An adverb that could ‘substantially’ fight against Atiku’s petition

Former Vice President Atiku Abubakar and candidate of the Peoples Democratic Party (PDP) in the Saturday, February 23, 2019 presidential election, is taking a legal step to challenge the outcome of the election. He rejected the results in which the Independent National Electoral Commission (INEC) declared President Muhammadu Buhari of the All Progressives Congress (APC) as winner.

In the election, INEC declared Buhari re-elected as its ballot tally says he garnered 15,191,847 votes, winning in 19 states, to defeat Atiku, who got 11, 255,978 votes and won 17 states and the FCT.

Atiku attributed his defeat thus, “The suppressed votes in my strongholds are so apparent and amateurish, that I am ashamed as a Nigerian that such could be allowed to happen. How can total votes in Akwa-Ibom, for instance, be 50 per cent less than what they were in 2015? Another glaring anomaly is the disruption of voting in strongholds of the PDP in Lagos, Akwa Ibom, Rivers and diverse other states, with the authorities doing little or nothing and in some cases facilitating these unfortunate situations.”

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He complained also about the militarization of his strongholds in the election.

There are two issues here, to start with. Among the Electoral Offences, it is not clear whether the suppression of votes or voters is clearly listed as an infraction. There is no clear mention of the prevention of voters as one of the Electoral Offences in the Electoral Act. What is closely related to it is the ‘announcement of a false result,’ by electoral officers, which attracts 36 months imprisonment.

Secondly, Atiku raised the issue of militarization of the areas where he expected to have received many votes. Again, here, the Electoral Act is not clear about the use of military as an offence. It condemns the use of ‘state apparatus,’ but quickly mentions ‘media’ as if that is the definition of the ‘state apparatus’ meant in that section of the election guidelines.

It says: “Employing state apparatus including the media to the advantage or disadvantage of any political party or candidate at an election. Unequal allocation of media time among political parties or candidates.” It talks also of “Threatening a person with violence or injury to compel that person to vote or refrain from voting. Preventing any political aspirant from free use of the media vehicles, mobilization of political support and campaign at an election.”

However, there is silence on if such threats or prevention are carried out by those who have the legitimate power to carry weapons – the military, police, civil defense, Air Force, Navy, etc. These are state apparatus, which Atiku alleges, may have been used to suppress votes in his strongholds or the militarise and intimidate voters where he expected more votes.

These are subject to judicial debates. Atiku claims that he has evidence. But there is a word used in Section 44 of the Electoral Act, which gives one goose pimples when one talks about evidence about electoral offences.

Section 44(2) says: “Where the votes cast at an election in any Constituency or Polling Station exceed the number of registered voters in that Constituency Polling Station, the election for that Constituency Polling Station shall be declared null and void by the Commission and another election shall be conducted at a date to be fixed by the Commission. Section 44(3) “Where an election is nullified in accordance with subsection (2) of this section, there shall be no return for the election until another poll has taken place in the affected areas.”

However, Section 44(4) is the spoiler. It says, “Notwithstanding the provisions of subsections (2) and (3) of this section the Commission may, if satisfied that the result of the election will not substantially be affected by voting in the area where the election is cancelled, direct that a return of the election be made.”

The adverb that will fight against Atiku’s evidence as he marches to the election tribunal is “substantially”. It reared up its nasty head during the collation of Nasarawa State presidential ballot papers, where it was argued that the number of votes counted was more than the number of accredited voters by about 100,000 votes. The Chairman of INEC, Professor Mahmood Yakubu, quickly countered the query, saying the difference was not substantial enough for the cancellation of the results.

The meaning of the adverb “substantially” can be in dispute. The Oxford Advanced Learners’ Dictionary defines it as “large in amount,” “a lot,” “mainly,” “in most details, even if not completely.” A contemporary reference was the case of the Yar’adua election in 2007, which Buhari contested on several grounds, including the non-serialisation of some ballot papers. Buhari’s lawyers produced 18 witnesses who testified to how the non-serialisation was to the disadvantage of Buhari in the elections. Supreme Court Justice Nike Tobi made recourse to the word “substantially,” while delivering the judgement.

Justice Tobi had said, “There is yet another point. It is in the respect of the fact that non-serialisation, if it had benefits and advantages, was not exclusive to the respondents (Yar’adua and Jonathan). I do not see any proof by the appellant that the respondents had benefits or advantages over and above the appellant on the alleged non-serialization of the ballot papers. I do note that the non-serialization favoured the respondents and disfavoured the appellant (Buhari). Above all, the appellants did not tender even a copy of the unserialised ballot paper. Where is then the evidence in proof? Assuming that there was an admission, the appellant had a duty to prove that the non-compliance substantially affected the result of the election. I do not see any proof,”

Explaining further, he, again, invoked the adverb “substantially’ in the following paragraphs: “A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election.

Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities which affected substantially the result of the election.”

For Atiku and the PDP, it would be a herculean task to gather the substantial magnitude of evidence that would convince the lords in the judiciary. This word could be frustrating, as anyone who thinks he has enough evidence of wrongdoing against him is turned back from justice because of an adverb that cannot be proved with statistical evidence. For 84 million votes earned to be cast at the polls, for instance, examples of three million infractions cannot be said to be substantial. The dictionary says it must be in a “large in amount,” or “a lot.” So, we could be discussing, say, between 60 per cent or above of the votes. As it were, this could be frustrating.

Frustrating, because in the scientific world of evidence, an error, in an instance, could cast doubt over the outcome of an investigation, and ultimately void a particularly good work. It is good that Atiku is taking this case to the tribunal. But this frustration presents a ready reason why that section of the Electoral Act should be amended. It is important to define the adverb ‘substantially’ and reduce it to a definite statistically figure, so that it is not left to the opinions of judges who could interpret it anyway that suits their personal disposition.

Also, it is now time in the democratic development of the country for the military to be punished for facilitating electoral offences. They are supposed to be neutral, but our experiences during elections show that security forces are never neutral. It is time for lawmakers to look this evil in the face and rebuke it sternly – through amendments to the Electoral Act.