This write up by Osita was posted in a discussion forum. I have reproduced it because it is highly informative
By Osita Mba
INTRODUCTION
The above Latin maxim, usually attributed to Caesoninus, a Roman statesman and Julius Caesar’s father-in-law, found its most celebrated use in the judgement of Lord Mansfield in the case of R v Wilkes (1770), where he said:
€œThe constitution does not allow reasons of State to influence our judgments: God forbid it should! We must not regard political consequences; how formidable soever they might be: if rebellion was the certain consequence, we are bound to say ‘fiat justitia, ruat caelum’.€
What Lord Mansfield was saying is that judges must do justice according to law, whatever may be the perceived political consequences of doing so. The recent decision of the Presidential Election Petitions Tribunal (€œthe Ogebe Tribunal€), dismissing the petitions against the 2007 presidential election follows the unfortunate precedent set in the landmark decision of the Supreme Court in Awolowo v. Shagari. Other elections conducted on the same day, by the same electoral body and involving the same political parties have been nullified by judges but when it comes to presidential elections they seem to assume the roles of the proverbial three wise monkeys € Mizaru, who covers his eyes in order to see no evil; Kikazaru, who covers his ears in order to hear no evil; and Iwazaru, who covers his mouth in order to speak no evil. If the 1979 election is the zenith of presidential elections in Nigeria the 2007 election must be the nadir and whilst the decision in Awolowo v. Shagari is credible the decision of the Ogebe Tribunal stretches credibility beyond breaking point. Despite these differences, the dubious exclusion of relevant evidence and the misapplication of the principle of substantial compliance by the Ogebe Tribunal leave one with a poignant sense of déjà vu and question the wisdom of the precedent set by the Supreme Court in 1979 of sacrificing justice at the altar of expediency.
EXCLUSION OF EVIDENCE
Awolowo v. Shagari case centred on the interpretation of section 34A(l)(c) of the Electoral Decree 1977 (€œsection 34A€) which provided that:
A candidate for election to the office of the President shall be deemed to have been duly elected into such office where there being more than two candidates€
(i) he has the highest number of votes cast in the election;
(ii) he has not less than one-quarter of votes cast at the election in each of at least two-thirds of all the States in the Federation.
Alhaji Shehu Shagari received at least a quarter of the votes in 12 States but only 19.94% of the total votes cast in Kano State. Had he received 25% of the votes cast in Kano his victory would have been beyond doubt as he would have received a quarter of the votes cast in 13 States. But because he failed to do this, the issue arose as to whether two-thirds of 19 states for the purposes of section 34A was 13 States or 12 and two-thirds States.
At the hearing before the Special Election Tribunal (Justices Kazeem, Aseme and Wali), the late Professor Awojobi, gave expert evidence to the effect that €œthere were 38,760 possible two-thirds of Kano State going by the Local Government Areas€ and also that it would take at least a year to declare the result in terms of two-thirds of Kano State in the absence of a computer. This crucial evidence showed that it was not possible for the Federal Electoral Commission (€œFedeco€) to show that Shagari won two-thirds of the votes in Kano in terms of geographical spread, which was the reason d€„¢Ãƒªtre of section 34A, and effectively demolished the basis of the Tribunal€„¢s eventual decision that two-thirds of 19 states was only 12 and two-thirds states. As such the Tribunal conveniently excluded it on technical grounds by rejecting all the evidence led on the point that two-thirds of 19 states was 13 states because it was not pleaded in the Petition and refused an amendment to include it even though they had ample powers to do so.
