NIGERIA’S 2007 ELECTIONS: WHAT WENT RIGHT?

*Lecture Delivered by Professor Maurice M.Iwu, Honourable Chairman of the Independent National Electoral Commission at the Department of Political Science, Univeristy of Ibadan Annual Distinguished Lecture, Ibadan, April 15, 2008,


It is a glaring testimony to the abiding commitment of the University of Ibadan to the promotion of knowledge and the quest for better understanding of the dynamics of existence within the Nigerian society that this lecture is holding today in this campus.

I am honoured and delighted to be invited to speak at this august lecture. Let me at once pay my respect to the Vice Chancellor of the University as well as to the Dean of the Faculty of Social Sciences, the Head of the Department of Political Science and the rest of the leadership and members of this respected community not only for hosting this lecture, but more importantly for sustaining the spirit and the culture of intellectual inquiry for which the University of Ibadan is renown.

I did not hesitate in accepting the invitation to speak at this forum for various reasons. For one, I know for sure that here, in this citadel, even for all the robustness of contention for ideas, we can discuss with candour and civility and that empirical evidence more than visceral outbursts determine the conclusions we reach on issues.

In this community, I very much want to believe, men and women still listen to, and reason with each other; they ask questions about things they do not understand and they are sober and sincere enough to accept that the social and political matrix out of which public policies of a society emerge do not always yield outcomes that approximate the idealistic construct of our fancies.

I know this to be a community that places premium on rigorous inquiry on why things are the way they are and also on how things can be better than the way they are presently. I am here to discuss, to examine the reality of our collective existence and aspiration, subscribing as I do to the notion that if we know the truth it shall set us free. Posturing hardly takes an individual far and for a nation it serves no enduring purpose.

Yesterday, April 14th marked exactly one year that the 2007 General Elections commenced. The polls were concluded fourteen days after, on April 28, 2007. Situated properly within the context of Nigeria’s political development and experience, the 2007 General Elections were at once uncommon and remarkable. We shall return in detail to the uncharted course and peculiar circumstances through which the conduct of the elections passed.

Given the historic importance of the 2007 elections as well as the complex challenges that doted the path of the entire process; from the preparatory stages to the end [if indeed they have ended] it can be understood if debates and discussions on issues and policies pertaining to the civic exercise are prolonged.

Alas, much of what has been thrown on the 2007 elections in terms of public assessment and comments have been more heat than light as the expression goes. To borrow the very apt words of the respected African American scholar, Cornel West[1], albeit in a different context, “instead of critical dialogue and respectful

exchange, we have witnessed several bouts of vulgar name-calling and self righteous finger-pointing. [But] battles conducted on the editorial pages….do not take us far in understanding the issues...”

This lecture, with its topic couched in creatively positive hues seems, from all indications, to be a characteristic clear-minded initiative by the Department of Political Science of this great University to rescue discussions on the very critical issue of our last general election from what appears to be a determined stranglehold of emotiveness, a situation over which many of us have become helpless. But where do we go from there?

In 1958, as part of the preparation to grant Nigeria independence, the British created the first electoral commission: 'Elections Commission of Nigeria' under the chairmanship of Mr. R. E. Wraith, OBE, a senior lecturer in Public Administration at the University College of Ibadan, and gave it the responsibility of organising elections for political offices in the impending independent Nigeria. It is noteworthy, that after 50 years, we are returning to Ibadan to review how well we have done in election management and to discuss methods of improving both the administration and management of democratic elections in Nigeria.

In putting together this lecture, the University of Ibadan and its Political Science department have rendered an invaluable service to the nation. An interactive platform such as this serves to foster better appreciation by the citizenry of the reasons and thrusts of public polices and actions. Hopefully, at the end of discussions here today, not a few people would have gained new and better insight into the policies and framework of the last General Election, all of which have been twisted out of perspective by those who elect for their own purposes to see more of what went wrong with the elections instead of what went right.

What were the issues in the conduct of the 2007 General Elections? What were the challenges of the process? How did the established old order impact on emerging tendencies and dispositions in the general bearing of the elections? And how receptive was the environment to the infusion of new ideas in the system, even when it was obvious that the extant order held no redeeming prospect for the interest of the society? An attempt to answer the foregoing questions will help to provide valuable insight into the complex dimensions to the 2007 elections.

Providing answers to these questions are daunting but necessary endeavour, otherwise how can we seriously examine the quality of our electoral democracy? Emotions, personal prejudice and the news of the day are in reality poor indicators that could lead either to undue pessimism or false optimism. To effectively discuss the topic, Nigeria’s 2007 elections: What went right?, it will not only be helpful, but also crucial that we first examine and understand three basic facts; (i) What went wrong with Nigeria’s elections in the past; (2) Why the successful conduct of the 2007 elections was not negotiable and (3) What the definition of success is for the 2007 elections.

Although the contention for power between political interest groups and parties commenced in earnest on the broad stage of what eventually crystallized as the Nigeria state in the 1940s with the beginning of nationalist struggle, it did not take too long before identifiable features in the jostling for power by the political class became manifest.

Progressively through the years and across regimes, it can indeed be said of elections in Nigeria that they have not always been easy and smooth. As it were, the quality of elections in the land has always been affected by the character of politics in the environment. And this has not always been civil.

The expectation that the rough edges of electoral contests will gradually be smoothened out as democracy stabilized and more enlightened citizenry emerged has not exactly been borne out. Indeed, it can be said of the political class and their ways that the more things seemed to change, the more they have remained the same. Or perhaps, worse.

To be fair to the early nationalists and the political class of their era, there was more depth and service-orientated approach to politics. Vision, principle, ideology and meticulously developed manifestos formed the basic foundation on which the pursuit of power was hinged then. Most of the early political parties clearly had identifiable leaders who were the fulcrum on which the activities of their groups rotated. Even at that however, none of the political parties in Nigeria’s early years belonged as it were to any one man or to few individuals whose contempt for fiscal discipline and order was as manifest as what obtains in recent times[2].

The old political parties developed their rules and guidelines based on their philosophies and no member of any of the parties were above the law or beyond reproach within his group. Not any more.

Elections in Nigeria have consistently been made tedious over the years more by the unruly disposition and activities of the political class than any other identifiable factor. A high level of indiscipline and disorder has pervaded the nation’s politics for so long, almost crystallizing in a culture of incohesion.

Without doubt, one of the most grievous features of contemporary politics and the conduct of politicians in the Nigerian environment has been the absence of order. Within the political parties, among competing entities and instructively even in individual tendencies, priorities and articulation of goals, order seems presently to be in abeyance. This indeed is dangerous, for as the International Affairs scholar, Harvey Starr [3]posited, “even in anarchy there is still order”. The lack of order and restraint within Nigeria’s political class has, naturally, adversely affected the development of the political system

It is a fact for instance, that the demise of the various earlier republics; the First Republic, the Second Republic and the partly formed Third Republic stemmed incontrovertibly from lack of restraint as well as unholy initiatives within the political class as a result of struggle for power. Till this very day as with those other times, the mentality within the political class seemed to be; if you cannot win power, smash the system.

But elections are made to be conducted in systems where order prevails. This is the marked difference between competition for power in a civilized setting and that within Thomas Hobbes’s state of nature where the only recognized interest is self interest and the struggle for survival is basically mortal.

Any quest for power that does not make room for restraint and respect for constituted authority is bound, sooner or later, to do damage either to the self or to the system. As it turns out unfortunately in Nigeria’s case, the system rather than individuals has been bearing the brunt of unbridled pursuit of power.

In such an environment of individual and group excesses in which the mechanism for state control is weak or compromised, expectation of an ideal electoral contest is often unrealistic.

The pressure on the system was compounded by the emergence of a class of super rich citizens under the prolonged reign of military dictatorship. This category of the new rich obviously has no regard for such apparently belittling doctrine as equality of all citizens. Nor do they have patience for such measured processes as democracy carries along.

