Intriques
OpenLife Nigeria reports that after months of oscillation and speculations, A five-member panel of Justices delivered judgement on Tuesday, September 6 on the n 2023 presidential poll.
Presidential Election Petition Court, PEPC, on Tuesday, September 6, dismissed all the three petitions instituted by the Peoples Democratic Party (PDP), the Labour Party (LP) and the Allied Peoples Movement (APM) together with their presidential candidates, Alhaji Atiku Abubakar, Mr. Peter Obi and the Delta-born Princess Chichi Ojei respectively, against the declaration by the Independent National Electoral Commission, INEC, of Senator Bola Tinubu as the winner of the February 25, 2023, presidential election in the country.
The Justice Haruna Simon Tsamani-led Presidential Election Petition Tribunal in Abuja examined the separate defences by Tinubu, his political party—All Progressive Congress (APC), and the INEC to each of the petitions.
In some important respects and looking at the outcomes of all election petitions maintained in the past to challenge the outcomes of presidential election results in the country since 1999 when the Fourth Republic berthed, it will be almost impossible to prove allegations of electoral malfeasance against a sitting president.
However, on Wednesday, the Presidential Election Petition Tribunal dismissed three election petitions maintained by the Peoples Democratic Party (PDP), the Labour Party (LP) and the Allied Peoples Movement (APM) together with their presidential candidates against the declaration by the Independent National Electoral Commission (INEC) of Senator Bola Ahmed Tinubu as the winner of the February 25, 2023 presidential election in the country.
The court said each of the petitions was unmeritorious using facts and law to ground its verdicts in each of the cases.
It would be recalled that at about 4.00am on March 1, 2023, the Independent National Electoral Commission (INEC) declared Senator Bola Ahmed Tinubu as the winner of the February 25, 2023 presidential poll on the grounds that his party—the All Progressives Congress (APC)—scored the highest votes cast at the poll and that he secured not less than one quarter of the votes cast in each of at least two-thirds of all the states in the Federation and the Federal Capital Territory (FCT) as required by law.
In the results announced on March 1, 2023, Tinubu polled 8,794,726 votes representing 36.61% of the total votes cast at the election to emerge victorious. Atiku who came second scored 6,984,520 representing 29.07% of the votes cast, while Obi scored 6,101,533 representing 25.40% of the votes cast during the disputed election. Rabiu Kwankwaso of the NNPP came fourth with 1,496,687 representing 6.40% of the votes cast.
Princess Chichi Ojei, the only female presidential candidate in the election was not near the first four as she pooled a lean 25,961 of the 28 million votes cast.
But the main opposition political parties rejected the outcome of the election citing various reasons.
Within 21 days of INEC announcing the results, five political parties with their presidential candidates approached the registry of the Presidential Election Petition Court to challenge the election outcome.
Under the electoral law, political parties and their candidates have within 21 days of INEC announcing the results to file their petition at the registry of the Appeal Court.
The aggrieved parties who met the deadline included the Peoples Democratic Party (PDP) with its presidential candidate, Atiku Abubakar and the Labour Party, with its candidate, Peter Obi.
The rest were the Action Alliance (AA) with its presidential candidate, Solomon Okangbuan, the Allied Peoples Movement (APM) with its presidential candidate, Chichi Ojei and the Action Alliance with its presidential candidate, Major Hamza Al-Mustapha.
Court of Appeal sets up five-member Presidential Election Petition Tribunal
The President of the Court of Appeal, Justice Monica Dongban-Mensem who is from Plateau state (North Central) exercised her constitutional powers to set up a five-member panel of the court to hear all the petitions challenging Tinubu’s victory in the presidential election while the tribunal was inaugurated by the Chief Justice of Nigeria, Justice Olukayode Ariwoola.
The tribunal members are Justice Haruna Tsammani (Chairman), Justice Stephen Jonah Adah, Justice Misitura Bolaji-Yusuf, Justice Moses Boloukuoromo Ugoh, and Justice Abba Mohammed.
