Nigeria is a country where the best appears impossible but the worst will never happen. What a country!
After all the preparations, brouhaha, humungous expenses, logistic nightmares, suspense, dramatics and histrionics that characterised the 2023 general elections and in particular the presidential election, on Thursday the 26th day of October 2023, the Supreme Court of Nigeria made a final and definitive pronouncement on the dejure (rightful) or lawful President.
Courtesy of the unanimous judgments which the Supreme Court delivered in the separate appeals brought by PDP and LP and their candidates against the 6 September 2023 judgment of the Court of Appeal sitting as a Presidential Election Petition Court, President Tinubu was confirmed validly elected. Recall that in a unanimous judgment that was delivered on the 6th day of September 2023, the Presidential Election Petition Court had dismissed the petitions presented against the APC, her Presidential and Vice-Presidential candidates and the INEC as the electoral umpire.
For emphasis, the judgments of the Supreme Court delivered on 26th October 2023 and indeed all other decisions of the Supreme Court are final. Appeals lie nowhere else or beyond it.
The finality of the judgment of the Supreme Court has a constitutional backing. Section 215 of the Constitution of the Federal Republic of Nigeria as amended provides that “Without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.”
In a long line of decided cases, it has been judicially signposted that there is no constitutional provision enabling appeal from decisions of the Supreme Court. One such notorious case is the judgment of the Supreme Court, per Karibi-Whyte JSC, in ADIGUN & ORS v ATTORNEY-GENERAL OYO STATE & ORS (NO.2) (1987) LPELR-40648(SC) (Pp. 69-71 paras. D) wherein it was held among other things that any question of reopening the decisions of the Supreme Court for further consideration does not arise. Furthermore, by reason of doctrine of judicial precedence, judgments of the Supreme Court bind all other strata of Courts in Nigeria.
Shorn of emotional excursions and associated trepidations, the stark reality is that in a layman’s parlance, all legal challenges against the 2023 Presidential election has “reached the final bus stop”.
With all the appeals dismissed for lacking in merit and the Supreme Court affirming that APC Presidential candidate was duly elected President of Nigeria, this has removed all legal obstacles and adverse claims over the outcome of the 2023 Presidential election.
It is instructive to underscore that before handing down the unanimous judgment of the full panel of the apex court (seven members), the Supreme Court had earlier rejected the application brought by Alhaji Atiku Abubakar and PDP to introduce fresh evidences of fraud against the APC presidential candidate on the ground that it was a belated application given that constitutional timelines were non-negotiable.
In dismissing all the grounds of appeals submitted for ajudication by the appellants and affirming the judgment of the Court of Appeal that President Tinubu won the 25 February 2023 Presidential election, the Supreme Court among other things agreed with the judgment of the Court of Appeal sitting as Presidential Election Petition Court that Abuja, the Federal Capital Territory has no special status. Thus, contrary to the contention of the appellants, a Presidential candidate does not need to score at least 25 per cent of votes in the Federal Capital Territory to be declared as Nigeria’s President.
This has finally resolved the legal crossfire over the interpretation of the provision of section 134(2)(b) of the Constitution of the Federal Republic of Nigeria,1999 as amended.
The judgments of the Supreme Court did not go down well with the unsuccessful appellant political parties, their candidates, backers and sympathisers. In turn, they made strong public statements parodying or lampooning the judgments as much as they felt bound by them.
On the contrary, the successful ruling APC party and her Presidential candidate described the judgments as victory for democracy and Nigerian people while extending Olive branches to the opposition. These variegated post-judgment comments, developments and reactions are natural.
They are not unexpected. While the loser or dissatisfied party is entitled to complain, the winner is expected to be exultant but magnanimous in victory. In between all these, it must be remembered that opposition is key in a multi-party democracy.
As one analyst tersely put it, “opposition is the highest form of patriotism”. However, opposition is not bows, axes, machetes and cudgels.
This intervention is not about who is happy and gloating or who is unhappy or pained with the judgment of the Supreme Court as it is too late in the day to dwell on that.
This postmortem examination is about the way forward in Nigeria’s democratic journey. It is about the upshots or fallouts from the 2023 Presidential Election judgments and the compelling necessity for immediate legislative amendments to redirect the wheels of Nigeria’s democratic journey and progress.