And so with a combination of stupendous wealth, limitless access to authority and influence which literally placed them above the law, Nigeria’s later day politicians are at once a threat to such fundamental ingredient of democracy as electoral contests. It is not difficult really to see the root of electoral problems in contemporary Nigeria.

The prospect of a big man politician failing to clinch the office of his heart’s desire is simply inconceivable to him and so almost always there is a resort to extra-ordinary measures to ensure victory at all cost. Such desperate measures include undermining the process of voter registration. This was done through various means, among them sponsoring ghost registrants, propping up the under-aged to register, sponsoring unemployed youths to take up ad hoc election duties with the electoral Commission - from which vantage angle the recruited polls officer was expected to give the interest of his principal a helping hand.

Even beyond our boarders, elaborate arrangements were made to gain the confidence of foreign missions and international agencies way ahead of the 2007 elections and unsuspecting foreigners were recruited as agents to be used at a later date to discredit the election (even before a single ballot was cast), the electoral management body and the nation.

Then there is the violence dimension. With every wealthy and influential politician having a battery of well armed security guards around him round the clock, the capacity to intimidate political opponents and unleash violence is ever present. At the same time the likelihood of anyone restraining such a citizen from conducts that are outside the orbit of the law is highly reduced. This is the setting in which elections are organized in the Nigerian environment.

The Independent National Electoral Commission was not oblivious of these problems and the difficulties they portended for the conduct of a smooth election. Having identified four broad categories of problem areas that needed to be addressed to enhance the environment in which elections are held in Nigeria, the Commission not only called for concerted efforts in tackling the problem areas, but embarked on various programmes designed to improve on the situation.

In embarking on these programmes, the Commission was propelled by concern rather than any legal obligation to initiate the enhancement programmes. Thus did the Commission initiate programme that focused on (1) the nagging problem of electoral violence (2) the adverse influence of money in Nigeria’s politics (3) Gender inequity and (4) Unhelpful mindset on elections.

Among others, there were anti-electoral violence campaigns and workshops, programmes to strengthen the administrative capacity of political parties; seminars and workshops for the security agencies on handling electoral duties; conferences and interactive sessions with the civil society organizations as well as a spirited effort to promote a new campaign finance regime that will conform to the ceiling set by the Electoral Act for political campaigns.

In all these, the larger society and the media showed very little interest. These issues have also not received the attention they deserve within the academic community. The Electoral Commission was left as it were not only to prepare for the elections, but also to address the daunting problems of the political environment which had been exploited in the past by unconscionable politicians to undermine elections and the will of the electorate. Any serious focus on the reform of Nigeria’s electoral process with a view to strengthening democracy will have to pay very profound attention on these issues.

In preparing for the 2007 elections, the Independent National Electoral Commission had its eyes set on history. It was determined to address as much of the loose ends that marred past elections as was possible. For such a society as ours that thinks and acts on short term basis, it may be difficult at the moment for many to appreciate the foundation for a better electoral process laid with the 2007 elections.

If the nation stays the course however, and if the destructive culture of discarding already laid foundation for a new one does not again prevail, subsequent management of the electoral process will draw tremendous stability and bearing from the seminal work done with the 2007 elections.

The setting of an upper ceiling for political campaign expenses for instance, may appear idealistic and unenforceable at the moment.

The mere coming into being of a law on political party finance is however, monumental in itself. The law provides a framework for stricter control and order in the use of money in Nigeria’s politics which will, down the line assume its desired impact.

A new and modern regime of registration of voters also came into being with the 2007 elections. For those who are more interested in what went wrong, the initial hiccups and teething problems recorded by the new voter registration format is the story.

For the positivists and patriots whose interest is in what went right, the introduction of the electronic voters register with its promise of eliminating such vices as multiple registration and registration of ghosts and the under aged holds out a bright new prospect for registration of voters and elections in Nigeria. With the new regime of voter registration the age-long practice of the entire nation coming to a virtual end for two weeks or more simply for prospective voters to get registered is no longer necessary.

The commencement of continuous voter registration which is made possible by the dynamic nature of the electronic voters register now means that every Nigerian who turns eighteen years of age simply goes to the nearest INEC office and gets registered. This is the way it is done in civilized parts of the world today. This is the way it now is in Nigeria. This is one of the things that went right with Nigeria’s electoral process on the way to the 2007 elections.

The computerization of the Nigerian electoral system did not end only with the introduction of electronic voter register; it included the establishment of a robust communication system in all the 778 local government areas of the country and linking them to the 36 state capitals and FCT. The improved communication platform made it possible for results collated by the Resident Electoral Commissioners and their field staff to be sent to Abuja in real time. For the presidential elections, for example, field results were also independently transmitted directly to INEC’s headquarters in Abuja through the Commission’s secure and dedicated electronic network. This made it possible for the Commission to declare authentic election results on time.

Another thing that went right in 2007 is the use of customized ballot papers for each electoral constituency, which was introduced for the first time in Nigeria’s electoral history in order to minimize ballot-box stuffing. So also is the historic establishment of The Electoral Institute (TEI). With two satellite campuses and partnership arrangements with three Nigerian universities, TEI will undertake training of electoral personnel, research and documentation and further institutionalize the innovations and reforms introduced for the 2007 elections. The Institute will seek to make electoral system reform an adaptive management programme, which will constantly seek to optimize electoral democracy in Nigeria.

There was also the improvement in our storage and distribution of electoral materials by the building of 6 zonal stores in various parts of Nigeria and the establishment of 2 secured warehouses in Abuja and Lagos.

Back to the elections of 2003, the Commission contended with a most chaotic situation in which political parties substituted, resubstituted and unsubstituted their candidates for the elections up till the night preceding the elections. A bigger manifestation of disorder and indiscipline in the rank of the political parties could not have been seen. The confusion eventually resulted in the aberrant situation in which some candidates of a particular political party who were the last substitution in the list of the party for the election and who eventually won the elections were rejected at the 2003 election tribunals as not been the correct candidates.

Such a chaotic and whimsical substation regime stopped being in existence with the commencement of preparation for the 2007 elections. The Commission’s proposal for a new reasonable time frame for substituting of candidates by the political parties gained legal backing in the 2006 Electoral Act. As it turned out, once the political parties were restrained from eleventh hour substitution of candidates as was the case in earlier elections, they opened up new sources of problems by substituting in some cases aspirants who actually won their primaries. This, as the nation has come to live with, later became the basis for far reaching decisions and reversal of election outcomes by the election petition tribunals. These internal decisions and conducts of the political parties over which the Electoral Commission had no control were to become a burden for the entire nation. Hopefully the parties are learning new lessons. The Commission on its own part is taking measures to promote and enforce internal party democracy in the registered political parties to underscore the point that democratic contrivance is ultimately counterproductive.

As if the existing problems of the political environment did not present enough challenges in the preparation for the 2007 elections, the ruling party, the Peoples Democratic party (PDP) foisted a most unusual and unprecedented crisis on the nation, an irreconcilable disputation that resulted in the incumbent vice president parting ways with both the government and the ruling party. He promptly transformed into an opposition kingpin. The burden of managing an election with such fractious and bitter rival interests and entities became the lot of the Electoral Commission[4].

The unrelenting assault on the Electoral Commission by some of the opposition candidates and their parties in the 2007 election, though most uncharitable and illogical, can perhaps only find explanation in the calculations by the parties of how best to gain upper hand in the spirited struggle for supremacy within the political elite. Again, the Commission remained steadfast against such well funded and orchestrated attacks.

Tackling an Electoral Commission with such viciousness as has been visited on the Commission over the 2007 elections reflects the failure of politicians to appreciate the place of public institutions in the modern state. Undermining a pivotal public institution as a means of advancing parochial aspiration betrays a defeatist mentality.

So much bone has been made of the exclusion of some candidates from the 2007 elections as if the Electoral Commission whimsically embarked on the exclusion of some candidates from the elections it was conducting. Nothing can be further from the truth than this fanciful design to present the Commission in a bad light. The truth remains that the Constitution of the Federal Republic of Nigeria outlines certain conditions which if any aspirant to a political office falls under he is disqualified from contesting for the office.

