Opinion: Kano Govership Election Tribunal: Probing the (In)validity of Ballots not Bearing INEC’s Official Mark.
By Abdulaziz T. Bako,
The sacking of the governor of Kano State, Engr. Abba Kabir Yusuf by the Kano Governorship Election Petition Tribunal has caught several Nigerians by surprise. The tribunal held that about 165,663 votes belonging to Governor Yusuf and his party, the New Nigeria Peoples Party (NNPP), were invalid because they were not signed, stamped, and/or dated. The tribunal, therefore, deducted these votes from the 1,019,602 votes awarded to the governor in the February 2023 gubernatorial elections.
This deduction brought down the total number of valid votes secured by the NNPP to 853,939 votes. The tribunal then went ahead to declare the governor’s closest rival, Dr. Nasiru Yusuf Gawuna of All Progressives Congress (APC), who scored 890,705 votes, as the valid winner of the elections. Ordinarily, it was widely expected that the tribunal would order for a rerun election in polling units that were canceled due to overvoting since the margin of lead between the two candidates (36,766 votes) is way less than the over 70,000 votes canceled as a result of over-voting (over 213,000 votes canceled as declared by the tribunal). Expectedly, the NNPP rejected the judgment of the tribunal and vowed to appeal the judgment.
As a keen observer of the political processes in Nigeria, I feel obliged to critically analyze the tribunal’s judgment. Right off the bat, I want to declare that I am neither a legal practitioner nor a law student. However, I have been academically trained to read and critically analyze legal documents. Having laid this background, I want to go ahead and present some of the brewing questions in my naïve mind regarding the tribunal’s judgment.
The central ground for APC’s petition was that there was substantial non-compliance with INEC’s guideline, which stipulated that all ballot papers must be signed, stamped, and dated, and the non-compliance was substantial enough to tilt the election results out of their favor. To begin with, let me state that there are three grounds for questioning the result of an election, as provided by the Electoral Act (2022). Section 134(1) states as follows:
134.—(1) An election may be questioned on any of the following grounds— (a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act ; or
(c) the respondent was not duly elected by majority of lawful votes cast at the election.
The issue of unmarked ballot papers was dealt with by section 63 of the Electoral Act, 2022. Section 63 (1) states that: “Subject to subsection (2), a ballot paper which does not bear
official mark prescribed by the Commission shall not be counted.” However, section 63(2) mentioned that: “If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.” In other words, the returning officer is mandated to count such ballot
papers if he is satisfied that the ballot papers came from the same book of ballot papers that was given to the presiding officer by INEC.
Section 63(2) clearly indicates that the presence of an official mark is not required to declare a ballot paper invalid, as far as it can be established that ballot papers without an official mark are from the book of ballot papers provided by INEC. Therefore, it could be argued that the burden of proof is on APC to further prove that the ballot papers in question are not actually from the book of ballot papers. In the petition, APC has not provided any evidence to prove that the unmarked ballot papers were not from the book of papers. Also, it may be argued that the burden of proof is on INEC to call the responsible officials as witnesses to explain why they counted the unmarked ballots. However, it is important to note that APC did not specify in its petition, the polling units where these unmarked ballots emanated, making it impossible for INEC to know which witnesses to call.
Additionally, it could also be argued that the presiding officer must first reject the ballot paper before the returning officer will be mandated to overrule his/her decision. Based on the court proceedings, and relying on the evidence provided by the APC, given that
none of the respondents made any serious attempt to refute the veracity of the documents submitted, there is no indication that any of the unmarked ballots
were rejected by the presiding officer. Now the question is, does the court still have a duty to establish whether these votes were actually from the book of ballot papers provided by INEC before they can make the decision to allow an act of omission
committed by INEC officials to lead to the disenfranchisement of over 165,000 votes. I think the answer is an emphatic “Yes!”. The courts should do everything legally possible to reduce (and not promote) voter disenfranchisement, especially since the judges have promised to abide by the principles of substantial justice.
It is my opinion that it is wrong to simply assume that the absence of an official mark (defined by the judges as a lack of stamp, signature, date, and name of the presiding officer) on a ballot paper constitutes non-compliance with the electoral act, without having regard for the fact that the ballot paper without an official mark may have come from the same book of ballots furnished to the presiding officer (as mandated by section 63[2] of the electoral act 2022).
In the spirit of the substantive justice that the judges promised to adhere to, and in light of the fact that the judges went extra mile to serve the roles of presiding and returning officers (by calculating, on behalf of the petitioner, the total number votes to be canceled) ought to have also assumed the role of the returning officer by (for example) comparing the serial numbers of the unmarked ballots with the serial numbers of the marked ballots in the same polling unit.
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Interestingly, section 63(1) did not mention the words “sign,” “stamp,” or “date.” The word used was “official mark.” To the best of my knowledge, neither the Electoral Act nor the INEC guideline provided the definition of the word “official mark,” for the purpose of the Act or referenced subsection. It is also important to note that in the case of result sheets at the ward, LGA, State, and National levels, section 71 of the Electoral Act (2022) specifically mentioned the words “sign,” “stamp,” and “date,” a stark indication that the framers of the Act were deliberate in their use of the word “official mark” in section 63(1). Section 71 mentioned that “Every result form completed at the ward, local government, state, and national levels in accordance with the provisions of this Act or
any guidelines issued by the Commission shall be stamped, signed, and countersigned by the relevant officers and polling agents at those levels and copies given to the police officers and the polling agents, where available.”
