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Friday, December 1, 2023

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Possible Consequences of the Awaited Court Ruling on Nigeria’s 2023 Presidential Election Petitions

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Whatever the Presidential Election Tribunal and eventually the Supreme Court decide regarding the 2023 presidential election petitions, Nigeria will be on edge. But some outcomes will be more politically portentous than others, and this will likely weigh with the courts as they reach their decision, especially with the current spate of coups in the neighboring region of Africa.

By Chudi Okoye

The petitions have been presented, the evidence tendered, and legal arguments rendered by opposition and ruling parties alike, and as well by the Independent National Electoral Commission (INEC). Five of the 18 political parties that contested the February 2023 presidential election in Nigeria – Peoples Democratic Party (PDP), Labor Party (LP), Allied Peoples Movement (APM), Action Peoples Party (APP) and Action Alliance (AA) – had filed separate petitions before the Justice Haruna Tsammani-led Presidential Election Petition Tribunal (PEPT) sitting in Abuja, praying the tribunal either to annul the presidential election altogether on allegations of widespread irregularities; or, in some cases, to vacate the declaration of Bola Tinubu as winner and instead affirm the petitioner as the rightful winner. Two of these parties, APP and AA, had pulled their petitions soon after pre-hearing commenced, leaving the field to just three parties which pressed their petitions to the end. Now, a frazzled nation awaits the ruling of the election tribunal, and eventually perhaps that of the Supreme Court, to see what becomes of the controversial 2023 presidential election.

Rumor had erupted in recent days alleging that the tribunal had set a date, September 16th, to render its judgment. This was however merely a speculation likely based on calculation that the tribunal, which commenced intake of petitions on March 20, has to present its ruling no later than 180 days thereafter, following Section 285(6) of the 1999 constitution and Section 132(8) of the Electoral Act. The rumor was immediately denied by the tribunal, but the calendar logic behind it cannot be dismissed.* So, now, Nigeria awaits the election tribunal, along perhaps with a bemused world.

A poignant slogan, “All Eyes on the Judiciary”, has since emerged in the Nigerian firmament to mark the momentous wait. The slogan is laden, full of expectations and foreboding; but it is also a not-so-subtle pressure on the judiciary. The slogan is also an inadvertent nod to the complexity of the matter before the apex judiciary. Whatever ruling they render, whether lawful or artful, it is likely to inflame the Nigerian polity, and this should be of concern given the current spate of military coups in the neighboring region of Africa.

The great American jurist, Oliver Wendell Holmes (1845-1935), had put forward the view that judicial decisions are not driven merely by sterile and deterministic “logic” but also by societal factors:

“The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.”

This view, I think, might be helpful in anticipating how the election tribunal in a matter of weeks, and the Supreme Court within 60 days thereafter, might rule on the 2023 presidential election petitions. I have argued this matter extensively with several lawyers and other informed folks with unequivocal opinion on it. I wish here to lay out my current thinking on the matter, following my previous intervention in early March examining prospects for the opposition’s legal recourse.

Political Conundrum
The outcome of the2023 presidential election really represents a conundrum for Nigeria. Consider again the following issues arising from the election:

1. The status of Abuja. Despite what many partisans and some legal experts claim about the clarity of the law, the language of the constitution on this matter is unclear. Section 134(2) of the constitution requires a winning candidate in a presidential election to have scored a share of votes

“not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja” (emphasis added).

This is imprecise wording, one must say, particularly with the seemingly conjunctive “and”. There would have been no confusion had the constitution used the expression “two-thirds of all the States in the Federation and also two-thirds in the Federal Capital Territory, Abuja.” As it is, the law only says “and” Abuja. So, we aren’t sure if the constitution means that Abuja should be considered a part of the cohort of states from which two-thirds is derived; or if the FCT requires a separate and additional 25% threshold. In my previous analysis of this matter in Awka Times, I pointed to some sections where the constitution seems to construe Abuja as another state (e.g. Section 299), and others where it does not (e.g. Section 147(3)). The matter is not simple.

2. No Fourth Republic legal precedent. The issue is complicated in part because there’s no legal precedent in this Fourth Republic dispensation to provide guidance. No major contesting party – let alone a winning one – had failed to secure 25% of the votes cast in Abuja in any of the previous presidential elections. In 1999, Olusegun Obasanjo’s PDP secured 59.8% of the votes in Abuja while Olu Falae’s joint party platform, the Alliance for Democracy and All People’s Party (AD/APP), scored 49.2%. In 2003, PDP garnered 49.9% while Muhammadu Buhari’s All Nigeria Peoples Party (ANPP) picked up 38%. State by state and Abuja FCT results breakdown were never released by Prof Maurice Iwu’s INEC in 2007, but there’s probably no reason to suspect a deviation from previous norm, especially since we saw the same in subsequent elections. In 2011, Goodluck Jonathan’s PDP captured a commanding 63.7% while Buhari’s Congress for Progressive Change (CPC) scooped up 33.05%. In 2015 the scores were 51.2% for Jonathan’s PDP and 47.7% for Buhari’s APC. And in 2019, APC scored 35.9% while Atiku Abubakar’s PDP secured 61.3%.

