Abia election tribunal: Spoilation and quest for justice

ON Sunday, August 2, it was reported that the office of the
Independent National Electoral Commission (INEC) in Obingwa
Local Government Area of Abia state was razed down by
unknown elements. It does appear the new mantra of the ruling-
Peoples Democratic Party (PDP) is “If at first you don’t succeed,
destroy all evidence and blame it on your opponent.’’
That members of the PDP would attribute the fire to the All
Progressives Grand Alliance (APGA) and its governorship
candidate in the April general elections, Dr. Alex Otti, was the
most irresponsible and ludicrous accusation I have ever heard.
As usual nothing they did in the past and have continued to do
in order to hold on to power surprises me anymore.
These are the same people who accused Otti of sewing military
uniforms for a couple of men during the campaigns. They later
sent armed men, who  invaded his residence at Umuru-Nvosi in
Isialangwa South Local Government Area of the state
supposedly to kill him. The same people whose thugs tore up
Otti’s billboards, attacked his campaign events in Ikwuano and
Ntigha in Isialangwa North Local Government Areas.
Again after the elections and some unscrupulous officials of
INEC in the state were arrested by security agents at the INEC
headquarters in Umuahia with Card Readers and other electoral
materials, PDP shamelessly once again said the suspects were
working for Otti and APGA, in spite of overwhelming evidence to
the contrary.
Just recently after an unsuccessful assassination attempt was
made on Otti in Abuja, Gov. Okezie Ikpeazu and his band of
media liars characteristically jumped on the matter, accusing
Otti of making up the story so as to generate public sympathy
even after the police authorities had confirmed the incident.
This is why their recent accusation about the fire at INEC did not
come as a surprise to me. I simply ask, what else is new?
I think this time they have finally outdone themselves. This time
they have actually shot themselves in the foot. Having failed in
all their previous efforts to derail the tribunal, the most recent
being their failure to get Otti’s petition dismissed, they finally
decided to destroy the evidence that was supposed to be
brought to the tribunal for forensic examination by Otti’s team.
Let us not forget that both the PDP and INEC previously
conspired to refuse Alex Otti’s legal team access to those
materials, in spite of the tribunal’s order. So far they have got
away with almost everything they have done. But let us see  if
they can get away with this one.
I am not a lawyer but I know that there is in law, the ‘’Theory of
spoliation”. In a layman’s language, the theory says that ‘’when
a party destroys evidence, it may be reasonable to infer that the
party had “consciousness of guilt” or motivation to avoid the
evidence.’’ Therefore, the fact finder or in this case the tribunal
judge may conclude that the evidence would have been
unfavourable to the spoliator and as a consequence may impose
a fine, or dismiss the case against the guilty party, while
rendering judgment in favour of the opposing litigant.
Even though not all spoliation inference may be warranted
depending on the circumstance, in this instance, the concept of
spoliation can be linked to the tampering of evidence, which is
usually the criminal law version of the same concept.
A good example of the application of this concept was a case in
the States of Texas here in the United States in 2013. It was a
case named Brookshire brothers Ltd VS Aldridge 2013 . As
reported, Jerry Aldridge had taken the bookstore to court for an
injury he had sustained in the store when he slipped and fell. Mr.
Aldridge with the assistance of his attorney discovered that the
bookstore which had earlier refused them access to video
footage of the incident, destroyed some video footage and
withheld some from them.
The judge found that the evidence destruction and the refusal to
provide the additional video constituted spoliation and as a
consequence the jury awarded Mr. Aldridge $1million in
damage. Even though not all spoliation inference may be
warranted depending on the circumstance, in this particular
instance of the burning down of Obingwa INEC office, resulting
in the destruction of evidence, spoliation inference can rightfully
be made.
To any discerning mind, there is a similarity between what this
bookstore did and what INEC and PDP had done earlier when
they refused Otti’s forensic experts access to these evidence
materials, which have now been burnt. The fire was an act
which violates due process. It is an intentional destruction of
evidence that were exculpatory to Otti’s case and capable of
incriminating the three respondents in the case, viz: Ikpeazu,
PDP and INEC.
For PDP to turn around to accuse APGA of committing this
heinous crime is to say the least preposterous and laughable.
What do they think the Abia people are? How would they expect
any true son or daughter of Abia state to believe that Otti, who
has been fighting to be allowed access to these materials, which
he desperately needs to prove his case against the PDP would
turn around and burn down the INEC office along with the
materials, just after the judge had issued an order to INEC to
bring the materials to the tribunal. This is simply balderdash!!!
The question now is what could have compelled the people to
go to this extreme? I guess the answer can be found in what
happened when Ikpeazu’s legal team lost in their bid to get
Otti’s petition thrown out by the tribunal.
In trying to achieve this objective they had filed as many
worthless motions as possible, cited every legal precedent they
could lay their hands on to get the case dismissed. All three
respondents were so much in agreement with this last strategy
that even INEC did not hesitate to join in the motion in which
they argued, albeit unsuccessfully that Otti’s petition was
incompetent due to inexplicable irregularities or omissions. But
as God will have it, the tribunal’s chairman, Justice Usman
Bwala, in his wisdom held that the petition processes, which the
respondents attacked, were proper and therefore needed to be
heard.
Their hope of getting the case thrown out on the bases of
technicalities was therefore dealt a devastating blow.
However the not so discerning minds amongst Ikpeazu’s
supporters have been all over social media whining, why the
case was not dismissed as they had hoped for and as they
mourn their loss of the first two rounds of the case. The first
being when the court ordered INEC to produce before the court
all election materials in the aforementioned local government
areas for forensic inspection.
