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Electoral integrity and INEC’s accountability for credible elections: The challenge of documentary hearsay  

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[FILES] INEC Chairman, Prof. Mahmood Yakubu. Photo; TWITTER/INECNIGERIA


According to the Justice Uwais-led Electoral Reform Committee “free and fair elections are the corner stone of every democracy and the primary mechanism for exercising the principle of sovereignty of the people and are therefore a crucial requirement for good governance in any democracy.”1 Indeed, section 14(2)(a) of the 1999 Constitution of Nigeria (amended) does not give but merely acknowledges that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” An element of this sovereign right is expressed when the people choose those who govern them in a free and fair election.

After his retirement from the United Nations, Kofi Annan, a former Secretary General of the Organization, said thus about electoral integrity in his capacity as the Chairman of the Global Commission on Elections, Democracy and Security: So what does this concept of electoral integrity mean in practice? “Elections with integrity” is shorthand for elections that respect a range of global standards and norms enshrined in international treaties and good practice. Above all, they are elections that grant each citizen the equal right to participate in the selection of his or her leaders and hold them accountable.

Elections with integrity also have to guarantee fundamental freedoms, like the freedoms of opinion and expression, peaceful assembly and association. Finally, elections with integrity have to afford citizens a mechanism to challenge contested results through credible legal channels whose decisions are regarded as fair and impartial.

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Discernible from the foregoing is the axiom that flawed elections erode the trust of citizens in the democratic process. Elections are not enough if they are not conducted with integrity and able to reflect the real will of the people. Kofi Annan insists, and this accords with civilized reasoning of democratic citizens, for elections to be clothed with integrity, they must meet refined criteria for them to fulfill their key roles, which are to confer legitimacy on the winners and security on the losers and peaceful change for all. Through his Commission, Annan outlined some roadblocks to electoral integrity, to wit: •Weak rule of law and weak protection of voters’ rights •Inadequate electoral management bodies, either because they are insufficiently resourced, incompetent or not independent enough to enjoy public confidence •Denial of future political opportunity to those who lose, leading to a win-at-all cost mind-set •Barriers to universal and equal political participation •Uncontrolled, undisclosed, and opaque political financing.

All these negatives outlined by Annan’s Commission are the unfortunate and crippling discolourations of Nigeria’s terribly wobbling electoral culture. The institutional mechanisms for the electoral process are not designed to produce servant leaders who will address burning socio-economic and political controversies that are plaguing the nation. The consequence is that political hoodlums exploit the fragile system and take advantage of the gaping holes to plant sophisticated looters who masquerade as leaders and who lack competence and capacity to manage public office and resources. They are aided by weak institutions to escape the consequences of their wickedness.

Nigeria has long teetered on the precipice of failure. In fact, The Council on Foreign Relations (CFR) and the Harvard Kennedy School in the United States have said in a very recent report that Nigeria as a nation is at the point of no return having showed all the signs of a failed nation. Upon giving examples of other failed states in the world, the Report said: Each lacks security, is unsafe, has weak rules of law, is corrupt, limits political participation and voice, discriminates within its borders against various classes and kinds of citizens and provides educational and medical services sparingly. Most of all, failed states are violent.

All failed states harbor some form of violent internal strife, such as civil war or insurgency. Nigeria now confronts six or more internal insurrections and the inability of the Nigerian state to provide peace and stability to its people has tipped a hitherto very weak state into failure.

One of the causes of Nigeria’s political disaster, which has regrettably nailed the economy, and brought it to an all-time low, is the affliction in the electoral process which produce misfits and cause Nigerians to loose confidence in those at the helm of affairs. One of the ironies of the Nigerian situation is that it is a country so abundantly endowed to be one of the richest in the entire world but has become the home of penury and poverty capital of the world. If Nigeria must wake up as a nation, one of the things to address is democratic reforms part of which must include a fundamental strengthening of electoral integrity. The purity of the process is key to resolving leadership deficit that has persistently crippled sustainable development and prosperity. Legitimate elections, as outcomes of transparent process blended with integrity, are therefore the foundation of a true democracy, hence their importance.