Under section 6 of the Constitution of the Federal Republic of Nigeria as amended, the role of the judiciary remains interpretation of laws. That is interpreting the law as it is and not as it ought to be. In sum, that is what the Supreme Court did in the judgments it delivered on 26th October 2023. The judiciary does not make laws. Under section 4 of the Constitution of the Federal Republic of Nigeria as amended, the law making powers of the Federation are vested on the legislature.
Thus, after the Supreme Court judgment in the Presidential election appeals which was based on the law as it is and not the law as it ought to be, it has become obvious that there are too many legal pitfalls in the electoral process requiring the Nigerian legislature to go back to the drawing board to give Nigerians an electoral law that can truly guarantee free, fair and credible elections.
Drawing from the judgments in the 2023 election petitions (whether determined in the Court of Appeal as a final appellate court for National Assembly and State Houses of Assembly petitions or Supreme Court), it has become imperative that National Assembly must be quick to outrightly amend certain provisions of the national Constitution, the Electoral Act and adjectival laws that impede free, fair and credible elections in Nigeria. Likewise, some blurry or ambiguous provisions must be amended and redrafted in clear and unambiguous terms to bring out the true intentions of the lawmaker.
Contrary to widely held beliefs and expectations buoyed by bogus assurances given by INEC to Nigerians, all the imagined gains of the electoral process being deepened under the Electoral Act, 2022 completely fizzled away after rigorous judicial scrutiny.
From the standpoint of judicial pronouncements, it is evident that the Electoral Act, 2022 did not make any significant improvement in terms of transparency and credibility of the electoral process over and above the Electoral Act, 2010 it repealed. To this end, the following inexhaustive admix of urgent constitutional, legislative and procedural amendments are proposed namely-
(a) There should be constitutional amendment to guarantee conclusion of all petitions before swearing in of elected officials. This will among other things serve to reduce distractions and bickerings associated with the present position of the law.
(b) Audit of judicial decisions will show that there is need to amend the present state of the law on Pre-election Practice Directions to accommodate commencement of pre-election disputes by Writ of Summons. The Federal High Court Pre-election Practice Directions, 2022 provides that every pre-election matter shall be commenced only by an Originating Summons.
It was obedience of this Practice Direction that led to the respondent’s loss in the notorious case of APC V BASHIR MACHINA [SC/CV/1689/2022 delivered by the Supreme Court on 6th February, 2023] involving Senator Ahmed Lawan and the determination of the rightful APC candidate for Yobe North Senatorial District. In that case, the Supreme Court held that the issues involved were very contentious and cannot be resolved by mere affidavit evidence and that the case must be commenced by writ of summons and not by originating summons. The respondent’s case was commenced by originating summons in obedience to the Practice Direction of the Federal High Court for presenting pre-election matters but the Supreme Court held that it was defective being that the complaint raised issue of forgery which cannot be resolved by mere affidavit evidence. Hence, the appeal was upheld. The dilemma which confronted the respondent in this decision underscores the urgent need for harmony in not just the application of the law but in enacting both substantive and procedural legislations.
(c) The current Electoral Act, 2022 places burdensome or insurmountable burden of proof on the petitioner in an election petition. It is proposed that the INEC should be made to warehouse or have the onus or duty to prove conduct of election in substantial compliance with the law.
The current legal position requiring a petitioner to call witnesses from every polling unit where electoral malpractice is alleged is a very tall order given the 21 days available to the petitioner to file the petition and 180 days allowed for the petition to be concluded in the Election Petition Tribunal.
In the judgments of the Supreme Court under review, the apex court held that on the state of the law, only polling unit agents can give evidence of events at polls. This is the correct interpretation of the law as it is but this has been shown to work unmitigated hardship on petitioners. It can only take legislative amendment (not judicial decisions) to change this anomaly.
Considering that there were over 176,000 polling units in the 2023 general elections, it can only be imagined how long it will take a petitioner to field these numbers of polling unit agents in a presidential election alleging widespread electoral malpractices. The monstrous legal obstacles placed in the ways of petitioners have emboldened the INEC to arbitrarily declare results they cannot ordinarily defend.
The stumbling blocks in the electoral laws against a petitioner have also promoted the current deviant mentality amongst politicians which is to win or seize power at all costs and use the arduous judicial process to frustrate challengers.
(d) There is need to amend the provisions of section 42 of the Electoral Act, 2022 as it has not rested the ghost of unlawful exclusion.
Bad laws conduce to injustice.
The electoral law as presently drafted did not make unassailable or impregnable provisions that will completely eliminate disputes that may arise from the question of unlawful exclusion.
