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Why The Supreme Court Should Uphold Card Reader: Akwa Ibom State Governorship Election Tribunal Judgment Revisited

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Inibehe Effiong

iniThe Nigerian judiciary is currently faced with a critical and historic task in the exercise of its interpretative jurisdiction which will ultimately enhance or endanger our democracy and electoral process. The fact that the 2015 general elections marked a watershed in the history of Nigeria is beyond dispute. Unfortunately, the most significant innovation that birthed this new electoral, political and ideological order in our country is being threatened by judicial pronouncements like the one delivered in Abuja on Wednesday, October 21 2015 by the Justice Sadiq Umar-led Akwa Ibom State Governorship Election Tribunal.

Given our notorious history of electoral malfeasance and manipulation of elections by desperate political actors, the Independent National Electoral Commission (INEC) introduced the Card Readers to address this malaise. A section of the political spectrum had ferociously resisted the use Card Readers. In the end, those who fought against this noble innovation lost and Nigeria won.

Various legal arguments have been canvassed against the use of Card Readers in the accreditation process. It has been contended that the use of Card Readers for accreditation is in conflict with the extant provisions of the Electoral Act 2010 (as amended), particularly Section 49 of the Act. Before going into the kernel of this argument, it is pertinent to address preliminary issues.

Section 160 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) confers powers on INEC to make its own rules or otherwise regulate its own procedure which shall not be subject to the approval or control of the President. Paragraph 15 (I) of the Third Schedule to the Constitution empowers the National Assembly to enlarge the powers of INEC through legislative enactments. In the exercise of this power, the National Assembly enacted the 2010 Electoral Act. Given that INEC as the sole authority empowered by the Constitution to conduct elections is better positioned to make detailed rules and regulations to guide the conduct of elections, the National Assembly delegated the power to make enabling rules for the conduct of elections to INEC. Section 153 of the Electoral Act vest in INEC the power to issue regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and for its administration.

In essence, the Electoral Act will be ineffective without the supportive and complimentary regulations, guidelines and manuals issued by INEC. Pursuant to the powers granted it by the Constitution and the Electoral Act, INEC issued the Guidelines and Regulations for the Conduct of the 2015 General Elections (hereinafter referred to as the Guidelines) and the Manual for Election Officials 2015 (Updated Version). Given that the Card Readers are provided for by the Guidelines, the argument that they are not known to law collapses having regard to the above legal narrative. Paragraph 8 (b) of the Guidelines prescribes the process of accreditation as follows:

“The accreditation process shall comprise of verification of voters using the Card Reader; Checking of the Register of voters; and inking of the cuticle of the specified finger.”

On voting, paragraph 7 (a) of the Guidelines states as follows: “No person shall be allowed to vote at any polling unit/voting point other than the one to which he/she is alloted and his/her name appears on the register of voters, and he/she presents his/her permanent voter’s card, and has been verified by the Card Reader, or as otherwise determined by the Commission.”

The functions of the Card Reader are deductible from the provisions of paragraph 10 of the Guidelines which prescribes the procedure to be followed when a voter presents himself/herself for voting. It states thus:

10 (a) the APO1 shall: i. request for the PVC from the voter; ii. read the PVC using the Card Reader to ascertain that the photograph on the permanent voter’s card is that of the voter and that the polling unit details correspond with those of that polling unit; iii. request the voter to place the appropriate finger in the place provided on the Card Reader for authentication.

So much has been said about Section 49 of the Electoral Act which the Akwa Ibom State Governorship Election Petitions Tribunal relied upon in rejecting the certified true copy of the polling unit by polling unit Card Reader accreditation report (Exhibit 317) obtained by the Petitioners from the INEC headquarters in Abuja on 27 April,  2015. To underscore its substance, Section 49 of the Electoral Act is reproduced below:

“49 (1). Any person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.

(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the register that the person has voted.

It has been forcefully contended that the INEC Guidelines and Manual as they relate to the use of Card Readers are inconsistent with the provisions of Section 49 of the Electoral Act reproduced above. This argument to my mind anchors on the reasoning that any person/voter whose name appears on the register of voters is entitled to vote and that the Card Reader cannot operate to exclude such a person from voting. This argument with respect, is totally untenable and misplaced. A dispassionate perusal of this provision (Section 49) undeniably shows that any person intending to vote with his VOTER’S CARD shall present himself to a Presiding Officer at the unit in which his name is registered with his VOTER’S CARD.