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Critical to reforming the democratic process for a new Nigeria to emerge from the rubbles of today’s ruin is a systematic overhaul of the electoral process. The key reform in this regard is enthroning electoral integrity. The process will be superficial if the Independent National Electoral Commission (INEC) is not made accountable for its operations and conduct during each election. Closely aligned to this is admissibility of documents, particularly result sheets and certified true copies of same duly issued by the electoral body. The law as it is presently commands impossibilities in favour of victorious candidates who got to that level by might and hooliganism because of the swag in the office they are attracted to. This diminishes the integrity of the process and significantly erodes the confidence of the people on not just the electoral body but also on the government. By extension, the outcomes of such flawed elections cannot truly enjoy the respect and esteem of the people. It is and indirect challenge of the legitimacy of the so-called winners to occupy the office they purport to have been elected into.

The experience of Nigerians since 2015 has been excruciating and traumatic. Before then, Nigeria was the third fastest growing economy in the world next to China and India with a growth rate of close to seven per cent. The economy contracted immediately after the swearing in of Buhari who took more than six months to choose his cabinet. Growth rate slumped to less than two per cent. There have been two recessions since then. The dollar value of the naira dipped as inflation and cost of living went to the blues. Suffering became the norm. Nigerians have lost confidence in the government, which has been overpowered by an unprecedented security challenges that made insurgency, kidnapping, bloodletting and sophisticated criminal activities daily characteristic of terribly beleaguered nation.

The deterioration could not be halted in 2019. In fact, the economy slid into its second recession in 2020. This 2021, Nigeria is ranked third-worst nation in new global good governance index. The index used 34 indicators, which are organized into seven pillars: leadership and foresight; robust laws and policies; strong institutions; financial stewardship; attractive marketplace; global influence and reputation; and helping people rise. Mali, which is undergoing some political upheaval, is currently ranked as being better governed than Nigeria. Mauritius, at number 38 on the log, is Africa’s best performer. The report noted that countries that have done well under this pillar are all market economies with sound property rights and stable business regulations. It added that the ability to effectively tackle corruption is the indicator with the strongest correlation with overall good government rankings. The Good Governance Index said the ranking comes amid the COVID-19 pandemic, which has revealed strengths and weaknesses in institutions, laws, and leadership, adding that governance is the deciding factor in whether countries succeed.9 These are reasons why there must be radical electoral reforms to get the best in terms of leadership of this country.

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It is alarming to note that Nigeria is the third most terrorised country in the world, next to Afghanistan and Iraq. Federal Government actions presently are centered on cows. Cows are more secure in Nigeria than Nigerians and cow “care givers” are armed to the teeth to the knowledge of Federal authorities. Meanwhile, apostles of cow liberty have not been able to show Nigeria the value cows add to the economy as per how much tax is generated from cow business in Nigeria, employment opportunities they provide to youths and export platforms enhanced by cow farming. Security challenges have gotten to the highest level in Nigeria with bloodletting becoming normal. Insurgency, kidnapping and sophisticated criminal activities are daily characteristic of terribly beleaguered citizenry. In the past few months, about 2000 Christian lives have been lost in various theatres of “war” in the country. General Mohammad Buhari has “indeed performed wonderfully well” as President of Nigeria since 2015.

It is not impossible that a new Nigeria will emerge from this rubble and one of the imperatives is a comprehensive electoral reform. In furtherance of this, and in view of the need to produce the best, INEC must be accountable for its activities and operations. The primary institution in our clime upon which democracy flourishes is the electoral umpire. It is the Independent National Electoral Commission (INEC). One notable misfortune in our system is section 153(1)(f) of the 1999 Constitution (as amended) which creates INEC is found under Chapter 6 of the said Constitution and is placed under Part B of Chapter 6 captioned “Establishment of Certain Executive Bodies”. The President of Nigeria appoints all the Chairman of the Commission, 12 Commissioners and 36 Resident Electoral Commissioners for the 36 States of the Federation. The first flaw in this very important institution is that there is no tough mechanism to gauge against the possibility of the President appointing his party men as umpires. This always raises a serious issue of electoral integrity. The consequences:

Hence, the bad leadership, which had given rise to bad Governance, is merely a reflection of the poor electoral integrity in the Country, which had produced disastrous leaders. Lack of electoral integrity produces fools in Government with grave consequences for National development. A fool in power sleeps comfortably on a heap of debts, allow the quality of its own people to degenerate at a frightening rate, facilitates the collapse of moral responsibility, and connives with private interlopers or multinational financial institutions to subject the national economy to an unyielding massive plunder with neither a thought for tomorrow nor a merciful concession to the generations unborn. In summary therefore, lack of electoral integrity such as witnessed in most past Nigerian elections, had seriously affected national development and nation building by enthroning mediocre leadership which have been responsible for poor infrastructural development such as roads, housing, electricity, hospitals etc; it also contributed to the poor educational system, low life expectancy, security problems such as armed robbery, hired assassins, kidnappers and terrorism. It would amount to stating the obvious if we say that poor electoral integrity is the bane of National development in Nigeria and the main reason for the present underdevelopment in the country.

For purposes of these very important positions, a model of appointment has to be designed in the constitution to secure neutral and patriotic personalities to man INEC. For instance a college of electors made of three professors from each University in Nigeria, three members of every professional body in Nigeria – the NBA, NMA, COREN, NIA, Teachers Registration Council, ICAN etc can gather at a designated venue at the expense of the bodies sending them, to elect from among themselves the Chairman of INEC, the Commissioners and the Resident Electoral Commissioners for a defined tenure. This will significantly obliterate political colorations and mutual suspicions that pollute electoral integrity.

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Another crucial point that raises unprecedented doubt about the outcome of elections is burden of proof in election petitions. When INEC declares a result, there is a presumption that the result is correct. This presumption is rebuttable and the onus is on the petitioner to disprove or rebut the presumption. In other words, the burden is on the person who denies the correctness and authenticity of the return of a candidate to rebut the presumption of correctness in favour of the return.11 Ogunbiyi JCA (as he then was) captures the position of the law in Awuse v Odili when he declared:

The law is trite that the consideration of the respondent’s case did not arise until and unless the petitioner had made out a case. In other words, a duty lied on the petitioner, who alleged, to succeed on the strength of his own case and not on the weakness of the defence.

This is an unfair burden on a candidate that merely contested an election but did not conduct it, had no custody of essential result documents, did not appoint polling clerks and other adhoc staff at each polling station cannot attest to the competence and impartiality of collation officials.
Olehi is an Owerri-based Legal Practitioner.

He did not commit any crime by seeking to serve. INEC should prove that it substantially complied with the law and election guidelines in conducting an election. The Commission must certify every form from each polling booth to every collation centre and publish as it is declaring its result and returning a candidate.

The law that states that when the Electoral commission declares a result, there is a presumption of that the result is correct13 MUST be repealed as it concerns election petitions. Presently, the burden is on the person who challenges the correctness and authenticity of the result to rebut the presumption of correctness in favour of the return. In furtherance of this, the National Assembly should amend sections 131 and 132 of the Evidence Act 2011 upon which this injustice has been predicated to exclude their operations to election petitions. These provisions declare: 131(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person 132 The burden of proof in a suit or proceeding lies in that person who would fail if no evidence at all were given on either side.

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By these provisions, the entire burden to rebut the presumption of correctness of any result is on the petitioner even if the result was manufactured to secure the return of a favoured candidate. Oftentimes, it is not easy to accomplish this, more so with the time constraints and other roadblocks against a petitioner. The amendment as aforesaid is to transfer the burden of proof to the Commission which must give a credible and transparent account of the correctness of the process it conducted and thus convince the citizens and the court that, baring minimal or negligible infractions arising from inevitable human factors, it was substantially impartial and independent in discharging its statutory duties. This will, inter alia, stop stealing of election result sheets from a State by desperate politicians and using same in another State to smuggle in false figures to secure a return by all means.

