In this interview with Solomon Odeniyi, Ebun-Olu Adegboruwa, SAN speaks on the decision of the presidential tribunal justices on the transmission of results among other issues.
What do you make of the judgments of the tribunal of the petitions seeking to remove the president?
I think that the issues decided by the justices have fairly been foretold by the apex court on the issues of nomination, the validity of nomination, and the issue of the status of the Federal Capital Territory among others. These are matters that within the legal profession we knew were already decided in a way that the justices came down yesterday. To a large extent, the judgment of the presidential election petition court was not surprising to us who have been watching the proceedings.
Does it mean you agree with all the declarations of the justices?
My concern is the decision of the justices concerning the conduct of the Independent National Electrical Commission. I thought that the judges had an opportunity to help INEC strengthen our democracy. If a body which is given power by law says that it wants to conduct elections electronically and failed to do so and didn’t advance any cogent reason before the court on why it did not do so, I didn’t think it was proper for the justices to endorse or ratify that conduct. By saying that INEC is not bound to transmit elections electronically we have gone back to the days of manipulation.
We have gone to the days of electoral lawlessness. I thought that the justices would have used that opportunity to at least chastise INEC.
All the reforms we have campaigned for and gained through the electoral act that was amended before Buhari left have been rubbished by this judgment. Everything we gained in the 2022 electoral act has been reversed. I’m not saying the justices were not right in dismissing the petitions, but to have remained silent about the conduct of INEC and to have endorsed the obvious lapses that INEC committed despite the huge fund, was a disservice to the electoral system. I am hoping that the Supreme Court will take time to correct that. Other than that, I cannot fault the Lordships’ decisions on the petitions.
But the petitioners failed to prove beyond reasonable doubt that the elections were marred by irregularities, are you saying the justices should have gone ahead to rule on what was not proved?
I generally think that the lawyers for the Labour Party and PDP will go back to the drawing board. But there’s no effort or amount of industry that the lawyers could have put in to overturn that election because the burden on them was too high to prove.
For you to claim that an election was not properly held you have to trace the exercise to every ward and polling unit and INEC was not cooperating. You will recall the dramas that played out in getting the certified true copies of the results. It is a difficult thing in our law in Nigeria for you to overturn an election, especially a presidential election.
We senior lawyers knew from day one that these petitions would end the way they did. The judgment was not surprising to us at all. It is true that maybe the lawyers of the petitioners could have done better, especially with the kind of witnesses they produced. When you have a case where 10 witnesses were being disqualified, then maybe they could have done better in those areas.
Don’t you think anyone challenging an election outcome shouldn’t rely solely on INEC who is also a defendant for their evidence?
No, I think that it’s a difficult thing for a petitioner to rely on any evidence other than the one given by the body that conducted the election.
But they are also a defendant in the petition, aren’t they?
See, if you bring your evidence of results collated by agents you will have to prove that the results are correct because INEC is the one recognized by law to conduct elections. When you bring foreign materials or foreign evidence, that is different from the one supplied by INEC, the courts may still throw them out. I think it’s a reason for us who are advocating that the burden should be on INEC to show that they conducted the election properly and not petitioners to show that the election was not properly conducted. So long as the burden is on the petitioners, INEC will always run away with this technical victory.
What I am trying to say is that it is INEC that has the materials used for the conduct of an election. They have the documents, they have everything. So, it is for INEC to come and show that they have conducted the election properly and not for the petitioners to come and show that the election was not properly conducted because they will be handicapped without materials and pieces of evidence.
So, looking at the judgments now, do you think the petitioners stand a chance at the apex court based on some of the witnesses and pieces of evidence that had been knocked out at the tribunal?
Well, I think that from what the justices read out yesterday, the facts of the case were irrelevant to the fate of the two petitions.
This means they should have isolated the points of law and submitted them to the justices for determination, which means that those petitions would have been determined even before the winner was sworn in.
As it were, the evidence of Labor Party and PDP were irrelevant to the decisions of the justices. Those pieces of evidence were either thrown out or they were not found credible. It’s a lesson that maybe in future petitions like this; you could just isolate the legal points. If somebody wins in another state and doesn’t win in FCT, can he be declared President? If somebody has a criminal record as it were, can he be declared President? If somebody has a passport of two nations, can he be declared President? If somebody was nominated and nominated by another party, those legal issues could have determined the petition. All of us would have been at home without the tension generated, and all the blackmail on the judiciary which were unnecessary would not have emerged. Because of this, we don’t expect that the Supreme Court will do any different thing because the decisions relied on by the justices were the decisions of the Supreme Court particularly the one for the Vice President which was determined in May. Based on the position of the law as it were, it’s going to be an uphill task to upturn that judgment.
What would be your advice to the petitioners and counsels?
My advice is not just to the petitioners but to the lawyers, and to all lovers of democracy to focus on INEC. The proper institution to help us midwife and drive democracy properly is the electoral body.
INEC should be unbundled. There are too many things being done by the body together. Also, we must make INEC independent. There is no reason a president who is interested in an election should be the one to appoint the chairman of the body. We should remove INEC from the presidency, by that; we would free INEC from politicians. In that way, they would work without fear or intimidation from any quarter.