Ordinarily, INEC did not need any external assistance to interpret or ensure compliance to this provision of the Constitution. The duty of seeing that all aspirants complied with the requirement for qualification to contest in the elections was implicit in the constitutional responsibility of the Commission.

It is pertinent to point out here that while the Commission was still engaged in the process of verifying the credentials of aspirants as they submitted them to the Commission, the Attorney General of the Federation officially reminded the Commission in more than one communication of the Constitutional stipulation of categories of individuals who were not eligible to contest in the elections.

For good measures, the reminder from the office of the nation’s Chief law officer had attached to it a comprehensive list of all those who for one reason or the other fell out of the bracket of constitutional eligibility to stand in the elections.

Then there was also the Economic and Financial Crimes commission. Though not assigned by the Constitution to disqualify anyone from contesting for public office, the agency had enormous
powers to investigate into the activities and transactions of individuals and corporate entities in the country.

From its strategically prime point in the scheme of the nation’s security, the EFCC, especially when it moved with the backing of the law to charge individuals of financial crimes and obtain indictment which was confirmed by the highest law enforcement office in the land could not be ignored by the Commission.

This is the background and the true account of the exclusion issue, a matter in which the Commission did not even in one instance operate outside the ambit of the prevailing law.

But on April 16, 2007, two days after the governorship election had been held across the country, the Supreme Court in its ruling in the case in which Alhaji Atiku Abubakar challenged his being declared ineligible to run for the office of president took away the powers of INEC to determine the eligibility of any candidate contesting in elections in the country.

Interestingly, the Court of Appeal had ruled in an earlier case that it was within the competence of INEC to vet the credential of aspirants in elections and determine their eligibility or otherwise. Of course, when the Supreme Court rules there is no appeal and so here we are.

It is inconceivable that the Electoral Commission could have excluded any candidate from any elections after the April 16 2007 ruling by the Supreme Court. The Commission has not done any such thing. For elections that were held before the Supreme Court ruling however, especially against the backdrop of earlier validation by the Appeal Court of the powers of the Commission to carry out the functions determining who did not meet the criteria to contest in the elections, all that the Commission can plead is that it does not have such supernatural powers as will enable it to turn back the hands of the clock.

The core successes of the 2007 elections are substantial. Compared to previous elections for instance, the level of violence in the 2007 elections was very minimal. That is a remarkable development that cannot be wished away, to borrow a phrase out of our recent political past.

Unfortunate though it may be, it took only one or two local government elections that were conducted by states after the 2007 elections for many to appreciate the success of the 2007 elections in terms of posting minimal violence.

Again, it took the unmitigated disaster that a national election in a sister African country turned into soon after the 2007 elections for many in Nigeria to appreciate the level of efficiency in the management of polls and prompt release of results as was achieved in the 2007 general Elections. And yet those who are preoccupied with what went wrong with the 2007 elections scoffed at the efficiency and even the very existence of the technology for rapid transmission of polls results which was deployed in the 2007 elections. Must it take some tragedy somewhere for us to appreciate God’s grace and what the Nigerian nation accomplished with the 2007 elections?

For so long Nigeria, vibrant and heterogeneous by composition failed miserably to move the system of democratic governance within its domain beyond one single term of four years by any elected government. Every election that was to lead to the consolidation of democracy by moving beyond the one term glass ceiling always managed to snowball into a crisis that consumed the process. Was that incidental or was it a deliberate plot by the wily, vicious and self-centered political elite to keep the nation where they want it?

It has been suggested that “political uncertainty is the essence of democracy” and that there is a distinction between institutional uncertainty, namely uncertainty about the rules of the game – which is bad for democracy - and substantive uncertainty about the outcome of the game – which is good for democracy[5]. It is believed that sponsoring of institutional uncertainty promotes vulnerability of the democratic system to anti-democratic forces. On the other hand, substantive uncertainty keeps the politicians on their toes and makes them responsive to their citizenry. Some of the major political players in 2006 sort to impose an environment of institutional uncertainty in Nigeria solely for the purpose of undermining the system.

On the issue of substantive uncertainty, some scholars have raised concerns over the electoral and political dominance of one political party in Nigeria and have argued that if unchecked that such dominance could threaten or weaken the nation’s fledging democracy. In 2007, there was more alternation of government (rotation of power) among the states than was the case in 2003 – this is good for democracy. Opposition parties should not only be encouraged and given full opportunity to contest political power but they must also periodically win it.

As preparations for the 2007 elections entered its most crucial stages, it was not difficult to see the worrisome signals at various junctures that the old jinx and its Genies were around the corner once again. At the Independent National Electoral Commission however, the determination to break the forty year jinx was resolute.

It is true that at some critical junctures along the process of preparing the elections, it was not quite certain if the contending sides to the upcoming polls were still committed to the scheduled polls. But to successfully conduct the 2007 elections and lift the veil of perpetual political uncertainty had become non negotiable for the Commission. The odds were high, the hurdles were many, but there was no doubt that the elections had to hold come what may or the reign of the transition jinx would be extended.

Dear compatriots, the cup of our electoral democracy may be viewed today as either half full or half empty, depending on each individual’s disposition or state of mind. One thing is for sure, however, and about that I am proud; that the cup of democratic governance is firmly in our hands still and the water in it is more than half full.

Even if there is no other accomplishment in the elections of 2007; even if everything about the elections deserves denigrating on the editorial pages of newspapers; even if some foreign determiners of questionable unilaterally set standards insist on tutoring us on what they believe we had not done right; even if the sacrifices of the patriots who gave their all including their lives for the elections are denied; even if the printing of 65 million ballot papers in four days is no big deal, since the said ballot papers did not carry serial numbers; even if the reversal of six odd governorship election results out of thirty six in the nation (based in the main on technical grounds and internal party problems) translates into failure for the entire General Elections; even if all these were to be so, the historic mark that the 2007 elections finally lifted Nigeria over a forty-seven year jinx of not managing to transit from one elected government to another will always stand. This is what went right for the 2007 elections. We saved Nigeria.





April 15, 2008
Ibadan, Nigeria.


[1] West Cornel (1994); Race Matters. Vintage Books, New York.
[2] Iwu Maurice(2006); Democracy and Constitutional Governance in Nigeria: Paradox of the excluded Middle.5th distinguished faculty of Social sciences Public Lecture, University of Benin
[3] Starr, Harvey (1999); Anarchy, Order and Integrtion.How to Manage Interdependence. The university of Michigan Press, Anna Arbor
[4] The Official Report on the 2007 General Elections, INEC, Abuja. Page 10
[5] Habit Adam and Schulttz-Herzenberg Collette (2005) Accountability and Democracy: Are the ruling elite responsive to the citizenry? In: Richard Calland and Paul Graham (Eds): Democracy in the Time of Mbeki. IDASA. Cape Town.

DIASPORA PERSPECTIVES ON MAURICE IWU AND THE 2007 ELECTIONS

By Jimmy Osifo, Virginia Beach USA josifo@yahoo.com

After reading some essays posted to the internet on the subject of Maurice Iwu’s December 2007 trip to America to release the report of the 2007 general elections and other opinions expressed on the conduct of the elections, I decided to also write my own impressions and conclusions based on my personal and first hand observations of how the event panned out in Washington DC. I was present at the events where Iwu (who I have never met before) released the Election Report. I went home to do some more research and I reached certain simple conclusions which I will now proceed to share with my fellow Nigerians both in the Diaspora and at home. They are as follows:

One - A lot of folks are attacking Iwu because of their personal or political frustrations with his tenure as INEC Chair - it is either they could not compromise him or prevent the elections from holding or that they had some personal spats with him for losing an election that they had no political capacity to win in the first place. Some, like a Professor Bolaji Aluko with us here in the United States took it personal because his brother had lost a bid for the Senate, and he seems to openly blame Iwu for this. Further, it is well known to us in the US that Bolaji Aluko has a personal professional frustration with Iwu as a fellow Professor that was able to return home to something as important as chairing INEC while Aluko is trapped in America, having lost all hope when Atiku that promised him something lost the election to a Yar’Adua that has continued to ignore him.

