MORE REASONS WHY THE TRIBUNAL RULING IN ABIA STATE CANNOT STAND: Part One
|
|
By: Attorney Aloy Ejimakor
April 4th, 2008
|
|
This is a learned treatise that will come in two parts. Part one will deal with
the ruling resolving the claim of membership of a secret society against
Governor Orji. Part two will deal with the ruling that Orji and Akomas did not
resign from the public or civil service of Abia State before running for office.
Both parts will be glanced off the pertinent provisions of the Nigerian
Constitution and the Electoral Act and then interspersed with some thorough
analysis of the Nigerian (or common law) rules of evidence germane to all the
facts at issue.
The law of evidence is the basic kernel that underpins the administration of the
civil and criminal laws of any common law country when it comes to fair and
balanced resolution of disputes presented before the courts. Nigerian superior
courts operate within the parameters of settled common law rules of evidence
received from the British as a consequence of colonialism, and then adopted and
saved by local legislation and judicial precedents as part of the laws of
Nigeria after independence. Nuances may be present but they are wont to be
tangential and infinitesimal. The only marked departure from the common law
precepts can be found only in our Customary and Sharia court systems where
strict adherence to the common law (or federal) rules of evidence is not
mandated as the norm.
On the other hand, our High Courts of original jurisdiction, including the
Election Tribunals are bound to some strict application of the federal (common
law) rules of evidence, which for the most part, have been codified in the
Evidence Act. It cannot be otherwise without being repugnant to the system we
currently operate. It follows therefore that whenever the record on appeal
demonstrates a clear violation of the evidence rules, a court of appeal is
expected to easily find error or abuse of discretion and reverse or remand. This
is why some outrage is now trailing the recent ruling of Abia Governorship
Election Tribunal nullifying the election of TA Orji and declaring Ugochukwu the
duly elected governor. For a tribunal charged under law to interpret our
electoral statute and the constitution (and weigh hard evidence), voiding an
election based on the reasons it adduced is troubling because there is nothing
in our current substantive and adjectival laws that can justify the ruling, even
by some stretch. Add the tribunal’s clear breach of our settled rules of
evidence and you have a judgment most likely to be struck down on appellate
review. Reversal becomes even much more likely when you consider the quantum of
criticisms and outrage issuing from Nigerian and foreign jurists of world
acclaim.
Thus, as regards the issue bordering on Orji’s membership in a secret society,
our law of evidence was variously violated both in its spirit and black letters
because it strictly requires that no photographic or video evidence is
admissible without proper foundation or authentication, unless in
some rare cases where such evidence is at once both self-authenticating and
non-hearsay – meaning that such evidence is generally viewed as hearsay unless
robust evidence is led by the proponent showing why it should be recognized as
one of the few exceptions to the hearsay rule. In other words, what is depicted
in the video or photograph must make both legal and common sense. Therefore,
considering the possible abuse of the scientific techniques of superimposition
and the high motive for subornation of perjury in cases bordering on high
contests for public office; and that it does not make sense for anyone to shoot
his own video in near nudity before a shrine or consent to its making thereof,
that video of someone purported to be Governor Orji in diapers and manacles can
hardly be said to be self-authenticating because it just doesn’t make any sense
that such a man (or his agents) would willingly consent to being videoed in such
a demeaning manner. Conversely, it stretches credulity to imagine that Chief
Ugochukwu (and his agents) shot the video because they suddenly mustered some
power of divination to predict the ultimate impact of the video in deciding who
ultimately rules Abia State. So, who shot the video and for what purpose were
central to determining credibility and admissibility but the tribunal failed to
pursue that inquiry. Thus, as introduced through sources that can be imputed
with the motive of tampering, embellishment and mischief, the tribunal should
have elicited hard foundational testimony, not by shifting the burden of
disprove or contradiction to TA Orji as the tribunal implied by its ruling but
by applying the presumption of hearsay against Chief Ugochukwu. Proper
foundation strictly requires the purveyor or the person proffering such highly
prejudicial evidence to prove the identity of who made the video, when it was
made, whether the video is a copy or original, the purpose for which the video
was made, in-court production and technical inspection of the recording device
used in producing the video; and most importantly, that the video depicted TA
Orji being initiated into the membership of Okija shrine before the election,
and not after. The testimony from the witness claiming to be the secretary
of Okija shrine constitutes mere corroborative testimony – meaning that until
the video is properly admitted as competent evidence, any testimony proffered as
corroborative must fail simply because corroboration can never carry a greater
weight than a piece of evidence that comes with the inherent infirmities of
hearsay and lack of foundation/authentication. Simply put, there was nothing to
corroborate.
