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Will Supreme Court Part With PEPT On the 2023 Presidential Election Petitions?

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Stage is set to settle the legal, even if not the political, squabbles over the controversial February 2023 presidential election in Nigeria.

By Chudi Okoye

It could hardly have been a more disappointing judgment for the eager petitioners. It was, without mincing words, a rash deconstruction and pinching demolition of their case, laced with piercing commentaries and, in places, even pithy reprimands. Little wonder some wags have said their lordships acted almost as defense attorneys for the respondents.

One after another, in a surprisingly unanimous decision, members of the Presidential Election Petition Tribunal (PEPT), in lead or contributing opinion, picked apart all three petitions brought by the opposition parties – the Peoples Democratic Party (PDP), the Labor Party (LP) and the Allied Peoples Movement (APM) – to challenge the declaration of Bola Ahmed Tinubu, candidate of the All Progressives Congress (APC), as winner of the 25th February 2023 presidential election in Nigeria.

In the judgment delivered on 6th September 2023, the appeal court tribunal rejected the opposition parties’ petitions on various grounds, among them the following:

(a) That much of the allegations made in the petitions about widespread irregularities, corrupt practices and substantial non-compliance with the Electoral Act and INEC guidelines were “vague, generic, imprecise and nebulous,” and not supported with credible or admissible evidence or particulars specifying the polling units, collation centres or other places where the alleged irregularities and malpractices occurred;

(b) That the petitioners, having alleged widespread manipulation of results, vote suppression and inaccurate computation which depressed their votes and conversely inflated Tinubu’s, failed to present alternative results to support their claim of winning the election;

(c) That several of the witnesses called by the petitioners (10 of LP’s 13; 15 of PDP’s 27) were unacceptable, and that the statements on oath, testimonies and exhibits tendered by such witnesses were inadmissible, since these witnesses and their materials were tendered much later during hearings and not within 21 days of result declaration when the petitions were being filed (as required by Section 285(5) of the constitution as well as Section 132(7) and Paragraphs 4(5) to 4(6) of the 1st Schedule of the Electoral Act, 2022);

(d) That the petitioners did not have standing, and that time had lapsed anyway, to raise objections pertaining to the presumed double nomination of Tinubu’s running-mate, Kashim Shettima, an issue which, in any case, had been set aside in an earlier ruling by the Supreme Court;

(e) That the controversial issue of Tinubu’s forfeiture in a 1993 US drug case which the petitioners averred to be disqualifying, was in fact not germane, since this concerned a civil or non-conviction-based forfeiture, not a criminal forfeiture as envisaged under Section 137(1)(d) of the 1999 constitution; and also

(f) That some interpretations of the constitution and the Electoral Act adopted in the petitions were wrong, notably those presuming a special status for the Federal Capital Territory, Abuja, as well as those claiming that real-time electronic transmission of election results to INEC database and instant upload to its public viewing portal, IReV, were mandated.

At the end of the marathon judgment lasting over 12 hours, the tribunal’s chairman, Justice Haruna S. Tsammani, delivered his crushing conclusion and final orders:

Having considered and decided that the three petitions… are all devoid of merit, [they] are hereby dismissed. Accordingly, I affirm the declaration and return of Bola Ahmed Tinubu by the Independent National Electoral Commission (INEC) as the duly elected President of the Federal Republic of Nigeria. The parties in the Petitions are to bear their respective costs.

The other four members of the tribunal – Justices Stephen J. Adah, Misitura O. Bolaji-Yusuff, Boloukuromo M. Ugo, and Abba B. Mohammed – also read their contributing rulings, all concurring with the lead.

PEPT Delivering Ruling, 6th September 2023

It was not an entirely unexpected decision. Of course there was always a theoretical chance that the tribunal could pull a surprise and find for the petitioners, what with the plethora of allegations entered in the multiple petitions. However, even at a distance far removed from the nattering crowd of pessimists who thought it had all been fixed, it wasn’t too hard to see that the petitions had little chance of succeeding.

