Matters of interest from tribunal’s verdict [OPINION]

By Simon Kolawole

For 14 or so hours on Wednesday, the presidential election petition tribunal delivered its judgment on the petitions filed against the declaration of Asiwaju Bola Ahmed Tinubu, candidate of the All Progressives Congress (APC), as the president of Nigeria. The unanimous verdict, in one word, was: dismissed. Needless to say, this verdict disappointed supporters of Alhaji Atiku Abubakar and, most especially, Mr Peter Obi. Of course, the petitioners will appeal to the Supreme Court. Only Chief Olu Falae, joint candidate of the Alliance for Democracy/All Peoples Party — remnants of which co-founded the APC in 2013 — stopped at the Court of Appeal but that was well over 24 years ago.

The overall determination of the tribunal is that Atiku, who flew the flag of the Peoples Democratic Party (PDP), and Obi, the torchbearer of the Labour Party (LP), merely alleged rigging without providing proof. In the final results of the presidential election declared by the Independent National Electoral Commission (INEC), Tinubu had polled 8,794,726 votes, Atiku 6,984,520 and Obi 6,101,533. To establish that irregularities affected the final scores, Atiku needed to prove how the gap of 1,810,206 between him and Tinubu could be upturned. Obi, at his own end, needed to prove how the 2,693,193 gap owed to irregularities. The tribunal said neither of them provided concrete proof.

The rest are technicalities — whether or not electronic transmission of results via iRev was mandatory; whether or not the forfeiture of monies linked to illicit drugs amounts to criminal conviction and an automatic disqualification of Tinubu from the presidential race; whether or not he was qualified to run based on his academic credentials; whether or not Alhaji Kashim Shettima had double nomination for senate and vice-presidency; and whether or not scoring 25 percent of votes cast in the Federal Capital Territory (FCT) is mandatory to being declared as president. None of these arguments was upheld by the tribunal, leaving a bitter aftertaste in the mouths of the petitioners.

I was quite eager to get the judicial interpretation of Section 134 (2) of the 1999 Constitution which says: “A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election: (a) he has the highest number of votes cast at the election; and (b) he has 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 petitioners interpreted this to mean FCT has a special status in the presidential election. They demanded a run-off nationwide since the APC candidate scored only 20 percent in FCT.

The tribunal ruled that the entire constitution has to be read as a document and not in isolation. Justice Haruna Tsammani, who read the lead judgment, took us through the preamble of the constitution which says every citizen shall have equality of rights and obligations. “It cannot be read in any way to mean superiority should be attached to any voter above others,” he said. He quoted Section 299 of the constitution which says: “The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.” Except the Supreme Court upturns this judgment, this should finally settle the question on the 25 percent requirement.

I always felt there was something unconvincing about the petitioners’ argument. Theoretically, it means a candidate can win all the 36 states and still not be declared president if he/she fails to get 25% in FCT. The obvious intention of the constitution was not to confer an extraordinary status on FCT. The spread criterion is to ensure a presidential candidate has presence across the country. The constitution does not prescribe that 25 percent has to be secured in any state, including the most populous or one with biggest landmass, but just two-thirds of the states. Is there any country where a candidate must win a percentage of votes in a particular city to be declared president?

When we insult the drafters of the 1979 Constitution (which is what was amended and repackaged as the 1999 Constitution), we are just being uncharitable. This constitution was written by academics, lawyers, and other accomplished Nigerians, not roadside mechanics. The requirement of geographical spread was to address a weakness in the parliamentary system of the first republic in which a party could be limited to a region and still form national government. By requiring the president to score at least one-quarter of the votes cast in at least two-thirds of the 19 states, the 1979 Constitution ensured that no candidate could hope to be elected by his/her own region alone.

But as with all human contraptions, there is no perfection. The 25 percent requirement ran into a hitch at first attempt in 1979 when Alhaji Shehu Shagari met the threshold in 12 out of the 19 states and also polled the highest votes. What is two-thirds of 19? Would it be 12 or rounded off to 13? When the late Prof Bala Usman raised the issue at the 1978 Constituent Assembly which worked on the draft constitution, many members scoffed, but he included it in the minority report. As it turned out, it became a major issue in the presidential election. The Supreme Court would rule that it should be 12 states and two-thirds of the 13th state — hence the famous “12 two-thirds” judgment.

