•KALU, SAN: Electoral Act put us in a near impossible position to prove case

By Ikechukwu Nnochiri

The dust is yet to settle on the presidential election that held in Nigeria on February 25, 2023.

Pundits had described the outcome of the election, which was in favour of President Bola Tinubu of the ruling All Progressives Congress, APC, as one of the most keenly contested results since the return of democracy in the country in 1999.

The Independent National Electoral Commission, INEC, had on March 1, announced that Tinubu won the presidential contest, ahead of 17 other candidates that participated in the poll.

It declared that he garnered a total of 8,794,726 votes to defeat his two major rivals, Alhaji Atiku Abubakar of the Peoples Democratic Party, PDP, who came second with a total of 6,984,520 votes, and Mr. Peter Obi of the Labour Party, who came third with a total of 6,101,533 votes.

However, dissatisfied with the outcome of the poll, both Obi and Atiku, alongside their political parties, initiated legal actions to invalidate it.

Likewise, the Allied Peoples Movement, APM, also filed a petition to challenge the return of Tinubu as the valid winner of the presidential contest.

A major plank upon which the litigants rested their cases included the claim that President Tinubu was at the time the election held, not qualified to contest.

They maintained that the election was characterized by manifest corrupt practices, substantial non-compliance with provisions of the Electoral Act 2022 and INEC’s Manual/Guidelines for the conduct of the election.

The petitioners further queried Tinubu’s eligibility to occupy the presidential seat, insisting that he was previously indicted and fined the sum of $460,000.00 by the United States District Court, Northern District of Illinois, Eastern Division, in Case No: 93C 4483, for an offence involving dishonesty and drug trafficking.

According to the litigants, such indictment, constituted a ground for disqualification under section 137 (1) (d) of the 1999 Constitution, as amended.

Besides, the petitioners stressed that Tinubu did not satisfy the provision of section 134 (2) (b) of the Constitution, as he failed to secure 25% votes in the Federal Capital Territory, Abuja.

These, at a glance, were key issues that the Court of Appeal which sits as the court of first instance in presidential election dispute, was called upon to determine.

Five petitions

Even though five petitions were initially entered against Tinubu’s election, however, both the Action Alliance, AA, and the Action Peoples Party, APP, withdrew their cases before it could be heard.

While it is no more news that the Presidential Election Petition Court, PEPC, which sat in Abuja, had, last Wednesday, dismissed all the petitions and upheld President Tinubu’s election victory, the news, however, is that the petitioners, especially Atiku and Obi, have separately vowed to approach the Supreme Court to set aside the judgment.

While Atiku maintained that the unanimous decision of the Justice Haruna Tsammani-led five-member panel of the appellate court, was “bereft of substantial justice,” on his part, Obi, who insisted that the judgment “fell short of expectation,” said he would “not relent on the quest for justice.”

Notwithstanding the position of the litigants, Tinubu has since hailed the judiciary for the judgment he said was in tandem with the principles of the law.
Timeframe

Statutorily, whereas the appellate court (tribunal) had 180 days to hear all the petitions and deliver its verdict, on the other hand, the Supreme Court, will take 60 days, starting from the day the judgment was read (September 6) to render its own decision.

Likewise, whereas the tribunal comprised of a five-member panel, the Supreme Court will constitute a seven-man panel to determine all the appeals that will come before it from the aggrieved candidates.

Considering the fact that presidential election petition cases are sui generis (in a class by itself), the apex court will have to deliver its own judgment on or before October 4, a statutory period that cannot be extended, no matter the exigencies or emergencies.

The 180 days (for tribunal) and 60 days (for Supreme Court) fixed timeframe for conclusion of presidential election cases, and appeal, were intended to cure the mischief of the past where election petitions lasted for almost the term of office of the person whose election was questioned, thereby rendering the entire judicial process near fruitless.

According to Section 146 (1) of the 1999 Constitution, as amended, the office of President can become vacant by reason of death, resignation, impeachment, permanent incapacity, and or the removal of the President from office for any other reason.

