|
More Reasons Why The Tribunal Ruling In Abia State Cannot Stand: Part One By Aloy Ejimakor
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 |