Re-Edo: A Tribunal’s Curious Definition of Over-voting
On May 1, 2017, the article with the above title appeared on the 33rd page of The Vanguard newspaper. In it, the author, Mr. Nosa Omorodion, citing many aspects of the verdict to convince his readers that the Edo Tribunal erred in declaring Obaseki’s victory valid, curiously refused to cite any provision of the Electoral Act 2010 to substantiate his argument.
Could this be an innocent oversight on the part of a supposedly enlightened and savvy political analyst or a clever avoidance made for fear of how counterproductive to his mission it would have been for him to do so? Well, when mischief is the operating principle, truth and logic are always sent on a distracting mission. Incapable of firming his misplaced objection to the judgment on the concrete of persuasive logic, Mr. Omorodion inaptly passed it off as “popular thinking”. In case he is trapped in the bubble of ignorance, or has suddenly forgotten, it is then apt to remind him that court verdicts are guided strictly by precedents az nd laws duly made and recognised. The arcane “popular thinking” he joyously but wrongly referred to has no place in a court of law, or else there would have been no need for the Electoral Act or even the Constitution in the first instance.
The resolution of electoral disputes, and indeed all other categories of disputes in the history of Nigeria and the world over, has always been guided by laws duly made by legislative bodies in one way or another.
Similarly, Mr. Omorodion got it spectacularly wrong when he declaimed that “… while the Tribunal gave the impression that the witnesses called by the petitioners were not sufficient to justify their allegation, it made no issue of the fact that the 1st respondent, INEC failed to present any witness despite having been allocated ten days for its defence.” This represents a malodorous misrepresentation of the Tribunal’s position. In reaching that self-serving conclusion, he served a view that conflicts strongly with a pronouncement of the Supreme Court in the case of Buhari vs Jonathan in 2011 says.
Here is the averment of the apex court: “There is no doubt that it is the statutory duty of the 1st defendant, INEC, to conduct and defend election as an independent and unbiased umpire, however, mere allegation by the petitioner or calling hearsay evidence cannot shift burden of proof to the 1st defendant. The onus to establish substantial non-compliance is on the petitioner; it is only after then that the burden shifts to the respondents to prove that the election was not marred by substantial irregularities.”
In another part of his offensive drivel against the judgement of the Tribunal, Mr. Omorodion went another notch further to betray the illogicality that fed his analysis. He was displeased that the Tribunal allowed itself to be guided by the provisions of section 53, subsection (2) of the Electoral Act which clearly states that “… Where the votes cast at an election in any poll- ing unit exceed the number of registered voters in that polling unit, the result of the election for that polling unit shall be declared void by the Commission … where the result of that polling unit may affect the overall result in the constituency”, and section 138 subsection (2) which maintains thus: “An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election which is not contrary to the provision of this Act shall not itself be a ground for questioning the election.”
Invigorated by the logic of a kindergarten mind, that analyst denigrated the Tribunal for not going against those provisions to redefine over voting and non-compliance in line with his doctrine of “popular belief”. In doing so, he succumbed to the dictates of his imaginary truth and asserted that “many people have found the expressions of the Tribunal on these two critical elements of the petition doubtful, its definition of what constitutes over-voting, in particular, has thrown up a controversy within the legal circle and the court of public opinion. Indeed one could say the Tribunal has caused a semantic confusion which has left many wondering if over-voting in judicial lexicon is different from the literal meaning of the word or the contemplation of the extant law.”
Mr. Omorodion must be on a wild goose chase for seeking within the realm of judicial lexicon an entirely new meaning for over-voting as opposed to the Electoral Act’s provision. Moreover, his assertion that the Tribunal’s position on compliance with the Electoral Act and the definition of over-voting has thrown up a controversy within the legal circle and the court of public opinion is by all standards a product of his rather nondescript and fictive universe of “popular thinking”.
It is in the same context of illogicality that we view his assertion that the petitioners had gone the length to prove incidents of over-voting by presenting before the Tribunal certified true copies of the election unit results sheets and 91 witnesses. In fact, this threadbare reasoning is invalidated by the Supreme Court’s position on same in the cited Buhari vs Jonathan dispute of 2011. According to the highest court, “The law is trite that the appellant, in claiming declarative reliefs, ought to stand on the strength of its own case and not only on witness evidence. The appellant did not pursue the criminal allegations it made in its briefs but rather relied solely on the civil aspect.”
In a brief moment of clear thinking questioning the improbability of having all registered voters in a polling unit to participate in the voting process, Mr. Omorodion asks: “Does it mean that in a unit where for instance we have 1000 registered voters, 250 voters were accredited and declared to have voted but 300 votes were recorded by the INEC officials, over-voting does not subsist?” While such poser sounds very logical and true as already noted, conceding to his position that overvoting should be defined with reference to accredited votes still does not cut it because the recount exercise which forms the basis of his new thinking in no way revealed that the total number of recounted votes equalled the total number of accredited votes let alone exceed it.