Forensic Advocacy: Easy way to resolving election petitions

At times like this, legal practitioners would be craving for literature that aids their legal skills. From the traditional laws like Land, Marriage, Matrimonial, Torts, Breach of contract to libel, books are abound for their usage.

With the increase in election petitions since 1999 General Elections, it is gratifying to welcome a new literature on how a petitioner can discharge the burden of proving his or her case.

The arrival to the market of a 102 page book: “Forensic Advocacy and Election Litigation in Nigeria”, by a former Edo State Attorney-General and Commissioner for Justice, Omoruyi Augustine Omonuwa (SAN) whom the Ondo State Commissioner for Justice, Eyitayo Jegede (SAN) described as someone “in his usual intellectual depth scholarship and analytical mind” should be applauded.

The learned author in the introduction while given the definition and scope of the subject quoted the definition of the subject matter by two learned authors: Andrew R. Jackson & Julie in their book, Forensic Science 2nd Edition (2008) as “the application of science to the resolution of legal disputes. Science is valuable in this context because it has the potential to provide reliable, pertinent and definite information about a given case.”

Omonuwa, therefore, submitted that “Forensic Science has helped in the development of the law in several jurisdictions where it has been fully accepted and practiced. In these jurisdictions, it is no longer difficult to prove the identity of a suspect nor his criminal culpability when eventually he is arraigned for the offence…It is no longer in doubt that forensic science is useful to the development of the law in any society”.

He summarized the branches of forensic science as follows: Forensic Science and Law of Contract; Forensic Science and the Law of Torts; Forensic Science and Construction Law; Forensic Pathology; Forensic Toxicology; and Forensic Serologist among others.

The learned author on page 19 defined Forensic Advocacy as the “art of channeling the energies and resources of forensic experts by legal practitioners in proof of his case before a court. The legal practitioners through his mastery of the legal intricacies underlying his case, is able to determine what manner of forensic evidence is needed to prove a particular charge or fact in issue in civil proceedings”.

Forensic Science: The Evidence, Act and Criminal Trials a Nigeria is discussed on pages 20 – 22, while pages 22 – 25 are dedicated to discuss Forensic Advocacy and Election Litigation. Here the tenor of section 138 of the Electoral Act 2010 for the grounds for the nullification of an election where the burden of proof was placed on the petitioners came to fore. He cited the cases of Nwobodo V. Onoh (1984) ALL NLR; Buhari V Obasanjo (2005) 2NWLR (Pt. 910) 24; Awuse V Odili (2004) 8NWLR (Pt. 876) 481 and Ajadi V. Ajibola (2004) 16 NWLR (Pt. 898) 91.

As an active participant in the post 2007 General Election petition i.e. Adams Oshiomole V. Prof Osunbor & Ors (2007) 18 NWCR (Pt. 1065) 32 CA ,Omonuwa devoted 17 pages to discuss Forensic Advocacy as a New Vista in the 2007 Post Election litigations (page 25 – 41).

He refreshed our memory where British Forensic expert, Andrian Forty was a Petitioner Witness in the case of Dr. Kayode Fayemi & Ors V. Engr. Segun Oni & Ors (2009) 7NWLR (p1. 1140) 223 CA. The election according to the petitioner was fraught with “irregularities, massive rigging and all manner of electoral malpractices.”

Prior to Fayemi’s case, the author recalled the first time the service of the Forensic expert (Forty) was used in post election litigation in Nigeria. The case of Olusegun Mimiko & Ors V Chief Olusegun Agagu & Ors (2009) 7 NWLR (Pt.1140) 342 CA, was cited. Forty’s report on the case, according to Omonuwa on p. 27 “had to pass the test of relevancy and admissibility in the course of proceedings. Although the respondents resisted the admissibility of this report, the Practice Direction made pursuant to the Electoral Act of 2006, made it easy to admit the said report. It is no longer news that it was with the aid of this report that the petitioner was able to establish his case at the tribunals”.