Two – The report turned in by the EU Observer Mission is not credible because it is plausible that Iwu annoyed them by refusing their money, denying them presence at INEC’s meeting, and above all rejecting their illegal request for the biometrics of Nigerians (President Yar’Adua, Atiku, Buhari and Orji Uzor Kalu included), apart from the glaring fact that their report on the 2007 elections seemed to be a self-plagiarism of the same thing they had said in 2003 both in terms of choice of words and general assessments. The Kenyan riots have shown that too much leverage to foreign election monitors can goad citizens into resorting to violence over commonplace election problems that are better resolved by the judicial system.

Three – Maurice Iwu should be praised for his courage for standing up to the several interests and institutional difficulties hostile to the conduct of the presidential elections, and it was this singular act of courage that assured Nigeria her first civilian to civilian transition in history. If the election irregularities had been exaggerated to the point of succumbing to them to cancel the elections by administrative fiat, Nigeria would have been worse off for it. And the verdict in the presidential tribunal bears this out. Those judges at the Court of Appeals are Nigerians that, like the rest of us, know the duplicitous ways of our politicians too well.

Four – Nigeria should never take any grants from any foreign government to conduct our elections because those grants come with conditionalities that breach our national security and make us seem like a self-disrespecting ‘banana republic’ (to borrow Iwu’s words) and Nigeria is not too poor to provide the relatively low funding required for her national elections. Foreign observers are welcome but their report should never be given prominence to the point that it poses a threat to our emerging democracy or raised to the level that will create a pathological distrust of our own umpires.

Five – As the local government elections (NOT being conducted by Maurice Iwu) demonstrate, the problem of elections in Nigeria and amongst Nigerians is a cultural thing with Nigerians everywhere (including us in the United States). Even amongst Nigerian town unions in America, Nigerians take each other to court over who becomes Chairman of something as civic and little as a branch of a town union. Maurice Iwu has shown the way out because he seems to possess the strong character and consistency a volatile Nigerian electioneering climate needs in a federal electoral umpire.

Six - Nigeria needs to adopt a new system of permanent tenure for chairmanship of INEC - like Ghana and other countries which have done so with much success. This is the only fair way to retain the skills of those like Maurice Iwu who represents the best chance at giving Nigeria an election that leads to something (not one that gets annulled or stopped midstream – like in 1993, which was acknowledged as free and fair but which produced no transition – no pun intended).

Seven – Maurice Iwu is right that most parties and candidates lost because they didn’t have the requisite numbers to win elections, and those that won did so for the opposite reason. Contrary to submissions in opposite, this is an issue appropriate for comments by Maurice Iwu because he meant to serve a note of warning to parties to be better prepared next time around or merge with other parties that have proved stronger. In other words, it is not Iwu’s fault that the Nigerian opposition is fractured into more than 50 political parties, as opposed to Zimbabwe (or even the United States) with only one strong opposition.

Eight – Maurice Iwu’s press briefings should continue because through them Nigerians both at home and in the Diaspora are becoming more informed about what happened before, during and after the elections from someone in authority and with first-hand information. A more informed electorate and political class are less likely to be prone to repeating the mistakes of the past than the opposite. United States election umpires also have a duty to inform the public and they do so to the hilt and with lots of gusto..

Nine – Orji Kalu of PPA deserves respect and honor from all Nigerians for helping stabilize Nigeria at a critical time by joining President Yar’Adua’s GNU, and that should be a reference point that should encourage others still in the trenches to call a truce. Thus, President Yar’Adua should continue to extend an olive branch to Alhaji Atiku and General Buhari, despite their unreasonable intransigence. And finally, people should refrain from pressuring President Yar’Adua to tempt the unknown by forcing Maurice Iwu’s resignation. Nigeria should learn to reward public servants who, like Professor Iwu, succeeded in delivering on difficult and dicey national assignments

Jimmy Osifo wrote in from Virginia Beach, USA. josifo@yahoo.com

WHAT I KNOW ABOUT BOLAJI ALUKO’S HATEFUL BUT FUTILE PURSUIT OF MAURICE IWU

WHAT I KNOW ABOUT BOLAJI ALUKO’S HATEFUL BUT FUTILE PURSUIT OF MAURICE IWU

By: Dr. Tamuno Jonathan, USA

Having followed Professor Bolaji Aluko’s sustained rain of invectives on the person of Professor Maurice Iwu and government of Nigeria, I felt compelled to share with my fellow Nigerians what I observed when the duo of Iwu and Aluko encountered each other during the season of Iwu’s release of the official report of the 2007 elections in America. I was present at the event and I observed that Professor Iwu wanted the proceedings to be interactive and he was determined to give everyone the opportunity to speak or ask questions including even those that appeared to have been planted by interests hostile to him and INEC, like Mobolaji Aluko. Immediately after the event was over, Bolaji Aluko went to press to purvey all sorts of inflammatory remarks and made a helluva of misrepresentations, all in an attempt to rubbish Iwu and Nigeria’s electoral process. He confirmed that he harbored festering animosities towards Iwu and President Yar’Adua by freely admitting to his initial support of Buhari’s presidential bid (and later, Atiku) in an essay published on his own politically sponsored weblog – www.nigerianmuse.com.

Here is what Aluko said (paraphrasing to Iwu’s remarks at the event releasing the Election Report) “He (Iwu) said that INEC had THE BEST FACILITIES in Africa to run any elections; that on the eve of the elections, everybody including Gowon and Buhari and the Council of State testified to his readiness. [That is true: I watched that TV drama; Buhari lost my support on that day for not seeing through that charade.]” To this Aluko guy, I ask you this: If you didn’t agree that INEC had the facilities to conduct the elections, does that not put you squarely within the mold of those who wanted the elections not to hold? And if you were supporting Buhari, and he lost your support merely because he confirmed along with many others that INEC had the requisite preparedness to conduct free and fair elections, did you then turn an Atiku-supporter as you seemed to have suggested when you stated in the same essay under reference that (again referring to what Iwu had said): “He (Iwu) stated that power-drunk people with deep pockets - aka Abubakar Atiku, without naming him - were prepared to drag the country down, and even infiltrated his INEC”. Here again is a desperate distortion of the true import of Iwu’s general remarks. Atiku is not the only Nigerian with deep pockets opposed to Iwu, Obasanjo or President Yar’Adua. That Professor Iwu never named Atiku yet Mr. Aluko is now imputing it to him is very revealing and clearly points to an evil agenda on the part of Aluko, apart from confirming that he might have set up his website just to attack Professor Iwu, INEC and the Nigerian government as anyone can see from the sleazy nature of the putrid news and articles he gives prominence on that site – all against Nigeria with Maurice Iwu as his poster boy.

Back at the Press Club, Mr. Aluko had attempted to filibuster the proceedings by employing fuzzy math to back up his bizarre postulations that the number of petitions issuing from the 2007 elections is greater than the number in 2003, and he attempted to get personal with Iwu, all at once (calling Iwu ‘professor’ with a evident derision and combativeness in his voice and general demeanor). He also seemed to suggest that the South East (Igbos) dominates the ranks of past Chairmen of INEC and he started reeling out names of all Igbos who had held that position, conveniently omitting others who are non-Igbo. At this point, a good number of Nigerian Diaspora present challenged Aluko and told him to shut up but Professor Iwu told them to leave him be – showing that Iwu had the guts to do his own battles. So, when finally Professor Iwu took Aluko up on the miss-compared statistics he cited as evidence of more petitions in 2007; he just nodded and resumed his seat, remaining quiet throughout. Aluko just saw that his numbers didn’t add up. And Nigerians present enjoyed this brief intellectual exchange between two professors with Maurice Iwu clearly coming out the winner. A no contest of sorts, if you will.