Composition of the Presidential Election Petition Tribunal and Members
S/N Name of Justices State of Origin Geo Political Zone
1. Justice Haruna Tsammani Gombe North East
2. Justice Stephen Jonah Adah Kogi North Central
3. Justice Misitura Bolaji-Yusuf Oyo South West
4. Justice Moses Boloukuoromo Ugoh Bayelsa South South
5. Justice Abba Mohammed Kano North West
The profile of the 5 justices
Justice Haruna Tsammani, Abuja judicial division, Justice Stephen Adah from Asaba division, Justice Monsurat Bolaji-Yusuf, from Asaba judicial division, Justice Moses Ugo from Kano division and Justice Abba Mohammed from Ibadan judicial division.
Justice Tsammani (63)
Born on November 23, 1959, Justice Tsammani hails from Tafawa Balewa LGA of Bauchi State.
He obtained his LL.B degree from Ahmadu Bello University, Zaria in 1982 and thereafter proceeded to the Nigerian Law School, Lagos for his BL in 1983, and started as a High Court judge in Bauchi State on September 17, 1998.
He was later elevated to the Court of Appeal on July 16, 2010. He was serving at the Abuja division of the Court of Appeal when he was drafted to head the panel.
He is the longest-serving Justice of the Court of Appeal among the five members of the panel. Tsammani has spent half of his 24 years as a judge on the Court of Appeal bench which he was elevated to in July 2010.
Tsammani delivered one of the judgements of the Court of Appeal in Abuja that affirmed the second term election of Governor Yahaya Bello of Kogi State.
He also delivered the judgement of the Court of Appeal in Abuja that issued the order restraining the Rivers and Lagos state governments from taking action on their bids to collect Value Added Tax (VAT).
Justice Stephen Adah (65)
Born on June 13, 1957, Justice Stephen Adah hails from Dekina Local Government Area of Kogi State.
He is the presiding Justice of the Asaba Division of the Court of Appeal as at the time he was appointed into the tribunal.
Adah obtained his LL.B degree from Ahmadu Bello University, Zaria, in 1981 and thereafter proceeded to the Nigerian Law School, Lagos, for his BL in 1982.
He was appointed a judge of the Federal High Court on November 12, 1998, and later elevated to the Court of Appeal on November 5, 2012.
Justice Adah served as a member of the three-man panel that granted Obi and Atiku’s motions to serve Tinubu their petitions by substituted means.
He also delivered the lead judgment of a three-member panel that affirmed the conviction of a former Plateau State Governor, Joshua Dariye, on November 16, 2018.
President Muhammadu Buhari later granted a widely condemned pardon to Dariye alongside a former governor of Taraba, Jolly Nyame, after their conviction and jailing had been affirmed by the Supreme Court.
Justice Mistura Bolaji-Yusuf (63)
Born on August 7, 1959, Justice Misitura Bolaji-Yusuf hails from Oyo West LGA of Oyo State. She is the only female member of the five-man panel of the court. She obtained her LL.B degree from the Obafemi Awolowo University, Ile-Ife in 1983. She attended the Nigerian Law School the following year for her BL certificate.
She was appointed a Judge of the High Court of Oyo State on January 30, 1997, and later elevated to the Court of Appeal on March 24, 2014.
Justice Boloukuoromo Ugo (57)
Justice Boloukuoromo Ugo hails from Kolokuma/Opokua Local Government Area of Bayelsa State. He is 57-year old. He is the youngest among the judges on the panel of the Presidential Election Petition Court.
He hails from Kolokuma/Opokua Local Government Area of Bayelsa State.
Justice Ugo obtained his LL.B degree from the University of Calabar in 1989, before proceeding to the Nigerian Law School in Lagos the following year, for his BL certificate. He was appointed a Judge of the High Court of Bayelsa State on March 21, 2006, and later elevated to the Court of Appeal on March 24, 201
Justice Abba Mohammed (62)
Born on February 19, 1961, Justice Abba Mohammed hails from Kano State. He obtained his LL.B degree from the Institute of Administration, Ahmadu Bello University, Zaria in 1984, and thereafter proceeded to the Nigerian Law School in Lagos the following year, for his BL Certificate in 1985.
Justice Mohammed was appointed a judge of the Federal Capital Territory (FCT) High Court in 2010.
After serving for about 10 years, he was promoted to the Court of Appeal on June 28, 2021.
He was the Chairman of the Nasarawa State Governorship Election Tribunal in 2019.
The tribunal begins sitting
On May 8, 2023, the five-member Presidential Election Petition Tribunal began sitting at the Court of Appeal complex in Abuja.