In several previous writings – one for instance in the first week of March before the appeal court panel had been constituted, and another on 3rd September just before the tribunal delivered its ruling – I had indicated skepticism that the opposition parties could succeed in their attempt to overturn the election.

In those earlier writings, I considered the nature of the opposition’s complaints about the conduct of the election; the evidence being adduced; the laws being invoked; and also the ambient political factors that could inform the judicial decision, all against what I considered the imperative of system preservation. I triaged all these factors to reach my conclusion. And it was this: that even though the administration of the 2023 presidential election was inarguably flawed, it was nonetheless improbable, though not impossible, that the appeal court would overturn the election of President Bola Tinubu, especially given the high bar of proving electoral infractions to the legal standard required for a verdict of substantial non-compliance to be returned; and given as well the high systemic cost of removing a president.

Mixed Reactions
Reactions to the ruling were swift and sustained, and predictably mixed. Some considered the judgment a triumph of legal reasoning, praising the appeal court panel for its professionalism in sticking to the law and its ‘bravery’ in standing firm despite the ambient noise. The ruling party, APC, hailed the decision, saying “[t]his epochal judgment has reinforced our democracy and underscored the vibrancy and independence of the judiciary.” Others too were gratified. PDP’s renegade chieftain, Nyesom Wike, a former presidential primary contender in the party and former governor of Rivers State now serving as Federal Capital Territory Minister in the APC administration, praised the tribunal’s decision, saying “Nigerians have spoken, and the court has confirmed it.”

Some legal experts reviewing the case were more measured. One, Ige Asemudara of Royal Practice Legal Practitioners & Consultants, said he would not call the judgment “good or bad,” though he considered it was delivered based on the understanding of the evidence and submissions of counsel as presented before the justices. He said moreover that he would “commend the judges because the judgment they delivered showed serious work has been put in place.” He noted too that “the jurisprudence [and] various philosophies underlying these decisions were long established.”

Another lawyer, Wahab Abdul of Wahab Olawale Abdul Agiidi & Co Chambers, noted too that the justices, contrary to expectation, did a very thorough analysis of the cases to reach their decision.

However, many others, especially those sympathetic to the petitioners, adjudged the ruling a miscarriage of justice. In the days since the ruling was delivered, in the more sober mainstream media as well as the ungoverned social media, not a few have labeled the judgment a judicial fraud, arguing there was a fix from the very start and that the ruling was a predetermined outcome. Several irate commentators alleged, without offering any evidence, that members of the tribunal had been ‘leaned on’ or offered unspecified inducements to deliver that judgment. In one instance on social media, a critic of the decision – no less a lawyer – declared that the judgment was “not a court decision at all [but] the product of bribery.” One usually measured newspaper columnist – also a lawyer – chimed in with a sparsely evidenced piece alleging that “Nigerian justices have been selling election judgments to incumbent presidents since 1979,” the implication unmistakable as to the instant case.

It has been more heat than light, to put it mildly, a truly astonishing fest of fiery condemnations; all the more remarkable since several of the critics, even lawyers, say they’ve not bothered to read the released judgment. It would seem that many, regrettably including supposed legal experts, preferred fervent polemic over a sober engagement of the legal issues.

The petitioners themselves all condemned the ruling. Atiku Abubakar of PDP said it was “bereft of substantial justice.” As for Peter Obi, although one of his lead counsels, Prof. Awa Kalu (SAN), has conceded the ‘impossibility’ of proving their case due to the difficulty in meeting the stringent requirement of both the constitution and the Electoral Act (that intended witnesses and their depositions be frontloaded with the petitions within 21 days of result declaration), the Labor Party candidate nevertheless said the tribunal’s decision “fell short of expectation.”

Unsurprisingly, both petitioners have announced their intention to file appeals at the Supreme Court. The apex court will have 60 days from the date of the tribunal ruling to deliver its own judgment, according to Section 285(7) of the 1999 constitution and Section 132(9) of the Electoral Act. So this matter should be resolved, one way or another, no later than 5th November.