Now, having read the rest of what Aluko had to say on his website, I am persuaded that he also harbors some tribal animosity towards the Igbos, and Iwu just happens to be the center piece for attacks Aluko really meant to haul at an entire ethnic nationality; and he doesn’t care if Nigeria’s image abroad is caught in the crossfire. Here is what he said “All the people who asked questions - except maybe three of us - might as well all have been from Imo State, possibly even from Iwu's village, maybe all with the last name of Iwu but with pseudonyms”. Even a non-Igbo like my humble self would be put off by such naked ethnic-baiting and wild guesses. Pray, what does an Igbo expressing his opinion on a presidential election won by a Yar’Adua from the North (Katsina State) have to do with being Igbos from Imo State? Or, why does Aluko find something negative to say about everybody and organization that as much attempts to express a positive view about Nigeria? Just go to the web, and if you google Aluko’s write-ups, you will see his consistent diatribes against Nigeria and her public institutions. Why would Aluko say that he called on President Yar’Adua to fire Iwu, knowing fully well that he is also challenging the legitimacy of President Yar’Adua’s election?

Continuing - Aluko (and his ilk) seem to harbor some guilt about aiding and abetting the conspiracy to stop the election as he revealed in his essays. Here is what Aluko said (i.e. referring to Iwu’s remarks), “He (Iwu) stated that some people in Washington, colluding with some Nigerians in Washington - and looking slightly towards me - colluded against Nigeria”. So, here you have it folks. Now judge for yourselves why Iwu’s general allegations had to make Aluko uncomfortable, merely on some transient eye contact. Iwu did not ‘slightly’ look to anybody’s direction. He made eye contact with the crowd and waxed emotional and patriotic when he condemned such conspiracy against “my country” (which were the words Iwu used to refer to Nigeria – it was admirable, my eyes misted too). People sighed and nodded in agreement, and Aluko squirmed uncomfortably in his seat. I think it was James Hardly Chase that said that “the guilty are always afraid”.

As for the millions of Euros and EU’s request for biometrics data of Nigerians, which Iwu had rejected, everyone who spoke up both at the Press Club and the Embassy praised Iwu’s stance and agreed that he did the right thing. It will be an egregious breach of Nigeria’s national security to turn over the biometric data of over 60 million Nigerians to all manners of foreign governments in Europe. Even in the US (where Aluko resides permanently), citizens have fought the right of their government to a national biometric data collection based on fingerprinting, except on occasions where a citizen committed a felony or some foreigner applied for immigration benefits. Why would Aluko suggest that Nigerians and Iwu should have gone willy-nilly to turn over our biometrics to Europeans merely because we want their 40 million Euros (peanuts) and their stamp of approval on our election process? If Nigeria cannot go to our foreign reserves to get the money, then 1000 Nigerians can contribute 40 thousand Euros each to pay for our elections.

Finally, Iwu’s patriotism and pride as a Nigerian are clear and credible and it makes a lot of people like a Professor Bolaji Aluko uncomfortable. Some proof found when Aluko visibly became agitated and uncomfortable each time Iwu mentioned Nigeria in glowing terms, such as calling Nigeria “my country” with an emotional tinge to his voice. Ditto for when Iwu said “the God that I serve”. Go and read Aluko’s essay and see for yourself (too much to quote here). Everything he said on that essay raises uncanny questions about the true motives of his diatribes against Nigeria, INEC and Iwu. If you read his many internet essays, you are sure to also see a growing pattern of targeting people from a certain area of Nigeria. First, Aluko railed against Okonjo Iweala, and then Soludo of CBN, and now Iwu (all Igbos and competent to boot).

Dr. Tamuno Jonathan wrote in from Potomac, MD USA tamunojonathan@yahoo.com

MORE REASONS WHY THE TRIBUNAL RULING IN ABIA CANNOT STAND: Part Two

MORE REASONS WHY THE TRIBUNAL RULING IN ABIA CANNOT STAND: Part Two

By: Attorney Aloy Ejimakor

This is the second part of a learned treatise on the nullification of the election of Governor TA Orji of Abia State. Part one is already published and in it, I critiqued that part of the ruling holding Governor Orji to membership of a secret society. This second part will deal with the portion of the judgment that also resolved Ugochukwu’s assertions of non-resignation against Orji and Akomas. As was done in the previous piece, this one will be glanced off the pertinent provisions of the Nigerian Constitution and the Electoral Act and interspersed with some thorough analysis of the Nigerian (or common law) rules of evidence germane to all the material facts at issue.

Now to the main point of this treatise and the second basis for ruling against TA Orji – that he and Akomas did not resign their political appointments, which also were held by the tribunal to have met the definition of public or civil service within the provisions of the pertinent statutes. Leaving aside the unique nuances that can, at law, differentiate political appointments from public/civil service appointments for the moment, let us now turn to the legalities of adequate resignation. Resignation is a word of art for describing an employee’s voluntary termination of an ongoing employment by oral or written notice to the employer. At law and jurisprudence, resignation can be either actual or constructive. It is ‘actual’ (or written) and therefore a no-brainer when there is sufficient litter of paper trails or real evidence clearly bearing the act of resignation.

The paper trail begins with a letter or some other form of written correspondence from the person resigning addressed to and received by the authority standing in law as the proper destination for the correspondence; and barring any printer’s devil and allowances for lack of form or human error, a letter of resignation bears both the date of its writing and the effective date thereof. And the trail may continue with another correspondence (usually an acceptance letter) sent back to the person resigning informing him that his resignation has been accepted. In this case, proving that one resigned is as simple as tendering the originating correspondence and its acceptance. But keep in mind that extant Nigerian law does not require resignation to be accepted in order to be valid for purposes of proving qualification to run for office. In other words, resignation can still be valid even when it appeared to have been unilateral, as the letter submitted by Akomas seemed to have suggested. And no straightjacketing is required – meaning that there is no particular format required for resignation to pass legal muster, including the strict requirement of being dated or written to form as was held by the tribunal when it discredited Akomas’ letter for lack of form.

The act of resignation, like all other human transactions, can sometimes be in dispute, and when that happens, it is often because it was not actual (written) or that it was written but missing the critical elements showing when it was written and when it became effective. In such a case, the fact-finder must proceed to the use of parole (mostly oral) evidence to determine whether resignation can be said to be, in point of law and fact, constructive. And where a respondent rebuts with the defense that resignation was not required, the court must also examine whether employment has been terminated by some supervening event that rendered resignation superfluous. In other words, where actual resignation (or effective date thereof) is in material dispute and central to the final determination of important political rights between two disputants, a serious court must look to parole or other alternative evidence to disprove any assertion of the negative, especially where the popular will of super majorities of the voters of a State was also at stake.

But in all instances, the burden of proof and persuasion rests squarely and throughout with the party that brought the act of resignation into dispute – in this case, Chief Ugochukwu. And the burden even becomes greater because Chief Ugochukwu is not in any privity with Chief Orji and Akomas with respect to whether they resigned or not. Therefore, without the lax rules allowed by the Abia tribunal, Chief Ugochukwu could have been held not to have the standing and thus not credible to raise the issue in ordinary judicial proceedings before our superior courts. The legal and procedural rationale is simple and that is: if such wild bare assertions of the opposite are allowed a free reign in our courts of law, all of us will be in court everyday burdened to disproving claims as wild and prejudicial as being accused of grand larcenies, without the concomitant burden on the part of the accuser to prove the truth of the negative he is asserting.

