A Senior Advocate of Nigeria, Jibrin Okutepa, shares with TUNDE AJAJA his thoughts on the criticism surrounding the conduct of the presidential and National Assembly elections by the Independent National Electoral Commission, the impact of the outcome on the judiciary and the way forward

During the collation of the presidential election result, some parties and former President Olusegun Obasanjo called on INEC to cancel the collation and conduct a fresh election due to the inability of the commission to upload results from the polling units to the result viewing portal, How did that come to you?

The question we should ask is whether INEC as a body that has the constitutional mandate to conduct elections has followed its own guidelines in the conduct of the election. The guideline sets out clearly what should be done and how it should be done. Mind you, INEC’s guidelines have the force of law and the commission, for instance, is created by the constitution. Section 160 of the 1999 Constitution (as amended) gives the body created by Section 153 the power to make rules and regulations for its own procedures in the discharge of its functions. INEC, by virtue of Section 153 subsection (4) read together with Section 160 of the constitution and Section 149 of the Electoral Act, 2022 had made the guidelines or manual or guidelines for the conduct of the 2023 elections. INEC set out mandatorily how votes won and recorded at every polling unit should be transmitted. It says the Presiding Officer shall electronically transmit or transfer the result of the polling unit to the collation system as prescribed by the commission; use BVAS to upload a scanned copy of Form EC8A to INEC Result Viewing portal, known as IReV take the BVAS and the original copy of each of the forms in the transparent evidence envelope to the Registration Areas for collation in a company of security agents and so on. From that, has INEC complied with its own rules?

The Senate President, Ahmad Lawan said electronic transfer of results is not in the Electoral Act, how do you reconcile that?

In 2015, in the case of Faleke versus INEC, which I had the privilege of being part of the people who conducted that case for Hon James Abiodun Faleke, the Supreme Court was emphatic that INEC’s manual and guidelines have their origin from the constitution and the Electoral Act and therefore had the constitutional force, because the constitution gave INEC the power to make that regulation. So when people are just talking about INEC regulation as if it is a regulation that was bought from Wuse or Alaba Market without a constitutional foundation, I wish people will be more careful because the constitution of Nigeria is the grundnorm. Therefore, when it donates power to somebody and somebody has exercised that power in a clear term like the INEC guidelines and manual, I will think it’s a constitutional sacrilege not to obey that power which you have set out, pursuant to the constitution. I therefore think INEC should have tarried a while, ensure that the results from each of the polling units was properly uploaded by the Presiding Officers into the INEC portal, as mandatorily enjoined by Paragraph 38 of the INEC guideline before the result can be taken to the collation centre for the purpose of announcement.

Why do you think it was so important?

The reason why that provision must have been treated as sacrosanct was to avoid suspicion. INEC, like Caesar’s wife, must be above board and I think across the country, there is suspicion because things were not rightly done. So I agree with former President Olusegun Obasanjo that INEC must be seen to be transparent. Forget about the people that are abusing Obasanjo. I agree that when President Obasanjo was in power, the electoral process that produced his successor was fraught with irregularities, but does that mean the man did not have a right to the views he expressed? If he realised that he did what was wrong and wants us to do what is right now, what is wrong with that? In any case, the electronic transmission provision in the INEC manual was not there during President Obasanjo’s term, so do we now say because there is grace, we should continue in sin to the detriment of constitutional development and democracy in Nigeria? My answer is no. I have maintained that well-intentioned as the BVAS is, the human element in Nigeria will be responsible for whatever goes wrong with it and it has shown. We saw how some people who insisted on following what INEC said were beaten up. Why must we continue to mortgage the tomorrow of Nigeria just for the interest of a tiny minority; the moneybags? So, I agree with President Obasanjo that there should be no hurry in life.

At the time the results of about 20 states had been collated and announced at the National Collation Centre, was it possible to go back on the election as some people demanded?

The political parties that were complaining about non-compliance have duties and responsibilities to collate the non-compliance, apart from the noise being made on social media and media houses, document the non-compliance polling unit by polling unit, local government by local government, state by state, and send it to INEC and ask INEC to cancel the election. Under the new Electoral Act, INEC has seven days, even if it has collated the results and announced the result, to say I have had overwhelming evidence before me and this evidence showed non-compliance with the provision of manual for transmission of results and other sundry infractions and this election is cancelled. INEC has that power to exercise within seven days of the announcement of results. That’s the innovation the new Electoral Act has given to INEC. Section 65 (1) says, “Provided that the commission shall have the power within seven days to review the declaration and return where the commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.” For me, everyone involved in the complaint of non-compliance should collate their evidence, including videos, and submit them to INEC. But I ask the question; when the non-compliance is glaring to the blind and the deaf can hear it, why does INEC want the political parties to spend more money? After all, INEC posted presiding officers to the polling units, what is the problem that the presiding officers were not ordered to upload the results? According to the INEC’s manual, you cannot even go to the collation center until the result is uploaded.

