First a few questions. Where did Alhaji Atiku Abubakar, PDP’s presidential candidate in the last election get his INEC server report from? Is the evidence admissible? If admissible, is it of any probative value?
These key questions must be determined by the Presidential Election Tribunal one way or the other. But, no kidding, the bars are going to be high for Turaki to ‘Atikulate’.
The controversy that followed Atiku’s claim over the server report appears to indicate that it was illegally obtained. Whether it is genuine in the first place is another matter altogether.
Normally, before a petition is filed, a petitioner applies to the tribunal to compel INEC to make all relevant documents available and they have to be certified as copies of the original documents.
In the 2015 elections, the card readers were expected to upload their contents into INEC central servers in Abuja. However, in a testimony in court in the case of Wike vs Dakuku, a deputy director of ICT with INEC could not confirm whether or not the card reader report made available to Dakuku for his petition was the final one. However, that report was legitimately obtained and certified six weeks after the election. The Rivers state elections tribunal and appeal court relied heavily on the said report to determine the number of people who were accredited and voted.
The Supreme Court disagreed on the probative value of the report and ruled in favour of Wike on that issue. In their ruling, the Justices also questioned the authority of INEC’s ICT deputy director in testifying to a document she did not prepare herself.
Said the Justices,
“Learned senior counsels for 1st (Dakuku) and 2nd (APC) respondents have contended the being a certified true copy of a public document tendered by a public officer, it represents the truth of its content. The position of the law is that there is a difference between the admissibility of a document and the probative value to be attached to it. Admissibility is based on relevance, while probative value depends not only on relevance but also on proof. Evidence is said to have probative value if it tends to prove an issue. In Belgore vs Ahmed, this court emphasized the fact that where the maker of a document is not called to testify, the document would not be accorded probative value, notwithstanding its status as a certified public document. Furthermore, in Buhari vs INEC (supra) at 391 it was held that in estimating the value to be attached to a statement rendered admissible by the Evidence Act, regard must be had, inter alia, to all the circumstances from which any inference can be reasonably be drawn to the accuracy or otherwise of the statement.”
A key question before the tribunal will be, do the 12 or so presiding officers who are willing to testify on behalf of the petitioners have the legal authority to speak to what happened with the card readers operated by presiding officers in over a hundred thousand polling units where they were not present? Can they also testify to a server report they did not produce. The Supreme Court has existing rulings on these issues that may be adverse to the petitioners in the current case.
A second question will be, if Microsoft, IBM and Oracle do testify that the computers’ ids prove that they came from their stable, will they be able to provide evidence that INEC actually purchased those computers?
It will therefore be interesting to see how the tribunal will rule on these issues.
Meanwhile, INEC has denied the said server report. INEC says the election reports were manually transmitted.
Besides, during the reading of the results at the International Conference Center, there were instances where INEC chairman pointed out mistakes made by returning officers in the numbers read. Legally, INEC can choose to simply reject the said report and allow Atiku and the PDP to wear out themselves in trying to prove authenticity. The burden of proof rests on them, not INEC.
The issue of admissibility of the server report will also come into play at the higher courts. From newspaper reports so far, it appears that the report has been admitted by the tribunal and INEC has responded with a denial as stated above.
Even with the server report admitted, the petitioner still has to prove where the manipulation of figures came from polling unit by polling unit. This is a treacherous path where figures can run into themselves, creating confusion in court.
In the Rivers’ case mentioned above, the petitioners tendered voters’ registers in respect of 11 out of 23 local governments and forms EC8A in 15 out of 23 local governments to show that the number of accredited voters was in conflict with the number of accredited voters in the card reader report. Yet the Justices said,
“This cannot meet the required standard of proving over voting polling unit by polling unit.”
There are over a hundred thousand polling units in Nigeria. According to the Justices,
“The results declared by INEC enjoy a presumption of regularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary.
Where a petitioner complains of non-compliance with the provisions of the Act, he has an onerous task, for, he must prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities.
He must show figures that the adverse party was credited with as a result of the non-compliance e.g forms EC8A, election materials not signed/stamped by presiding officers. It is only then that respondents are to lead evidence in rebuttal.”
The bottom line is that a so called smoking gun evidence at the initial stage of a petition may not be smoking at all when it gets to the standard of proof required by the Supreme Court. In election matters there is hardly a “slam dunk evidence.” Smart lawyers have a way of throwing in the wrench just after a petitioner has said, “this is it.” So, it is not over until it is over.
No petitioner should purchase champagne let alone pop any before the final gavel at the court of final adjudication.