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Atikus Burden

Published by The Nation on Tue, 17 Sep 2019

President Muhammadu Buharis camp is agog over his victory at the presidential election petition tribunal, which sat in Abuja. The panel of five justices of the Court of Appeal led by Justice Mohammed Garba delivered a unanimous judgment in favour of Buhari and his party, the All Progressive Congress (APC).According to the judgment, the petitioners failed to prove beyond reasonable doubt that Buhari did not poll the majority of lawful votes cast in the 2019 general election, as declared by INEC, and so they dismissed the petition as lacking in merit. The first petitioner and the candidate of Peoples Democratic Party, Atiku Abubakar has vowed to appeal to the Supreme Court.While congratulating Buhari on the expected victory, we must wish Atiku journey mercy, if he insists on carrying his evidential burden to the Supreme Court. This column was never apprehensive of an upset in favour of Atiku at the tribunal; because the burden of proof that a petitioner at a presidential election petition tribunal must discharge to cause such an upset is a near impossibility, except the respondents condone or connive.So, even though Buhari may have thoroughly beaten Atiku at the polls, his victory at the tribunal is because the judicial process makes it nigh impossible for a petitioner to garner the kind of evidence that is needed to prove otherwise. With 120, 000 polling units in the country, and a manual recording of the election results, a petitioner to succeed, must tender election results in majority of the units in dispute and lead primary evidence that elections in those disputed units were in his favour.Considering the size of the country, the impossibility of producing enough willing INEC officials as primary witnesses, the gamut of documentary evidence that needs to be tendered, the technical inhibitions of the evidence act, the limitedness of time within which to lead the petitioners evidence, and the available opportunity for tentacles and delay tactics by the respondents, the proof required of the petitioner is herculean.In the petition by Atiku and his party, the smoking gun would have been the existence of a central server which would have the collated result electronically stored. While Atiku and PDP claim such a server exists; Buhari, his party and INEC claim it does not. Unfortunately, there is no incontrovertible independent evidence that such a server exist. The electoral act also does not provide for such a server and so for Atiku to prove that he won the election, he must tender election result sheets from the disputed polling units, before the tribunal, and that would be thousands of INEC documents.Real Also:Why tribunal declined to rule on Atikus citizenshipWhether for his lawyers or the tribunal, the size of the documents that need to be tendered would be so overwhelming to glance at each of them, not to talk of examining them critically to determine the evidential value. The weight of the evidential burden required can crush the best legal giants, and perhaps they have crushed Atiku and his lawyers.One glaring instance is the tribunals finding that relevant INEC document that should be tendered by witnesses were dumped on the tribunal by the petitioner, instead of tendering each and every one of them through a primary witness, who in accordance with the evidence act, must either be the maker, or receiver, or if a public document, produced from the custody of the document keeper, in such manner as provided by the evidence act.With the huge gap in the number of votes garnered by the two presidential candidates as declared by INEC, the petitioner had a lot of work to do, to prove that he, instead of Buhari won the election. In reality, there will be so many polling units to lead evidence on the outcome of its results. Even if INEC becomes a willing witness for the petitioner, it will need to produce witnesses from the polling units who will render primary evidence about what they witnessed, and give evidence that either the result was manipulated or the process was marred by violence.This column not long ago, wrote on the two main legal systems, the inquisitorial and adversarial legal systems, and called for a review of our present adversarial legal system. Without prejudice to the Atiku versus Buharis case; the outcome of several election petitions and the difficulties associated with proving the petitioners cases reinforce the need to re-examine our legal system. This column again pushes for a national review of the adversarial legal system vis--vis the inquisitorial legal system.In the adversarial legal system, the judge stands aloof and allows the theatre of legal combat between the lawyers, and even when one of them is taking an unconscionable advantage of the loopholes in the legal system, he must never descend into the arena. On the other hand, in inquisitorial legal procedure, the judge proceeds to find the truth and achieve a judgment that approximates to his findings based on the facts presented by the parties, and the findings he is able to make and the conclusions arising therefrom.But importantly, while President Buhari may have his second term judicially reinforced by the judgment of the presidential election petition tribunal, he must swiftly move to secure a legacy for himself and our country Nigeria, by strengthening the electoral process. He can do so by ensuring electoral reforms to gift Nigeria some form of electronically backed voting system. The president should work with the national assembly to improve the electoral laws to allow the use of technology to make the election more transparent and secure.There is no reason why election results at all levels, should not be sent to a secure INEC server, from which indisputable election results can be retrieved. Indeed, election results at every polling unit ought to be transmitted electorally to a nearby server, perhaps one server for each state; and which servers will electronically feed a central server. All such servers must be treated as national assets and as such secured from any form of hacking or unlawful interference. While Atikus petition may not have served its preferred purpose, it has promoted the need for an INEC central server, from which independent election results can be procured.Of course, while Atiku may have lost this time, he must recall that it was such challenge which he now faces that candidate Buhari faced in the three elections he lost, and challenged at the election tribunals. The lesson for everyone, including President Buhari and his party is that what goes round, comes round. While they APC may believe in the sanctity of their victory, they should appreciate the challenge associated with election petitions under the prevailing judicial procedure.
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