The emphasis of ‘voter’s card’ in the preceding paragraph is deliberate. The commonsensical, elementary and literary interpretation of the provisions of subsection 1 of Section 49 of the Electoral Act is that possession of a valid voter’s card is a condition precedent to accreditation and voting. Therefore, notwithstanding that a person’s name is on the register of voters, the right to vote does not arise except the person whose name is on the register of voters has presented his/her voter’s card. At the risk of repetition, I dare say that the Card Reader has only complimented the requirements and procedure under Section 49 by verifying and authenticating the voter’s card to determine its genuineness.

It should be noted that the voter’s card that was introduced by INEC for the 2015 general elections is radically different from the ones used during the 2011 general elections. This is the point that the learned judges of the Akwa Ibom State Governorship Election Tribunal, with respect, may not have appreciated. The disparity between the voter’s cards used during the two elections is very significant. In the 2011 general elections, INEC used mere temporary voter’s cards. However, in the 2015 general elections, INEC introduced a Permanent Voter’s Card (PVC).

The new Voter’s Card (PVC), which is far more advanced than anything used in the United States, was used for the first time. The PVCs contain voters’ biometric information in an embedded microchip and replace the Temporary Voter’s Card that was used in the 2011 general elections. The PVC itself is produced by electronic means. What then is wrong in using an electronic device (Card Reader) to determine whether a PVC is genuine or not? How does that encroach on Section 49?.

All that the Card Reader does is to ascertain that the photograph on the PVC is that of the bearer and that the polling unit details on the PVC corresponds with that of the polling unit that the bearer presents himself for voting. It also authenticates the fingerprint of the bearer. The question is: what is wrong with that? How does the Card Reader contravene Section 49 of the Electoral Act? It is instructive to note that by the provisions of subsection 2 of Section 49, the Presiding Officer can only issue ballot papers to a prospective voter if he is SATISFIED that the name of the person is on the voters register.

The Act is completely silent on the test or procedure to be adopted in determining this satisfaction. Neither the Courts nor the Legislature can prescribe this test of satisfaction for the simple reason that it is not within their constitutional mandate to conduct elections. The framers of the Constitution may have envisaged a situation like this when they enshrined in Section 160 that the rules made by INEC shall not be subject to the approval or control of the President.

If INEC decides, as it did, that Presiding Officers recruited by it must only rely on an objective test in determining whether they are satisfied or not that a person’s name is on the register of voters how does that offend Section 49 of the Electoral Act? If the courts see nothing offensive in INEC introducing the PVC what then is the logic in rejecting the device that is meant to verify that same PVC? We cannot accept the PVC and reject the Card Reader.

It is rather shocking that the Akwa Ibom State Governorship Election Tribunal saw nothing wrong with the failure or and refusal by the 2nd Respondent (PDP) to tender the 7 big bags of incident forms it had subpoenaed INEC to bring to the Tribunal. The Respondents witnesses testified in the open court that incident forms were used for accreditation when the Card Reader failed. The 3rd Respondent (INEC) pleaded the use of incident forms. PDP brought 7 big bags said to contain the incident forms which the INEC representative that brought them said were used for accreditation in all the 31 Local Government Areas of Akwa Ibom State. The 2nd Respondent closed its case without tendering the said incident forms despite being reminded by the Tribunal that the incident forms were not in evidence. Surprisingly, the Tribunal did not hold the refusal to tender the incident forms against the Respondents. It blamed the Petitioners for not taking “advantage” of the situation and tendering the incident forms. But incident forms was not part of the case of the Petitioners, it was the case of the Respondents that they were used. The defence of manual accreditation advanced by the Respondents was premised on the incident forms. Having failed to tender same, the Tribunal ought to have viewed the defence as abandoned.

In contrast, the National and State Houses of Assembly Election Tribunal sitting in Enugu State on Monday, October 12, 2015 in the petition between Chimaroke Nnamani v. Gilbert Nnaji held in its judgment that the failure by the Respondents to tender incident forms which it had pleaded as having been used for accreditation was fatal to its case. The Respondent in that case had disputed the Card Reader accreditation figure put out by the Petitioner by pleading the use of incident forms. The Tribunal rightly held it against the Respondent and proceeded to nullify the election. This is one of the issues that I hope the appellant courts will reconsider in the interest of justice.

