Card Reader Magic Against Wike

If former President Goodluck Jonathan had simply walked away from the Otuoke polling station, after the card reader failed, twice, to recognise his biometrics as a prelude to accreditation for voting in the presidential election of March 28, this year, the 2015 general elections might never have taken place as scheduled. And we can only speculate about what the full consequences might have been.

The country was already on tenterhooks, literally waiting to implode. The curious distribution of permanent voters cards (PVCs) had created some tension of its own, with grave insinuations of deliberate disenfranchisement of heavily populated parts of the south of the country, while states reeling from Boko Haram insurgency in the north were said to have recorded, incredulously, far higher collection rates of PVCs, notwithstanding that hundreds of thousands had long since been displaced from their homes by the terrorists.

In the end, election monitors and stakeholders alike acknowledged the transparency value in the use of the card reader, but noted its shortcomings as well. Equally acknowledged were the options, offered by the Independent National Electoral Commission (INEC), in the event of card reader malfunction, in order not to disenfranchise eligible voters. In the circumstance, it was somewhat unthinkable that an election petition would succeed in part because a tribunal decided that only the card reader was valid for accreditation of voters in the general elections. But what was unthinkable now stares all in the face as what one can accurately describe as the card reader magic against Governor Nyesom Wike of Rivers State.

That is both the import and purport of the judgment delivered on Saturday, October 24, by the Rivers State Governorship Election Petition Tribunal sitting in Abuja. In the considered decision of the Tribunal, it held that INEC had issued guidelines for the conduct of the general elections, in particular, the use of the card reader for accreditation, before voting. According to the Tribunal, other than the exception made for the presidential election, INEC “did not at any moment relax the guidelines whatsoever,” and “it is, therefore, not open to anybody to act contrary to the guidelines without first resorting (to INEC)”. If the card reader did not work, the Tribunal held, the election in the polling units ought to have been postponed to the next day. That not being the case, the Rivers governorship election, which took place on April 11, was nullified and a re-run ordered.

The gaping hole in the Tribunal’s decision lies in the partial, rather than holistic, consideration of the INEC Election Guidelines. In its partial appreciation of the Guidelines, the Tribunal relied on the press statement issued by the Secretary to the Commission, as well as on the testimony of an INEC Assistant Director in charge of ICT, who testified that the card readers in Rivers State recorded only 293,072 accredited voters in the governorship election. That means there was over-voting. But the principal point to note, however, is that the Tribunal held that because accreditation and voting were not postponed to the next day, in places where there was card reader failure, INEC had failed to comply with its own Guidelines, and therefore the governorship election was a nullity. The Tribunal held that there was no discretion in the matter of the Guidelines.

Yet, the whole world knew, through various television and other media appearances by INEC chiefs, including the Chairman at the time, Prof. Attahiru Jega, that, in the event of the card reader malfunction, election officials were mandated to proceed with manual accreditation of voters. However, Incident Forms were required to be completed, evidencing the resort to manual accreditation. What was expressly forbidden was the accreditation of persons holding Temporary Voters Cards. This was the crucial link in the voting process. Thus, it was not simply a case of, where card reader failed, then accreditation as well as voting was automatically postponed to the next day. Why did the Rivers State Governorship Election Petition Tribunal fail to consider this crucial aspect of the Guidelines?

Certainly, if the Tribunal had taken a broader and holistic view of the Election Guidelines, it would not have annulled the Rivers governorship election on the ground of card reader failure. What this means is that the Tribunal glossed over the important place of Incident Forms in the voting process, hence the Tribunal insisted that only 293,072 voters accredited by the card readers legitimately took part in the April 11 elections. Otherwise, to invalidate that election the way the Tribunal did, it would have been required to consider the Incident Forms polling unit by polling unit (more than 4,000 of them) and if satisfied that the Incident Forms were not in compliance with the Election Guidelines, then it could void the election, or part thereof. But no such consideration took place.

It is important to also note that the Tribunal held that the alternative use of manual accreditation was a window created solely for the presidential election following the fiasco when polls opened on March 28. The question to ask is: why did INEC supply Incident Forms for the Governorship and House of Assembly elections on April 11? It is instructive that the Rivers Tribunal did not find or hold that the Incident Forms that were available on April 11 were a forgery. What purpose were the Incident Forms intended to serve?

The card reader in governorship elections was an issue on which the Court of Appeal (Lagos Division) had pronounced unequivocally, while delivering judgment in the appeal filed by Jimi Agbaje against Akinwunmi Ambode in the 2015 Lagos governorship election. Delivering judgment on behalf of all five Justices, Justice Obande Festus Ogbuinya held, on August 26, this year, that a card reader “has no life of its own as a ground” in an election petition. “Put simply,” the Court of Appeal held, “a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election. It does not qualify as one.” As a corollary, sole reliance on a card reader to decide on an issue in an election petition cannot succeed.

In the Agbaje v. Ambode case, the Court of Appeal did not speak on the card reader as an obiter (that is, a by-the-way remark). It was a ratio, a core reasoning in its decision on the appeal before it. This principle, so clearly enunciated by the Court of Appeal, was brought by counsel to Wike and the People’s Democratic Party (PDP) to the attention of the Rivers State Governorship Election Petition Tribunal. Yet, the Tribunal ignored the principle, a clear affront on the rule of bindingness in the Nigerian legal system. This is the card reader magic against Wike!

It is to be hoped that, on appeal, Justices of the appellate court would sternly rebuke lower courts and tribunals, for jettisoning a canon of the Nigerian legal system, and in the process being disrespectful to courts higher up in the hierarchy. Also known as stare decisis, the rule of bindingness means that courts that are lower in the hierarchy are bound (not discretionary) to follow and adopt the reasoning and decision of the courts higher in the hierarchy, on an issue or matter similar to that being adjudicated upon. In this sense, the High Court (or Tribunal) is bound by decisions of the Court of Appeal; likewise the Court of Appeal is bound by the reasoning or decisions of the Supreme Court, the highest court in the land. That is why there are Law Reports, where precedents can be found.

Amadi, a public affairs commentator, lives in Port Harcourt.