On appeal to the Supreme Court, the majority (Fatayi-Williams CJN, Irikefe, Bello, Idigbe and Uwais) refused to countenance the expert evidence. In his lead judgement, Fatayi-Williams CJN held that €œuntil election returns can be computerised in this country, the €˜mathematical canon of interpretation€„¢ put forward by Professor Awojobi in his testimony before the Tribunal will remain impracticable and legally unacceptable!€ Having closed his eyes to this €œinconvenient truth€ his lordship went on to base the majority decision on what is essentially speculation:
€œIf the number thirteen which is the number nearest to two-thirds of a State had been intended, the Federal Military Government would have said so in clear terms. In any case, as between thirteen States and twelve two-thirds States, the figure of twelve two-thirds, considering all the circumstances, appear to us to be the intention of the Federal Military Government.€
Justice Obaseki disagreed with the majority on this point. In a ruling that echoed Professor Awojobi€„¢s evidence he said:
The construction that two-thirds of 19 States is twelve and two-thirds States may be correct in the abstract but in relation to the Constitution and the Electoral Decree it is unreal. Certainly, in relation to the Presidential Election now the subject of appeal, the Fedeco did not delimit any two-thirds State, whether in Kano or elsewhere. Fedeco used thirteen States as a criteria for voting and calculated two-thirds of the total votes cast in the 13th State to ascertain whether the votes cast for [Shagari] in the whole 13th State was up to 25% of two-thirds of the total votes cast in the whole State. This is a departure from justice in mathematics and it is a serious violation of the Decree. It constitutes a flight from the truth and it is the truth the Court seeks in all matters of dispute.
As Fedeco appears to have regarded the number of states in which [Shagari] was to satisfy the requirement under section 34A as twelve and two thirds, [Shagari] must satisfy the requirement of the section but the evidence on proper and close examination shows that there was compliance with the provisions of section 34 in respect of only 12 States. In respect of the remaining two-thirds State, there was no evidence of its situation, its geographical area and boundaries, there was no evidence of the voting, of the counting and of the votes received by [Shagari] there to enable compliance with the provision of section 34 and, as such, the result declared in respect of the two-thirds State was more in the imagination than in reality.
In his dissenting judgment Justice Kayode Eso relied explicitly on the excluded expert evidence. He said:
So what could be the number in the intention of the law maker in prescribing €˜two-thirds€„¢ of all the States in the Federation, knowing full well there are 19 States and no State has been divided into units of three? The evidence before the Tribunal is that there are 38,760 possible €˜two-thirds€„¢ of Kano State going by the local government areas, the only units before the Returning Officer and that it would take at least one year, in the absence of a computer, to declare the result of a Presidential Election.
The words €„¢not less than one quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation€„¢ must mean €˜not less than one quarter of the votes cast at the election in each of at least thirteen States in the Federation.€„¢
I cannot find any other logical interpretation beside the one I have just given as I find every other one to be illogical and leading to absurdity. It is this absurdity, I believe, the Tribunal tried to circumvent in giving their own interpretation which makes €˜two-thirds States synonymous with the two-thirds of the total votes cast in Kano State and not the physical or territorial area of such State.
According to reports, the exclusion of relevant evidence on technical grounds reared its ugly head again at the Ogebe Tribunal. Justice Ogebe is reported to have disallowed evidence of the monumental fraud that occurred on 21 April 2007 both from the petitioners€„¢ witnesses and independent local and international observers. In particular leading counsel to one petitioner was reported to have complained bitterly that the judge repeatedly assured him that it was not necessary to call witnesses before the Tribunal and advised that they be deposed en masse. Yet in their ruling the same Tribunal excluded the evidence of these witnesses on the grounds that they were not called before them.
SUBSTANTIAL COMPLIANCE
The two issues in Shagari v. Awolowo were firstly, whether Shagari satisfied the requirements of section 34A and secondly, if not, whether his election was nevertheless saved by section 111(1) of the Decree which provided that:
An election shall not be invalidated by reason of non-compliance with Part II of the Decree if it appears to the Tribunal having cognisance of the question that the election was conducted substantially in accordance with the provisions of the said Part II and that the non-compliance did not affect the result of the election.