So, as the data shows, all major parties surpassed the mark in Abuja in all preceding elections. It was only in the 2023 election, with Labor and Peter Obi mounting a credible third-party challenge, that the pattern was broken. In this year’s election, Labor picked up a whopping 61.2% of the Abuja ballot, leaving the other parties to scramble over the rump. As it turned out, neither of the two parties, APC and PDP, which scored the highest votes in the overall election as officially declared, was able to obtain 25% in Abuja. APC got somewhat close with 19.8% while PDP, long a command performer in the FCT, managed only 16.1% this time.

The results from Abuja present a serious challenge to the courts. There will be major uproar if the tribunal agrees with APC and INEC which had argued that Abuja should simply be construed as another state. On the other hand, the election will be upended if the tribunal rules, and the Supreme Court later agrees, that Abuja is indeed unique and imposes a separate 25% threshold.

3. Disputed infractions. A construction of unique status for Abuja would of course favor the Labor Party. But then, the party did not come much close to winning the required 25% in two-thirds of the 36 states (24 states), meeting the mark only in 15 states, versus APC’s 29 and PDP’s 21 – going by official results.

Labor of course contends (as does the PDP) that it had won the election, and that it was only widespread infractions in the collation, tabulation, transmission and announcement of results that scuttled its victory. That may well be. The question, however, is whether Labor (and the PDP) presented sufficient proof of substantial non-compliance at the election tribunal, as required by Section 135(1) of the Electoral Act, for the election to be annulled. It is also unclear how successfully the opposition parties had argued their other points: INEC’s failure to faithfully implement the electronic transmission of results from the polling units to its viewing portal (IReV); the double nomination of Kashim Shettima as APC’s vice-presidential candidate and senatorial candidate for Borno Central; and whether an old US drug case involving Bola Tinubu, along with questions about his educational qualification, nullified his candidature. Previous ruling on some of these matters raise concerns about their probative value. For instance, three different courts, including the apex court, had ruled that relevant laws allow INEC to transmit results using any mode it prefers. Similarly, a Supreme Court ruling on May 26 absolved Shettima of the charge of double nomination.

The Contenders – Atiku Abubakar, Bola Tinubu, Peter Obi

Ruling and Likely Consequences
Given the rack of issues sketched out above, opinions will likely be sharply divided among the five-member election tribunal, and eventually the Supreme Court panel appointed to hear any appeal. What matters, though, is where the majority opinion lies on the bench. There are three possible scenarios, of course, on how the matter might be dispositioned:

(a) The courts could maintain the status quo after parsing the evidence, affirming Tinubu’s election and ruling to dismiss the petitions for lack of merit;

(b) They could cancel the February election and, in line with Section 134(3) of the constitution, order a run-off between the two highest scoring parties and their candidates, APC and PDP; or

(c) They could nullify the February election and mandate a new one, open to all the registered political parties willing yet again to field candidates.

I am aware of the theoretical possibility of the courts awarding the election to either PDP’s Atiku Abubakar or Labor’s Peter Obi, as both indeed prayed the tribunal. But I am discounting this option. It would require a determination (a) that either candidate somehow scored the highest share of votes in the election; (b) that they met the 25% mark in more states than currently declared; and, additionally for Atiku, (c) that Abuja has no special status (since he did not get near the 25% mark there). These would all be heavy lifting in the judicial decision, though (c) is not improbable. So I consider the above three options as the more realistic.

There will certainly be an uproar if the courts choose Option (a), upholding the status quo. Widespread despondency would set in. There would be flashpoints of protests, some likely violent, especially if non-state actors like IPOB, ISWAP, Boko Haram and their various factions (likely incited by politicians) decide to exploit the situation.

The issue of Abuja could prove particularly vexing, especially if settled with a judicial fudge as had been the case in the 1979 presidential election. The issue in that election, of course, wasn’t about votes in the federal capital territory. Rather it was about calibrating two-thirds of the then 19 states, mathematically given as 12.66. The National Party of Nigeria (NPN), with its presidential candidate Alhaji Shehu Shagari, had attained the 25% threshold in 12 states, but (uncannily similar to Tinubu’s 19.8% in Abuja in 2023) had secured only 19.9% in the 13th state, Kano. The runner-up in that election, Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN), had filed a suit arguing that Shagari had not met the constitutional requirement. However, Shagari’s lawyers rebutted the argument with the famous formulation that the 19.9% in Kano State exceeded two-thirds of the required 25%, and as such that Shagari met the required threshold! It was a clever argument, which the Supreme Court accepted, invoking a so-called Doctrine of Substantial Compliance. The ruling was a marriage of law and political expediency which could well play out again in the 2023, as it appears now to be an accepted precedent in Nigerian jurisprudence.

