The market price of party polling agents just went up astronomically. Per Justice William Atuguba’s opinion, the acts and omissions of Candidate/Party Polling Agents carry far more weight, judicially speaking, than the acts and omissions of Presiding Officers at polling stations.

According to the winning logic of Justice Atuguba, acts and omissions of Polling Agents must be irrefutably (and adversely) imputed to the Party or Candidate that appointed them, but acts and omissions of Presiding Officers cannot be adversely imputed to the Electoral Commission, unless those acts or omissions are shown to have been done WILLFULLY. So, there you have it: Not all “agents” are equal; party polling agents are more equal than the EC’s appointed agent at the polling station.

This is very interesting indeed, considering the fact that, both in fact and in law, polling agents are not public officers and, moreover, possess no legal authority or mandatory duty in connection with the conduct of elections; it is the Presiding Officer who, as an officer of the EC, is charged by law—in fact by the Constitution, no less (Article 49)–with the duty, and vested with corresponding authority, to validate the vote at the polling station. Indeed, while a party or candidate is not even obliged by law to appoint or have polling agents at a polling station, the EC must, by law, have a Presiding Officer at each polling station. Yet, it is the OPTIONAL party polling agent, not the MANDATORY Presiding Officer whose act or omission now carries more legal weight.

It would appear, then, per Justice Atuguba’s logic, that, in terms of mounting a court challenge to the validity of the poll at the polling station, you would be “better off” in court (but worse off on the ground) if you did not have a polling agent at all than have a polling agent who would sign the Pink Sheet and prejudice your court case after the fact. But, of course, I am sure if you chose not to have a polling agent and you appeared before Justice Atuguba to complain about errors or omissions of a Presiding Officer at the polling station, you would be met with the authoritative reply that you should have yourself to blame for not having exercised your right to appoint a polling agent to represent your interests at the polling station. So, damn if you have a polling agent, and damn if you don’t.

In short, given the fact that the burden of ensuring the proper conduct of the election at the polling station now rests with rival parties and their polling agents, not so much with Presiding Officers. Per Justice Atuguba’s edict, the competence and vigilance of polling agents counts for a great deal more than the competence and vigilance of the EC’s Presiding Officers. Justice Atuguba has essentially “privatized” (or “partysized”) the conduct and administration of elections at the polling station, by transferring “power” away from Presiding Officers to Party Polling Agents, even though the lawful, indeed constitutional, AUTHORITY and DUTY to validate the votes at the polling station still resides with the Presiding Officer. Now, however, the Presiding Officer’s authority is an authority without responsibility, as the Court has practically rendered Article 49 nonjusticiable (i.e., judicially enforceable)!

By raising the price of polling agents and simultaneoulsy excusing the errors and commissions of Presiding Officers, Justice Atuguba’s judgment will likely produce the following additional effects. FIRST, the sharp increase in the price/value of polling agents will inure largely to the advantage to the incumbent party vis-à-vis the opposition party. We are going to see even more abuse of incumbency, as the incumbent party now has an even greater incentive to divert public resources to hire and reward reliable local party activists and polling agents or to compromise the opposition’s agents.

SECOND, the rise in the value of polling agents is a huge boost to the power of party footsoldiers and local party executives. We are going to witness an increasing redistribution of power within political parties in favor of local executives and the most zealous and committed party apparatchiks at the local polling station level. Now, more than ever, the presidential election is going to become a battle between rival footsoldiers at polling stations across the country. Expect our political party rivalries to get more local, more muscular, more crude, and potentially more violent at the local level. THIRD, the premium on polling agents should lead to an improvement in the “training” and quality of polling agents—in other words, parties will—or should—put a premium on foot-soldiers with good literacy and numeracy skills.

Do not, however, expect increased competence of polling agents to translate into qualitative improvement in the conduct of elections at the polling station, since there isn’t a similar premium placed necessarily on the competence of the Presiding Officers. FINALLY, there is a greater likelihood that the loser’s polling agents will, on the instructions of their principals, routinely refuse to sign off on the final vote tally, in order to preserve their objections and their right to challenge the elections in court. Remember that, per Justice Atuguba’s opinion, if your polling agent signed off on the Pink Sheet but the Presiding officer did not, that’s good enough. But since a polling agent is not legally obligated to sign off on the final vote tally, why must he or she bother, if by endorsing the Pink Sheet all he or she would have achieved is to prejudice his or her party’s or candidate’s case in any eventual legal challenge?

This, in short, is what I see as the new Supreme Court-sanctioned political blueprint for fighting presidential elections going forward. Are we going to see more attempted election challenges as a result of Justice Atuguba’s new edict? Perhaps. But expect more challengers to lose in court because, well, how in the world are you going to prove not just errors and omissions but “willfulness” on the part of a sufficient number of Presiding Officers to make your case!! A real Catch 22 for losers!

In short, forget about your Article 64 rights; forget about Article 49; forget about the Supreme Court. If you did not already know this, now you know that you will win or lose a presidential election depending on the relative strength of your polling agents at the polling stations! More power to FOOTSOLDIERS!

In the struggle between politics (real politik) and law for supremacy in ensuring “free” and “fair” elections, politics has triumped over law. E no be constitution we go chop, abi.

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