The only parties in ordinary privity and thus possessing of clear standing to raise credible claims of non-resignation against Orji/Akomas are the Abia State government and the former Governor of Abia State, Dr. Orji Uzor Kalu, at whose pleasure both TA Orji and Akomas served as political appointees. Take this further to INEC which screened Orji and Akomas and did not find cause to disqualify them on the basis of non-resignation. This point is being made because the tribunal seems to have applied the evidentiary doctrine of ‘rebuttable presumption’ against Chief Orji and Akomas (instead of against Chief Ugochukwu) as if the allegation of their non-resignation was a plain truth raised by those under whom they served (with personal knowledge of the issue) or the agency that screened them (INEC). Therefore, lacking in any personal knowledge and absent credible hostile evidence compelled from or volunteered by those possessing personal knowledge, Chief Ugochukwu must be assumed at law to be a busy-body on a fishing expedition and thus imputed with the burden of strict proof of his bare assertions before any burden of impeachment, contradiction or rebuttal could be said to shift to Orji and Akomas. This, the tribunal did not do.

According to the record, the tribunal discredited Orji/Akomas’ real evidence of their resignation on a finding of absence of some official stamp or other mark showing when the correspondence was made or received by the authorities (implying uncertainty of effective date or lack of form). Though, it never would have become necessary to hold Orji/Akomas to disproving what Ugochukwu has not yet proved, the tribunal can be said to have amazingly assumed the worst against Orji/Akomas or abandoned the path of good law (or reasoned analysis) and looked to only one aspect of legal proof of resignation. Simply put, the tribunal held Orji and Akomas to the strict and narrow absolutism of perfected paper trails as the only form of proving resignation (or disproving claims of non-resignation). This is unknown to modern notions of our common law and jurisprudence which have long recognized as a settled rule that resignation can also be constructive when it can be proved by evidence other than the sort represented by some paper trails. Such other evidence is what is generally called parole (read: oral or admissible alternative) evidence, which is even used in resolving disputes implicating real property law – the only part of our common law that can be said to still strictly require everything to be in writing. In the case of Orji and Akomas, such parole evidence is legion and they are admissible to boot. For purposes of clarity, let me list some of them below and in seriatim.

More than thirty days to the election, there was no pay stubs or other credible financial records presented by Ugochukwu to corroborate his bare assertions that both Orji and Akomas continued to receive salaries as employees of Abia State government; Orji and Akomas had both held out to the whole world as no longer in the employ of Abia State government; they had stopped acting in their former capacities as employees of Abia State government; new people had been appointed to the positions they formerly held in Abia State government; Abia State government and the whole world at large had ceased seeing them or referring to them as occupying the offices at issue; there was no evidence-in-chief led by Ugochukwu showing that Orji or Akomas signed any letters or correspondence in which they passed off as officials of Abia State government, carried out any official functions in their former official capacities, received any financial emoluments entitling to those occupying the offices from which they resigned, or otherwise engaged in any other act that can be said to have reasonably established that they still continued to occupy positions as officials of Abia State government within the statutory time-line.

Keep in mind that, at law, both Orji and Akomas bore no burden of proving any of the foregoing or even disproving the opposite until Ugochukwu has amassed quantum material evidence weighty enough to discharge the many evidentiary presumptions against him. That any of them – Orji and Akomas went the extra mile to tender a letter of resignation represents a mere attempt at corroboration because, other than that letter, there is plenty of other competent evidence in plain view that preponderated in favor of the presumption that they were no longer public or civil servants long before the time-line mandated by law.

And above all, there was no scintilla of hostile evidence compelled or subpoenaed from Abia State government tending to show that Orji and Akomas continued in some form to be employees of the government. The uncorroborated parole evidence led by Ugochukwu demonstrating that Orji and Akomas were seen in official vehicles and continued to retain their official residences may, at first impression, appear material and damning but becomes rebutted, on a balance of probabilities, by the greater weight of the opposite parole evidence enunciated in the preceding paragraphs. This last point frames the further issue that the tribunal clearly erred by allowing Ugochukwu a free reign on leading liberal parole evidence but seemed to have held Orji and Akomas to the strict parameters of producing actual proof (or perfected letters) of resignation.

And for good measure, the tribunal should have taken administrative (or judicial, if you prefer) notice that both Chief Orji and Akomas ‘openly and notoriously’ ceased to hold public office due to their disengagement by the former Governor Orji Uzor Kalu as far back as October 2006. This partly supports the pre-eminent issue framed by Orji’s lawyers that the governor and Akomas never really needed to resign. And the secondary point in favor, though most probably of first impression and thus bound to be contentious, is that the appointments they held are not hit by the legal definition of the sort that strictly requires resignation before seeking election into public office. In other words, they held political offices in the mold of all other public officers from Vice President Atiku, National Assembly members, governors and some political appointees who contested for elections while holding fast to their public (read: political) appointments.

Thus, in addition to further arguments and authorities that can be better developed and presented as an appellate brief, coupled with the points enunciated in the first part of this treatise, it is expected that upon balanced review of the record, the learned Court of Appeals will move to admit the appeal as meritorious and reverse the judgment in its entirety.

Aloy Ejimakor is of Law Group International, Washington DC alloylaw@yahoo.com

MORE REASONS WHY THE TRIBUNAL RULING IN ABIA CANNOT STAND: Part One

MORE REASONS WHY THE TRIBUNAL RULING IN ABIA CANNOT STAND: Part One

By: ALOY EJIMAKOR

This is a learned treatise that will come in two parts. This is part one and it will deal with the ruling resolving the claim of membership of a secret society against Governor Orji. The second part will deal with the portion of the judgment that also resolved Ugochukwu’s assertions of non-resignation against Orji and Akomas. Both parts will be glanced off the pertinent provisions of the Nigerian Constitution and the Electoral Act and then interspersed with some thorough analysis of the Nigerian (or common law) rules of evidence germane to all the material facts at issue.

The law of evidence is the basic kernel that underpins the administration of the civil and criminal laws of any common law country when it comes to fair and balanced resolution of disputes presented before the courts. Nigerian superior courts operate within the parameters of settled common law rules of evidence received from the British as a consequence of colonialism, and then adopted and saved by local legislation and judicial precedents as part of the laws of Nigeria after independence. Nuances may be present but they are wont to be tangential and infinitesimal. The only marked departure from the common law precepts can be found only in our Customary and Sharia court systems where strict adherence to the common law (or federal) rules of evidence is not mandated as the norm.

On the other hand, our High Courts of original jurisdiction, including the Election Tribunals are bound to some strict application of the federal (common law) rules of evidence, which for the most part, have been codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. It follows therefore that whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to easily find error or abuse of discretion and reverse or remand. This is why some outrage is now trailing the recent ruling of Abia Governorship Election Tribunal nullifying the election of TA Orji and declaring Ugochukwu the duly elected governor. For a tribunal charged under law to interpret our electoral statute and the constitution (and weigh the scales of hard evidence), voiding an election based on the reasons it adduced is troubling because there is hardly anything in our current substantive and adjectival laws that can justify the ruling, even by some stretch. Add the tribunal’s clear and quantum breach of our settled rules of evidence and you have a judgment most likely to be struck down on appellate review. Reversal becomes ever so likely and may even turn summary when you consider the flurry of critical treatise and outrage issuing from Nigerian and foreign jurists of world acclaim.

Thus, as regards the evidence-in-chief (the video) introduced and admitted to prove Orji’s membership in a secret society, our law of evidence was variously violated both in its spirit and black letters because it strictly requires that no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is at once both self-authenticating and non-hearsay – meaning that such evidence is generally viewed as hearsay unless robust evidence is led by the proponent showing why it should be recognized as one of the few exceptions to the hearsay rule. In other words, what is depicted in the video or photograph must make both legal and common sense. Therefore, considering the possible abuse of the scientific techniques of superimposition and the high motive for subornation of perjury in cases bordering on high contests for public office; and that it does not make sense for anyone to shoot his own video in near nudity before a shrine or consent to its making thereof, that video of someone purported to be Governor Orji in diapers and manacles can hardly be said to be self-authenticating because it just doesn’t make any sense that any person (or his agents) would willingly consent to being videoed in such a demeaning manner. The claim by another person (the shrine secretary) that a Dr. Duru shot the video was inadmissible hearsay because the Dr. Duru was never produced in court to either admit or deny the statement. In that case, the tribunal should have assumed that the identity of maker of the video remained unknown and un-established, and then allow the rest of the evidentiary process to proceed on that premise.