Section 146 (2) provides that where a ‘President’ and ‘Vice-President’ are declared invalidly elected and thus asked to vacate the offices, the Senate President will hold the office of President for a maximum of three months, during which a new President will be elected.

Even though the phrase “for any other reason” used in Sub Section 1 envisages the nullification of the election of an invalidly elected President, however, since 1999 when Nigeria reverted to civilian rule, no presidential election has been annulled by the court.

While Section 239 (1) of the Constitution allows the Court of Appeal and, ultimately, the Supreme Court to determine whether someone has been validly elected as President; the Electoral Act 2022, Section 136 (1) requires the court to nullify the election of someone not duly elected as President.

Thus, constitutionally, until the final pronouncement of the Supreme Court, the proverbial sword of Damocles, in the form of removal from power, still hangs over Tinubu’s head.

Despite the brewing optimism in the camp of the petitioners/appellants, however, with the absence of such precedent in over 24 years, many legal eggheads argue that in practice, presidential election litigations in the country are otiose and purely academic.

Mountain climbing experience

One of the leading counsel in the petition that was lodged against the President by Obi, Prof. Awa Kalu, SAN, had explained that the Electoral Act, which made it mandatory that petitions must be filed along with depositions of all the intended witnesses within 21 days after the declaration of result of a disputed election, already placed an aggrieved candidate in a near impossible position to prove his case, no matter how strong it may be.

“Setting 21-day timeframe to file petitions challenging the conduct of different categories of election in Nigeria is very ridiculous. For presidential election for instance, the totality of the country is its constituency,” he argued.

Kalu noted that presidential election dispute touches on results from the 36 states of the federation that have local government areas of various sizes, as well as the FCT, Abuja.

According to him, it would be hard for a petitioner to, within the limited time of 21 days, gather all the materials he would require to be able to effectively articulate his grievances in court.

“I say without any fear of contradiction that the time limit is extremely ridiculous. You will appreciate the ridiculousness of this constitutional provision when you reconcile this with the fact that the same 21 days was also given to petitioners to file his petitions for other categories of election”, the SAN said

“Unlike the presidential election, for instance, the governorship election covers just the whole state. The states are also of different sizes. Yet, the same 21 days was allocated to challenge election conducted therein.”

Continuing, Kalu told Vanguard: “I will draw your attention to a decision of the Supreme Court on an appeal arising from presidential election petition by Gen Muhammadu Buhari against the election of President Olusegun Obasanjo in 2003. The Supreme Court made a comment that is very germane to this issue. I will give you the law report.

“Specifically, the Supreme Court says you will need a minimum of 250,000 and 300,000 witnesses to establish a case of non-compliance in the conduct of presidential election which constituency is the entire 36 states of the Federation and the Federal Capital Territory (FCT) and prove the ingredients of successful election petition.

“Is it really possible to examine 300,000 witnesses in election petition proceedings which judgment must be delivered within 180 days assuming it is possible to file witnesses’ statements on oath within the 21 days?

“That is the problem. It is not possible to file 250,000 witness statements on oath within 21 days. Even if you can file which is not possible anyway, you know lawyers, by nature, they know how to utilise opportunities provided by the law either for good or for bad.

“The present procedure for election presentation is that for a witness, all you are expected to do is to file a witness statement on oath, then his examination-in-chief is limited to adopting the witness statement on oath and usually, the tribunal will limit time for cross-examination.

“But the time for cross examination differs from tribunal to tribunal.

“For instance, if a witness is a star witness, says the petitioner, they allow more time for adopting the witness statement on oath, adoption of tons of documents and at the same time for cross examination.

“That is to say tribunals at trial level are more generous towards witnesses in terms of time. But what you find in practice is that the onus is for the petitioner to prove substantial non-compliance. It is usually a mountain climbing experience.

“You know what it is to climb a mountain. That is always what it is for a petitioner to prove malpractices that will result in election being upturned.

“I can tell you that it is not possible. Even if you are a magician, you can’t file 30,000 witness statements on oath in 21 days. It is not just possible. This is because you are proving what has been explained to form part of the requirements for election malpractice.

