The report of the recounted ballots papers used in four local government areas during the last Governorship election in Edo State may have exposed a serious flaw in the controversial election which outcome is being challenged by the Peoples Democratic Party, and its candidate, Osagie Andrew Ize-Iyamu
As legal fireworks assume greater intensity at the Edo State Election Petition Tribunal sitting in Benin, all eyes are on the Independent National Electoral Commission, INEC, to defend the petition filed by the Peoples Democratic Party, PDP, and its candidate, Osagie Ize-Iyamu, against the outcome of the September 28, 2016 governorship election in which the All Progressives Congress, APC candidate, Godwin Obaseki was declared winner. On Friday February 10, 2017, the petitioners closed their case, calling 91 witnesses within the 14 days window they had to prove their case. The ball is now in the court of the election umpire to prove that the 2016 Edo State governorship election it superintended was conducted in line with international best practices, and as such was free, fair and credible. But from the disposition and body language of its counsel, INEC may be walking a tight rope in defending the integrity of the election it conducted.
If the antecedent of election petitions is anything to go by, the petitions by the PDP and Ize-Iyamu seemed to be a sharp departure from previous election petitions. Though the reverse had always been the case, the petitioners decided to put INEC on the spot by making it the first respondent thereby putting the burden of proof on it that the election it conducted complied substantially with the provisions of the Electoral Act 2010 (as amended), as well as its own election manual 2016. Even before it opened its defence, INEC had started to falter and quiver. Like postponing the evil day, INEC had on two occasions arm-twisted the Ahmed Badamasi-led three-man tribunal to shift the opening of its defence after the petitioners closed their case Friday February 10. Though it was supposed to open its defence on Saturday February 11, Onyinyen Anumonyen, counsel to INEC, applied for an adjournment to Tuesday February 14 to allow him prepare his witnesses, whom he said were civil servants and members of the National Youth Service Corps, NYSC, who had finished their service and had left the state.
In seeking an adjournment to Tuesday this week, Anumonyen had also requested for a copy of the report of the recounting of ballot papers for four local governments areas ordered by the tribunal at the behest of the petitioners, and which the tribunal chairman had asked to be submitted on or before Monday February 13. He said he needed the report “so that we will reappraise our defence”. He also craved the indulgence of the tribunal to open his defence last Tuesday, after he might have obtained the submitted report “in order to adjust or readjust our position in respect of our approach to the defence of the petition”.
But when Tuesday came, it was another excuse why the day was no longer feasible. This time, the alibi was logistic challenge to get the witnesses down to Benin. As Friday approaches, all parties are keeping their fingers crossed to see what happens next. Will INEC have his day or will it once again be dodgy? If there is anything the petitioners are happy about, it is the order of the tribunal that the report of the aborted recounting of ballot papers be submitted to it. To keen followers of proceedings at the tribunal, the report which was signed by the assistant secretary of the tribunal, Buhari Sani, for the secretary, may be INEC’s albatross. The petitioners are simply waiting in the wings for INEC to present its witnesses to defend what a chieftain of the PDP who is privy to the damning content of the report, described as “the indefensible” to take it to the cleaners. And from all indications, INEC appeared jittery, amidst speculation that it is having difficulties assembling its witnesses.
Ken Mozia, senior advocate of Nigeria, SAN, counsel to the first respondent, (Godwin Obaseki) alluded to this when in supporting Anumonyen’s application for another adjournment, he said he had in the past had the privilege of representing INEC “and I can appreciate his difficulties”. Jokingly, he said so also were his colleagues on the other side. According to Mozia, “I know that Otaru, (Roland Otaru, SAN) represented INEC in one where I was against him and he had difficulties too getting his witnesses. Obamogie (Kingsley) had virtually defended INEC he was always having problems with his witnesses”. There is no gainsaying that defending the integrity of the disputed election would even be more daunting for INEC given the fall-out of the ballot papers recount exercise which evidently indicted it. The figures, when juxtaposed with what is recorded in Forms EC 8A (report sheets) simply do not add up. Indeed, the report which covered some wards in Etsako West, Akoko-Edo and Egor local government areas, uncovered perceived large scale fraud during the election. The ballot papers used for Etsako East could not be counted because of lack of time. The tribunal had on Thursday February 9, 2017 ordered the recounting of used ballot papers for the four local governments in acquiesce to an application by the petitioners. The recounting exercise could however not be concluded before the statutory 14 days available to the petitioners to prove their case elapsed and the tribunal refused their application for an extension of time. The tribunal however ordered that the report of what was done so far be submitted to it in spite of stiff resistance put up by the respondents. Interestingly, the report obtained by the magazine has opened up a can of worms, exposing brazen manipulation of figures.
