Atiku’s Petition and the Burden of Proof

Atiku…will anything change
Proving the mind-boggling infractions, which the Peoples Democratic Party presidential candidate, Alhaji Atiku Abubakar alleges plagued the 2019 presidential election isn’t going to be easy but not impossible.

When the Independent National Electoral Commission (INEC) shifted the general election in the wee hours of Saturday February 16th, the signs suddenly became ominous that the election which many expected to be better than the 2015 might not measure up to standard.

Unlike the 2015 presidential election, which then president, Dr. Goodluck Jonathan conceded and refused to go to court to contest, the 2019 presidential election is being challenged on the grounds of monumental fraud.

Other candidates, who are dissatisfied are already in courts or have filed petitions at tribunals challenging the results of the National Assembly, governorship and state houses of assembly elections.

In their petition, former Vice President Atiku Abubakar and his political party, the Peoples Democratic Party (PDP) said the presidential election results as declared by INEC were not authentic.

Among other claims, they said the data from INEC server showed that their votes were reduced in 31 states and the Federal Capital Territory (FCT). In other words, they claimed they defeated President Muhammadu Buhari and his political party, the All Progressives Congress (APC) with 1,615,302 votes.

Atiku claimed data from INEC’s server showed that he actually polled a total of 18,356,732 votes to defeat Buhari, who had 16,741,430 votes. As such, he rejected the result declared by INEC from the 36 states and the FCT wherein Buhari polled 15,191,847, while Atiku came second with 11,262,978 votes.

The petitioner said the smart card readers deployed by the commission, in addition to accreditation, equally transmitted electronically the results of voting from polling units directly to INEC’s server.

Atiku also said that at various polling units in the northern parts of Nigeria, especially Borno and Yobe, nobody was accredited to vote as voters stayed away for fear of Boko Haram attacks, but returns were made.

He further claimed that the commission published numbers of registered voters before the election but recorded a totally different figure in its Form EC8D (A).

Other allegations made included voters suppression, over-voting, multiple thumb-printing by one voter, use of military to intimidate voters, alterations of results, and other malpractices such as compromising printing of electoral materials and the militarisation of the election.

All these allegations can be found in ground 3 of his petition wherein he said Buhari’s election was not valid by reason of corrupt practices.

In grounds 4 and 5, which he titled: ‘Non-Qualification and Giving False Information’, Atiku also claimed Buhari was not qualified to contest for the office of the president of Nigeria.

He said Buhari did not possess the educational qualification to contest the election.

He said: the Middle School Katsina and Katsina Provincial Secondary School which the 2nd Respondent (Buhari) claimed to have attended in his Curriculum Vitae between 1953 and 1956 and 1956 and 1961 respectively were at the material time non-existent.

“In this regard, the petitioners plead and shall found on the archival documents of school system in Katsina, including Middle School, Katsina and Katsina Provincial Secondary School.

“The 2nd Respondent in Form CF001 filled and submitted by him to the 1st Respondent (INEC) at Paragraph C, Column 2, Page 3, under SECONDARY, wrote ‘WASC’, thereby falsely claiming that qualification whereas there was no qualification known as WASC as at 1961.

“The petitioners contend that the 2nd Respondent was at the material time, not qualified to contest election for the exalted office of President of the Federal Republic of Nigeria.”

Atiku also raised the issue of non-compliance with the provisions of the Electoral Act 2010 (as amended), because according to him, election was cancelled in many polling units and that by the admission of INEC, the said polling units were 4,171 out of the 119,973 polling units in the country.

He contended that the cancelled election covered 2,906,384 registered voters.

When added to the 2,698,773 registered voters in various polling units where election did not take place, there are 5,605,157 voters who did not vote.

He therefore argued that INEC should have declared the election inconclusive since 5,605,157 is more than the 3,928,869 which was the difference in the votes announced by INEC.

He attached to the petition results as declared by INEC as well as results computed by his legal team, which in his view represented the actual results of the elections.

He also included the electronic collation of results state by state as of February 25.