It is also necessary to revisit the amendment of section 285 of the 1999 Constitution (as amended), which reduced the lifespan of an election petition trial to 180 days particularly in presidential and governorship election petitions. It is impossible for a petitioner to thoroughly and satisfactorily exhaust evidence from all parts of the country or of a state within the prescribed time. Desperation leads to forgery of election result sheets at the polling booths and collation centres and these run into thousands most of the time. Challenging each will mean calling witnesses from each polling unit and the law is so tight that a petitioner cannot call one witness to study results from a given area and come to testify in favour of a petitioner. The Supreme Court pronouncement in the 2019 presidential election contest is an example. In Atiku Abubakar & anr v INEC & 2 ors14 Muhammad CJN in his lead judgment declared:

With regards to the evidence of PW 60, it is clear that he was not on the field to gather the data he used to compute the results he intended the lower court to use to enter judgment for the 1st appellant. In the case of Atiku Abubakar & ors v Umaru Musa Yar’adua & ors [2008] All FWLR (Part 404) 1409, [2008] 19 NWLR (Part 1120) 1 at 173, paras E-G, this court per Niki Tobi JSC (of blessed memory) held as follows:

A petitioner who contests the legality or lawfulness of votes cast in all election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the elections. He should not stop there. He must call witnesses to testify that the illegality and unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are who saw it all on the day of the election and those who picked the evidence from eye-witnesses too… 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 both in the conduct of the election and recording of the votes, wrong doings and irregularities, which affected substantially the result of the election.
In the above case, what appeared to be an intelligent shortcut of studying the results from eleven focal states and tendering the study through one of the Petitioner’s witnesses could not help the situation. The Supreme Court said thus:

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Clearly, the PW60 was not available in the eleven (11) focal states, which he sought to establish the anomalies or irregularities, which the appellants pleaded. The documents used to analyze the results were not made or signed by him. In the process, he even contradicted himself. The court below said this much on page 6169 of the record as follows:

The witness PW60 testified that he used duplicate copies (red copies) of form EC8As to carry out his job and that he utilized Forms EC8A, EC8Bs and EC8C series. Under cross-examination he recoiled and stated that he in fact used certified true copies of EC8As. He did not know Form EC8C.

The said PW60 apart from not being an eye-witness in respect of the areas he testified, he contradicted himself on a material issue i.e. the type of forms used to make the calculations, I am surprised how the single witness was able to detect irregularities and malpractices in polling units he was not present.

Of course, the learned law lord declared the law as it is, but it is obvious that no petitioner can in the circumstances feel happy that even though he lost the case, justice was done. There are other pronouncements by the CJN in the above case on presumption of correctness and regularity in favour of a winner and the virtual impossibility of proving errors in presidential and governorship results, to wit: The law is trite that there is a presumption of correctness and regularity in favour of the results of election declared by the Independent National Electoral Commission in the conduct of an election. This means that except it is proved or rebutted that such results are not correct, they are accepted for all purpose by the Election Tribunal or court. The onus of course is on the petitioner to prove the contrary. See Buhari v Obasanjo; Wike v Peterside [2016] 7 NWLR (Part 1512) 452 at 532-533.

There is no doubt the task of establishing a petition on the ground of non-compliance is a herculean and daunting one placed on the petitioner by law. A petitioner who desires and urges the court to set aside the result of an election petition on ground of non-compliance with the Electoral Act has the onerous duty of proving the alleged non-compliance by calling witnesses from each of the polling units complained of. It has to be noted that he does not just call any witness. He must present eye-witness, i.e. those who were present at the various polling units across the election area. In the instant case, the entire country! It is indeed a daunting task. See Andrew v INEC [2018] 9 NWLR (Part 1625) 507; Edankumoh v Mutu [1999] (620) 633 at 653. This court observed this much in Buhari v Obasanjo [2005] 13 NWLR (Part 941) 1 at 299 paragraphs F-H per Pats-Acholonu JSC that –The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call due to the size of the respective constituency. In a country, like our own, he may have to call about 250, 000 – 300,000 witnesses. By the time the court would have heard all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of substance.