While INEC may have found itself in a cul-de-sac in reconciling the blatant discrepancies in the various figures arrived at, sources close to the ruling party and the government say the mood is sober. They are said to be jittery and greatly rattled by the report knowing the implication of number of voters exceeding the actual number accredited by even just one vote. On the other hand, the mood in the camp of the opposition is upbeat. They feel so far vindicated that their allegation of manipulation of figures was being confirmed as the report seemed to have strengthened its case. Notably, it has corroborated the allegation of over-voting raised in the petition filed by the petitioners against the victory of Obaseki.
One common thread that runs through all the units in the three local governments recounted is lack of correlation between what was recorded on the results sheets and what was found in the bags. In Etsako West for instance, in the five wards recounted, the number of used ballot papers was 9,332 whereas on Form EC 8A, the result sheet, 17,138 was recorded, giving a difference of 7,806 ghost votes. Immediate past governor of the state and incumbent deputy governor are from this local government area. A member of the petitioners’ legal team told the magazine that the level of manipulation of results was much higher than what had been uncovered, stating that “if the recount had been completed, Nigerians would have been shocked at the level fraud that was perpetrated and the utter descent our democracy has been plunged into”. It was learnt that some votes hitherto cancelled were restored in the result sheet. A case in point was Units 011, 013, 014 and 016 of Ward 11, Etsako West where the cancelled results were later reflected in Form EC 8B as valid votes which was said to have affected the result of the election in favour of the second and third respondents. Jarrett Tenebe, a ward collation/polling agent for the PDP who testified for the petitioners, had on February 3, 2017, complained about this during cross-examination. He also narrated how the then deputy governorship candidate of the APC, now deputy governor of the state by virtue of the election in dispute, had stormed the collation centre with armed men to snatch the results. The said results hitherto cancelled were alleged to have been reintroduced into the result sheets.
Also of particular interest was Unit 9, Ward 1 where only 20 ballot papers were found in the course of recount while curiously, on Form EC 8A, 296 votes were recorded in spite of the fact that 295 was reflected as number of accredited voters. And in Unit 4 where no ballot papers were found due to cancellation, it was reflected on Form EC8A that 454 voters were accredited whereas 470 votes were reportedly cast. In Unit 2, the number of accredited persons on the voters’ register was 78, while 383 was recorded on the result sheet. Surprisingly, only 67 ballot papers were found in the course of recount. And in Unit 4, while it was alleged there was no sign of accreditation on the voters’ register, 403 was recorded on the result sheet, while total ballot papers used was put at 409. On the contrary, only 115 ballot papers were found. The same goes for Unit 5 where total number of accredited voters, votes recorded and actual ballot papers found were 417, 425 and 106 respectively.
In Akoko-Edo, the two wards recounted threw up a figure of 7,055 whereas what was recorded on Form EC 8 A was 7,328, a difference of 273 votes. In Etsako West, the pattern is the same. In Unit 1, Ward 1, whereas 283 ballot papers were found in the course of recount, 235 persons were accredited to vote while 238 ballot papers were used. In Unit 3 where the number of accredited voters tallied with the number of ballot papers found, it was however at variance with the 211 recorded as total votes cast. For Egor local government area where only one ward could be recounted in only eight out of 17 polling units, the number of ballot papers were found fell short of the 2,770 votes which was recorded on Form EC 8 A, giving an excess of 447 between what was found in the recount exercise and the figure indicated on the result sheet. It was however learnt that the total number of valid votes cast in the entire ward was 5,563. Of this number, it was demanded by the petitioners that 3,633 be cancelled due to breach in Electoral Act. The petitioners were said to have scored 2,118, and the second and third respondents 3,339 votes. On the whole, in just few wards in the three local government areas recounted, the petitioners are therefore questioning the about 4,862 votes that were uncovered.