However, in less than one week after the panel began its proceedings, two of the aggrieved political parties withdrew their petitions at the tribunal.
The affected political parties were the Action Alliance (AA) which fielded Solomon Okangbuan as its presidential candidate and the Action Alliance which fielded Major Hamza Al-Mustapha as its presidential candidate for the poll.
But the remaining three others, vowed to proceed with their separate cases against President Bola Tinubu.
During the ensuing court sessions, there were volatile blend of impassioned debates, emotional displays and desperate attempts from the rival parties to sway the outcome in their favour.
But in summary, all the petitioners prayed the tribunal to declare that Tinubu was not duly elected by a majority of the lawful votes cast at the election.
They also wanted an order mandating the INEC to retrieve the certificate of return issued to the APC candidate and issue a fresh one to them while Tinubu, the APC and the INEC prayed the court not to disturb the election results as announced.
Case of Princess Chichi Ojei against Tinubu
Princess Ojei together with her political platform—APM, is praying the tribunal to nullify the election of Tinubu on the ground that the APC did not properly sponsor him (Tinubu) for fielding Mr Kashim Shettima as his vice presidential candidate without withdrawing his earlier nomination as a senatorial candidate.
Shettima had been nominated by APC as a candidate for Borno Central Senatorial District and later nominated by the same party as Vice Presidential candidate following the withdrawal of one Kabiru Masari, who was the initial Vice Presidential candidate to Tinubu.
Ojei and her political party therefore contended that Shettima and the APC breached the Electoral Act by engaging in the alleged double nomination.
The case was taken with parties allowed to ventilate their grievances.
However, during the proceedings of July 14, 2023 where final addresses were adopted, APM, through its counsel, Andrew Malgwu SAN, asked the court to invoke relevant laws to nullify the nomination of Tinubu and Shettima on the ground of unlawful, illegal and unjustifiable nomination.
But the INEC prayed the Court to dismiss the petition for lacking in merit.
Olanipekun told the tribunal that the petition ought to have been withdrawn honourably immediately after the Supreme Court made a pronouncement that no party has the right to dabble into how another party nominated its candidates for elective offices.
PEPC strikes out APM petition challenging qualification…
Specifically, the case of the APM was solely on the non-qualification of Bola Tinubu and Shettima to contest the election.
But by a unanimous judgment, the Presidential Election Petitions Tribunal (PEPT) on Wednesday dismissed the petition for want of merit.
The tribunal ruled that the double nomination issue was a pre-election matter and the PEPC had no jurisdiction over it.
According to Justice Haruna Tsammani who read the lead judgment, he said the APM lacked the locus standi to challenge the nomination of the candidates of another political party at the tribunal.
“Disqualification of a candidate on the basis of double nomination is a pre-election matter.
“Allied Peoples Movement’s (APM) petition is an abuse of the court process, having ventilated the same issues before a Federal High Court.
It also held that the issue of double nomination had been decided upon by the Supreme Court and that the matter was caught by the principle of res judicata.
The petition of APM was subsequently struck out.
Case of Peter Obi against Tinubu
Mr Peter Obi together with his political platform—Labour Party (LP), also prayed the tribunal to invalidate President Bola Hammed Tinubu’s election.
The petitioners called 13 witnesses before closing their case on June 23, 2023.
In their final written address dated July 20, 2023, the petitioners argued that Tinubu and Vice President Kashim Shettima were not qualified to contest the poll.
They argued that Tinubu was “fined $460,000 for an offence involving dishonesty, namely narcotics trafficking imposed by the United States District Court, Northern District of Illinois, Eastern Division, in case No:93C 44833 between the United States of America and Tinubu while his running mate, Shettima, was the APC’s candidate for Borno Central senatorial district and vice-presidential candidate for the whole of Nigeria in the same election year.
They also argued that Tinubu failed to win the majority of the lawful votes cast in the election, just as he could not secure one-quarter of the lawful votes cast in the Federal Capital Territory (FCT), Abuja as required by law.
The petitioner also alleged that the election was conducted in substantial non-compliance with the provision of the law.
The petitioner also contended that Tinubu “was not duly elected by majority of the lawful votes cast at the time of the election.”
The LP candidate, therefore, urged the court to either declare him as the president-elect, in the belief that he scored the majority of the lawful votes during the election, or alternatively, nullify the entire election and order a fresh election.