The question, then, is: what are the chances of the appeals, when they are filed, succeeding at the Supreme Court?

Considering the points that inspired my initial prediction for the appellate decision, and also taking into account how tightly the appeal court argued the issues and the array of related stare decisis precedents it cited, I would estimate a mid- to fairly-high probability for apex court affirmation of the ruling; more so because some of the deficiencies found in previous presidential election petitions which had led to their dismissal by the apex court appear to be present in the current petitions, at least going by the judgment of the tribunal. There’s always of course the possibility of a surprise; but lest we forget, there’s also the overarching disposition of our electoral laws, going back even to the military decrees ushering in the Second Republic, which frowns at the nullification of elections except where there are substantial and proven infractions. This instinct is revealed in Section 135(1) of the Electoral Act 2022 which stipulates that an election should not be “invalidated” if the courts consider that it was “conducted substantially in accordance with the principles” of the electoral laws and that “non-compliance did not affect substantially the result of the election.”

Consider that last phrase – about non-compliance substantially impacting election results. And then recall that the result of the February 2023 presidential election was such that a whopping 63.4% of the voters actually chose the opposition parties over the ruling APC. In fact, the leading opposition candidates – PDP’s Atiku Abubakar, LP’s Peter Obi, and Rabiu Kwankwaso of the New Nigeria People’s Party (NNPP) – alone garnered a combined 60.7% of the votes. The result clearly indicates that whatever irregularities there might have been (and no one could claim there weren’t any), they could not have substantially impacted the outcome of the election. All three leading opposition candidates had been members of the PDP until the eve of the party primaries in 2022. So it was more likely the logic of opposition splintering that handed victory to the ruling party, as I argued in my analysis in early March.

For this and other reasons, it is hard to see how the Supreme Court would be inclined to overturn the verdict of the appeal court, more so given the conservative disposition of our electoral laws. Although we have seen some rather rash nullification of lower-level elections in recent time, the stakes here are higher and the conservative instinct of our electoral laws may prevail as the Supreme Court picks up the 2023 presidential election petitions.

That said, I wish to pick up one issue where I disagree somewhat with the tribunal’s ruling, this being the status of the Federal Capital Territory, Abuja, with regard to presidential elections.

The Abuja Question
Debate over the status of Abuja in presidential elections has been threatening since the inception of the Fourth Republic. Much has been written about it but, to my knowledge, until the 6th September ruling by the appeal court tribunal, there had not been any direct judicial pronouncement on the matter. The 1999 constitution, as amended, stipulates as follows at Section 134(2): to win the presidency, a candidate must secure

(a) … the majority of votes cast at the election; and

(b) … 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.

The interpretation of this provision is taking centre stage because, unlike the previous elections in which no major party had secured less than 25% of the votes cast in Abuja, in the 2023 election only Labor met that threshold. Upon this result, opinion has bifurcated on the true meaning of the constitutional provision regarding Abuja, with the argument centering on the word “and” in the phrasing above. There have been two traditions of interpretation. One (I suppose a textualist view) insists that the constitution means that a minimum of 25% in Abuja, along with a minimum of 25% in two-thirds of the states, is essential to win a presidential election. On this reading, Abuja is construed as having a special status, being a “miniature” Nigeria, and therefore that it requires a unique threshold separate from the states.

Articulating this view in the aftermath of the election and result declaration, Prof. Mike Ozekhome, who ended up on Atiku’s legal team, argued as follows:

The FCT, Abuja, is the seat of power of the Nigerian leadership. It is a cosmopolitan convergence of all federating units of the nation [and] the political nerve centre of Nigeria. It has been imbued with such a special status as a miniature Nigeria in such a way that any elected president must have to compulsorily win the required 25% vote in the FCT, Abuja, after winning 25% votes in 24 States. The reasons for this are not far-fetched. FCT, Abuja, is the melting pot which unites all ethnic groups, tribes, religions, people of variegate backgrounds; and other distinct qualities and characteristics in our pluralistic society.