In Abia State, the petition said Atiku recorded 664,659 votes in the electronic results from the server, against the 219,698 votes recorded by the commission.

In Adamawa, 646,080 votes, instead of 410,266; Akwa Ibom 587,431 votes, instead of 395,832; Anambra 823, 668 votes, instead of 524,738; Bayelsa 332, 618 votes, instead of 197, 933; Benue 529,970 votes, instead of 356, 817; Borno 281,897 votes, instead of 71, 788; Cross River 572, 220 votes, instead of 295, 737 recorded by the commission.

The document also revealed Atiku had 778,369 votes in Delta, instead of 594, 068; in Ebonyi 565, 762 instead of 258, 573; Edo 677,937, instead of 275,691; Enugu 698,119 instead of 355,553; FCT 419,724 against 259,997; Gombe 684,077 against 138,484; Imo 485,627 against 334,923; Jigawa 539,522 against 289,895; Kaduna 961,143 against 649,612; Kano 522,889 against 391,593; Katsina 160,203.

Kebbi 493,341 against 154,282; Kogi 504,308 against 218,207; Kwara 353,173 against 138,184; Lagos 1,103,297 against 448,015; Nasarawa 344,421 against 283,847; Niger 576,308 against 218,052; Ogun 438,099 against 194,655; Ondo 451,779 against 275,901; Oyo 527,873 against 366,690; Sokoto 552,172 against 361,604; Taraba 442,380 against 374,743; Yobe 306,841 against 50,763 and Zamfara 379,022 against 125,123.

However, the petition stated that the commission inflated the scores of the party in Osun and Plateau states.

The document claimed that the party recorded 337,359 votes in the data available in the server, but the commission credited the party with 337,377 votes; likewise in Plateau, the party garnered 273,031 votes, against the 548,665 recorded by INEC in its final collation.

Furthermore, Atiku said he won in four of the states that INEC, declared were won by Buhari. The states are Kogi, Kaduna, Gombe and Niger.

The Task of Proof
It is easier to ask that one be declared winner of an election and to also raise allegation of malpractices but getting admissible evidence to prove them have turned out to be the Achilles heel for many petitioners. Atiku isn’t going to be an exception.

In Buhari vs Obasanjo (2005) 2 NWLR (pt 910) 241, the Supreme Court held that unless and until the petitioners have satisfactorily proved their entitlements to reliefs sought, no duty arises on the part of the respondents to lead evidence.

Therefore, if Atiku and PDP fail to prove their claims, Buhari and APC will not need to call evidence to prove that they won the elections.

How does Atiku hope to prove his claims, some of which even included crimes, which the courts said would require proof beyond reasonable doubts?

The petition provides some clues.
Most of the documents he plans to rely on are in the custody of INEC.

He stated in the petition thus:

“The 1st Respondent (INEC) is hereby given notice to produce the originals of documents in its custody/made by it, which are in this petition pleaded in their secondary forms at the trial.’

Therein lays the problem.

Possible scenarios may arise from this.

INEC may fail to produce the records or may produce documents that contradict what he pleaded.

Yet, the petitioner will still be expected to prove his case.

The level of proof to sustain allegation of malpractices is even much stricter.

By virtue of section 135 (1) and (2) of the Evidence Act 2011, they are to be proved beyond reasonable doubts. Discharging this onus is going to be tough for the petitioner.

This position was affirmed in the case of Buhari vs INEC (2008) 19 NWLR (PT 1120) 246.

The courts, over the year, have shown tendency to side with whoever is declared the winner of an election.

No one can rule out the influence of corruption in such decisions.

The courts have therefore laid down stringent conditions for a petitioner to succeed in an election petition.

President Muhammadu Buhari was himself a victim. But today he is a beneficiary of a system he once bitterly complained against.