On Oshiomole’s case in which he participated, the author submitted that “The trial court used the voters register as well as the accreditation of voters as a basis for determining the lawful votes, although there was no actual manual recount of the ballot papers, it would have been tidier if the said ballot papers were subjected to forensic analysis to determine the genuiness of the thumbprints on them.”

Subsequent Elections in Nigeria and Forensic Science is another important issue raised by the learned author on p. 43 where he submitted that in the aftermath of the 2011 Presidential Election, there was the allegation by the then Presidential Candidate of the defunct Congress for Progressive Change(CPC) that the election was rigged, ……. “Unfortunately though in view of the time frame allowed under the Electoral Act 2010 and the Practice Direction made pursuant thereto, the petitioner had no time to prove these weighty allegations”.

On page 44, Omonuwa went ahead to recall the confession of a Captain in the Nigerian Army that Army and other security agencies were compromised and used to rig the Governorship election that ousted Dr. Fayemi of Ekiti State from the office.

With the use of forensic analysis the voice recording of the suspected conspirator’s and co-conspirators in the rigging plan and execution was instructive though the confession came too late as the report confirmed an 80 percent accuracy of the voices of the public figures by the Army Officer in the Ekiti rigging incident.

Coming to the 2015 General Election and Forensic Advocacy the learned silk noted the unique strategy of the Independent National Electoral Commission (INEC) to use electronic cards i.e. Permanent Voter’s card (PVC).

He was of the candid opinion that in all the proceedings going on at the various election petitions, “data from the card readers will be subjected to Forensic Analysis preferably by information communication technology experts.”

He added in page 47 that “It is equally expected that these will form the basis for forensic advocacy by the respective parties, thus making the job of the adjucator (the elector tribunal) less arduous”.

On the way forward, Omonuwa suggested the following points: The proposal for the review of the Evidence Act should be done to take cognizance of forensic advocacy. The rules for the relevancy and admissibility of forensic evidence should be included. The use of the sections dealing with expert evidence would not suffice in the circumstances as the experts contemplated therein are expected to proffer opinions as distinct from a forensic scientist who is expected to present a scientific report.

Our law enforcement agents should be adequately tutored in the area of forensic science. This would improve on their investigative skills, especially the gathering and protection of evidence in a crime scene. A lot of in-service training and refresher courses may suffice in the circumstances; Legal practitioner, especially those wanting to be successful in election petitions should endeavour to understand the fundamentals of forensic advocacy within the parameters of the Electoral Act and the Practice Directions made pursuant thereto. No doubt, a symposium in the continuous legal training programme on this would equally suffice.

The curriculum content of our undergraduate training for lawyers should be expounded to include a training in the fundamentals of forensic science and;
The current electoral reforms should include a review of the Electoral Act to streamline and reduce the difficulties involved in the admissibility of forensic reports in election petitions proceedings. Adequate references were made to the use of Forensic Science in Election Jurisprudence in other jurisdictions, namely the United States, United Kingdom, Republic of Ireland, the Netherlands where he affirmed that, “ in all of these cases, the point that came clearly, is that election as a process is not error free, even with the use of electronic or digital technology”.

For easy reference the book has four appendixes with indexes. I recommend the book whom the author dedicated to the immediate past Minister of Justice Mohammed Bello Adoke (SAN) CFR “ for restoring dignity and professionalism to the office of the Attorney-General and Minister of Justice in Nigeria” to all and sundry .

“I therefore adopt the words of Jegede (SAN) in the Foreword that “the increasing reliance on electronic register, voters’ Card reader and finger print verification machine the manner and mode of proof of evidence by forensic means makes this initiative and the book itself a worthy companion for lawyers while interest is in Election Litigation and the development of our law”.

In conclusion, I am positive that the desired aim of this book according to the author which “is to create an increased awareness in forensic advocacy and help determine how potentially useful it could be in the resolution of post-election litigations in Nigeria”, would be met.