OF T. A. ORJI AND THE EVIDENTIARY VALUE OF AN OKIJA SHRINE VIDEO

By: ALOY EJIMAKOR

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 are tangential and infinitesimal. The only marked departure from the common law precepts can be found in our Customary and Sharia court systems where strict adherence to common law rules of evidence is not mandated as the norm. Customary courts are free to look to local customs and traditions and Sharia courts are known to have their own unique rules of evidence for determining cases properly lying before them. Conversely, our High Courts of original jurisdiction, including the Election Tribunals are bound to strict application of the federal rules of evidence, mostly codified in the Evidence Act. It cannot be otherwise without being repugnant to the system we currently operate. And whenever the record on appeal demonstrates a clear violation of the evidence rules, a court of appeal is expected to find error and reverse or remand. This is why controversy is now trailing the recent ruling of Abia Governorship Election Tribunal admitting into evidence a video claimed to depict Governor Theodore Orji under pain of some traditional ritual at the Okija Shrine. For a tribunal with a fine reputation for issuing sound interlocutory orders thus far, admitting the video is troubling because there is nothing in our current rules of evidence that can justify the ruling, even by some stretch.

First, the video and what it purports to depict is not probative of any of the core material issues before the tribunal, and that is: Whether Chief Theodore Orji was duly or lawfully elected and returned as Governor of Abia State, or whether he was qualified to run (if at all this can be said to still be at issue in view of Supreme Court rulings on point). Probative evidence is one that is capable of aiding the fact finder (or the tribunal) in determining a factual question or reaching a reasonable conclusion as to where the truth lies between two opposite propositions. So, with regard to the said video, wherein lies its impact or probative value on determining whether Chief Orji was duly elected and returned? Or what does this video have to do with the material issue presented by the petitioner that the governorship election was rigged? And it cannot in any way be probative of whether Chief Orji was disqualified based on his disputed indictment because that issue is at once precluded by clear Supreme Court precedents in other related cases that held Chief Orji qualified to contest for office despite his spat with the EFCC. Or more to the point, does the video prove that Chief Orji belongs to a secret society, of which Okija Shrine is hardly one by any definition.

Further, even when such evidence can be said to have some probative value, it can still be inadmissible if the prejudicial effects outweigh the probative value. It has been demonstrated in the preceding paragraph that the video had absolutely no probative value to the material fact at issue before the tribunal. But assuming that it does in some way, the video is sadly rich in prejudicial effects because being associated with the much maligned Okija Shrine is worse than a smear campaign. It results in many prejudices or bad blood against the person. It impugns Chief Orji’s community reputation as an upstanding Christian and leader of his state, casts him in a bad light before Nigerians as a pathetic blood-drenched ritualist, and most importantly, can ignite the odium of the tribunal against his person, and therefore may be seen as capable of coloring the tribunal’s legal and factual conclusions. And all of these have no scintilla of connection with proving the proposition that Chief Orji either rigged the election or was not lawfully declared and returned, or that he was not qualified to run. And if the intention is to portray him as disqualified ipso facto by pointing to his connection to ritualism, then it must fail because there is no law that prohibits Nigerians from participating in rituals, including even those that involve animal (but not human) sacrifices or some symbolic sprinkling of animal blood. Rituals are commonplace amongst many customs in this country and have even formed part of the religious or denominational practices of many good and decent Nigerians. Think anointing oil and other exotic rituals performed in far-flung forests in pitch darkness, all with ethereal incantations, dancing, warts and all. Thus, this video has no useful evidentiary value likely to pass the strict muster of appellate review.

Secondly, no evidence is admissible if it is not relevant – in the broad sense that such evidence must have some connection or some reasonable nexus to the fact at issue. Again, the issue before the tribunal is not whether Chief Orji’s alleged initiation or some ritual dance before a shrine enabled him to rig the election and become governor, or somehow led to some temporary loss of reason that confused INEC to declare and return him as elected. Or does anything in the video show Chief Orji in some physical manifestation as an election rigger or with his fingers in the cookie jar? No, because the relevant issue before the tribunal that will have the most bearing on the outcome of the petition is, again: Whether Chief Orji was duly elected and returned in accordance with the Constitution and the Electoral Act. Therefore, in so far as our rules of evidence are concerned, admission of a ritual video to prove election malpractice or even some stretch of disqualification to contest is not relevant and therefore must fail.

