Chinedu Ekeke: The Activism Of A Reactionary Supreme Court

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I waited to read the rationes decidendi for the recent judgements of Nigeria’s Supreme Court over last year’s governorship polls before commenting publicly about the decisions. Those reasons finally came on Friday, 5th February, when a 7-man panel of the apex court, led by Chief Justice Mahmud Mohammed, explained why it ignored the incontrovertible evidence of over-voting contained in the Independent National Electoral Commission’s Card Reader accreditation reports and awarded victory to those who in fact, did not win elections.

The Supreme Court agreed that the use of card readers for voter accreditation was provided for in the INEC Approved Guidelines and Regulations for the conduct of the 2015 elections, yet they refused to attach any probative value to it because, in their own words, “the device was never intended to supplant, displace or supersede the Voters’ Register”.

Unsurprisingly, beneficiaries of this decision have hailed the Supreme Court as the ‘saviour’ of Nigeria’s democracy. Unfortunately, that is not exactly true. They are neglecting the bigger picture. The 2016 class of Supreme Court judges have killed Nigeria’s fledgling democracy by its recent pronouncements.
These judgments have unwittingly transported Nigeria back to the era when it took the wish of one powerful person somewhere to determine who wins and loses elections. We were all in this country when former president Olusegun Obasanjo told us that a former Anambra state governor, Chris Ngige, and his then estranged political godfather, Chris Ubah, confessed to having ‘rigged elections’ in his (President Obasanjo’s) office. The only punishment both men got, according to Mr. Obasanjo, was that he ordered them to leave his office. Today, one of them is a ranking minister while the other will soon be a federal senator. We were witnesses to the Rivers state elections in 2003 when more than 2 million people were said to have voted, yet the total number of registered voters was around the 2 million mark. Who will forget, that in 2007, at his inaugural address, the late President Umar Musa Yar’Adua acknowledged before Nigerians and the world that the election which brought him to power was fraught with irregularities? All of these happened because Nigerian politicians are masters of the art of gaming the electoral system. The desperation of the Nigerian politician for power was what made the INEC, under Professor Attahiru Jega, to advocate for the use of technology in navigating the country’s rancorous electoral process. This was the paternity of the popular INEC Smart Card readers.

It is important to, at this point, interrogate the understanding of the Supreme Court judges of the recent evolution in Nigeria’s electoral process. And citing the relevant parts of the Electoral Act will help us achieve this. Interestingly, the justices of the apex court cited these sections themselves. Hear them; “Prior to the authorisation of its (Card Reader) use by the Guidelines and Manual (supra), the Electoral Act, 2010 (as amended), in sections 49 (1) and (2), had ordained an analogue procedure for the accreditation process.’’ – (emphasis are mine).

At this point, let’s read the two sections the said Electoral Act for clear understanding:

49 -(1) Any person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.

(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him a ballot paper and indicate on the Register that the person has voted.

Note the import of the ‘Voter’s card’ in sub-section 1 above. Also note that it is only after the presentation of this Voter’s card that the Presiding Officer will start verifying if the name of an intending voter is in the Register of Voters in that Polling Unit where he wants to vote. This action – ascertaining that the person intending to vote has his name registered in the Polling Unit where he wants to vote – is what INEC calls accreditation. Note further the reference of the Supreme Court judges to ‘analogue procedure for the accreditation process’ in their submission.

The most important item in the two sections cited above is the voter’s card. Now, between when Nigeria’s recent electoral laws were drafted/amended and the last election, there’s been a swift evolution in the architecture of the voter’s card. The voter’s card the 2010 Electoral Act referred to was the laminated rough-edged paper with a blurred picture of its holder. Accreditation in those times required the Presiding Officer to simply compare the blurred image on the card to the face of its holder before searching for his name in the Polling Unit. Needless to say here that it was easy for politicians to take advantage of such a rudimentary system; which explains why past elections, including that of 2011, did not meet the desired threshold of transparency and credibility. The voter’s card as we knew it then has since changed. It is now a clone-proof plastic card, embedded with chips that can read a holder’s bio data and finger prints. With the modern voter’s card popularly called Permanent Voter’s Card or PVCs, the original role of a Presiding Officer with regards to being satisfied that the card holder’s name is in the Register of Voters has become more supervisory. The Presiding Officer does not have the capacity to read the Voter’s card. Only a device, the Smart Card Reader can do that. All the Presiding Officer has to do is operate the device and watch it authenticate the cards and verify voters.

 

This was how the ‘card reader’ creeped into Nigeria’s electoral lexicon. It was introduced to be able to read the data on a voter’s card. The card had changed, and so did its authentication method. It is heartbreaking to imagine that the justices of Nigeria’s Supreme Court did not bother to follow the evolution of the Voter’s card. Are they not Nigerians? Do they not have their own voter’s cards? How about their spouses and children? Were there no friend or relative of theirs who obtained a PVC and went through the voting process with it? How did the Supreme Court judges not know that a change in the architecture of the voter’s card demanded a change in the method of accrediting voters? This is even worse given that the legislature had already extended jurisdiction over disputes in governorship elections to this same Supreme Court. Before now, disputes on gubernatorial elections terminated at the Court of Appeal.