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I hasten to say that the above decision was rendered when there was no time frame for the hearing and determination of election petitions. It is more difficult now under the present legal regime…where the Election Tribunal or court has 180 days to hear and determine petitions. Where is the time to call such number of witnesses? I say this to demonstrate the frustration of a petitioner seeking to set aside the election on ground of non-compliance.16 (underlining mine for emphasis)

With the way the “law is couched” as the learned law lord pointed out above, the road is closed against a petitioner even before he files his processes to challenge a presidential or governorship election. Another smart way that a counsel for a petitioner would have used was getting INEC to certify the results of the election and the collation sheets and tender them from the Bar without having to call all the numerous witnesses. But there is another startling roadblock. In the same Abubakar v INEC, the Supreme Court declared:

On issue of dumping of documents on the court below, the learned counsel for the appellant submitted that there was no need to call the makers of those documents tendered from the Bar because they were public documents duly certified. On page 37, paras 7.17 of their Brief, it is submitted thus:-

The Court of Appeal based only on presumption held that the appellant required to call witnesses who have knowledge on the exhibits tendered even the said exhibits are certified true copies. We submit that the lower court did not only ignore its duty, but its judgment also jettisoned trite position of law that when a public document is duly certified, there is no need whatsoever to call the makers of such documents or those knowledgeable on it to testify. We commend the case of Magaji v Nigeria Army [2008] 8 NWLR (Part 1089) 338.

The version of the law I know on the subject (i.e. if there are other versions) is that when documents are tendered from the Bar, such documents have no probative value until the makers of such documents are called to testify on the document and they are subjected to cross-examination oil (sic) them it cannot be as argued by the learned silk for the appellants above. Whether it is a certified public document or any other document, the need for the maker to testify and be cross-examined on it has not yet been jettisoned by this court. I have read the case of Magaji v Nigeria Army relied upon by the appellants. This court did not state as the appellant wants us to believe.

By these pronouncements, the essence of certification of documents and tendering them from the Bar is gone. Everything has been trashed down to documentary hearsay. This appears to be justified by section 37 of the Evidence Act, 2011 which provides thus: Hearsay means a statement- (a) Oral or written made otherwise than by a witness in a process; or (b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for purpose of proving the truth of the matter stated in it.

So, those documents can best be described as documentary hearsay and by section 38 thereof they are therefore inadmissible. But what of section 146(1) of the same Evidence Act, 2011 which provides thus with respect to presumption in favour of certified true copies of documents: (1) The court shall presume every document purporting to be a certified true copy or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorized in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. (2) The court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed, the official character, which he claims in the document.

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By the foregoing presumption in favour of certified true copies of public documents, election results duly certified by the electoral body – the Independent National Electoral Commission, which organized and conducted the election and is a usual party in an petition, can be tendered from the Bar to obviate the need to call hundreds of thousands of witnesses to prove a presidential or governorship election petition. If the tribunals and courts can apply the statutory presumption of correctness of results prepared by INEC, they should also apply the presumption statutorily preserved for results and other documents duly certified by INEC. Circumstances have made democratic, electoral and structural reforms imperative if Nigeria must rise from the dust.

The summation of the forgoing is that electoral integrity must be a cardinal principle in future elections. In furtherance of this, the laws as expatiated above, must be reviewed and harmonized with a view to allaying the fears of candidates of the governorship and presidential elections. The Evidence Act must be amended to exclude the operations of the provisions that negative INEC’s integrity and accountability in conduct of elections. Democracy allows transfers of power to happen peacefully through institutional mechanisms rather than through violent conflict. Indeed strong institutions, as has been variously canvassed, secure the confidence of the public more than the tyranny of a bloodthirsty power hungry laggard.

If INEC becomes a strong institution, and other institutions like the Nigeria Army, the Police and other paramilitary organizations are strengthened to confine themselves to their constitutional and statutory roles instead of allowing themselves to used to rig elections, public confidence will swell and less petitions will be filed. This is why in Norway, there is nothing like election petitions tribunals because their institutions are transparent, accountable and rule of law compliant that the citizens trust the Government wholeheartedly. If these are not done, Elections Petitions Tribunals, the Court of Appeal and the Supreme Court will continue to churn out judgments without justice because the desperate politicians will spread their rigging machineries, the weak INEC will declare them winners, and the frustrated petitioners will be more disappointed that the evil will be too overwhelming to be reversed by the tribunals. The devastating consequence will be a failed nation in spite of enormous potentials for greatness.
Olehi is an Owerri-based Legal Practitioner.

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INECMahmood Yakubu
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