One nagging puzzle that the Akwa Ibom Governorship Tribunal did not resolve is: how did 437, 128 accredited persons cast over 1.1 million votes? The polling unit by polling unit accreditation report (Exhibit 317) obtained from the INEC headquarters in Abuja shows that only 437, 128 persons were accredited for the April 11, 2015 governorship election The question is: between the Petitioners and the Respondents, who had the evidential burden of proving the differentials? It is humbly submitted that the Petitioners having tendered documentary evidence (Exhibit 317) to prove that only 437, 18 persons were accredited by the Card Reader which was the only approved mode of accreditation based on the April 2, 2015 press statement (Exhibit 322), the onus had shifted to the Respondents who disputed Exhibit 317 to explain the differentials. See. Sections 131, 132 and 134 of the Evidence Act 2011 and the case of Fayemi v. Oni (2010) 17 NWLR (Pt. 1222) 326.

Another issue that calls for the intervention of the appellate courts is the partial cancellation of elections in Akwa Ibom State by the Tribunal. This has occasioned disaffection with the judicial process. The Tribunal agreed partially with the Petitioners that there were widespread disenfranchisement of eligible voters during the April 11 elections. After reviewing the evidence of the Petitioners witnesses who it said were witnesses of truth, and the very indicting report of the Nigeria Security and Civil Defence Corps (Exhibit 12) and the report of the Nigeria Police Force (Exhibit 337), the Tribunal cancelled elections in eighteen (18) out of the thirty one (31) local government areas of the State. Leaving only thirteen (13). For us to appreciate the gravity of the contents of Exhibits 12 and 337, the observation part of Exhibit 12 is reproduced below:

“It has been observed clearly, that the general conduct of the April 11th Gubernatorial and State Assembly Elections was not properly conducted by (INEC) by all standard, it appears INEC to have had a close dealing with the sitting authority in the State. Thuggery, killings, snatching of election materials was above average. Therefore, the general conduct of the Election in April 11th, 2015 Gubernatorial and State Assembly Elections was marred with high level of violence and killings.”

Exhibit 337 is the Certified True Copy of the report of the Nigeria Police on the said election duly signed by AIG B. A. Bolanta, NPM, fwc, supervising AIG, Akwa Ibom State Command. The report is littered with incidences of violence, killings, kidnappings, macheting, snatching of ballot papers, etc. With this mountain of evidence of malpractices and fraud one can understand why the Respondents ferociously fought against card reader. It is instructive to note that the Nigeria Police Force, the 5th respondent in this case, did not defend the petition. Despite being served with processes, the Police declined to defend the ‘election’ at the Tribunal.

The position of the Nigeria Police Force regarding the election is contained in Exhibit 337. This seems to explain why the police did not defend the so-called election at the tribunal. No evidence was led by the Respondents to discredit or contradict Exhibits 12 and 337. The question is: why did the Tribunal not cancel election in all the 31 local government areas of the State? What happened in the 18 LGAs that elections were cancelled that didn’t occur in the remaining 13 LGAs?. Let us consider this: Mkpat Enin is one of the 13 LGAs that the Tribunal preserved. That is the LGA that one omnipotent Barr. Jerry Akpan signed Form EC8B (Ward results) in all 14 wards. In that same Mkpat Enin, there were alteration and mutilation of figures in (Ikpa Ikono 111 Ward 14), (Ikpa Ibom IV, Ward 08); (Ibiaku 11, Ward 10). This scandalous situation was within the knowledge of the Tribunal as contained in Exhibit XX1-XX14. Yet, the purported election in that LGA was not cancelled. This is just one example.

One wonders what else the Tribunal expected the Petitioners to do or prove. The judgment of the Tribunal seems to give the unpalatable impression that the law is not a sufficient instrument that can be used to discover the truth. What is substantial non-compliance? If there was no valid election in 18 out of 31 LGAs what is the basis for allowing the 13 LGAs to remain? Section 178 (4) of the Constitution states that for the purpose of election to the office of governor, a State shall be regarded as one constituency. Therefore if Akwa Ibom State is one constituency for the purpose of gubernatorial election, what is the basis for cancelling election in 18 LGAs and allowing 13 to stand? If invalid election in 18 out of 31 LGAs (almost 60 percent) is not substantial non-compliance then what number of LGAs will be substantial?.