Though Etsako East could not be touched, the magazine’s investigation revealed peculiar issues in the area. Chris Agbonwanegbe, a lawyer and the state collation officer for the PDP, in his witness deposition, said “voters registers purportedly certified and produced by the 1st Respondent, show some dates in 2011, 2014 and some bearing 6/9/2016 and 5/9/2016, showing clearly that certain voters register not meant for the election of 28/9/2016 were deployed and used by the first respondent”. This, he said, was evident in Ward 4, Units 001, 002, 003, 004, 008 and 009.
Given these glaring discrepancies, it is obvious that INEC has found itself between a rock and a hard place. Little wonder its counsel could not face journalists who wanted to get his reaction when the tribunal rose. Anumonyen quickly entered his jeep and rolled up the window. Even when journalists were tapping on his glass, he ignored them; he simply put the car on reverse and zoomed off. According to a member of the petitioners’ legal team, INEC is having difficulty because “we didn’t make a case of using money to induce voters, or snatching of ballot boxes and all that like in the past. The case we have made is not against APC, it is not against Obaseki; it is against INEC which did all these”. Interestingly, INEC had in Paragraph 17 of its reply, blamed the flaws in the election on its ad hoc staff.
According to Section ii of paragraph 17, INEC averred that “the large majority of the staff engaged for elections are retained on ad hoc basis and are trained as such. In most cases, they have no experience in conducting elections. They are therefore ordinarily prone to honest error in the process of their duties which duties are in any case, regulated principally by the dictates of the Electoral Act, 2010 (as amended).” In the following sub-section, INEC insisted that the ad hoc staff who operated largely on the election day, “did not deliberately deviate from their instructions and did their best to adjust to the exigencies of the moment which actions though may not strictly conform with, did not in any way infringe the provisions of the Electoral Act 2010 (as amended)…”. In Section IV, of the same paragraph, INEC also submitted that while over-voting is a concept known to the Electoral Act, it is not a matter of mere form. It asserted that “it does not take into cognizance errors in calculation or in recording figures but contemplates instances where people other than registered and accredited voters were said to have voted at the election”. It submitted that “where discrepancies in this regard do not relate to actual votes cast, but are explained by mere mistakes, such votes duly cast and recorded cannot be invalidated”.
INEC insisted that “the election was conducted in substantial compliance with the dictates of the Electoral Act 2010 (as amended), stressing that there were no “deliberate acts of non-compliance” with the Guidelines and Manual for Election Officials which substantially affected the outcome of the election. But as far as the petitioners are concerned, INEC is merely playing the ostrich, burying its head in the sand. A source in the legal team said the recount that had been done tells a story and whatever both parties have deposed to are subject to the scrutiny of the tribunal. He was however satisfied that the discrepancies in the recount runs through all the polling units that were not counted. “We have established a pattern. The difference in the votes is too wide to say that this is just a human error. It was deliberate. The result of the election was not genuine”.
The petitioners are therefore praying the court to sack Obaseki on the ground that he was not duly elected or returned by a majority of lawful votes cast in the election. They urged the tribunal to determine that Ize-Iyamu scored the highest number of lawful votes cast at the election and satisfied the requirement of the Constitution of the Federal Republic of Nigeria as amended in the Electoral Act 2010 as amended and should be declared validly elected. And in the alternative, they demanded that the election be nullified and a fresh one ordered “for substantial non-compliance” with the provisions of the Electoral Act which substantially affected the result of the election.
A member of the respondents’ legal team who would not want to be quoted was however confident that the “there cannot be any upset in this case. We are not moved by whatever propaganda the opposition is engaged in with the report of the recount. INEC is yet to call its witnesses; neither have the APC and our governor. Let’s wait and see what happens. But I tell you, no shaking”.