Thirdly, no photographic or video evidence is admissible without proper foundation or authentication, unless in some rare cases where such evidence is self-authenticating. Proper foundation strictly requires the purveyor or the person proffering such 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, and even in-court production and technical inspection of the recording device used in producing the video. In between these proofs, the tribunal must take expert testimony to determine whether the video has been tampered with, the chain of custody of the video since it was made, and whether the producer or maker of the video is an amateur or a professional. And since the video purports Okija Shrine as the location depicted therein, the tribunal is supposed to take oral and other testimony including a tour of the shrine proper to determine whether the video is in truth a depiction of the locale of the shrine, not some other contrived or identical locale. It is only after all these that proper foundation or authentication can be said to have been made as can sustain admissibility of the video as part of the record evidence capable of any direct consequence on the tribunal’s final legal and factual conclusions.

Fourthly, under the ‘rule of the poisonous tree’ or the ‘exclusionary rule’, admissible evidence can still be excluded if it was obtained in violation of law. The laws of Nigeria, including our organic law- the Constitution prohibit violation or invasion of anybody’s privacy, which includes making a recording of a citizen without his consent, especially in his private moments. Therefore, if in truth it was Chief Orji that was on that video, then the video is inadmissible or excludable because it depicts Chief Orji in a private ceremony of some sort and which he has the constitutional right to keep from the public domain or purview of a tribunal that does not sit in camera. To be sure, Chief Orji could not be said to have freely consented to the recording or to its public airing. And if one may ask: Is every aspect of the rituals, rites or other traditional ceremonies performed at the Okija Shrine prima facie illegal? There is nothing in the laws of Federation of Nigeria that has expressly outlawed Okija Shrine even after the morbid discovery made at that shrine a few years ago. Therefore, even when an argument can be advanced that parleying with Okija Shrine may be bizarre and funny, there is yet to be a clear law disqualifying one from running for public office simply because he paraded before a shrine with a vaunted mystic efficacy. And modern Nigerian judicial practice is averse to the notion of looking to the paranormal in the administration of our justice system.

Lastly, our rules of evidence clearly prohibit admission of hearsay evidence. In its present form, that video reeks of multiple layers of hearsay. Hearsay evidence is roughly defined as a prior statement or any proposition being presented in court by a person other than the ‘utterer’ 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 impeach the statement. 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 is in court to be confronted and cross-examined to determine veracity or credibility. Thus, absent direct and confrontational testimony elicited from the landlords of Okija Shrine, it is pure hearsay to introduce a video that is asserted to have been cast at the exact geographical locale of the shrine.

There is nothing in the record of proceedings leading up to admission of the video that can suggest that the tribunal subjected the video to even the most liberal tests of hearsay before ruling to admit it into the record. The tribunal should have taken testimony from those who claimed to have made the video to determine whether in fact it is true that they were the ones that made it. And testimony should have been also taken from the high priests or other accredited custodians of Okija Shrine to determine whether in fact they can confirm or deny that the video was made at the shrine. For instance, a common law court cannot admit the assertion made by someone else other than you showing a video of your house without testimony from you or other person duly qualified to be in the know confirming that it is your house that is in truth depicted in the video, unless the imagery is self-authenticated by some landmark, address or other insignia so open and notorious that no opposite conclusion can reasonably be drawn. The most popular exception to the hearsay rule is ‘dying declaration’ or ‘dead man’s declaration’, where the person who would have confirmed or denied the matter asserted is either dead or made the statement in apprehension of imminent death. The custodians of Okija Shrine familiar with the unique terrain of that shrine are still alive and thus should have been summoned to confirm or deny the assertion at issue that the shrine depicted in the video is in truth Okija Shrine and not some other native rain forest that ordinarily evokes similar mystique and awe like Okija Shrine.

