Presidential Election Petition Tribunal: Clarke calls for Electoral Act amendment

Chief Robert Clarke, SAN, was the lawyer to late former President Shehu Shagari. In this interview, he speaks on the need to amend the Electoral Act 2010, the judgment of the Presidential Election Petition Tribunal (PEPT) and sundry issues. Arising from the last NBA conference in Lagos there were issues that some senior lawyers were […]

Chief Robert Clarke, SAN, was the lawyer to late former President Shehu Shagari. In this interview, he speaks on the need to amend the Electoral Act 2010, the judgment of the Presidential Election Petition Tribunal (PEPT) and sundry issues.

Arising from the last NBA conference in Lagos there were issues that some senior lawyers were sexually harassing junior female lawyers in their chambers, how can this be checked?

That the matter was raised at the 2019 NBA-AGC is not a surprise because throughout the world that is the in thing now; up until recently it was still being raised. So if Nigerian lawyers are claiming their rights, they are fighting for their rights and pointing fingers at men, they know what their rights are.

I am not discarding it. But I don’t believe that there is such a practice. When you look at it in the context of the Nigerian situation, not only in the legal profession, it also happens in the civil service, in the military, in the medical profession. I believe it is something that we can take care of ourselves. But it is not an unusual thing.

Can NBA legislate on the minimum wage for young lawyers?

There is a misconception that when a junior lawyer works in a chamber, he or she is being regarded as working for somebody. No, my attitude is that I don’t have junior lawyers, I have associates.

We have partners and we have associates. So there is no lawyer in my chambers that is working for anybody. So the question of pay does not arise. Lawyers do not get paid salary. What they get is stipend from the profit of the chamber. After expenses, the senior partners take their own, for their expenses according to their status in society and then the junior associates follow. So the question of payment of salaries to a lawyer should not even arise. This is because lawyers are not being employed, they are taken into chambers either as associates or partners.

What is the implication of the judgment delivered last week by the Presidential Election Petition Tribunal (PEPT)?

As far as I am concerned there is nothing extra-ordinary about the verdict. All the issues he raised, the five points he raised have been canvassed before up to the Supreme Court, they are the issues that have been decided before.

But what is different in Buhari’s case is that they allowed politics to take over everything and due to social media, they hyped everything.

On the question of minimum certificate in Nigeria to contest an election, there are a plethora of cases in the Supreme Court. All on fours with Buhari’s case and as the court said, he who comes to court must provide evidence.

You claim this man has no minimum certificate; you did not produce the evidence. You said the army says he has no record of certificate, you did not produce the evidence. The Brigadier who made the statement two years ago that he has no certificate, you did not call him to produce evidence instead of that Buhari subpoenaed the military and asked them to bring his file.

Every organization has a file. His file clearly shows that he attended a secondary school. From a secondary school he applied to the military institution. There was a recommendation in which the school said, Muhammadu Buhari is a student of this school, he is in the sixth form, and he has sat for his West African School Certificate. His result will soon come, we recommend him, he is a good man. Based on this admit him into the military. That evidence is uncontroverted.

What the constitution says is that he should have attended an institution up to the stage of a school cert. So the evidence was in favour of Buhari. PDP is only playing politics.

Should the Electoral Act 2010 be amended?

I am not a politician, but in Nigeria, the position of the law as it is today, no petitioner can win an election petition except if there is glaring forgery of certificate or glaring mis-statement. But that you are asking INEC to come and show that they did not conduct a proper election, you are wasting your time; it is a mountain you cannot surmount.

Now the law should be changed because under our Evidence Act there is a presumption of regularity attached to any official result. Any government document that you see, there is a presumption that the contents in there are correct. It is a rebuttable presumption but it is for you to come and say that yes in this document there is a presumption that it is correct but no I rebut it.

It is the same thing, INEC will conduct an election and say they have conducted an election. There is a presumption attached to that result because it is a public document. Officially they say it is correct. Now if you are going to challenge it, you now have to produce evidence to show that those contents are not correct. Where are the witnesses when you say they tampered with ballot boxes? The people who are there are INEC officials. Were you there when they were tampering with it? So you see, to show evidence that ballot boxes were tampered with is a tough job.

So what I am suggesting is that the law should be changed whereby after election, INEC will be the first witness to come and tender every document they used in the election and tell the court these are the document we used. So all the documents will be presented by INEC not for you as a petitioner to be asking the tribunal to give you permission to go and inspect as the present law is today. It is what they want you to see that you will see so let the law be changed to put the onus on INEC to say yes I was given a job and I have done it then you will see the difference. But as it is, no petitioner can win.

Senior lawyers will now not take election petitions; they will rather defend election results because they will never win the petitions. They will go and defend INEC just as what happened in Buhari’s case, INEC just sat down. They never defended anything because nothing was proved against them.