Odds Stacked Against Atiku
Delivering the Adegboyega Awomolo colloquium on Integrity and Accountability as Pillars of National Development in 2015, a former chairman of the Governing Council of the National Human Rights Commission, Dr. Chidi Odinkalu stated:

“The courts have been at best cavalier and self-serving in their attitude to issues of electoral legitimacy, regarding them as no better than customary neighbourhood disputes to be decided by black-letter lawyering and settled by the rules of evidence, pleadings, practice and procedure.

“The Electoral Act creates electoral crimes such as electoral corruption, provides for elections to be invalidated for corrupt practices, and authorises the courts to set aside electoral outcomes that have been procured through processes that are not in substantial compliance with the principles of elections.

“Nigeria’s courts and legal processes have, however, subverted these provisions in three ways.

First, contrary to the clear provisions of the Evidence Act, they claim that any allegation of corruption in an election petition must be proved to the standard of criminal law, i.e., beyond reasonable doubt.

“Second, even where they have set aside elections on grounds of corrupt practices, Nigerian courts do not order any criminal investigations or prosecutions for the crimes established.

It is as if our judges believe election rigging is an act of nature without human agency.

Thirdly, they have created insurmountable burdens of proof that cannot be discharged by even the super-natural.”

He cited the case of Muhammadu Buhari v. Independent National Electoral Commission (INEC) & 4 Others, where the Supreme Court took this tolerance of electoral corruption to a level of diabolical absurdity.

In this case where even INEC admitted that ballot papers were not serially numbered and the Court of Appeal found as a fact that this was indeed the case, a four-judge majority of a seven-person Supreme Court panel spectacularly concluded that:

‘Non-serialisation, if it had benefits and advantages, was not exclusive to the respondents.

I do not see any proof by the appellant that the respondents had benefits or advantages over and above the appellant on the alleged non-serialisation of the ballot papers.

I do not see that the non-serialisation favoured the respondents and disfavoured the appellant.’

As pointed out by Odinkalu, “If ballot papers are not serialised, the only result, one would think, must be that there are no elections to begin with because it is impossible to control in such circumstances for contamination of the ballots.”

Not done, he asked: “Thus, the question of whether or not any party has benefitted from failure of serialisation does not arise in the first place, for no one should be speaking about that.

To accord judicial stamp of approval to alleged elections with no serially numbered ballot papers is therefore to fundamentally mis-understand the nature of elections or willfully dis-regard or destroy the people’s will in constituting their government.”

If the Supreme Court could uphold an election where ballot papers were not serialised, it should have no problems upholding the 2019 presidential election.

Except the Supreme Court takes the hint from Professor Ben Nwabueze’s lamentation, when he said “the Supreme Court to appreciate that the question of who should rule Nigeria is not one to be decided by a perverse and narrow legalism, by the technicalities of the rules of evidence, practice and procedure and by considerations of expediency”, Atiku does not stand a chance of success.

The odds are stacked against him.
A Government in Denial
Given what Buhari went through in the hands of the political class and the judiciary during his past attempts to get elected as president, many expected him to champion the reformation of both the electoral and the judicial systems.

In 2007, President Umaru Musa Yar’Adua admitted that the elections that produced him as president “had shortcomings” and promised electoral reforms to correct the system.

He consequently set up the Mohammed Uwais-led panel on electoral reform, which made far-reaching recommendations.

However, the Goodluck Jonathan administration did not implement it.

Like the 2007 election, the 2019 elections were flawed but not much had been heard from the president.

Buhari has yet to admit that this election was poorly conducted even though he had strangely promised to leave behind a legacy of credible polls, at the expiration of his second term on May 29, 2023.

Many are not surprised at the president’s attitude. He runs a government that is perpetually in denial.

Buhari is about to complete his first four years, he has not deemed it fit to implement the Uwais’ report. Perhaps, the 2019 elections would have been better if he had implemented the report.

As it is the practice here, people only complain when they are at the receiving end. But as soon as they become the beneficiaries of a rogue system, they allow it to be.

A president, who is unwilling to accept that the election he won was flawed, may not have the credibility to reform the electoral system.

The courts won’t do it either. What a gloom future to behold!

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