Constitutional expert and Chairman of the Presidential Advisory Committee Against Corruption, Itse Sagay (SAN), yesterday, again picked holes in the recent verdict of the Supreme Court on the 2015 Rivers State governorship election, branding it a farewell to election petitions in the country.
The ruling, Sagay said in a 52 page review of the apex court’s decision, was shocking, catastrophic and uncalled for.
The Senior Advocate of Nigeria claimed that not a few Nigerians have lost faith in the Supreme Court on account of the judgment which upheld the election of Mr. Nyesom Wike of the Peoples Democratic Party (PDP) as the duly elected governor of the state.
“In the Richter scale of earthquakes, it must have measured up to 15: enough to induce a miscarriage, even in a man”, he said of the disappointment of those he called innocent Nigerians by, the ruling.
Sagay said he could not understand how the verdict was arrived at despite “the murder, mayhem, chaos and devastation almost amounting to a catastrophe, displayed on television, reported in all newspapers in all its gory details; after the damning reports of International and Local Observers who barely survived their mission.
“It was the worst shock ever created by a Supreme Court decision since I was knowledgeable enough to follow and understand Court judgments”.
Citing the judgment of Nweze, JSC in in Okereke v. Umahi S.C. 1004/2015 where the Supreme Court, said that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register, Sagay said: “How does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register. After verification by the Card Reader, the voter’s name still has to be identified in the voters’ Register and ticked before he can vote.
“It must be noted that both the Tribunal and Court of Appeal emphasized that the Card Reader was intended to and did strengthen the application and efficacy of the Electoral Act, by ensuring a credible election for the benefit of Nigerians.
“The Election Tribunal stated expressly that “the usage of the Card Reader was complementary to the usage of the voters’ register. In other words, the two work hand in hand towards ensuring credible elections. The voters’ Registers properly come to play where a prospective voter has been screened by the Card Reader. The sum total of the role of the Card Reader is that it is complementary to the usage of the Voters’ Register.”
“So where in all this did Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader? Absolutely nowhere. What Nweze had simply done was to give the Card Reader a bad name in order to subject it to judicial execution. Has the Card Reader eliminated the voters’ Register? No! Has it brought integrity and transparency to the voters’ Register and the whole electoral process? Yes!
“All the Card Reader does is to act as a gate man for the voters’ Register. There was no dethronement and deposition here. There was only a step forward towards free, fair and credible elections – a procedure for sanitizing our elections and for eliminating fraud, dishonesty and rigging from our electoral process. Should any Supreme Court anywhere in the world resist and reject such a beneficial development in the electoral process? No!
“The law as stated in Section 49 has not in any way been altered by the Card Reader.
“So, all this talk of superseding and dethroning has no bearing whatsoever on Section 49 of the Electoral Act 2010. There is no provision of the Electoral Act banning or prohibiting the use of Card Readers. It is wrong of any one to assert that the use of Card Readers is electronic voting. It shows that such a person cannot distinguish between accreditation and voting”.
The legal luminary said the Supreme Court ought to have considered the following questions on the Card Reader before arriving at its decision:
* Was the voters’ Register instituted in the Electoral Act to promote and ensure free, fair and credible elections?
*If this is so (and it necessarily must have been so) did the introduction of the Card Reader enhance the capacity of the Voters’ Register to produce clean, fair and credible elections?
He added: “As all the Courts, even the Supreme Court, have admitted, the Card Reader has sanitized and brought transparency and integrity to the election accreditation process. The sum total of the usage of the Card Reader therefore is that it is complementary to the work of the Voters’ register. “The two work hand in hand to ensure a credible election” – (The Tribunal)
“It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ the Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the Voters’ Register as Nweze wrongly asserted in Okereke v. Umahi. Helping and enhancing the Voters’ Register’s capacity and efficiency cannot be classified as ‘dethroning’ or ‘deposing’ it. It is still there as the ultimate source after the cleanup of the process by the Card Reader”.
Sagay also faulted the Supreme Court’s position that “in order for an election to be nullified, the Petitioner (Dr. Dakuku Peterside) has to establish that not only was there a substantial non-compliance with the Electoral Act, but additionally the Petitioner must show that the substantial non-compliance affected the result of the election”.
Relying on Section 139(1) of the Electoral Act, 2010 which stipulates that “An election shall not be liable to be invalidated by reason of non-compliance with this Act if it appears to the Electoral Tribunal or Court that the election (i) was conducted substantially in accordance with the principles of this Act and (ii) that the non-compliance did not affect substantially the result of the election”.
Sagay said: “In other words, any election has to clear two hurdles in order to be valid; (i) it must comply substantially with the provisions of the Act; (ii) where there was any non-compliance, no matter how insignificant, it must not have substantial effect on the result.
“Therefore a petitioner will succeed if he can establish either of the following: Substantial non-compliance with the Act, only or substantial effect on the result by any degree of non-compliance, no matter how trivial. I repeat, the petitioner need only establish one of these two situations in order for the election to be invalid, namely, substantial non-compliance with the electoral Act including the schedules and regulations or substantial effect on the election result of any infraction of the Electoral Act, schedules, regulations etc no matter how trivial the infraction”.
“Therefore, Kekere-Ekun, JSC, was absolutely wrong when she stated at page 67 of her judgment that in addition to establishing substantial non-compliance, the Petitioners were also obliged to also establish that the non-compliance also affected the result of the election. This is an error that some Justices of the Supreme Court have been repeating again and again in spite of corrections that have been offered several times”.
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