INEC said in a statement that it had glitches and that was why results could not be uploaded in real time and prior to manual collation, persuade the aggrieved parties?

The question we should also ask is why was it that the glitches pertained to only the presidential election? For elections that were conducted on the same day and the same polling units, why was the breach only in respect of the presidential election, because there were allegations that the House of Representatives and the Senate were uploaded from the polling units. This INEC is INEC in name and this is not the first time this kind political abracadabra is happening. You may recall in 2007 when the governorship election was cancelled but that of the House of Representatives conducted the same day, time and polling unit were upheld. Why are we not prepared to do what is right? It is the same way governance has been taken for granted in Nigeria, where supposed leaders engage in all manners of dubious activities to the detriment of Nigeria’s development. And we are not asking questions. Even now, there are two schools of thought; those who claim INEC was right and those claiming INEC wasn’t right. The question I ask is that, should INEC declare as winner any of the people saying it was not right, would they be able to say we reject the result? So, we are a people with potential for development and greatness but have refused to develop because we prefer darkness to light. If we choose to do what is right and pursue it with an evangelical commitment, Nigeria will become heaven on earth for us.

What could the electorate have done to protect their votes during the exercise?

Many Nigerians, including those we see as illiterates, are well aware of their rights; but those who are supposed to give effect to the exercise of their rights have always trampled on their rights, and once their rights are trampled upon, they dare you to go to court, because they know that once go to court, you are likely to get judgment devoid of justice. So, you hear a lot of people even before the election where people say we must grab the power and we must take it by force. Those were statements coming from political leaders who claim to be democrats. But here, power is grabbed and the sovereign, which is the people, are at the mercy of those who grabbed power. That’s why we have what we are having and there are no consequences for misbehaviour, even within the noble profession of law. That’s why darkness has suddenly overshadowed light in our society.

What do you think is the implication of INEC’s decision to go ahead with the collation?

INEC is creating opportunities for the court cases it will have. If INEC appears and has shown evidence of transparency, and it asserts its independence in the real sense of the word, not allowing itself to be manipulated or giving the appearance of manipulation on its part, it will have less cases in court. It’s a situation of a referee on the field who decides to be partisan and issue red cards to players who don’t deserve such red cards. You won’t blame the players if they turn the referee to a punching bag on the field. The Nigerian people are enlightened people, so INEC is going to have a quantum of litigation arising from this election. And I can tell you that the judiciary will be so overwhelmed that you are equally not likely to get justice from litigation arising from this election. That is why the political vampires and vultures are encouraging political rascality to attain power at all cost because the judiciary is overwhelmed by the enormity of the work that the courts will be inundated with.

Could you expatiate on that?

For instance, in the presidential election, the Court of Appeal is the court of trial, and how many justices of that court do we have? For the same presidential election, you have a certain number of days to file your petition from the date the result of the election was announced and there are about 176,000 polling units. Nigeria is about the only country where our judicial institution is still operating a 13th century in a 21st century; analog in writing and insisting on calling eyewitnesses from polling units. When you insist on that, we have the capacity to bring legal jargon to solve 21st century conundrum of legal problems, created by an institution that should solve problems. How do you expect the Nigerian public to get justice from that court? So, there are man-made hindrances to the attainment of justice in our courts. The court is not yet technologically inclined. Peripherally, we are, but deep down in our hearts, we know that some of our judges are still analogue, like in writing judgments. So, it’s going to be difficult for some judicial officers who are not well groomed in technology to understand what I-ReV, E-evidence or E-discovery mean or even the purpose or import of Section 84 of the Evidence Act that allows for the admissibility of electronic evidence. If it’s a country where we are progressively minded and not worshipping archaic legal principles, it is easier for all that is going on in the federation of Nigeria to be put in one flash disk and played for the court and the court will come to an informed decision.

How does the Nigerian judiciary compare to others in this regard?