If the courts peg on this precedent a decision to affirm Tinubu’s ‘victory’, it would rock the realms for a while, under one scenario possibly triggering a crisis of legitimacy similar to that which led eventually to military intervention and the collapse of the Second Republic.

But that’s only one scenario, in the event that the courts rule for the status quo. It is also quite possible that even if there are initial flashpoints following a status quo ruling, these may never bubble up to a level of protracted concern for the security forces. This being Nigeria, such upheavals, however fervent initially, could quickly become attenuate, only rumbling on as low intensity discontent. Nigerians are a famously ebullient people, particularly so in the social spheres; but whilst easily politically mobilized, we aren’t too easily given to political extremism. A combination of factors – false consciousness through a persistent ethnic prism, ignorance, love of life, an incredible facility for adaptation, sheer exhaustion, apathy, etc. – conspire to make Nigerians, despite all appearances, a politically conservative people. So the political cost of Option (a) might not be considered unbearable by affected stakeholders.

Options (b) and (c) might seem, to some stakeholders, to be far more politically costly. One aspect of the ‘cost’ would be financial. It will be recalled that INEC had initially projected a cost of about ₦305 billion to conduct the 2023 general election, which eventually rose to a budget of ₦355 billion. It is doubtful if Nigeria can afford such a cost so soon after the recent election, especially in the current fiscal environment.

But there may also be a different kind of ‘cost’ consideration, leading to a level of resistance across the polity to the logistical demands of a new election. Consider the stakeholders already invested in the status quo, and even those not particularly invested but opposed to system destabilization. A ruling for Option (b), mandating a run-off between APC and PDP, could lead to a resounding victory for the ruling party, it being more cohesive than the thoroughly vitiated PDP. This option would leave the army of disaffected Obi supporters even more disenchanted. On the other hand, were the tribunal to rule for Option (c), few, if any, of the minority parties that contested the February presidential election could mobilize sufficient resources to contest effectively in a new election. Only the four parties that commanded the polls the last time around – the ruling APC and the opposition PDP, Labor, and Rabiu Kwankwaso’s New Nigeria Peoples Party (NNPP) – would be in a position to launch a meaningful bid. Even so, although the opposition parties could gain steam with such a ruling, they are all experiencing varying levels of internal rupture, in part as a fallout of the recent elections, and thus may lack a viable machine to command a new election.

There are also some constitutional issues that could arise with either Option (b) or (c). What would be the legal status of Tinubu’s short-lived incumbency, were his election nullified? Do we consider it a legal apparition? If so, how do we begin to unwind an administration that’s fast entrenching itself, creating facts on the ground, including ministerial appointments and a slew of executive decisions? What happens to the decisions already taken by the administration, for instance the withdrawal of petrol subsidy and the harmonization of the Naira exchange rate? Would those decisions then be considered illegitimate, and would we then revert to the status quo ante on these policies?

There’s still more potential for chaos with Options (b) and (c).

Who would run Nigeria if the courts mandate a re-run of the election? The Senate president would of course hold sway if both the president and the VP were removed, according to Section 146(2) of the constitution. But, pray, can anyone imagine a traumatized Nigeria under the (temporary) presidency of Godswill Akpabio, a figure of frequent EFCC interest? I know: with Tinubu, we’re already at a low point. But Akpabio at the helms would be a different order of absurdity. We can be certain that under his interim presidency, during which a new election must be held, APC would somehow emerge with a share of votes way higher than the 36.6% the party eked out, supposedly, to win the February election. Akpabio is not a man renowned for his continence.

What would happen if we came to such a pass, an overwhelming APC victory, with the public suspecting a cynical manipulation of the new ballot? Why, there would follow far louder howls of electoral malpractice, likely further destabilizing the country. This could result in far too tempting a scenario for military intervention, surely a concern given the current dynamic in Africa.

We might do well to recall here what happened at a different time in Nigeria’s history when a Senate president had been hoisted to the helms as the country’s president. In the tumult of First Republic politics, Prince Nwafor Orizu, then Senate president, had been thrust into power as acting Nigerian president after the incumbent, Dr. Nnamdi Azikiwe, departed the country in late 1965. The cascade of events following that culminated in the January 1966 coup, which in turn plunged the country deeper into political crisis. Amid the turmoil, a wearied Orizu was forced to make a nationwide broadcast announcing that the cabinet had ‘voluntarily’ decided to hand power over to the armed forces. This paved the way for the emergence of Nigeria’s first military head of state, Major General Johnson Aguiyi-Ironsi.

This is our history. A very troubling history.

The 2023 presidential election dispute presents no palatable options for the judiciary. All options would seem to incarnate an unedifying past we would sooner forget. The best we can hope for in the circumstance, I suppose, is that the courts would be wise enough to rule for the least bad option.

*UPDATE: On Moday September 4th, a statement was issued by the Chief Registrar, Court of Appeal Headquarters, announcing that the presidential election tribunal will deliver its judgment on September 6, 2023. The statement said the judgment will be rendered in a live broadcast.


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