“What the Supreme Court and other courts that deal with election matters explain is that for a challenge to show noncompliance, you have to start in a pyramidal way which is what the Electoral Act contemplates. You look at the units’ results. That is where the compilation of the results starts from.

“The results are transferred to the ward level, from ward level to the local government level, then to the state; and for presidential election, from states to Abuja. “So, each step has to justify whatever case you have. If it is the unit level, looking at the totality of the units that make up the totality of Nigeria, you will discover that it is a big task”.

Supreme Court position

It had always been the position of the Supreme Court that in any election dispute, the petitioner must succeed on the strength of his own case, and not on the weakness of the defense of the respondents.

Consequently, in most cases where the judiciary was invited to review the outcome of a disputed election, the petitioners usually found it difficult to prove allegations of malpractice and electoral violence, as the court would always insist that such allegations, being criminal in nature, ought to be established beyond every reasonable doubt.

A gander down the memory lane will show that after the February 27, 1999 presidential election, Olusegun Obasanjo of the PDP was declared the winner.

However, Chief Olu Falae, who contested the poll on a ticket jointly sponsored by the Alliance for Democracy, AD, and the All People’s Party, APP, went to court to challenge the outcome.

Falae, who was a former Secretary to the Government of the Federation, lost the case in a judgment the Court of Appeal delivered on April 19, 1999.

Then-head of the panel, Justice Dahiru Musdapher, who dismissed Falae’s petition as lacking in merit, would later become the Chief Justice of Nigeria, CJN.

Four years afterwards, 2003, Obasanjo was declared re-elected.

Dissatisfied with the result, candidate of the All Nigeria Peoples Party, ANPP, Muhammadu Buhari, sought the intervention of the judiciary.

Buhari, in his petition, alleged that the election was marred by irregularities and total disregard for the 2002 Electoral Act.

Following the dismissal of his case by the tribunal, Buhari took the case to the Supreme Court where he also lost.

After the next round of general elections in 2007, both Buhari and Atiku went to court to nullify the declaration of Umaru Musa Yar’Adua as winner of the fiercely contested presidential contest.

Despite their argument as well as the summation of both foreign and local observers that the election was manifestly flawed, the Supreme Court, in its majority decision, said it found no reason to annul the outcome of the poll.

President Yar’Adua would later publicly admit that he did not emerge through a clean election, vowing to ensure a holistic reform of the electoral process in the country.

Likewise, in 2011, Buhari, who contested on the platform of the Congress for Progressive Change, CPC, again returned to court to challenge the declaration of Goodluck Jonathan of the PDP as winner of the election that held on April 16.

His case was again dismissed for want of merit by a seven-member panel of the apex court, a decision that evoked strong emotions from Buhari who reportedly said he would no longer contest election.

Nevertheless, following strong persuasion from his supporters and a merger of major opposition political parties that gave birth to the APC, Buhari made a volte face and contested the 2015 presidential election which saw him defeating the incumbent, Jonathan.

Unprecedented

In an unprecedented move that many have described as a watershed on democracy in Africa, Jonathan congratulated Buhari before the final result of the presidential election was announced.

Jonathan equally resisted the pressure to approach the court to challenge the outcome of the 2015 presidential election.

However, in 2019, Atiku, who returned as the presidential flag-bearer of the PDP, challenged the re-election of President Buhari for his second tenure.

He urged the court to nullify the presidential election that held on February 23, 2019, citing irregularities and substantial non-compliance with the Electoral Act.

His case was, however, dismissed by the appellate court on September 11, 2019, a decision that was affirmed by the Supreme Court on October 30, 2019.

Four years after the verdict that favoured Buhari, Atiku, alongside Obi and the APM, are once more on their way to the Supreme Court, in a bid to invalidate the declaration of Tinubu of the APC as winner of the presidential election that held on February 25, 2023.

Specifically, Atiku, in the joint petition he filed with his party, maintained that the declaration of Tinubu as winner of the presidential election was “invalid by reason of non- compliance with the provisions of the Electoral Act, 2022”, insisting that he “was not duly elected by majority of lawful votes cast at the election”.

He told the court that Tinubu, who was cited as the 2nd Respondent, “was at the time of the election not qualified to contest.”