Again, the Tribunal, with respect, failed to give effect to the mandatory requirements of Section 179 (2) (b) of the Constitution which states that a person can only be duly elected as the governor of a State if “he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.” There is only one possible interpretation to this provision. Akwa Ibom State has 31 LGAs. There can be no valid election or returned except a candidate scores at least 25 percent votes in at least 21 LGAs of Akwa Ibom State. In this country, we were once told that 16 is greater than 19. That was in our tragic past. There is no way Mr. Udom Emmanuel’s “election” can be validated with just 13 LGAs. Having cancelled election in 18 out of 31 the Tribunal ought to have given effect to Section 179 (2) (b) of the Constitution by nullifying election in the entire State which is one constituency and also based on the well entrenched principle of substantial non-compliance. It is as if this was an election into local government councils and not a State.

It is my considered view that the argument that the use of Card Readers for accreditation contradicts the Electoral Act is more artificial than natural. It is also my respectful view that contradictions within the context of two enactments should be clear from intent, explicit in wordings and manifest in practice. The courts should never abdicate its sacred mandate of progressive and liberal interpretation of laws in preference for retrogressive and over rigid construction of statutory provisions. If the Legislature intended to exclude the use of Card Readers for accreditation by Section 49 or 53 of Electoral Act they would have said so expressly. This position is further reinforced by the provisions of Section 52 (2) of the Electoral Act which expressly states that “the use of electronic voting machine for the time being is prohibited”.

It is hoped that the ‘expressio unius est exclusio alterius’ rule which implies that the express mention of one thing is the exclusion of others will direct the minds of the appellate courts in construing the combined effect of Sections 49, 52 (2) and 153 of the Electoral Act and paragraph 8 of the Guidelines. Card Reader is not an electronic voting machine. What the Electoral Act forbids is electronic voting and not electronic accreditation. Notably, the marginal note to Section 49 of the Electoral Act reads “Issue of ballot papers” whereas the marginal note to paragraph 8 of the Guidelines reads “Accreditation”. It is trite law that marginal notes do not form part of an enactment but they offer a guide in the construction and interpretation of the enactment. It is an elementary principle that accreditation is sacrosanct to a valid election. The cases of Nadabo v. Dubai (2011) 7 NWLR (Pt. 1245) 155 at 175 and Ogboru v. Uduaghan (2011) 2 NWLR (Pt. 1232) 538 at 599 are clear on this point.

INEC did not only provide for the use of Card Readers. It also made provisions on the remedial measures to be taken should there be cases of failure of Card Readers. There was provision for replacement of Card Readers that malfunctioned. In case of sustained malfunctioning of a Card Reader at a given polling unit, the rules required that the election be postponed to the next day. Paragraph 12 and 13 of the Guidelines expressly provides for this simple procedure. The Supreme Court had settled in the case of CPC v. INEC (2011) 18 NWLR (Pt. 1279) 493 at 542 that INEC has the legal power to make rules governing the conduct of elections.

In the final analysis, this issue will be tested at and settled by the Supreme Court. Already, there are conflicting judgments on the issue from different election tribunals. This to my mind is a clear indication that there is no hard and fast rule about the legality of the use of Card Readers for accreditation. The judgment of the Rivers State Governorship Election Tribunal is very commendable.

Whether Card Reader is cognizable by the law or not is a substantial question of law for which two possible but varying arguments may be proffered. I am confident that the apex court as the final arbiter will not be guided by rigid arguments but by the spirit and letters of the Constitution, the Electoral Act, Guidelines, Manuals, public policy and the overriding need to enhance our electoral system and constitutional democracy.

I am confident that the apex court will not shy away from recognising the significance of Card Reader to the survival and advancement of our electoral system. The issue of legality of the use of Card Reader is beyond the conflicting interests of the litigants. It is now about the survival of democracy and redemption of our electoral process. Both local and international observers gave a unanimous verdict that the April 11, 2015 gubernatorial “election” in Akwa Ibom State was a sham.

INEC knew from history that accreditation is the foundation of every election and that if it gets it right on accreditation with the aid of Card Reader, the the entire system will be substantially purged. Those who opposed the use of Card Readers out of their disdain for credible elections prior to the March 28 and April 11, 2015 elections and failed are now trying to use the courts with Section 49 of the Electoral Act as their talisman to achieve their aim and legalise their illegality. God forbid!

May the Supreme Court of Nigeria as the guardian of the Constitution, protector of our democracy and civil liberties never submit to the machinations of the enemies of free, fair and credible elections in Nigeria. Amen.

Inibehe Effiong is a Legal Practitioner and Convener of the Coalition of Human Rights Defenders (COHRD).

He can be reached through: [email protected]

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