Rivers guber tribunal verdict: Elevating press statement over the Electoral Act

(Nigeria) By Simeon Nwakaudu

Right from the very day that the first chairman of the Rivers State Governorship Election Petition Tribunal chairman was substituted in inexplicable circumstances, everyone knew that a negative plot had been hatched against the judicial process. Under the circumstances,  everyone waited quietly to see if the tribunal would dispense justice in accordance with extant laws. 
The tribunal lived up to expectation of the creators of the ugly circumstances. 
On October 24, 2015 , the new chairman of the tribunal,  Justice Suleiman Ambrosa delivered his judgment barely 2 days after lawyers on all sides exchanged 9 written addresses. Only Justice Ambrosa would explain the hurry when he had 7 clear days to deliver a well thought-out judgment.
The judgment delivered by the Justice Ambrosa-led Tribunal negated all known judicial processes and recent pronouncements of different tribunals and the Appeal Court on the electoral process. 
First,  Justice Ambrosa declared that he reached his decision on the balance of probability, rather than the petitioner proving his case beyond reasonable doubt as required in all petitions where the petitioner had made allegations on issues that bordered on criminality. 
Second, the Tribunal held that the Press Statement issued by INEC few days to the Election superceded the Electoral Act as far as the governorship election was concerned.  Justice Ambrosa said that because the card reader was a new introduction to the Electoral Process,  INEC press statement and other guidelines were more valuable than the Electoral Act enacted by the National Assembly. 
Justice Ambrosa went on to say that the testimonies of the 54 witnesses called by the petitioner were enough to invalidate an election conducted in 4442 polling units spread across 23 local government areas. 51 of the witnesses were never at the polling units. The petitioner called only three voters from three different local government areas.  
Justice Ambrosa declared that the  documents  tendered by  APC which the party  failed to  lead evidence in court were not dumped  on  it. He however,  said that the documents  tendered  by  the  Respondents were dumped on  it and it would  not attach weight to them.
Fundamentally,  the position of the tribunal is flawed as it was based on the sentiments of the panelists and not on the law. The Electoral Act spells out the accreditation process for the governorship election which has been confirmed across the country in all the tribunals,  up to the Appeal Court. 
The Justice Ambrosa-led Tribunal elevated the INEC Press Statement on Card Reader above the Electoral Act and this formed the backbone of his judgment. To him, the accreditation via the card reader was the only form of accreditation that must be recognised.  Nothing could be further from the truth.  On Election Day as all witnesses testified,  both card reader and manual accreditation were used.
For the purpose of manual accreditation,  INEC made available incident forms which were used not only in Rivers State,  but in all states of the Federation.  It is therefore unbelievable that the tribunal chose to discountenance votes that accrued via manual accreditation. 
The Court  of  Appeal  sitting  in  Lagos  upheld  the  election  of  Lagos  State  Governor,  Akinwunmi Ambode on the premise that the non-use of the card readers or the dysfunctional nature of the card readers cannot  invalidate  the  Lagos State Governorship  Election.
Resolving the card reader issue in APC’s favour, the Justice Festus Ogbuinya held: “The paragraph (13b) displays a vitriolic attack on the irregularities germinating from the improper or non-use of the smart card readers in the polling units.
“As it is, it has no life of its own as a ground. It endeavours to introduce the defects in the use of smart card readers. The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election.
“The extant Electoral Act (2010) which predates the concept (of card reader) is not its parent or progenitor. Since it is not the progeny of the Electoral Act, fronting it as a ground to challenge any election does not have its (the Electoral Act’s) blessing, nay Section 138 (1) of it.
“Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election. It does not qualify as one.
“On the whole, having resolved the two issues for and against the cross-appellant, the fate of the cross-appeal is obvious. It is partially-meritorious and succeeds in part. Consequently, I allow the cross-appeal in part.
“Accordingly, I affirm the portion of the trial tribunal’s decision declaring paragraph 14 of the petition as competent and triable by it. I set aside its part of the decision which approved paragraph 13 (b) as a competent ground for presenting a petition.”
The faulty judgment of the Justice Ambrosa-led Tribunal was expected given the birth of his leadership of the tribunal,  but the panel failed to shop for tenable reasons to justify their sentimental decision. 
The burden of proof in issues that border on criminality cannot be transferred as Justice Ambrosa did. All other tribunals ruled that criminal allegations bordering on violence,  snatching of election materials and other electoral irregularities must be proved polling unit by polling unit and beyond reasonable doubt.  Justice Ambrosa and his panel believed the testimonies of a few itinerant witnesses who gave hearsay testimonies. Justice  Ambrosa said he could not believe the respondents' witnesses because they refused to read INEC documents dumped on the court by the petitioner. 
Governor Wike will exhaust his judicial options.  This is the first bus stop. He was validly elected by the people of Rivers State and he is committed to protecting their mandate through the judicial process.  This setback was expected based on the prevailing circumstances and the governor and his legal team are only preparing their appeal.
Rivers State is PDP and nothing will change that. This contrived setback will not stop Governor Wike from discharging his responsibility as duly elected leader of the people,  delivering the dividends of democracy across the state.  Rivers State will never fall to the forces of darkness represented by traitors who used the state resources to sponsor an anti Niger Delta leadership. 

*Simeon Nwakaudu is the Special Assistant ( Media ) to the Rivers State Governor.