Therefore, the video claimed to have placed Chief Orji at the specific locale of Okija Shrine is not admissible because it is not probative or relevant; and it is unacceptably prejudicial, is obtained in violation of law and constitutes hearsay. For these reasons, it is expected that upon further reconsideration, the tribunal will move to strike the video from the record.

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

AS THE SENATE PREPARES TO AMEND THE CONSTITUTION

By: ORJI UZOR KALU

Constitutional amendment is an indispensable process that must be embraced by any nation that seriously desires the advancement and growth of her democracy and way of life. Experience from around the world has shown that most national constitutions came into being during periods when nations were in a hurry to depart from some failed system of governance or on an urgent hunt for a new political order that best represents the society’s will of that moment. In the United States, the first Continental Congress that gave America her written constitution was in much hurry to emancipate America from an irritatingly undemocratic royal rule coming from a Britain they perceived as a declining power. At the time, the desire for America’s independence was exigent and titillating, and the constitution Americans enacted to guide their path to the new order was done in so much hurry that too many fundamental values like abolition of slavery and equality before the law were either missing or clumsily drafted. Even bad grammar and some mischief were legion. But in time, Americans were to prove that they could do better. Constitutional amendment was the answer.

In Nigeria, the 1999 constitution presently in operation was not that badly drafted by the original framers but as finally enacted, it contained or was absent provisions the departing military forced upon it by sheer decree, thus subverting much of the popular will of Nigerians as represented by the Constituent Assembly. Yet, this is understandable because Nigeria, much like America before it, was also in much haste to rid itself of military rule, and therefore was bound to make some errors in the enacting of her constitution. Americans corrected their own errors through several amendments that began from the 1st amendment to the odd twenty-seven they have as of today. The amendments were matters of course because they simply encapsulated the popular will sifted from vibrant public debates, judicial pronouncements, or creative legislation issuing from the United States congress. In Nigeria, as the senate retreats to amend our constitution, it must be encouraged to look first to the rich body of sound postulations coming from Nigerians of differing hues – both the lay public and the fine constitutional experts that bestride our nation. But more importantly, the senate should very well look to the many rulings from Nigeria’s Supreme Court in which constitutional questions were implicated and settled in many ramifications. Again, in the United States, it was the Supreme Court that pointed the way to constitutional reforms on matters such as equal protection of the laws by striking down segregation or state-tolerated discrimination. The US congress followed suite by enacting the 14th Amendment. And when the Court struck down private discrimination against blacks, the congress codified the ruling by enacting the 13th Amendment. The Miranda Rights read to American residents upon arrest was as a result of court rulings which were later to give birth to the 5th and 6th Amendments; and judicial rulings were the forerunner of the 11th Amendment on the devolution of police powers from the federal government to the states. So, you can say that some controversy and judicial activism were first present before many amendments proceeded in America.

In Nigeria, much controversy has arisen over our process for qualification for election to public office to the point that many of the core issues now fit for constitutional amendment have already been settled by our high courts around the country, becoming final and thus law when reviewed by the Supreme Court. One example is the issue of vacancy of the office of the Vice President when he ceases to be a member of the political party that saw him to office. Another is the authority of political parties to substitute their candidates, and so on. These are all constitutional matters found in several sections of our constitution in its present form but nonetheless courting controversies because of absence of sound considerations to their nuances when the constitution was being framed. So, now that our very own constitutional court – the Supreme Court has issued clear rulings for or against the opposite propositions on some of these questions, we now have a judicial direction to where the nation should go, just like the Americans before us looked to their Supreme Court rulings for guidance on the nature and reach of their own many amendments. More specifically and to recap, the senate needs to tinker with provisions on elections, election petitions, fair treatment of candidates by their political parties, the effect on tenure of annulled elections, and so on. The judicial roadmap is clear enough and in the public domain and therefore they bear no repeating here. Where the issue is considered unfit or verbose for constitution-making, then some ancillary and simultaneous federal legislation may prove to be the alternative.