So, who really shot the video, when it was shot and for what purpose were central to determining credibility and admissibility but the tribunal failed to fully pursue that inquiry before ruling to admit the video. Thus, as introduced through sources that can be imputed with the high proclivity for tampering, embellishment, mischief and ill motive, the tribunal should have elicited hard foundational and confrontational testimony, not by shifting the burden of disprove or contradiction to TA Orji as the tribunal implied by its ruling but by applying the presumption of hearsay against Chief Ugochukwu. To be sure, proper foundation strictly requires the purveyor of such highly prejudicial evidence to prove the identity of who made the video, when it was made, whether the video is a copy or original, the purpose for which the video was made, in-court production and technical inspection of the recording device used in producing the video; and most importantly, that the video depicted TA Orji being initiated into secret cult membership that took effect before the election, and not after. The testimony from the witness claiming to be the secretary of Okija shrine constitutes mere corroborative testimony – meaning that until the video is properly admitted as competent evidence, any testimony proffered as corroborative must fail simply because corroboration can never carry a greater weight than the piece of evidence it is seeking to corroborate. Simply put, it is unknown to law to say that you can corroborate hearsay.

The point about the date of production of the video is ever so important and dispositive because it is implied in the Nigerian constitution that before one is damned by his membership of a secret cult or society, there must be hard proof that his membership occurred and was subsisting before he ran and won the very election at issue. Our laws do not yet have statutory bar to running for public office based on an ex post facto membership of a secret cult or relating back to void an election won by someone who became a member of a secret cult after winning the election at issue. Therefore, absent a date-stamp or other admissible proof of when the membership became effective (other than the oral testimony of the said shrine ‘secretary’), it could as well be assumed at law and evidence that if the video is in truth that TA Orji being initiated into the membership of Okija ‘secret’ cult, it then follows that his membership, most assumedly occurring after he won the election, cannot stand in law to meet the implicit constitutional requirement that such membership must have been perfected and he also remained in good standing before he ran and won the election. In such a case, the evidence embodied in the video can only be held as a possible statutory bar to Chief Orji’s probable re-election bid in 2011, and not before; or better still, as grounds for preferring articles of impeachment against him at the pleasure of the House of Assembly. Again, it constitutes error for the tribunal to rely on the solitary, uncorroborated testimony of the ‘secretary’ of Okija shrine in resolving a claim that bore all the infirmities of a terrible hearsay. If it is that easy, then it might as well become a field day for politicians in Nigeria to just go somewhere and suborn testimony from some fringe fellow parading himself as ‘secretary’ of some shrine and use that to overturn the election of a rival and even one who won with super majorities like Governor Orji.

In my opinion and that of my American colleagues familiar with Nigerian rules of evidence and the rampant use of modern techniques of technology to create ‘believable’ hoaxes, that video reeked of multiple layers of hearsay (think: the widely discredited videos of UFO and the Abominable Snowman shot in the plains of Alaska and Wyoming). At common law, in operation in Nigeria, Britain and the United States, hearsay evidence is roughly defined as a prior statement or any proposition being presented in court as evidence by a person other than the ‘utterer’ or maker for the purpose of proving the truth of the matter asserted in the statement or proposition. In lay terms, hearsay arises when someone else seeks to repeat what another person said without the person that made the statement being in court to deny, admit or be cross-examined on the statement.

Therefore, as a matter of evidence law, a video is a statement of fact or a proposition that seeks to prove a material fact at issue. So, the person seeking to introduce the video (the shrine ‘secretary’) cannot be different from the person claimed to have made it (Dr. Duru) unless the maker was in court to be confronted and cross-examined to determine veracity, credibility and chain of custody; except in the rare event that the maker is dead. There is nothing in the record of proceedings leading up to the admission of the video that can suggest that the tribunal subjected the video to even the most liberal (or even lay) tests of hearsay before ruling to admit it into the record and then finally using it the way it did to set aside the overwhelming popular will of the people of Abia State. Again, was it Chief Ugochukwu that adorned some night-vision camera and somehow trailed Governor Orji against the odds of the scary everglades of Okija shrine to make the video or hired some resourceful paparazzi to do so? We don’t know. This is but one of the myriad questions that a fact-finder must resolve before ruling to admit such a video.

However, in all fairness to Chief Ugochukwu (considering that the video constitutes his evidence-in-chief), if the tribunal determined the origins of the video in his favor and that the locale depicted in the video is that of Okija shrine with TA Orji under the pain of some ritualistic initiation into the ranks of its membership, then it may no longer be hearsay and may thus become admissible to prove that TA Orji was present at the Okija shrine at some time before or after the election. But before Governor Orji can be said to be finally damned by his presence at the shrine, three further questions must be resolved, and they are: One – whether his presence at the shrine was for purposes other than initiation into its membership; Two- if infact his presence at the shrine was for the purpose of initiation into its membership, can the shrine be said to meet the constitutional definition of a secret society or cult; and Three – did Chief Orji become a member before he ran for governor? At this point, the tribunal should then analyze the nature and practices of the Okija shrine against the constitutional definition of what constitutes a secret society and proceed to making a clear finding in favor of one of the two opposite propositions.

If the tribunal finally determines that Okija shrine met the constitutional definition of a secret society or cult, then it must reach a clear finding grounded in hard evidence in the record that Chief Orji became a member before he ran and won the election, and not after he became governor. But as we have seen from the contents of its judgment, the tribunal did none of these. If it did, it would have elicited the later admission made by the shrine ‘secretary’ that the video was shot during TA Orji’s ‘initiation’ after he became governor, and not before. The full content of the interview is at Page 23 of Tell Magazine issue of April 14, 2008. So, given that the shrine ‘secretary’ was a hostile witness against TA Orji, this post-trial statement of his squarely constitutes admission of a party-opponent and thus admissible to impeach his claims of pre-election initiation, if not as solid proof that Orji’s membership most probably occurred after he became governor, which does not meet the basic element required by the constitution before the issue can be raised as a possible bar. I will be surprised if Orji’s lawyers failed to make contents of that Tell Magazine interview a vital part of their appellate brief.

Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because, as presented, it clearly constitutes hearsay; and if it does not, then it is manifestly insufficient to prove a pre-election membership in a shrine which can hardly be said to meet the strict definition of a secret cult under the laws of the Federation of Nigeria. If Okija shrine is a secret cult (and not a mere pagan religious order) based on the lone testimony of its ‘secretary’ that it is, then any of the received mainstream religious organizations common to majority of Nigerians can be easily branded a secret society merely on the tenor of the uncorroborated testimony of anyone purporting to be its ‘secretary’ tendered before a tribunal that might have been challenged by some cultural misunderstanding or mischaracterization of the unique use of rituals, animal sacrifices, or other ethereal practices in the religious traditions of all persuasions.

Aloy Ejimakor is of Law Group International, Washington DC. alloylaw@yahoo.com

MORE REASONS WHY THE TRIBUNAL RULING IN ABIA STATE CANNOT STAND: Part One

By: ALOY EJIMAKOR

This is a learned treatise that will come in two parts. Part one will deal with the ruling resolving the claim of membership of a secret society against Governor Orji. Part two will deal with the ruling that Orji and Akomas did not resign from the public or civil service of Abia State before running for office. Both parts will be glanced off the pertinent provisions of the Nigerian Constitution and the Electoral Act and then interspersed with some thorough analysis of the Nigerian (or common law) rules of evidence germane to all the facts at issue.

The law of evidence is the basic kernel that underpins the administration of the civil and criminal laws of any common law country when it comes to fair and balanced resolution of disputes presented before the courts. Nigerian superior courts operate within the parameters of settled common law rules of evidence received from the British as a consequence of colonialism, and then adopted and saved by local legislation and judicial precedents as part of the laws of Nigeria after independence. Nuances may be present but they are wont to be tangential and infinitesimal. The only marked departure from the common law precepts can be found only in our Customary and Sharia court systems where strict adherence to the common law (or federal) rules of evidence is not mandated as the norm.