It is difficult to understand why the apex court has issues with technology-driven accreditation. Of course they claimed that ‘’the National Assembly, in its wisdom, did not deem it necessary to bowdlerise the said analogue procedure in section 49 from the Act so that the card reader procedure would be the sole determinant of a valid accreditation process.’’
But we know this is not the case. You adduce wisdom to reject or refuse to do something if the matter comes up for debate. The National Assembly at no point debated whether or not to amend the Electoral Act to change the process of accreditation from an analogue mode (at least, according to the Supreme Court) to digital. The Senate had, on February 18, 2015, unanimously endorsed the use of card readers for the general elections. It was aired on national television and all the national dailies carried it. February 18 was less than two months to the first election which was to hold on March 28. Everyone knows the National Assembly could not have amended the Electoral Act in two months. The card reader demonstration before the Senate took place only after INEC was sure the machines would work and was ready to deploy them for the election. INEC did not have the time to pursue principal legislations on the card reader; which was why the electoral umpire made ancillary regulations on the issue. In its Approved Guidelines and Regulations for the conduct of the governorship elections, INEC insisted that only Card Readers would be used for voter accreditation. The election body believed, and rightly so, that the nation had embraced the use of card readers because the National Assembly had given it tacit approval.

 

The argument therefore, that the use of Card Reader was never intentioned to ‘supplant, displace or supersede’ the Voters’ Register clearly shows a lack of understanding of the role of the Voter’s card in the said elections. The Voter’s card is a digital card. Accrediting its holders must be done digitally. The Card Reader therefore has technically supplanted manual accreditation. It is the Register of Voters that now has to complement the Card Reader for those rare occasions where the machine fails to capture the finger print of voters; it can’t be the other way round. In last year’s election, we had a 0.3% card reader failure rate. The success rate was 99.7%! No patriotic observer can say the card reader failed. Even in rare cases where the machine could not read finger-prints, it first accepted the cards (for those who voted in the Polling Units where they registered), which means that the machine successfully shut out people who specialize in multiple thumb-printing in both single and multiple polling units.

 

With automation in the accreditation process, it becomes a lot easier to prove over-voting. The Supreme Court relied on a method overtaken by progress to decide on the cases before them. Section 53 of the Electoral Act only contemplated over-voting as a situation that can only occur in polling units. The Act did not envisage that people will sit in their living rooms and concoct results for a whole local government. So in the case of Abia, where results were manufactured in three different local governments, each of which has about 200 polling units, the Supreme Court expects the petitioner to tender 600 Registers of Voters to the Governorship Petitions Tribunal within the 14 days stipulated by law. (Yes, the Electoral Act only allows a petitioner to argue his case within a maximum period of 14 days). Yet, the total number of people accredited in each local government was already captured by INEC Card Reader report. Rather than narrowly relying on the Register of Voters, a law which made sense in the era of manual accreditation, merely looking at the accreditation report would have immediately given the judges an idea of the valid votes cast in both cases (the other being Akwa Ibom). The Card Reader made the conduct of elections more seamless for all stakeholders.

 

It is an onslaught on Nigeria’s nascent electoral progress that the Supreme Court judges deliberately refused to understand this very important innovation and therefore chose to sacrifice credible elections on the altar of old laws that relied on laminated, fraud-prone voter cards to deny election winners of their popular mandates.

The judgements simply tossed aside INEC’s Approved Guidelines and Regulations for the proper conduct of elections. Those who rigged the election refused to adhere to INEC rules and Nigeria’s Supreme Court okayed their lawlessness. Desperate politicians killed and maimed to get declared by INEC, and the Supreme Court gave them a pat on the back. In Abia and Akwa Ibom, the PDP’s agents agreed – before the tribunals – to signing results in ten different wards at the same time (in other words, the agents were omnipresent), but the Supreme Court still went ahead to subsidise their fraud. Nigeria has not witnessed a worse attack on its progress in recent history.

Now, 2016 is a somewhat election heavy year. There are over 80 different elections that will be conducted by INEC. The electoral body cannot go back to temporary voter’s cards. What voters have is the PVC, which means that card readers will still be used. Poor INEC; they will still release their Approved Guidelines, but nobody will adhere to those rules. Politicians will simply kill and maim and then force INEC officials to write fake results and declare same as credible. There’s no incentive to obey INEC Guidelines. This is the legacy of the 2016 class of Nigeria’s Supreme Court.

Of course they will want to console themselves with the deluge of praises from the beneficiaries of this reversed progress, but for the rest of their lives, these ‘wise’ men and women who refused to apply wisdom in their judgments will live with the burden of the chaos these judgements have surely created. The history of Nigeria’s democracy will accord them their due place as the undertakers of a people’s aspiration for credible elections.
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Chinedu can be followed on Twitter as @Nedunaija

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