This is my matter of interest in this tribunal judgment. Now that it is interpreted as “36 states plus FCT”, making 37, what is two-thirds of 37? Will that be 24, 25 or 24 two-thirds? Going by the Supreme Court judgment in 1979, it would logically be 24 states and two-thirds of the 25th state. We now need constitutional clarity. Developments of this nature can help improve the laws. Even though Tinubu met the requirement in 30 states, it can become a problem in the future. If the Supreme Court upholds this verdict, we have to consequentially amend the constitution to reflect the judicial interpretation of “36 states and FCT” and to also spell out what “two-thirds of 37 states” means.

The second matter of interest: the tribunal threw out APC’s petition that Obi was not qualified to be the LP candidate having joined the party a couple of days to the primary election, whereas the Electoral Act 2022 stipulates that the party must submit the membership register 30 days prior. The Electoral Act, meanwhile, does not provide for waivers. By this verdict, which declared that it is a party that has a right to decide who are its members, it means you can join a party in the morning and contest for its ticket at noon. I support removing this. If the Supreme Court does not make a contrary finding, it becomes law. We would need to amend the law to eliminate any confusion.

Three, the tribunal verdict may be erroneously interpreted to have devalued BVAS and iRev. I hope this is not going to be a problem going forward. The tribunal only said not using BVAS and iRev does not invalidate an election. It didn’t say we should stop using them. By the way, I have noticed that many Nigerians appear not to know the difference between the two. BVAS is for accreditation of voters at the polling unit (PU), storage of voting data and transfer of results to the INEC server, while iRev is a portal for the uploading of results transmitted to the server. In fact, BVAS was used during the presidential election — the issue in dispute was the failure to upload results real time to iRev.

Lawmakers had argued that there are general problems associated with technology — network connection, device failure and security. This may explain why they made the Electoral Act flexible in section 47(2) by adding: “…or any other technological device that may be prescribed by the Commission.” In trying to justify the huge sums it spent on technology, INEC hyped the use of BVAS and iRev as the ultimate marker of credible polls. With iRev not used real time during the presidential poll (and there has been no convincing explanation for this till today), this became a strong point for those who lost. Nevertheless, APC still won the majority of votes in the elections where iRev worked.

The irony, of course, is that even in governorship and legislative elections where BVAS and iRev worked seamlessly, those who lost still went to court to challenge the outcomes. That means the acceptance of the credibility of an election does not depend on BVAS, iRev or live transmission, contrary to the impression we might have got from the dispute over the presidential poll. The tribunal said it would have been helpful if there was a table showing the differences between the results declared by INEC and the result sheets signed by party agents at the polling units. I strongly believe BVAS and iRev have improved the electoral system and must not be cast away or relegated.

In sum, I doubt that any presidential election will be upturned based on technicalities, especially those that could have been settled pre-election. The stakes are high. I also think that tribunals should be dealing more with the smoking gun from the elections, such as proofs that if the lawful votes were counted, the outcome would be different. That was how Obi won his Anambra governorship petition in 2006. He presented the result sheets signed by all party agents as well as INEC officials and proved that what was officially declared was different. When he promised to do that again after the 2023 presidential election, I told myself: “INEC has messed with the wrong guy again.” Oh well.

While we may have our different opinions on the verdict of the presidential election petition tribunal — I have read tonnes of comments, some purely emotional and some quite rational — I am glad that all the threats of war and rumours of war came to naught. I want to believe that we are learning how to be angry or excited within the confines of the law. The Supreme Court offers a final opportunity for Atiku and Obi to prove their case that they won the election. This they will do by puncturing the contentious aspects of the tribunal’s verdict. Democracy could be a pain-filled journey, but no matter how frustrating the rule of law and due process are, I will never promote alternatives to democracy.

Culled from The Cable