You will recall that in Kenya in 2017, the presidential election petition was fought on affidavit without attendance of evidence by witnesses in court, and that election was nullified on the basis that the Electoral Commission of Kenya did not follow the law in the conduct of the election. That is what we are saying here; the question would be whether this election has been conducted in accordance with the constitutional provision, Electoral Act and the manual for the election. These are things that lawyers will be able to address in court? In less than two hours, the judiciary could give judgment without the voluminous documents being demanded by our analogue judicial process. If we are progressive minded, this can be done without burdening the political class and the politicians and the litigants to call a host of witnesses, considering the attendant cost and the astronomic economic disadvantages will be too hectic for those who may seek justice from the court to bear. If the Nigerian people have agreed to be ruled by law and to be bound by the provisions of the law, and in a clime where people have respect for sanity and integrity, by now, the Chief Electoral Officer of Nigeria, Prof Mahmood Yakubu, should have resigned, because in November, 2022, he promised that that is the procedure to be adopted and followed. It’s in the media, but in the course of this election, he was singing another song. For me, that is a credibility crisis, and you can’t fault Baba Obasanjo over what he said.

Many senior lawyers have raised issues about the low scale at which technology has been deployed in the judiciary, whose duty is it to make the judiciary embrace modern innovations in justice delivery, is it the executive or the Chief Justice of Nigeria?

It’s a combination of the Nigerian government and the people. In the judiciary, executive and legislature, you see no foreigners. What kind of judiciary do we want to bequeath to ourselves and are we prepared for such a judiciary? I can’t pinpoint exactly whose duty it is like you asked, but as far as I am concerned, the people of the Federal Republic of Nigeria, particularly those who have the responsibility to make things work but have chosen that things should not work are the people we can blame for the state of the judiciary. I have also said that the judiciary must be ready for independence, and if it chose not to be independent, the other arms of government will cash in on it and would want to make use of it as a puppet to legitimise an otherwise illegitimate conduct on their part. The judiciary should be well funded, the recruitment process should be based on merit and people of strength of character, people who want the good of this country and not based on patronage of who you know rather than what you know. The judiciary should be ready to assert its independence and be blamed for the poor system it operates. There is a saying in my place that my father used to tell me; if you don’t tell people that you are here, they may trample upon you without knowing it. So, when you scream that this is my eye, it will make people know that your eyes are there. How many times has the judiciary taken advantage of the opportunity available to it to teach the political class the lesson of purity and integrity and stand by it?

How can the judiciary help itself at this time?

The judiciary needs to do more than it is doing if it wants independence for itself. Permit me to use this ecclesiastical word; that right from the days of John the Baptist, the Kingdom of God suffereth violence and only the violence can take it by force. I’m not advocating physical violence, rather, there must be intellectual interpretation of our laws that meets the needs of the judiciary and whipping in line those who want to be recalcitrant in standing in the way of judicial progress. After all, it is only the judicial arm of government that has a defined qualification. You can’t be a judge with just the Ordinary level or its equivalence. You must have had your degree, gone through the university, the law school, been called to the bar, and so you must have seen civilisation. Why then will somebody with only secondary school or its equivalence, which is interpreted in Section 318 of our constitution to be ability to read and write in English language or any other qualification acceptable to INEC, move you around as if you are a political houseboy. The judiciary should be the salt to the government of Nigeria but where the salt has lost its taste, everyone will trample on it. I want the judiciary to have its saltiness and taste restored by the pungent and jurisprudential sound decision that they give that can stand the test of time, without people thinking that judgment went a certain way because they can’t give judgment against those who facilitated their appointment. In other words, it is the combination of the factors that the judiciary is where it is, including the factors occasioned by the judiciary itself, including not asserting its independence as it ought to be.

Since INEC continued with the collation despite the reservations expressed by some parties, if parties go to court, can that non-upload of results from polling units be a sufficient ground for the courts to nullify the election, like some of the parties have demanded?