Prof. Mike Ozekhome

A different (seemingly structuralist) reading considers Abuja not imbued with a special status but having the cognate status of a state, as indeed averred in Section 299 of the constitution. On this reading, Abuja is added to the 36 constitutive states to make a composite 37, resolving to a two-thirds threshold of 24.67 states (rounded to 25) which is clearly exceeded by the 29 states that Tinubu had won, according to INEC. This is the interpretation advanced by respondents in the various petitions, and it was accepted by the tribunal.

The textualist reading which insists on the imperative of 25% in Abuja would deny Tinubu victory, since he secured only 19.8% in the FCT. But this construction would mean, would it not, that Abuja residents are elevated over and above and have a virtual veto over the rest of the country. As the tribunal argued, this is an absurdity which clashes with the basic notion of equality, proclaimed by the constitution at Section 17(2)(a), that “every citizen shall have equality of rights, obligations and opportunities before the law.” Does the construction of a special status for Abuja not offend this basic principle? It is difficult to see how the Supreme Court could accept this interpretation, despite Ozekhome’s admirable eloquence on the status of Abuja.

There may be a way to thread the needle here, an alternative interpretation which reconciles the contending perspectives: the hints of a special status for Abuja versus the declarative principle of equality both of which are in the constitution. I think one way to reconcile the principle of equality enshrined in the constitution with the construction of a special status for Abuja would be to insist, not that a winning candidate should secure 25% in Abuja, but that they should secure a minimum of 25% in two-thirds of the votes cast in Abuja. A proper reading of Section 134(2)(b) should be that the candidate must secure (a) at least 25% in each of at least two-thirds of the 36 states, being 24 states; and also (b) at least 25% of two-thirds of the votes in Abuja, the FCT being a microcosm of Nigeria.

This reading approximates somewhat to the interpretation adopted by the Supreme Court in deciding the 1979 presidential election petition brought by the first runner-up in that election, Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN), against the supposed winner, Alhaji Shehu Shagari of the National Party of Nigeria (NPN). However, in that earlier case the court offered an inversion of my proposed interpretation. By that 1979 ruling, Shagari was said to have secured a minimum of 25% in 12 states, being nearly two-thirds of the then 19 states; plus over two-thirds of 25% of the votes in the 13th state.

If we applied that model to the 2023 case, Tinubu’s 90,902 votes in Abuja would amount to 79% of 25% of the 460,071 total valid votes in the FCT. So he crosses the threshold, as decided in 1979.

However, given how contentious that interpretation had been, with legal scholars considering it a fudge of law and political expediency, I am proposing a hopefully non-controversial interpretation which is the obverse of the 1979 construction: that the special status of Abuja as a microcosm of Nigeria – presumed throughout the constitution – requires for it exactly the same thing required for the whole of Nigeria: 25% of two-thirds of its votes. In this case then, Tinubu’s 90,902 votes in Abuja would be 29.6% of two-thirds of the FCT’s total valid votes of 460,071. So, on this reading which recognizes Abuja status but treats Abuja exactly as the whole country, Tinubu meets the qualified 25% threshold.

This interpretation, I suggest, is a more sophisticated reading of Section 134(2)(b) of the constitution than the arguably simplistic interpretation offered by the tribunal, following the respondents; and it is a more equitable reading than the overreaching construction proffered by the petitioners. It also resolves the 1979 fudge which applied different logics for the two components of Shagari’s score: “25% in two-thirds” for the 12 states, and “two-thirds in 25%” for the 13th state. My reading maintains “25% in two-thirds” for both the states and Abuja. It recognizes the cosmopolitan status of Abuja, but applies the exact same mathematical standard to the FCT as the states.

I am not a lawyer. But it beats me why no one, so far, appears to have alighted on this interpretation.

All eyes are now on the Supremes!

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