CLOSE-UP: Onnoghen, the new CJN who upheld Rev King’s death sentence and cancelled Yar’Adua’s election

Onnoghen’s verdict on Buhari vs Yar’Adua

I had already held that the burden of proving non-compliance and the substantiality of the non-compliance on the result of the election lie on the petitioner/appellant. Has he discharged that onus? I hold the view that he has. There are non-compliances that go straight to the fundamentals of an election thereby affecting condition precedents for the holding of an election while others may just affect the result of the election where one had been validly held. In other words, some non-compliance may render an ‘election’ void in which case there is no result of the election to be substantially affected by the non-compliance while others may substantially affect the result of an election validly conducted.

For instance, if the non-compliance with the provisions of the Electoral Act complained of have to do with the validity of the voters register used at an election which non-compliance is found  proved, will that alone not be enough to invalidate the election without the requirement of the further proof of how the non-compliance affected substantially the result of the election when in law there could not have been an election in the first place as no election can take place without a valid voters register.

In my view two things are crucial and fundamental to the holding of an election. These are voters register and ballot papers. It is common knowledge that the two are the targets of the election rigger,  if not properly handled. Sections 10 and 11 of the Electoral Act deal with National Register of Voters and Voters’ Registration while  sections 45 and 67 dead with the format of ballot papers.

It is failure to comply with subsection 2 of section 45 that the lower court found to constitute substantial non-compliance with the provisions of Electoral Act. There is no cross appeal on that crucial finding/holding. That being the case, the respondents are deemed to have accepted the said finding as valid and proper and it is settled law that under the circumstance the parties and this court are bound by the said finding and as such this court is without vires or jurisdiction to reverse or disagree with same not being a busy body.

I therefore agree with the lower court that the non-compliance with the provisions of section 45 (2) of the Electoral Act, 2006 constitute substantial non-compliance but I do not agree that the substantial  non-compliance so found is not enough to affect the result of the election because in the first place, you cannot conduct an election properly so called without valid ballot papers. By holding that there was substantial non-compliance with section 45 (2) supra is tantamount to holding that the election that was conducted on the 21st day of April, 2007 was done without valid ballot papers which to me, with the greatest respect, amounts to a nullity.

The situation being as found by the lower court it follows that there was no election known to law the result of which could have been substantially affected by the non-compliance as the non-compliance in this case is of the nature that invalidated the election. To hold otherwise amounts to giving licence to those who conduct our elections to continue to do whatever they like including creating loopholes for the rigging of our elections thereby continuing to deny our electoral process the credibility it deserves in the comity of democratic nations. How is one to know which ballot papers were sent to Sokoto, Kastina, Ebonyi etc when the ballot papers were not in booklet form and numbered serially?

Even the within the particular state where the ballot papers are sent for election how do we know if ballot papers meant for one Local Government Area or ward are not diverted and used in another or even not used at all but stuffed into the ballot boxes and counted as votes? How can we determine a genuine ballot paper from a fake one when we agree that any paper can pass for a ballot paper and be used in an election and assumed that such an act of non-compliance does not affect the result of the ‘election’?”