In a further process he filed through his team of lawyers led by Chief Chris Uche, SAN, Atiku told the court that the president-elect had “demonstrated inconsistency as to his actual date of birth, secondary schools he attended (Government College Ibadan); his state of origin, gender, actual name; certificates evidencing universities attended (Chicago State University).”

He continued: “The purported degree Certificate of the 2nd Respondent allegedly acquired at the Chicago State University did not belong to him but to a female (F) described as ‘F’ in the Certificate bearing the name Bola Tinubu.

“The 2nd Respondent did not disclose to the 1st Respondent (INEC) his voluntary acquisition of the citizenship of Republic of Guinea with Guinean Passport No. D00001551, in addition to his Nigerian citizenship. The 2nd Respondent is hereby given notice to produce the original copies of his said two passports”.

He argued that the APC candidate did not meet the constitutional threshold and “is constitutionally disabled from contesting for office of President of Federal Republic of Nigeria”.

Likewise, Obi and LP, in their own petition, argued that as at the time Tinubu’s running mate, Senator Kashim Shettima, became the vice presidential candidate, he was still the nominated candidate of the APC for the Borno Central senatorial election.

On the grounds that the election was invalid by reason of corrupt practices and non- compliance with the provision of Electoral Act, 2022, the petitioners argued that INEC acted in breach of its own Regulations and Guidelines.

The petitioners contended that the electoral body was in the course of the conduct of the presidential poll, mandatorily required to prescribe and deploy technological devices for the accreditation, verification, continuation and authentication of voters and their particulars as contained in its Regulations.

They prayed the court to not only hold that Tinubu was not qualified to contest the election, but to also declare that all the votes recorded for him were wasted votes owing to his nonqualification/disqualification.

“That it be determined that on the basis of the remaining votes (after discountenancing the votes credited to the 2nd Respondent) the 1st Petitioner (Obi) scored a majority of the lawful votes cast at the election and had not less than 25% of the votes cast in at least 2/3 of the States of the Federation, and the Federal Capital Territory, Abuja, and satisfied the constitutional requirements to be declared the winner of the 25th February 2023 presidential election”, they argued.

“That it be determined that the 2nd Respondent, having failed to score one-quarter of the votes cast at the presidential election in the Federal Capital Territory, Abuja, was not entitled to be declared and returned as the winner of the presidential election held on 25th February, 2023”.

In the alternative, the petitioners wanted an order cancelling the election and compelling INEC to conduct a fresh election at which Tinubu, Shettima and the APC, listed as 2nd, 3rd and 4th Respondents, respectively, shall not participate.

They urged the court to declare that since Tinubu was not duly elected by a majority of the lawful votes cast in the election, therefore, his return as the winner of the presidential election, was unlawful, unconstitutional and of no effect whatsoever.

In a further alternative prayer in the petition dated March 20, which Obi filed through a team of lawyers led by Dr. Livy Uzoukwu, SAN, he wanted court to hold that the presidential election was void on the grounds that it was not conducted substantially in accordance with the provisions of the Electoral Act 2022, and the 1999 Constitution, as amended as well as an order “cancelling the presidential election conducted on 25th February 2023 and mandating the 1st Respondent to conduct a fresh election for the President, the Federal Republic of Nigeria.”

On its part, the APM, in its petition, argued that the withdrawal of Mr. Ibrahim Masari, who was initially nominated as the vice-presidential candidate of the APC invalidated Tinubu’s candidacy in view of Section 131(c) and 142 of the 1999 Constitution, as amended.

The party argued that there was a gap of about three weeks between the period that Masari, who was listed as the 5th Respondent in the petition, expressed intention to withdraw, the actual withdrawal of his purported nomination, and the time Tinubu purportedly replaced him with Shettima.

While alleging that Shettima was nominated twice by the APC – as its candidate for the Borno Central senatorial election and as a vice presidential candidate – the APM further argued that Tinubu’s candidature had elapsed as at the time he nominated Shettima as Masari’s replacement.

As all eyes now rest on the Supreme Court to do justice in the next 56 days, will the appellants be able to break the 24 years legal deadlock? Only time will tell!