On the other hand, our High Courts of original jurisdiction, including the Election Tribunals are bound to some strict application of the federal (common law) rules of evidence, which for the most part, have been codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. It follows therefore that whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to easily find error or abuse of discretion and reverse or remand. This is why some outrage is now trailing the recent ruling of Abia Governorship Election Tribunal nullifying the election of TA Orji and declaring Ugochukwu the duly elected governor. For a tribunal charged under law to interpret our electoral statute and the constitution (and weigh hard evidence), voiding an election based on the reasons it adduced is troubling because there is nothing in our current substantive and adjectival laws that can justify the ruling, even by some stretch. Add the tribunal’s clear breach of our settled rules of evidence and you have a judgment most likely to be struck down on appellate review. Reversal becomes even much more likely when you consider the quantum of criticisms and outrage issuing from Nigerian and foreign jurists of world acclaim.

Thus, as regards the issue bordering on Orji’s membership in a secret society, our law of evidence was variously violated both in its spirit and black letters because it strictly requires that no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is at once both self-authenticating and non-hearsay – meaning that such evidence is generally viewed as hearsay unless robust evidence is led by the proponent showing why it should be recognized as one of the few exceptions to the hearsay rule. In other words, what is depicted in the video or photograph must make both legal and common sense. Therefore, considering the possible abuse of the scientific techniques of superimposition and the high motive for subornation of perjury in cases bordering on high contests for public office; and that it does not make sense for anyone to shoot his own video in near nudity before a shrine or consent to its making thereof, that video of someone purported to be Governor Orji in diapers and manacles can hardly be said to be self-authenticating because it just doesn’t make any sense that such a man (or his agents) would willingly consent to being videoed in such a demeaning manner. Conversely, it stretches credulity to imagine that Chief Ugochukwu (and his agents) shot the video because they suddenly mustered some power of divination to predict the ultimate impact of the video in deciding who ultimately rules Abia State. So, who shot the video and for what purpose were central to determining credibility and admissibility but the tribunal failed to pursue that inquiry. Thus, as introduced through sources that can be imputed with the motive of tampering, embellishment and mischief, the tribunal should have elicited hard foundational testimony, not by shifting the burden of disprove or contradiction to TA Orji as the tribunal implied by its ruling but by applying the presumption of hearsay against Chief Ugochukwu. Proper foundation strictly requires the purveyor or the person proffering such highly prejudicial evidence to prove the identity of who made the video, when it was made, whether the video is a copy or original, the purpose for which the video was made, in-court production and technical inspection of the recording device used in producing the video; and most importantly, that the video depicted TA Orji being initiated into the membership of Okija shrine before the election, and not after. The testimony from the witness claiming to be the secretary of Okija shrine constitutes mere corroborative testimony – meaning that until the video is properly admitted as competent evidence, any testimony proffered as corroborative must fail simply because corroboration can never carry a greater weight than a piece of evidence that comes with the inherent infirmities of hearsay and lack of foundation/authentication. Simply put, there was nothing to corroborate.

The point about the date of production of the video is ever so important and dispositive because it is implied in the Nigerian constitution that before one is damned by his membership of a secret cult or society, there must be hard proof that his membership occurred and was consummated before he ran and won the very election at issue. Our laws do not yet have provisions for disqualifications to hold public office based on ex post facto membership of a secret cult or nullifying an election won by someone who became a member of a secret cult after he won an election. Therefore, absent a date-stamp or other admissible proof of when it was made, it could as well be assumed at law and evidence that if the video is in truth that TA Orji being initiated into the membership of Okija ‘secret’ cult, it then follows that his membership of a secret cult, most assumedly occurring after he won the election, cannot stand in law to meet the implicit constitutional requirement that such membership must have occurred and be subsisting before he ran and won the election. In such a case, the evidence embodied in the video can only be held as a possible statutory bar to Chief Orji’s re-election bid in 2011, and not before. Or better still, as grounds for preferring articles of impeachment against him at the instance of the House of Assembly. Again, it was wrong for the tribunal to make vague references to the so-called secretary of Okija shrine as a ‘witness of truth’ and use that to resolve the secret cult assertions against Chief Orji. If it is that easy, then it might as well become a field day for politicians in Nigeria to just go somewhere and suborn testimony from some fringe fellow parading himself as secretary of some shrine and use that to overturn the election of a rival and even one that won with super majorities like Governor Orji.

In my opinion and that of my American colleagues familiar with Nigerian rules of evidence and the rampant use of modern techniques of technology to create hoaxes, that video reeked of multiple layers of hearsay (think: the discredited videos of UFO and the Abominable Snowman shot in the plains of Alaska and Wyoming). At common law (in operation in Nigeria, Britain and the United States), hearsay evidence is roughly defined as a prior statement or any proposition being presented in court as evidence by a person other than the ‘utterer’ or maker for the purpose of proving the truth of the matter asserted in the statement or proposition. In lay terms, hearsay arises when someone else seeks to repeat what another person said without the person that made the statement being in court to deny, admit or be cross-examined on the statement. Therefore, as a matter of evidence law, a video is a statement of fact or a proposition that seeks to prove a material fact at issue. So, the person seeking to introduce the video cannot be different from the person who made it unless the maker was in court to be confronted and cross-examined to determine veracity, credibility and chain of custody; except in the rare event that the maker is dead. There is nothing in the record of proceedings leading up to the admission of the video that can suggest that the tribunal subjected the video to even the most liberal (or even lay) tests of hearsay before ruling to admit it into the record and then finally using it the way it did to set aside the overwhelming popular will of the people of Abia State. Again, was it Chief Ugochukwu that somehow trailed Governor Orji and braved the odds of the scary everglades of Okija shrine to make the video or hired some resourceful paparazzi to do so, we don’t know. This is but one of the myriad questions to which an opposite answer will surely invite the temptations for a summary reversal of the judgment by the Court of Appeals.

However, in all fairness to Chief Ugochukwu (considering that the video constitutes his evidence-in-chief), if the tribunal determined the origins of the video in his favor and that the locale depicted in the video is that of Okija shrine with TA Orji under the pain of some ritualistic initiation into the ranks of its membership, then it may no longer be hearsay and may thus become admissible to prove that TA Orji was present at the Okija shrine at some time before or after the election. But before Governor Orji can be said to be finally damned by his presence at the shrine, three further questions must be resolved, and they are: One – whether his presence at the shrine was for purposes other than initiation into its membership; Two- if infact his presence at the shrine was for the purpose of initiation into its membership, can the shrine be said to meet the constitutional definition of a secret society or cult; and Three – did Chief Orji become a member before he ran for governor? At this point, the tribunal should then analyze the nature and practices of the Okija shrine against the constitutional definition of what constitutes a secret society and proceed to making a clear finding in favor of one of the two opposite propositions. If the tribunal finally determines that Okija shrine meets the constitutional definition of a secret society or cult, then it must then reach a clear finding grounded in hard evidence in the record that Chief Orji became a member before he ran and won the election, and not after he became governor. But as we have seen from the contents of its judgment, the tribunal did none of these.

Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because, as presented, it clearly constitutes hearsay; and if it does not, then it is manifestly insufficient to prove a pre-existing membership in a shrine which can hardly be said to meet the strict definition of a secret cult under the laws of the Federation of Nigeria. If Okija shrine is a secret cult (and not a mere pagan religious order) based on the lone testimony of its ‘secretary’ that it is, then any of the received mainstream religious organizations common to majority of Nigerians can be easily branded a secret society merely on the tenor of the uncorroborated testimony of anyone purporting to be its ‘secretary’ tendered before a tribunal that might have been challenged by some cultural misunderstanding or mischaracterization of the unique use of rituals, animal sacrifices, or other ethereal practices in the religious practices of all persuasions.

Aloy Ejimakor is of Law Group International, Washington DC. alloylaw@yahoo.com