The Electoral Act, 2022 does not recognise unlawful exclusion as a ground for election petition. After the 2023 general elections, petitions presented on the ground of unlawful exclusion were expectedly dismissed because they were predicated on a ground not allowed under the Electoral Act, 2022. The law remains ubi jus ubi remedium.
Hence, the inelegantly drafted section 42 of the Electoral Act, 2022 should be amended to fortify loopholes that may still give rise to unlawful exclusion as well as provide punishments against violators of those provisions.
In the alternative, grounds for election petitions should be amended to include unlawful exclusion as there are still incidences of unlawful exclusion.
(e) The Electoral Act, 2022 should be amended to expressly authorise full blown electronic voting and electronic transmission of results real time.
As many Nigerians are constantly being internally displaced for natural and man-made reasons (chief of which is insecurity/insurgency/banditry/ secessionists agitations/farmers-herdsmen clashes) electronic voting will take care of the internally displaced person’s right to vote and be voted for without necessity for physical or manual voting. The proposed amendment should also include provisions for diaspora voting.
In the judgments under review, the Supreme Court dismissed the appeals against the non-deployment of the IREV Portal and held that the IREV Portal is not a collation system. The current electoral law should be amended to expressly provide for real time transmission of results. Transparency and public confidence are very key in elections. The three attributes of election in a democracy is that it must be free, fair and credible. The IREV Portal enhances the credibility and transparency of the electoral process. This is not arguable. It must be accentuated that in the judgment of the Supreme Court, they acknowledged that the malfunctioning of the INEC Results Viewing (IREV) portal during Nigeria’s presidential election on 25 February reduced public confidence in the electoral process. Without real time transmission or uploading of results on IREV being legally mandatory, Nigerian elections will be taken back to the dark days of “rig and win” without consequences.
(f) The anti-intellectual provisions of section 318 of the Constitution of the Federal Republic of Nigeria, 1999 as amended on academic qualification for holding public office in Nigeria should be revisited and streamlined. It is a crying shame that the Courts are still saddled with cases or matters that touch on basic or minimum academic qualifications of public office seekers because of the inelegant way section 318 of the Constitution of the Federal Republic of Nigeria, 1999 as amended is couched.
(g) Breaches that touch on qualification or non-qualification of candidates as listed under the Constitution should not be circumscribed or restricted only as pre-election matters subject to the narrow window provided in section 84(14) of the Electoral Act, 2022 that only aspirants that participated in the party primary can have the locus standi to successfully challenge same. Besides, the suit or action must be maintained within 14 days.
Breach of the constitution is so grievous and fundamental that it should not be swept under the carpet or treated as internal affair of a political party. This fatal consequences of breach of the constitution was restated by the Supreme Court in OSI v ACCORD PARTY (2017) 3 NWLR (Pt. 1553) 387; EDIBO v STATE (2007) 13 NWLR (Pt. 1051) 306; and JEGEDE & ANOR v INEC & ORS (Pp. 124-125 paras. B).
Therefore, every Nigerian citizen, including registered political parties, should be clothed with the requisite locus standi to bring action in the appropriate court to challenge breach or infraction of the national Constitution by candidates seeking to hold elective public offices.
(h) The need for the establishment of Electoral Offences Commission cannot be overemphasised.
The INEC as presently constituted and empowered should be unbundled and an Electoral Offences Commission established solely to prosecute electoral offences and allied matters.
The absence of an Electoral Offences Commission has continuously paved the way for all manners of electoral larceny, political banditry, thuggery and violence to thrive.
Generally speaking, the outcomes of the 2023 general elections have dampened the zeal or enthusiasm of Nigerian voters. Nigerians are vehemently insisting that winners should emerge from the ballot and seldom through the courts.
There is no more excitement in the air.
INEC’s ability to conduct free, fair and credible elections has become increasingly doubtful. Under the law as it is, the INEC can do no wrong. This is not good for future elections as it will engender voter apathy.
Elections in Nigeria should not continue to be a function of how able any candidate is to overwhelm his opponents to emerge winner by any means possible.
Only a purpose driven strong legislation can cure the “just get declared by subterfuge or any subterranean means possible and dare the loser to GO TO COURT and lose again” mentality.
Truth be told, nothing significant was gained from the 2023 general election conducted on the wobbly provisions of the Electoral Act, 2022 in terms of improving on the free, fair and credible quotient of elections and electoral processes in Nigeria.
A new normal is possible!
🖋️
Prof Obiaraeri, N.O.
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