However, the trial judges interestingly relied on section 71, which refers to result forms at ward, LGA, state, and national levels (rather than ballot papers at polling unit level) to deduct that failure to sign, stamp, and date a ballot paper constitutes non-compliance with the Electoral Act. I firmly believe that this is a potentially grave error committed by the judges, which should be overruled by the appellate court.
It might be argued that the electoral guideline published by INEC (Not the Electoral Act)
instructed presiding officers to affix a signature, stamp, and date on the back of the
ballot papers (see section 3.3.2(e), step 2).
The guideline reads: On being satisfied that the person before him/her has been duly accredited, stamp, sign and write the date of the election on the back of the ballot paper(s) for the respective categories of elections as shown in Figures 33.
However, the same guideline (3.1.3 [c]) also instructed the presiding officer to only stamp and sign (no instruction to write the date) ballot papers issued to visually impaired persons. I will quote the sections below:
3.1.3
(c) Correct way to mark a ballot by the Visually Impaired Persons
(VIPs)
(i) First Option (Assisted VIP)
ii) After verification and authentication of your Permanent Voter Card (PVC), by the INEC Official to ensure it belongs to the VIP, the INEC Official will stamp the back of the ballot paper and endorse signature and hand the ballot over to the VIP;
(ii) Second Option (Voting Independently)
i) After verification and authentication of the Permanent Voter
Card (PVC) by the INEC Official to ensure it belongs to the VIP, the INEC Official will stamp the back of the ballot paper and endorse signature.
Going by these instructions in INEC’s guidelines, if a presiding officer religiously follows the guidelines for handling visually impaired persons, he/she will not desecrate their ballot papers by adding a date on the ballot paper, since he/she is not instructed to do so. He/she is only instructed to sign and stamp the ballot paper. This means that if the presiding officer perfectly adheres to INEC’s regulations, he/she will not add a date to the ballot papers given to visually impaired persons and will end up rejecting the ballots (per INEC’s guidelines). Thus, if the guideline is religiously followed, visually impaired persons will be effectively excluded from exercising their voting rights.
The expert witness report submitted by APC’s witness (PW32) showed that over 145,000 votes were signed and stamped but not dated. It is, therefore, possible that a sizeable proportion of the rejected ballots belong to persons with visual impairment, and they were excluded from the elections simply because of an inconsistent guideline that was knowingly or unknowingly designed to disenfranchise them because they are visually impaired. The worst part of it is that this court’s judgment has supported this potential injustice without giving cognizance to the sensitivities of persons with disabilities in Nigeria. I believe this should also be a case for determination by the appellate or Supreme Court.
Furthermore, the judges conceded that stamped and signed, but undated, ballot papers can be of probative value if the maker provides parole evidence of the date it was executed. However, despite their promise of abiding by the principle of substantial justice, they decided not to go further to discover the date these ballots were executed.
On a closer look, if the petitioners had provided the details of the number of undated ballot papers for each polling unit and the total number of votes awarded to NNPP in each polling unit via stamped, signed, and dated forms EC8A (and by the way, these are mandatory evidences needed to prove non-compliance, per the Supreme Court’s judgment in Wike vs. Peterside [2016]), then deduction of the total number of undated ballot papers from the total number of votes scored by NNPP (as contained in the signed, stamped, and dated forms EC8A) is an admission by the judges and the petitioners that the undated ballots were indeed recorded on the same date as the date recorded on forms EC8A. Therefore, by their promise of abiding by the principle of substantial justice, the judges should not have deducted undated (but stamped and signed) ballot papers from the total number of votes scored by the NNPP.
Earlier, I mentioned that reference to the words “sign,” “stamp,” and “date” were only made in the electoral guideline, and not in the Electoral Act. It may be safe to argue that failure to comply with INEC’s electoral guidelines may not necessarily be equated with
a failure to comply with the Electoral Act. The electoral guidelines are a set of instructions given to INEC officials and voters on how the conduct of the election will look like.
Section 134(2) of the Electoral Act mentioned that “An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”
To the best of my understanding, the interpretation of this rule is that non-compliance with the electoral
guidelines or any other instruction given by INEC (as far as such non-compliance does not also translate to non-compliance with the Electoral Act) cannot be of itself a ground for questioning the election. Therefore, it may be argued that failure to sign, stamp, and
date ballot papers cannot be of itself a ground to question the election.
Furthermore, we can recall that in the case of Peter Obi vs. Tinubu Anors Justice Tsammani declared that “There is no provision for the electronic transmission of election results in the Electoral Act 2022, … It is at best optional.” The Honorable Justice made this comment even though INEC’s election guidelines clearly instructed presiding officers to electronically transmit results to the iRev portal (see below):
3.4.4
Step 12: Use the BVAS to Scan/take a picture of the completed, signed, stamped and dated Form EC8A for PUs where elections are held OR Form EC40G(PU) where elections are cancelled or Election Did hold;
Step 13: Upload the scanned copy of the Form EC8A for PUs where elections are held OR Form EC40G(PU) where elections are cancelled or Election Did hold to the INEC Result Viewing Portal (IReV) as prescribed by the Commission;
I will leave the reader to ponder on why sections of the electoral guidelines were disregarded by one court against an opposition party (and in favor of the ruling party) but utilized by another court to invalidate over 165,000 votes belonging to another opposition party (also in favor of the ruling party).
There are several more complex and compelling grounds to challenge the ruling by the Kano State Tribunal. I will also acknowledge that some of the potential grounds I mentioned may not scale through the window of the upper courts’ jurisdiction, particularly because many of the issues I raised were not included in the respndents’ defense. However, I believe the grounds mentioned in this article should be considered and possibly polished by NNPP lawyers.
