By Rabiu Gama
I had the (dis)pleasure of reading the full judgement of the Kano State Governorship Election Petition Tribunal last night, which was delivered on Wednesday, October 20, 2023, via Zoom. Here are my humble thoughts on it.
By the way, I am writing this under the safe assumption that anyone who is reading this is quite familiar with the story behind the judgment. Nonetheless, clarity is important. So, for the sake of clarity, let me quickly state that APC is the Petitioner in this case, while INEC, Abba Kabir Yusuf (AKY) and NNPP are the First, Second and Third Respondents, respectively. Nasiru Yusuf Gawuna, APC’s candidate, was not a party in the suit. The Tribunal, relying on the provision of Section 133 (1) of the Electoral Act, 2022, and some judicial authorities, held, correctly in my opinion, that Gawuna must not be a party before the Tribunal.
As I see it, NNPP’s and AKY’s lawyers did a bad job. INEC’s lawyers did worse, though: INEC’s legal team failed miserably to prove that the election was conducted in compliance with the provisions of the Electoral Act, 2022 (the burden or onus of proof was on them in that regard) as alleged by the Petitioner (the APC). The First Respondent, i.e., INEC, made a terrible and costly mistake of relying lazily on the weaknesses of the Petitioner’s case. The cost of not doing the right thing at the right time is always high!
Since the outcome of an appeal largely, if not completely so, hinges on the proceedings of the lower court (the Tribunal in this case), then it is my humble opinion that NNPP’s (AKY’s) chances of winning at the Court of Appeal might not be as promising as many hope it to be. It shocked me that NNPP’s lawyers could not even establish that AKY was a legitimate member of the party when he contested the 18th of March Governorship Election. The Tribunal was benevolent enough to point out some ways that they could have followed to establish it, but they couldn’t.
I, however, failed to grasp or discern why the Tribunal refused to apply “the principle of margin of lead” when it went ahead to declare that APC’s candidate, Nasiru Gawuna, was the winner of the election even though it had already found and, in no uncertain terms, admitted that the number of cancellations was in hundreds of thousands while its final finding showed Nasiru Gawuna was leading with tens of thousands only. The Tribunal, in my humble opinion, should have ordered a re-run: based on that finding, the election was supposed to be declared “inconclusive”.
The Tribunal also seems to have disregarded the provision of Section 63(2) of the Electoral Act, 2022 when it invalidated over 165,000 votes that were cast in favour of NNPP/AKY for the reason that the ballot papers were neither signed nor stamped, in other words, the ballot papers did not carry the official mark that was prescribed by the commission (INEC). The said provision of the Electoral Act is to the effect that even if a ballot paper is not signed or stamped, the Presiding Officer of the concerned Polling Unit can go ahead and count the ballot paper as valid.
All in all, I find some of the reasonings and conclusions of the Tribunal, based on what was laid before it, legally sound. But the Tribunal’s failure to apply “the principle of margin of lead”, as well as its apparent disregard for the provision of Section 63(2) of the Electoral Act, 2022, do not sit well with me.
Even though it is trite that nobody knows for sure what a court of law will do, I will still strongly advise that AKY’s supporters (of which I am not ashamed to admit I am one) should manage their hopes regarding the chances of success in the Court of Appeal. This is because the odds seem frighteningly balanced. The scale might tilt in favour of any side.
The right thing to do right now is to pray for a “legal miracle” – whatever that means. Some miracle might happen, hopefully in the Court of Appeal, as the Supreme Court rarely tempers with the concurrent findings of the lower courts (the Tribunal and the Court of Appeal) unless those findings are glaringly perverse or have occasioned a miscarriage of justice.
Rabiu Gama is Law student. He writes from the Faculty of Law at Bayero University, Kano. He can be reached on 09061912994 or at firstname.lastname@example.org.