Media, politics and the law in examining Supreme Court verdict on Rivers guber poll 

Several years ago, Philip L. Graham, former Washington Post publisher, famously said that journalism is the “first rough draft of history”. In 2015, following the election of Nyesom Wike as governor of Rivers State, Nigerian journalists took Graham’s words literally and attempted to write  their own bit of history on false drafts.

Ostensibly working with a script provided by interested parties in the governorship election of 11 and 12 April, 2015, they pooh-poohed the evidence of their own eyes and unleashed an implausible media overdrive which ridiculed the election by claiming that it did not, well, take place!

Their invented version of reality ran counter to every grain of fact on the ground and, more importantly, the electoral umpire’s own version. INEC had persistently and untiringly refuted sponsored media attempt to delegitimize the election through the psychedelic presentation of what has become known in recent lingo popularized by White House spokesman, Sean Spicer, as “alternative facts”.

Then INEC chair, Prof. Attahiru Jega, had issued statement after statement reiterating the validity of the election as being free and fair and reflecting the choice of the people of Rivers State. But a well-briefed horde of media hands on a self-serving mission couldn’t be outdone, and instead doubled down on its own version of reality which, unfortunately, largely shaped public opinion as many, if not most people, outside the shores of Rivers State began to believe the lie.

Undoubtedly preying on these unfounded sentiments and totally against the grain of evidence led before it, the Rivers State Governorship Election Tribunal (which was unjustifiably hurled to Abuja), on 24 October, 2015, made the astonishing decision to annul the election of Governor Wike, describing it as “a mockery of democracy”.

The Tribunal’s above quoted words sent the media drooling but no attempt was made to interrogate how it came to that conclusion. Then on 16 December, 2015, the Court of Appeal followed suit by affirming the Tribunal’s judgment. To discerning observers of both proceedings the feeling was one of utter shock and disbelief.

But a more shocking development with far-reaching ramifications had transpired before the Tribunal: the chairman had been peremptorily sacked mid-way!

His replacement immediately set about delivering rulings on key applications which he never heard. Those applications had challenged the very competency of the petition and the jurisdiction of the Tribunal to hear it. As the Supreme Court would later hold, even on this score alone, the entire proceeding before the Tribunal was a nullity, an exercise in futility.

But how did a simple matter of fair hearing – a principle at the heart of our jurisprudence – escape the Court of Appeal’s microscope? And how did such an extraordinary and telling abuse of the judicial process not hug the headlines?
Fortunately, however, on 27 January, 2016, the Supreme Court, in a stirring and brave judgment, overruled the concurrent decisions of the Tribunal and the Court of Appeal.

It was a brave judgment not because the judgment broke any new legal grounds. Nor because of the erroneous conclusion that the Supreme Court was bound to uphold the concurrent findings of fact by two lower courts however perverse.

Indeed, the reverse is the case as the court re-stated the principle that it would, in fact, interfere with the concurrent findings of fact by two lower courts where “the findings are perverse”. [Saleh v B.O.N Ltd (2006) 6 NWLR (pt. 976) at p.316]; [Agbaje v Fashola (2008) 6 NWLR (pt. 1082) at 90].

And ‘findings’ don’t come more perverse and absurd than the decisions of the Tribunal and the Court of Appeal in Wike’s case.

Rather, the judgment of the Supreme Court was a brave one for the simple reason that, perhaps, no election petition in the annals of Nigerian judicial history had been so laden with such extraordinary and brazen political intrigue from the highest quarters in the land. So intense and palpable was the pressure on the court to give judgment one way regardless of the tide of evidence before it that most observers concluded that it was a fait accompli only awaiting a formal endorsement.

Anyone would have pardoned such despair who witnessed the egregious miscarriage of justice perpetrated in the lower courts, and listened to the unrelenting drumbeat of obfuscation and disinformation that emanated daily from the media at the time.

It has to be said, however, that despite the orchestrated media hoopla and the hired commentary of otherwise well-informed legal minds, every lawyer and his dog knew that the decisions of the Tribunal and the Court of Appeal were against a long line of judicial precedent established by the Supreme Court.

Nonetheless, that was the insalubrious extraneous headwind against which the Supreme Court battled and re-asserted the independence of the judiciary by sticking with the fine principles of the law.

But what were the issues?
In a nutshell, following his defeat in the gubernatorial election of 2015 in Rivers State, Dakuku Peterside filed a petition alleging corrupt practices and voter fraud and that the election was invalid and unlawful by reason of non-compliance with INEC guidelines and regulations with regard to the use of the smart card reader.

So pervasive and daunting were the allegations by Peterside and his party that only proof of even more daunting proportions would have sufficed. But proof to that degree was not only completely lacking, what was offered didn’t even scratch the surface.

For example, as the law is that a petitioner who alleges irregularities and corrupt practices must prove same polling unit by polling unit through direct evidence, and since Rivers State had 4,442 polling units and 1,350 additional voting points to bring up a total of 5,792, Peterside needed to produce witnesses in their thousands to substantiate his allegations.

Instead, he called only 56 witnesses, including himself, out of which 18 were ward collation agents whose evidence were basically secondary or hearsay. Indeed, only 2 of his witnesses were voters and none of whom tendered a voter’s card! [Kakih v PDP (2014) 5 NWLR (pt. 1430); Uchae V Ecellui (2012) 13 NWLR (pt. 1317)].

Essentially, Peterside’s petition was solely and entirely predicated on the non-use of the smart card reader of which heavy weather was made. The petition was humored by the decisions of the lower courts which pretended to bookend a new principle of law by curiously placing underserved reliance on INEC’s directives and guidelines while ignoring a host of statutory and judicial authorities that pointed to the primacy of the Electoral Act.

Predictably, the Supreme Court wasted no time in slapping down this utterly tendentious and anomalous interpretation by holding that the provisions of the Electoral Act are superior to any letter or directives of INEC and that the non-use of card reader cannot be a ground to challenge an election under S.138(1) of the Electoral Act.

As Kekere-Ekun, J.S.C. noted, “While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals…, by S.138(2) of the [Electoral] Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election…. As this court has held, the use of the card reader has not done away with manual accreditation provided for under S.149 of the Act”. [Nyesom V Peterside (2017) NWLR (pt. 1512) at 528].

Mohammed, C.J.N was even more categorical when he said: “…a distinction must always be drawn between the effect of a law made by the Legislature (National Assembly i.e. the Electoral Act, the constitution, etc) and a rule of procedure (by whatever name called) by any other authority ….Breach of the former can be severe and fatal than breach in case of the latter”. [Nyesom v Peterside, supra at 547].

Thus unraveled a petition that should not have been filed in the first place and which, having been filed, had been sustained by an interplay of media invention and revisionism, political intrigues and strong-arm tactics until those, too, ran their course and expired under the close scrutiny of the Supreme Court.

Beyond being good law, however, the enduring significance in the verdict in Wike’s case is that it summoned the collective vestige of a despairing nation and rekindled hope not only in our judiciary, but ultimately in our democracy. As the saying goes, the judiciary is the last hope of the common man. The Wike judgment proved it.

• A paper presented by Mr Solomon Bob at the 2016 Egalitarian Mission for Africa dinner held in Abuja.