Besides, they urged the court to hold that Tinubu, as at the time of the election, was not qualified to contest the said election.
Also, Obi put forward five prayers in court. Three of them were alternative prayers to the two main ones.
In his two main prayers, he urged the court to declare Tinubu and Shettima unqualified to contest the February 25 presidential election.
In the second main prayer, Obi urged the court to invalidate Tinubu’s victory due to his failure to win one-quarter of the lawful votes cast in the FCT.
But the Independent National Electoral Commission (INEC) legal team led by Abubakar Mahmoud, SAN, prayed the court to dismiss the petition for want of merit.
Chief Wole Olanipekun (SAN), counsel to Tinubu and Shettima, as well as Prince Lateef Fagbemi (SAN), representative of the APC, also prayed the court to dismiss the petitioners’ case.
Peter Obi failed to prove its case against Tinubu—PEPC
But delivering its judgment in the case, PEPC on Wednesday, held that Obi’s petition was also unmeritorious.
That was after it dismissed each of the grounds Obi listed to pray the court to invalidate President Tinubu’s emergence.
On the issue of qualification of both Shettima and Tinubu, the court held that Obi and his party missed the point.
Justice Abba Mohammed, who read the judgment in the Obi’s case said the Labour Party and its presidential candidate failed to prove that the APC presidential candidate in the election, Bola Tinubu, was not qualified to contest the last presidential election on the account of his purported criminal record in the United States.
Specifically, the court held that Obi and his party failed to showcase or establish any record of criminal arrest or conviction against Tinubu.
The court also maintained that Obi and his party got it wrong to have requested for the invalidation of Tinubu’s election on the account of purported double nomination of Shettimah for two political offices.
The court held that the petitioners did not have the locus raise such issue before the tribunal
On the various criminal allegations of malfeasance raised against Tinubu and INEC regarding the conduct of the election, the court said the petitioners failed to proved their cases.
For instance, Obi had claimed that the Independent National Electoral Commission, INEC, was involved in electoral malpractice to favour Tinubu.
But Justice Abba Mohammed, who read the judgement on Wednesday, held that Obi made a generic accusation of election malpractice.
Mohammed also stated that the petitioners failed to prove that their votes were suppressed by failing to specify the number of votes suppressed.
The judge ruled that although Obi and LP claimed to have scored the majority of lawful votes cast, they also failed to state the number of lawful votes they scored.
The petitioners failed to state the number of votes affected and the number of people disenfranchised.
“The determination of the election is about figures,” the judge said.
Peter Obi failed to identify polling units with irregularities – PEPC
The court also held that Peter Obi failed to identify some polling units that recorded irregularities during the February presidential election.
“LP alleged that INEC reduced their scores and added it to APC votes but failed to supply particulars of what they actually scored before the said reductions, neither did they supply the polling units where it happened
“Pleading must set out material facts and particulars. In the instant petition, there was no effort to prove specific allegations, particulars of complaints,” said the Tribunal.
The law is clear that where someone alleges irregularities in a particular polling unit, such person must prove the particular irregularities in that polling unit before that petition can succeed, the Tribunal added.
The court said the petitioners did not prove the particular polling unit where the election did not take place nor did they specify particulars of polling units where there were alleged complaints of irregularities.
“It was only in one instance that figures were given of alleged suppressed votes and we all know that elections are about figures,” it said.
Tribunal dismisses 25% votes claim in FCT
PEPC also dismissed the Labour Party and Peter Obi’s claim that 25 percent votes in the Federal Capital Territory (FCT) were needed to win the presidential election.
The tribunal held that FCT is like other states of the federation hence, the residents have no special privileges as the petitioners claimed.
Also, the tribunal rejected 10 out of 13 witnesses presented by Obi, saying the 10 witnesses were subpoenaed and their witness statements on oath were only filed after the hearing started.
Case of Atiku Abubakar against Tinubu
Atiku, in his petition, is inviting the tribunal to invalidate Tinubu’s election on ground of non-compliance with the provisions of the Electoral Act, 2022 in conducting the poll.
The petitioner’s case is that for any of the candidates in the February 25, 2023 poll to be declared winner, he or she must score 25% of votes cast in the Federal Capital Territory (FCT), arguing that the purported failure of Tinubu to meet the said constitutional requirement invalidated his election.