The next hot-button constitutional issue is our system of local government administration, especially matters relating to the discretionary powers of the governor to regulate their finances as he deems fit. We have seen situations where the federal government was bitterly pitted against the states on issues of withholdings and the frustrations citizens continue to express in this regard. On the other hand, we have also seen much complaint by vocal local government chairpersons on the issue of unfair withholdings of greater portions of their ‘statutory’ allocation by some governors. So, in as much as corruption is to blame for the lack of appreciable impact of the allocations going to LGAs, many LGAs lagged simply because their governors cut too deeply into their statutory allocations to a level that left nothing after recurrent expenditures to pay for any sustainable capital item. And to make matters worse, there is no ameliorative law that compels the governors to account for what they deducted from the LGA allocations, thus making it inherently immoral and against the tenets of public policy underpinning our federal system. It rankles that under the present scheme, any governor is free to unlawfully deduct from the allocation of one LGA and spend the money as he wishes, including even taking it wholesale to another LGA or other unrelated project that he just fancies. This is not consistent with pure federalism, as it is only in Nigeria, and not in India or the United States, that a state governor is able to yank funds statutorily allocated to another tier. In the US, the governor of a state has no business with county (LGA) finances, and even goes as far as making grants from state coffers to counties. It cannot be the other way around without infringing on the core elements of fiscal federalism in which an effective local government system is expected to function properly. There is no basis in reason to believe that the governor of a state is suddenly possessing of superior discretion in terms of how much of its allocation an LGA is entitled to, especially when the governor is not the one that is domiciled in and directly administers the local area.

Contrast the foregoing with a situation where the President suddenly asserts some pseudo-legal authority to impound statutory allocations bound for the states, and retains all but barely the much required for states’ recurrent expenditures. Nigeria will boil, and the world would laugh at us. Therefore, just as the President is assumed not to be imbued with better fiscal integrity or discretion than a governor, so also we must operate under the premise that the same is true between a governor and an LGA chair. And to press this point home, though as a drift, is our tendency to hold the local government system in contempt merely because of the operative word ‘local’, which is a word of art most Nigerians associate with all kinds of negativities and is even considered a pejorative or slur. Call any Nigerian local and see his red-faced reaction. The British did not call the system of local government they operated here before independence ‘county’ for nothing and the Americans that operate the best federal system known to man retained the same characterization. In both climes, where English is the first language, they knew well enough to figure that the word ‘local’ is often misconstrued to represent something demeaning or less than respectful, and thus they were careful to prefer ‘county’ – a synonym that evokes modernity and suburbia, and has come to be seen as a semantic differentiation from a municipality or mayoralty. The lesson therefore, is that proper constitution-making requires us to mind our language.

Additionally and most importantly, it is time for Nigeria to refrain from our odd and duplicitous tradition of affirmative action, known in our parlance as ‘federal character’. Everywhere you turn to in the Nigerian constitution, you will find references to our admirable commitment to ‘federal character’, often interpreted to mean the nation’s desire to balance power and opportunities amongst the majority tribes on the one hand, and then between them and the minorities on the other; or considerations to equality of the six geopolitical zones, the states, and our two major religions. Much as it is preposterous to suggest that we will ever have a perfect adherence to federal character, there are some glaring imbalances that must be urgently addressed if we are serious about Nigerian unity and prosperity. One that the senate must embrace as expedient is the popular desire by Nigerians (not just people of the South East) to create one more state in the South East. I say popular because the Mantu panel has already collected views from around the country demonstrating that an additional state for the South East is amongst the proposals that are expected to easily pass muster. Therefore, we, as a people committed to the ideals of federal character, fairness and unity of the nation should make bonafide efforts to avoid playing mean-spirited politics with this and bring closure to the feelings of alienation rampant in the South East on account of this imbalance. If something must give to get this done, then two more states could be created in the South East with one more for each of the other five geopolitical zones, but not more.

Therefore, as the senate goes into retreat to fix Nigeria’s constitution, our senators need to prove the statesmen they are by giving Nigerians the sort of amendments that will be in touch with the popular will of Nigerian citizens, in comportment with well-reasoned Supreme Court rulings, and above all, emulates the fundamental elements of federalism that are known to have worked for more experienced nations in like circumstances.

Orji Uzor Kalu is former Governor of Abia State