By Daniel A. Noah Osa-Ogbegie, Esq.

The recent ruling by the Edo State Governorship Election Tribunal, which dismissed Asue Ighodalo?s petition challenging the election of Senator Monday Okpebholo, represents a significant miscarriage of justice. A careful examination of the tribunal's findings reveals a series of legal misapplications and misinterpretations of electoral law, many of which undermine the integrity of our democracy.

Although I have not yet seen the full judgment, the preliminary highlights confirm that this judgment further erodes public trust in our judiciary. Below is a point-by-point analysis of why the tribunal?s decision is deeply flawed:

1. Non-Compliance with the Electoral Act

Tribunal's Finding:

The tribunal ruled that the election was conducted in substantial compliance with the Electoral Act, dismissing Asue Ighodalo?s claims of procedural breaches.

Critique:

This conclusion blatantly disregards clear violations of the Electoral Act, particularly INEC?s failure to record serial numbers of sensitive materials such as ballot papers, result sheets, and BVAS machines, as mandated by Section 73(2) of the Electoral Act 2022. This is not a trivial matter?it is a fundamental breach that undermines the credibility of the electoral process. The tribunal?s dismissal of these concerns undermines the very framework of transparency and accountability that the Electoral Act seeks to uphold.

2. Over-Voting Allegations

Tribunal's Finding:

The tribunal dismissed claims of over-voting in 133 polling units, citing insufficient evidence.

Critique:

The evidence presented, including BVAS data and result sheets, clearly showed that in these units, the number of votes cast exceeded the number of accredited voters. Section 51(2) of the Electoral Act 2022 requires the cancellation of results in such instances. The tribunal?s failure to act on this clear violation effectively condones electoral malpractice and undermines the integrity of the vote.

3. Collation of Incorrect Results

Tribunal's Finding:

The tribunal found no merit in the claim that incorrect results were collated in 236 polling units.

Critique:

This ruling ignores overwhelming evidence, including Certified True Copies (CTCs) from the IREV portal and agents? copies, which showed discrepancies between the results recorded at polling units and those subsequently announced. The tribunal?s refusal to address these discrepancies implicitly endorses the falsification of results, which runs counter to the principles of a free and fair election.

4. Exclusion of Ikpoba Okha Ward 2 Results

Tribunal's Finding:

The tribunal deemed the omission of results from 76 out of 77 polling units in Ikpoba Okha Ward 2 inconsequential.

Critique:

This mirrors the situation in Hope Uzodinma v. Emeka Ihedioha (2020), where the Supreme Court rectified the exclusion of results from several polling units and declared Uzodinma the winner. The Court emphasized that:

Critique: This mirrors the scenario in Hope Uzodinma v. Emeka Ihedioha, where the Supreme Court recognized that the exclusion of results from numerous polling units could significantly alter election outcomes. In that case, the Court stated:

"I hold that on a preponderance of the evidence, the appellants discharged the burden on them of proving that the results from 388 polling units, which were in their favour, were excluded from the collation of results and that if the excluded votes are added to the results declared in their favour, they would have emerged as the winners of the election."

By not addressing the exclusion in Ikpoba Okha Ward 2, the tribunal ignored a precedent that emphasizes the material impact of such omissions.

The tribunal?s failure to address INEC?s unjustified omission of 76 out of 77 polling unit results in Ikpoba Okha Ward 2 is an outright judicial whitewash. When accreditation took place, and no lawful reason was given for excluding those results, what justification did the tribunal have for ignoring them?

5. Number of Witnesses Presented

Tribunal's Finding:

The tribunal suggested that the petitioners? presentation of only 12 witnesses was inadequate.

Critique:

Section 137 of the Electoral Act 2022 states:

"It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if the originals or certified copies manifestly disclose the non-compliance alleged."

This provision allows petitioners to rely on documentary evidence to establish non-compliance, thus relieving them of the burden of calling hundreds of witnesses. The Court of Appeal in Yohanna v. Ishaku further clarified:

"Section 137 of the Electoral Act 2022 relieves a party of the burden of calling oral evidence if the originals or Certified True Copies of the documents tendered manifestly disclose the non-compliance alleged."

The tribunal?s insistence on oral testimony directly contradicts the clear provisions of the Electoral Act, which prioritize documentary evidence as the most reliable proof of electoral infractions.

Conclusion

The judgment handed down by the tribunal fails to properly apply electoral laws and dismisses compelling evidence of non-compliance, over-voting, and result manipulation. By doing so, it not only disregards the specific grievances brought before it but also sets a dangerous precedent for future electoral disputes.

This judgment, as it stands, is a dangerous precedent. It tells Nigerians that election rigging and procedural violations will be tolerated, as long as they are sanctioned by INEC and rubber-stamped by the judiciary. The implications extend beyond this election. If the judiciary cannot be trusted to enforce basic electoral laws, then democracy itself is at risk.

The most troubling aspect of this case, however, is INEC?s failure to mount any meaningful defence. By closing its case abruptly and offering no justification for its violations, INEC effectively admitted its wrongdoing. Yet, the tribunal chose to overlook this stark admission, choosing instead to perpetuate a narrative that allows electoral malpractice to go unpunished.

This judgment does not only appear to show the failure of the legal system?it is a direct assault on the people of Edo State, whose votes have been rendered meaningless. If this decision stands, it sends a message to Nigerians that electoral fraud will be tolerated as long as it is condoned by INEC and rubber-stamped by the judiciary.

What is even more concerning is the broader implication. If the judiciary, as the final arbiter in electoral disputes, is not committed to upholding the rule of law, then democracy itself is at risk. The promise of a free and fair election?central to the functioning of any democracy will be severely undermined.

As I reflect on the state of our democracy, it is disheartening to realize that a time might come when I consider solace in a country that upholds democratic values and the rule of law more vigorously than Nigeria. It is a bitter realization, but it is the reality that this judgment presents.

A time has to come and that time is now, where Nigerians must demand a judiciary that will not simply perpetuate the status quo but will rise to the occasion and deliver justice. We must stand firm in our belief that the rule of law will prevail over political expediency, especially now that political buccaneers are most determined to steal our democracy and leave nothing for us to succour.

*Daniel Aroren Noah Osa-Ogbegie, Founder Noah Attorneys, a Firm of legal practitioners, who hails from Ugieghudu in Uhunmwode Local Government Area of Edo State, writes from New Zealand.

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