The point about the date of production of the video is ever so important and
dispositive because it is implied in the Nigerian constitution that before
one is damned by his membership of a secret cult or society, there must be hard
proof that his membership occurred and was consummated before he ran and won the
very election at issue. Our laws do not yet have provisions for
disqualifications to hold public office based on ex post facto membership
of a secret cult or nullifying an election won by someone who became a member of
a secret cult after he won an election. Therefore, absent a date-stamp or
other admissible proof of when it was made, it could as well be assumed at law
and evidence that if the video is in truth that TA Orji being initiated into the
membership of Okija ‘secret’ cult, it then follows that his membership of a
secret cult, most assumedly occurring after he won the election, cannot
stand in law to meet the implicit constitutional requirement that such
membership must have occurred and be subsisting before he ran and won the
election. In such a case, the evidence embodied in the video can only be held as
a possible statutory bar to Chief Orji’s re-election bid in 2011, and not
before. Or better still, as grounds for preferring articles of impeachment
against him at the instance of the House of Assembly. Again, it was wrong for
the tribunal to make vague references to the so-called secretary of Okija shrine
as a ‘witness of truth’ and use that to resolve the secret cult assertions
against Chief Orji. If it is that easy, then it might as well become a field day
for politicians in Nigeria to just go somewhere and suborn testimony from some
fringe fellow parading himself as secretary of some shrine and use that to
overturn the election of a rival and even one that won with super majorities
like Governor Orji.
In my opinion and that of my American colleagues familiar with Nigerian rules of
evidence and the rampant use of modern techniques of technology to create
hoaxes, that video reeked of multiple layers of hearsay (think: the discredited
videos of UFO and the Abominable Snowman shot in the plains of Alaska and
Wyoming). At common law (in operation in Nigeria, Britain and the United
States), hearsay evidence is roughly defined as a prior statement or any
proposition being presented in court as evidence by a person other than the
‘utterer’ or maker for the purpose of proving the truth of the matter asserted
in the statement or proposition. In lay terms, hearsay arises when someone else
seeks to repeat what another person said without the person that made the
statement being in court to deny, admit or be cross-examined on the statement.
Therefore, as a matter of evidence law, a video is a statement of fact or a
proposition that seeks to prove a material fact at issue. So, the person seeking
to introduce the video cannot be different from the person who made it unless
the maker was in court to be confronted and cross-examined to determine
veracity, credibility and chain of custody; except in the rare event that the
maker is dead. There is nothing in the record of proceedings leading up to the
admission of the video that can suggest that the tribunal subjected the video to
even the most liberal (or even lay) tests of hearsay before ruling to admit it
into the record and then finally using it the way it did to set aside the
overwhelming popular will of the people of Abia State. Again, was it Chief
Ugochukwu that somehow trailed Governor Orji and braved the odds of the scary
everglades of Okija shrine to make the video or hired some resourceful paparazzi
to do so, we don’t know. This is but one of the myriad questions to which an
opposite answer will surely invite the temptations for a summary reversal of the
judgment by the Court of Appeals.
However, in all fairness to Chief Ugochukwu (considering that the video
constitutes his evidence-in-chief), if the tribunal determined the origins of
the video in his favor and that the locale depicted in the video is that of
Okija shrine with TA Orji under the pain of some ritualistic initiation into the
ranks of its membership, then it may no longer be hearsay and may thus become
admissible to prove that TA Orji was present at the Okija shrine at some time
before or after the election. But before Governor Orji can be said to be
finally damned by his presence at the shrine, three further questions must be
resolved, and they are: One – whether his presence at the shrine was for
purposes other than initiation into its membership; Two- if infact his presence
at the shrine was for the purpose of initiation into its membership, can the
shrine be said to meet the constitutional definition of a secret society or
cult; and Three – did Chief Orji become a member before he ran for governor? At
this point, the tribunal should then analyze the nature and practices of the
Okija shrine against the constitutional definition of what constitutes a secret
society and proceed to making a clear finding in favor of one of the two
opposite propositions. If the tribunal finally determines that Okija shrine
meets the constitutional definition of a secret society or cult, then it must
then reach a clear finding grounded in hard evidence in the record that Chief
Orji became a member before he ran and won the election, and not after he became
governor. But as we have seen from the contents of its judgment, the
tribunal did none of these.
Therefore, the video claimed to have placed Chief Orji at the specific locale of
Okija Shrine is not admissible because, as presented, it clearly constitutes
hearsay; and if it does not, then it is manifestly insufficient to prove a
pre-existing membership in a shrine which can hardly be said to meet the
strict definition of a secret cult under the laws of the Federation of Nigeria.
If Okija shrine is a secret cult (and not a mere pagan religious order) based on
the lone testimony of its ‘secretary’ that it is, then any of the received
mainstream religious organizations common to majority of Nigerians can be easily
branded a secret society merely on the tenor of the uncorroborated testimony of
anyone purporting to be its ‘secretary’ tendered before a tribunal that might
have been challenged by some cultural misunderstanding or mischaracterization of
the unique use of rituals, animal sacrifices, or other ethereal practices in the
religious practices of all persuasions.
Aloy Ejimakor is of Law Group International, Washington DC.
alloylaw@yahoo.com
|
|
