genius and somebody who has a structure to challenge the outcome of an election that voting took place in more than one million polling units.
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