September 18, 2023
I put everything aside to watch the ruling of the Presidential Election Petition Court, PEPC, from start to finish, on September 6! With rapt attention, I absorbed the minutiae of the very detailed verdict. But after the 13-hour-long ruling, I was utterly despondent. For, instead of safeguarding Nigeria’s democracy, protecting the integrity of future presidential elections and establishing boundaries for integrity politics in Nigeria, the court did the contrary!
Let me start with two general observations. First, the judges worked to a predetermined answer. Because they couldn’t bring themselves to annul the election of a sitting president, unprecedented in Nigeria, they found every reason to affirm Bola Tinubu’s election. Courts of first instance are fact-finding courts that seek to get to the bottom of a matter to do justice. But the PEPC used every conceivable procedural technicality to reject virtually all the facts and witnesses presented by Peter Obi and Atiku Abubakar.
At one point, a cynical thought ran through my mind: Did INEC’s and Tinubu’s lawyers write the verdict for the judges? I quickly dismissed the thought but was struck by how the judges treated Obi’s and Atiku’s lawyers, most of them Senior Advocates of Nigeria, SANs, like morons, who were utterly incompetent and ignorant of the law, but treated INEC’s and Tinubu’s lawyers with total deference, regurgitating their arguments.
The second observation is that the judges’ interventions and tone betrayed their biases. For instance, one judge read out the results of the presidential election in the five South-East states and said that “INEC must be an abysmally poor manipulator, if not even an imbecilic one”, to have allowed Obi, instead of Tinubu, to win massively in those states. In other words, if INEC really manipulated the election, Tinubu should have won in the South-East.
Really? The learned judge failed to realise that it’s almost impossible to rig an election where one party is extremely strong, and another is extremely weak; that elections are usually rigged where two parties are fairly equally strong such that it’s easier to manipulate votes and tip the balance in favour of one and against the other. Yet, the erudite judge made hay of the argument that Obi won massively in the South-East, his core base, to “prove” that the presidential election was free and fair, making INEC’s and Tinubu’s case for them!
Leaving aside those general observations, what about the substantive issues? These were FCT’s status; Tinubu’s drug-related forfeiture; pleadings and evidence; and the role of INEC. In my view, the PEPC’s decisions were skewed in favour of Tinubu and INEC. There were perfectly legitimate and reasonable positions the court could have taken, if so inclined.
Let’s start with the FCT issue. The PEPC rejected a literal interpretation of section 134(2)(b) of the 1999 Constitution on whether a winning candidate must score at least one-quarter of the votes cast in Abuja. It said that only a broader interpretation would align with the intention of the framers of the Constitution regarding “equality of citizens” and “equality of rights”, set out in the Preamble. Thus, the court said FCT’s votes couldn’t be decisive, stating: “Equality of rights in every citizen cannot exclude equality of the weight and value of their votes. No, it includes it.”
But if the principle of “equality of the weight and value of votes” is constitutional and sacrosanct, why did the votes of 8.8million (37 percent) who voted for Tinubu carry more weight and value than those of 15.2million (63 percent) who rejected him? Why should 37 percent of voters have a veto over 63 percent? The court ruled that Tinubu scored “the majority of lawful votes cast at the election”. The total lawful votes cast at the presidential election was 24 million. Is 8.8million the majority of 24 million? Certainly not!
Strangely, while the PEPC adopted a broader interpretation on FCT’s status to give Tinubu an escape route, it adopted a narrower one on the issue of dishonesty to give him another lifeline
According to INEC, Tinubu scored the “highest” votes among the presidential candidates, but not “the majority of the lawful votes cast at the election.” Surely, if votes were to have equal weight and value, a winning presidential candidate should have the majority of all the votes cast, not just the highest among the candidates. Since that’s not the constitutional position, it’s wrong to decide the FCT issue on the basis of “equality of the weight and value of votes"
Similarly flawed is the recourse to section 299 of the Constitution, which says FCT should be treated “as if it were” a state. The phrase “as if” is figurative. Abuja is not literally a state. There are many provisions of the Constitution that apply to states but not to Abuja. For instance, Abuja doesn’t have an elected governor or assembly; and the FCT Minister doesn’t attend meetings that state governors attend, such as the National Council of State and National Economic Council. Indeed, section 299 says that provisions of the Constitution should be read with “necessary modifications and adaptations” with respect to Abuja. The presidential election is sui generis, different from day-to-day issues of governance to which section 299 arguably refers. So, it’s wrong to use section 299 to defeat the reasonable construction of section 134(2)(b) regarding the presidential election.
Strangely, while the PEPC adopted a broader interpretation on FCT’s status to give Tinubu an escape route, it adopted a narrower one on the issue of dishonesty to give him another lifeline. Section 137(1)(d) of the Constitution disqualifies from running for president anyone who was subject to a “fine for any offence involving dishonesty or fraud by whatever name called.” Although the phrase “by whatever name called” is very broad, the PEPC held that the “fine” and “offence” referred to in section 137(1)(d) only related to criminal conviction. Thus, being a “non-conviction-based forfeiture”, the $460,000 that Tinubu forfeited to the US Government didn’t disqualify him from becoming president, even though it was linked to proceeds of “narcotic trafficking and money laundering”.
That ruling would destroy the basis of integrity politics in Nigeria. If, as the PEPC held, the framers of the Constitution intended that a person who, though not convicted, forfeited assets on account of criminal conduct can become president, then it means that integrity and honesty are constitutionally and judicially excluded from Nigerian leadership!
Now, let’s turn to pleadings and evidence. Here’s the utter injustice. The petitioner carries a heavy evidential burden, yet the court and the law put insurmountable obstacles in his way. He must file his petition with detailed pleadings and relevant documents within 21 days of the declaration of election results. Anything not filed or “frontloaded” within 21 days would be rejected. With 176,846 polling units across Nigeria, how can a candidate challenging a presidential election assemble all facts and witnesses within 21 days? Yet, the PEPC struck out most of Obi’s and Atiku’s pleadings and evidence, based on non-filing within 21 days and other procedural technicalities. Truth is, the cards are so stacked, both legally and judicially, against a petitioner in a presidential election that the taunt “Go to court” gains potency.
Finally, INEC’s role. The PEPC ruled that despite stating in its Regulations and Guidelines that it “shall” transmit election results “electronically” and “upload” them “to the INEC Result Viewing Portal (IReV)”, INEC is not obligated to honour those commitments. The ruling defies the preponderance of English case law discouraging public bodies from frustrating legitimate expectations resulting from their undertakings or representations. If INEC cannot keep its own words, how can Nigerians trust it to conduct credible presidential elections?
Truth is, the PEPC judgement is perverse. Unless reversed by the Supreme Court, it will entrench rigged presidential elections in Nigeria and make presidential election petitions unwinnable, as ever. That will endanger Nigeria's future!
Olu Fasan https://businessday.ng/columnist/article/pepc-judgement-the-perverse-ruling-endangers-nigerias-democratic-future/ |