Justice Bwala had the “right reason” to refuse the respondents
motion for dismissal since in the judgment of the tribunal they
could not find a good reason not to, even on the technicalities
Ikpeazu’s lawyers had hoped for. As the case progresses, we
will hope and pray for justice, as justice is the first virtue of
social institutions.
However, one Ugochukwu Uwaoma in reporting his own skewed
version of the court proceedings concluded by asking for God’s
help.
My question is, when did God get into the business of helping
out people who steal what does not belong to them? Maybe Mr
Uwaoma never read in the bible where it says,”Thou shall not
use the name of the lord thy God in vain,” “Thou shall not covet
thy neighbours’ thing’’ and “Thou shall not steal,’’
In retrospect, I have come to realize that our people have
become very adept at invoking God’s name tirelessly without
provocation, without necessity and without justification, perhaps
as a pre-emptive measure.
In an effort to ease their pain and disappointment, the answer to
their question can be found in the words of this Roman
aristocrat, Marcus Tutllius Cicero, when he said, “For there is
but one essential truth which cements society, and one law
which establishes this justice. The law is ‘right reason”, which is
the true rule of all commandments and prohibitions. Whosoever
neglects this law written or unwritten is unjust.”
Long before the Abia tribunal started sitting, many in the
opposing camp had wondered why Otti would not let bygones be
bygones and go on with his life. My answer to that is yes, he
could have done that, but it would have been a let down to the
hundreds of thousands of Abia electorate who voted for him and
had their mandate stolen.
The truth also is that even though Otti is the one who filed the
petition, the real people behind the petition are Abia citizens. In
doing so Dr Otti must have harkened  to the words of Ellie
Wiesel, the Jewish holocaust survivor and hunter of German
World war 2 criminals who once said, ‘There may be times when
we are powerless to prevent injustice, but there must never be a
time when we must fail to protest”. To which Martin Luther King
lent these words, “Human progress is neither automatic nor
inevitable. ‘’Every step toward the goal of justice requires
sacrifice, suffering and struggle, the tireless exercise and
passionate concern of dedicated individuals.”
Otti is a tireless crusader for justice but let the word go forth,
loud and clear that he is not in the struggle alone. There are
hundreds of thousands of Abia people both at home and here in
Diaspora who are with him, who believe in him and his cause
because his cause is theirs as well.
Here in the United States the kind of support and followership
Otti’s quest has generated is like none that I have ever seen or
experienced in my lifetime and I doubt if there will ever be
anything like this ever again. These are people who believe that
even though only a few will have the greatness to bend history,
each of us can work to change a small portion of events, hence
their commitment to this fight.
Human history has always been shaped from numberless
diverse acts of courage as exemplified by Otti and each time a
man like him stands up for an ideal, or acts to improve the lot of
others, or strikes out against injustice, he sends forth a tiny
ripple of hope which in time builds a current which can sweep
down the mightiest walls of oppression and injustice.
It is said that the cry of the poor is not always just, but then, the
reality is that if we don’t listen to it, we will never know what
justice is. There is a reason why hundreds of thousands of Abia
citizens are crying and yearning for justice, for the reclaiming of
their election mandate. There is a reason why they agonized and
continue to agonize this loss by trooping out to the tribunal
venue each time it is sitting.
To them as the hearings progress, let the truth be the aim and
true justice the outcome, not just victory alone. Ours over the
years have been a country where justice is denied, where
poverty is enforced, where ignorance prevails and where one
class is made to feel it has no chance before our justice system
and to feel that society is an organized conspiracy to oppress,
rob and degrade them. Ours is a country where for too long we
talk about election rigging. Something whose negative impact
we recognize and condemn. An act which those who participate
in it enjoy, those in power ignore and we the citizens
acknowledge but tolerate.
Our collective tolerance for election rigging is amazing but when
we see a set of justices who seek the truth and stand by the law
and who are determined to do what is right, it gives us hope.
Thankfully Abia state is blessed with election tribunal justices
who are beckoned not to see the world through a one-way
mirror and whose memories do not struggle to rescue the truth
and who believe that peace is only possible with justice and
information that gives them the power to act justly. Truth that
can only be garnered by witness’ testimonies and listening to the
testimonies of INEC officials whose conscience will not let them
conceal the truth.
the same way truth is of a system of thought.
A wrong cannot be made right or allowed to stand, if it is unjust.
Everyone of us possesses an inviolability founded on justice that
even the welfare of a society as a whole cannot override.
Therefore as the legal jurist, John Rawls once wrote, “In a just
society, there must be liberties of equal citizenship and the
rights served by justice are not subject to political bargaining or
the calculation of social interest.”
True justice must be served at the tribunal hence there must be
no inclination to give a wrong ruling so as to ensure societal
peace or to avoid social unrest.
For years, Nigeria has come to be a country where rather than
justice for all, we are evolved into a system of justice for those
who can afford it. We have people who are not only too rich to
be jailed, but too big to be held accountable for their crimes.
No one expects Ikpezu to go to jail for rigging an election,
maybe he should, but the point needs to be made for future
politicians that if you rig your way to victory there is very good
chance that your victory will be taken away from you by a
tribunal.
Those who had committed the crime of burning down the
Obingwa INEC office must be made to pay for this crime. If and
when it is proven that this was an act committed by PDP
agents, the tribunal justices must apply the theory of spoliation
whether or not it is part of Nigeria’s case law.
Common sense and the principle of fair play demands that the
culprits be punished by awarding victory to Dr Alex Otti without
further hearings.
In conclusion, I would urge for reinforced security for the
honorable justices as well as the court premises. These enemies
of justice are ruthless and are very determined to hold on to
power.
In Abia tribunal justices we trust and in Dr Alex Otti we pledge
our unshakeable support and commitment.
Mr.Nnanna Ijomah wrote from New York, USA.