The Tribunal dismissed the Petition on the first issue and therefore found it unnecessary to consider the second issue. On the other hand, the majority at the Supreme Court, after finding that the requirements of section 34A had been satisfied went on to hold that: €œeven if we had found that there had been non-compliance with the said provisions, we would have invoked the provisions of section 111 and held that the election was conducted substantially in accordance with the provisions of section 34A.€ Similarly, Justice Obaseki, who disagreed with the majority on the first issue agreed with them on the second. He held that: €œthere is no evidence that non-compliance with section 34A had affected the result, i.e. but for the non-compliance, the petitioner would have won, to enable the tribunal to declare the result invalid.€
However, in his dissenting judgement, Kayode Eso, JSC, set out what must be the correct interpretation of section 111(1). After noting that where no candidate had satisfied the requirements of section 34A a second election was to be held between the two leading candidates by electoral college, he opined:
Until the result of this election by the second election is known there is no election yet of the President and it is not within the realm of the Court to conjecture what the result of that election would be. Before ascertaining the results of the election the stage has not been reached when one could invoke section 111 as an election has to be held first before it could appear to the Tribunal that that election was conducted substantially in accordance with the provisions of Part II and that the result has not been affected by such non-compliance.
A similar rigorous analysis of the provisions of section 146 of the Electoral Act 2006, which the Ogebe Tribunal relied on to validate the 2007 presidential election, will show that it does not provide a cure for all electoral ills as the Tribunal appeared to believe. Section 146(1) provides that:
An Election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election€Â [my emphasis].
It is therefore apparent that section 146 could potentially be invoked to save an election impugned only on the grounds of non-compliance with the procedural requirements of the Electoral Act. It cannot be invoked where there is evidence of any of the other four grounds for nullification under section 145(1) of the Electoral Act i.e.: corrupt practices; or failure by the declared winner to secure the majority of lawful votes cast; or the declared winner not being qualified to contest; or the petitioner being unlawfully excluded from the election.
CONCLUSION
The 1979 Presidential election was held on 11th August 1979 and the result declared on 16th August. The judgment of the Tribunal was delivered on 10th September and that of the Supreme Court on 26th September, just five days before the scheduled handover date of 1st October 1979. The situation generated considerable tension which the impasse of an annulled election could have aggravated. As a result there was near unanimity of opinion that the Supreme Court was justified in opting for a political decision. For example, Professor Nwabueze, who delivered probably the most devastating critique of the decision in his book, The Presidential Constitution of Nigeria (1981), went on to submit (at page 200) that:
In cases of great constitutional or political gravity affecting the peace and stability of the nation, while legalism should be the dominant principle for deciding them, the court is also entitled to take into account other factors, such as the ethical presuppositions and moral sensibilities of the society, the attitude of the public in the matter as manifested in the people’s expressed sentiments and actions, the social consequences of a decision, and national expediency generally€or what is best for the common good of the community and other social facts.
It is not surprising that €œpeace and stability€, which is bandied about each time a mago-mago presidential election is given a carry-go by the judiciary, is again making the headlines again. Scant regard has however been paid to the learned professor€„¢s injunction that €œlegalism should be the dominant principle€. Besides, the other factors he enjoined the court to take into account, namely: €œthe ethical presuppositions and moral sensibilities of the society, the attitude of the public in the matter as manifested in the people’s expressed sentiments and actions, the social consequences of a decision, and national expediency generally€or what is best for the common good of the community and other social facts€ all point to the imperative of a judicial annulment of the universally discredited 2007 presidential election and the conduct of a credible election that will lay the foundation for lasting democracy in Nigeria.
The Ogebe Tribunal shied away from this duty. The Supreme Court must be prepared to say ‘let justice be done, though the heavens fall€„¢ whilst bearing in mind that it is by the application of Lord Justice Hewart€˜s oft-quoted aphorism (Rex v. Sussex Justices, Ex parte McCarthy [1924]) that €œit is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done that the heavens may remain in their accustomed place. The heavens will fall if aggrieved presidential election contestants, who have hitherto kept faith with the judiciary, resort instead to the Odinga option. And the heavens will definitely fall if Nigeria is not pulled back from the brink of a political precipice, something that is beyond the powers of a President diminished by the albatross of a stolen mandate and who, like Macbeth, must €œfeel his title hang loose about him, like a giant€„¢s robe upon a dwarfish thief€.