On the nullification of an election, let me be very clear that our lawmakers did not expect 100 per cent perfection, but is there evidence of substantial compliance? The question of substantiality of compliance or not would be what would be agitated before the court, before the election petition tribunal as the Court of Appeal is known in a presidential election. The determination as to whether or not the failure to transmit results to the INEC server from the polling unit has substantially affected the credibility of the collation and the result subsequently announced will be determined by the court? That’s where the question of collating the infractions from the polling units by party agents and political parties becomes crucial. For instance, if in polling unit A, party AZ scored 100 votes and it can be shown that in the process of transmission of that result to the collation centre that the vote of that party has been reduced from 100 to say 10, and those who had 10 votes have had their votes increased to 100 and that when you collated that and put all of those things together, the failure to do this has substantially affected the outcome, then the court will decide. But as a lawyer, it will be difficult for me to sit here and perform the job of the judiciary. That’s why I talk about the judiciary being alive to its responsibility. Will you as a fair person give a pass mark to the credibility of the election, given the suspicion everywhere and INEC’s refusal to be above board like Caesar’s wife? If I were to speak as a judicial officer, the question I would ask myself is, what was the foundation of the superstructure that you have built? When the foundation is destroyed, what can the righteous do? It’s a question of where a person had the right to be heard and he was not and he’s condemned. Whether the process of condemnation is correct or not, the fact that he was not heard will be sufficient ground for nullification of the conviction. So, we are talking about the foundation of elections and the consistent view of our courts from the time we started allowing electoral jurisprudence into our jurisprudential lexicon till today, which is that the polling unit result is the pyramid upon which every other result of elections is built. Where therefore there are things fundamentally wrong with the polling unit results or where structures have been erected to give features of transparency to what is to be done at a polling unit and that transparent process was ignored or were ignored by the body that ought to religiously guard the transparent process, can you then say that the superstructure or the skyscraper built on that faulty foundation be allowed to stand? These are questions that I will ask if I’m a judicial officer. But unfortunately, I chose not to go to the bench.

Why didn’t you want to go to the bench?

I don’t have the capacity to sit there. I can’t perform the job of a judge. I may not have the patience to perform that task, because if I’m a judge, so many people will go to jail. We need to have a Nigeria before the judiciary can function, and the little things like this, like Baba Obasanjo said, could set this nation on fire. As of today, people are angry, like people whose family members were killed. Look at the woman who went to vote but was attacked on the face. The possibility exists that she will go to her grave with that scar on face, for coming out to choose who is to lead her. That was the fate of so many other people. So, do you expect the Nigerian public to be happy about the failure to lay a proper foundation? Also, no judiciary exists in isolation. Judiciary must exist in a society to give the society justice. Will a reasonable man on the street of Abuja who is not actively partisan say that the presidential election was free, fair and credible. If the answer is no, then the election should be nullified.

There were killings, invasion by thugs, destruction of ballot boxes, disruption of the process by hoodlums and you even described the process as a selection and that Nigeria was not practicing democracy, what is the way forward?

The thugs were not dropped from heaven; they are agents of politicians and these are the politicians who were contesting an election, so if this is what they would do and deny Nigerians an opportunity of exercising their franchise, why gather us under the hot sun and rain in the name of election when what you are invariably going to achieve is an imposition. Like I said, can any reasonable man on the street of Nigeria come out to say the outcome of this election is the free will of the people, given the violence, thuggery, ballot box snatching intimidation across polling units and underage voting. I saw one where a small boy was given about N100 and he was struggling to bring out his permanent voter card. The voting age in Nigeria is 18 and above and I saw in that video somebody that was not up to five years, yet we look the other way. Yet, somebody brought that boy there. The generation we are building is that of crookedness and not that of patriotism and nationalism. We are showing this future generation that if you have money, anything can happen. There is a Nigerian who said what money cannot do more money can do it. It has become a philosophy. This has become Nigeria’s philosophy; that of retrogression, not that progression, in terms of our reasoning, development and our political ideology. Which of the political parties has a clear-cut ideology? In the campaigns, what we were being treated to by the political gladiators were dancing Owanbe or Buga. So, campaigns in Nigeria are a political theatre of entertainment, without concrete evidence of what they plan to do. That made me to come to the conclusion that rather than wasting our resources to fund INEC, National Commissioners, Resident Electoral Commissioners, procure BVAS and fund and all of them, we can meet at our village level, after all there are six geopolitical zones, give the warlords in those zones the opportunity to select for us those who would go to the National Assembly, etc., and let them be ruling us, and see whether that would help us better than the democracy that is not a democracy. Where democracy holds sway, the government of the people, by the people and for the people, how many of these politicians are really available for you the moment they take the oath of office. I know of a governor who was a friend. I even made a contribution when he wanted to run for office, but the moment he became governor, he became inaccessible, and today he’s running around, claiming to be one of those fighting for the masses when in reality they are fighting for their pocket and political survival. So, we don’t need to lose our lives in the process of conducting elections, which will turn out not to be an election but a selection, because whether you like it or not, those who want to be imposed on us will be imposed. At the end of the day, that imposition may be rubber-stamped, and in the next four years, we will be soliloquising and be biting our tongue and cheek in regret of the decision we didn’t take. We the people of the Federal Republic of Nigeria have a decision to take in national interest.