YEKINI JIMOH examines the recent judgment delivered by Kogi State Governorship Election Petition and some inherent issues.
IT was indeed a two-horse race. And like every contest, one person had to win. But in politics, especially in this clime, the battle is never over until it is taken to the tribunal. That was exactly what characterised the November 16, 2019 governorship election in Kogi State. Dissatisfied with the declaration of incumbent Governor Yahaya Bello as the winner of the poll, the candidate of the main opposition Peoples Democratic Party (PDP), Musa Atayi Wada and his party headed for the state’s Governorship Election Tribunal. The tribunal delivered its judgment in Abuja on May 23, 2020, upholding the victory of Bello at the poll.
The conduct of the election, the outcome and attendant issues have been subjected to a series of thorough analysis and dissection by experts and other critical stakeholders. This is against the background of the prayer of the petitioners and the defence of the camp of the governor while the matter progressed at the tribunal. Wada and the PDP believed that the election of November 16, 2019 was fraught with irregularities. In their opinion, it was a fraud.
The Independent National Electoral Commission (INEC), the governor and his party, the All Progressive Congress (APC) were made the respondents by the petitioners. Through their counsel, Okutepa (SAN), the petitioners asked the tribunal to upturn the victory and declare Musa Wada and the PDP as the winner of the election on the alleged ground that he scored the majority of the lawful votes cast.
Specifically, they averred that second respondent (Yahaya Bello), was not duly elected and not returned by a majority of the lawful votes cast in the poll> therefore, the petitioners prayed that his election declaration and return as the governor was null, void and of no effect whatsoever. Another prayer of the petitioners was a declaration that neither the governor nor the third respondent (APC), scored the majority of the lawful votes upon the cancellation by the tribunal of the unlawful votes allotted to the second and the third respondents in all the polling units complained of where there were over-voting and non-accreditation. Their demands equally included an order of the. tribunal nullifying the Certificate of Return issued to the governor by INEC (the first respondent), as well as an order declaring that the first petitioners scored the majority of lawful votes cast at the election.
Other issues raised by the petitioners bothered on the possibility of a fresh poll, especially in disputed areas. Therefore, they prayed the tribunal for an alternative order directing the INEC to conduct a fresh election in the state or rerun elections in disputed polling units where elections were cancelled. As part of evidence, the petitioners brought 19 tload of documents before the Tribunal in an effort to justify their claims and convince the tribunal to grant their reliefs, including declaration of Wada as governor. They went further to call 32 witnesses and tendered some of the exhibits contained in the bags through the bar. They were accordingly marked and admitted as P1- P218.
But each of the respondents separately responded and denied the petitioners’ averments, describing the petition as frivolous, vexatious, scandalous and incompetent. While Bello, through his counsel, urged the tribunal to dismiss the petition for lacking in merit and substance, the APC prayed the tribunal to dismiss entire matter with substantial cost. Bello had called seven witnesses, whose testimonies attested to the creditability of the election and demonstrated that the allegations by the petitioners were unfounded. However, during the hearing of the matter, the APC and the INEC did not call any witness.
In their final address before the tribunal, the petitioners raised an issue on the crux of their complaint for determination. It was: “Whether from the totality of the evidence adduced by the petitioners’ witnesses particularly the PW19 this Court can safely hold that the second respondent (Bello), was duly elected by a majority of the lawful votes cast on the election.”
The complaint of the petitioners was premised on Section 138(1)(c)of the Electoral Act (Supra) .It reads: “ An election may be questioned on any of the following grounds that is to say,
(c) That the respondent was not duly elected by majority of lawful votes cast at the election”
The petitioners claimed that 282,612 ballots papers were used for the election and that P95(A), P107(k) and P193 showed that 324, 745 votes were cast; that there was over-voting in seven local governments, where accreditation on the voter register ,smartcard report and result form were less than the votes declared in all the polling units in the said local government areas.
They insisted that a clinical and scientific proof by PW 19 justified their claims that there was 159,957 ballot papers which had multiple thumb prints and another 67,297 votes with other form of irregularities. The petitioners further averred that over-voting was established by an expert – PW 19, one Professor Ishaya Haruna, a vice-chancellor and Professor of Mathematics and Computer Science at the University of Jos; that the fraud took place in certain polling units in Lokoja, Kabba/Bunu, Okene, Okehi, Olamaboro, Ajaokuta and Adavi local government areas.
But after a thorough review of the evidences, exhibits and addresses of the counsel in the matter, the tribunal, in a split decision of two – to – one, upheld the election and return of Governor Bello by the election the INEC. The lead judgment delivered by the chairman of the tribunal, Justice Kashim Kaigama that was agreed to by Justice Baraka Wali did not only uphold election but awarded N1million cost against the petitioners in favour of the respondents.
The main reasons for the decision was that the petitioners failed woefully to substantiate allegations of rigging, over-voting, corrupt practices, malpractices contained in the petition.
Justice Ohimai Obviagele, a member of the panel, however, disagreed with the lead judgment. In his dissenting judgment, Justice Obviagele said that evidence of massive fraud in the seven local government areas had been proved and he therefore cancelled the election and ordered a rerun election in the said the local government areas, just as she ordered the INEC to conduct the election within the next 90 days.
But the decision of the other Justices prevailed as they had observed, while reviewing the evidences that “no single witness other than perhaps Pw19 (expert witness) and PW 22 ( the statistician was called in evidence to prove the allegation of over-voting. “We hasten to add that in the absence of any witness account on the allegations of over-voting, the pleading in respect of Advai local government shall be deemed abandoned and liable to be struck out.” The duo also put the six other local governments under scrutiny and observed that there was no credible evidence substantiating allegations that were contained in the petition in respect of the local governments. “We have gone through pleading and the evidence presented by the petitioners and the respondents. We have also perused the written addresses of counsel, as well as the objections raised by them to the documents tendered in evidence. We are unable to agree with learned Senior counsel for the petitioners, Okutepa (SAN) that the petitioner Musa Wada of the PDP be declared winner of the November 16, 2019 Kogi State Governorship election.:
They also disagreed that Wada was the one who scored the majority of the lawful votes cast at the election. “Instead, we confirm that the 2nd respondent, Yahaya Bello, of the APC was the winner of the November 16, 2019 polls, having scored the highest number of votes cast,” the judges stated. The tribunal adduced several reasons the evidences of PW 19 was discountenanced, including the role played by Professor Haruna for the PDP.
While many observers see the Wada petition as apt at a time the state was enmeshed in a bitter campaign that painted the state as a violence zone, the judgment itself indirectly cleared the gladiators in the state who were painted as the sponsors of violence during the campaigns.