The electoral commission deployed the Bimodal Voters Accreditation System machines for Accreditation of voters and uploading of photographic images of results sheets on INEC Results Viewing (IReV) portal in the last national elections.
But the petitioner had further argued that whereas, Prof. Yakubu had repeatedly assured the public that the February 2023 general election would be the best election ever, with the guaranteed use of the Bi-Modal Voters’ Accreditation System (BVAS) and real-time and direct uploading of the polling unit results to the commission’s electronic collation system and Results Viewing Portal (IReV), the bypass and non-use of the BVAS machines in the transmission of the accreditation data and polling unit results of the election fundamentally and substantially affected the integrity of the results announced by the INEC for both Tinubu and his political party—APC and thoroughly discredited the process of the election.
Atiku is also invoking the margin of lead principle to assert that INEC’s hasty announcement of Tinubu as the winner of the presidential poll is unconstitutional and without due process.
The principle states that when the margin of lead between the winner and the runner-up is less than the total number of voters affected by cancellations in their different polling units, the election is declared inconclusive and a re-run is organised.
But during proceedings on August 1, 2023, when the final written addresses of parties in the case were adopted, Atiku’s lead counsel, Chief Chris Uche, SAN, prayed the court to overturn Mr Tinubu’s victory and declare Atiku Nigeria’s president.
He reiterated that the deployment of technology during the election by the electoral umpire “was to enhance transparency of results collation, where fraud often takes place.”
He said INEC argued during the court hearing that it could not upload results of the presidential election from the polling units due to a glitch that occurred on the IReV portal.
However, Mr Uche contended that during the 25 February presidential election, “there was a deliberate bypass of the technology to create room for manipulation of results.
He told the court that “INEC deployed technology in the conduct of the election. Therefore, the burden is on INEC to explain” how what transpired during the polls.
“The shutdown (of the IReV) was nationwide and created room for the manipulation of votes” in favour of Tinubu by INEC, Mr Uche argued.
Praying the court to ignore Mr Tinubu and other respondents’ defence, Mr Uche said, “We urge your Lordships to do substantial justice and grant all the reliefs of the petitioners which we have clearly proved with evidence, while the respondents have refused to call witnesses in aid of their case.”
But defending its declaration of Tinubu as the winner of the March 25, 2023 presidential poll, INEC’s lawyer, Abubakar Mahmoud, urged the court to dismiss Atiku’s suit for lacking in merit.
In INEC’s final argument, Mahmoud told the court that Atiku failed to discharge the burden placed on him by law in proving his allegations against the conduct of the election.
He contended that Atiku’s case centred on alleged “non-compliance with the Electoral Act and INEC guidelines and regulations” which the petitioner did not substantiate.
The electoral umpire’s lawyer said contrary to Atiku’s claim, the deployment of the Bimodal Voters Accreditation System machines and INEC Results Viewing (IReV) for the presidential election was successful.
“The evidence (before the court) showed that these innovations around accreditation and authentication were successful.
“The information generated by BVAS were stored on the Amazon Web Services (AWS). The evidence before court showed that AWS is the secure and reliable Amazon services across the world,” Mahmoud argued against Atiku’s claim that the IReV portal was compromised by INEC in favour of Mr Tinubu.
Responding to the query by the court on issues around electronic transmission of results and uploading of results on IReV, Mahmoud, SAN, explained that Atiku and the PDP contrived in their mind an electronic collation system.
He said unfortunately, “the evidence does not support that.
There is no such thing. The glitch which disrupted the real-time upload (of presidential election results from the polling units) only lasted for 4 hours 50 minutes on election day.”
“Second point of disagreement is that this glitch was contrived as a result of human interference. But Atiku failed woefully to establish that there was human interference.
“The evidence before the court showed clearly that the election went well, smoothly at the polling units and results were well collated,” Mahmoud added.
On the issue of statutory requirement of 25 per cent votes in Abuja, Mahmoud said the argument was illogicalas it went against the express provisions of the Constitution.
“The FCT must be treated as if it were a State. We submit that the case for non-compliance has not been made, the FCT argument has to fall on its face,” the lawyer argued, praying the court to dismiss this petition.
Also defending his emergence, Tinubu’s lead lawyer, Wole Olanipekun (SAN), argued that Atiku had abandoned his petition,owing to his inability to prove his case.
He told the court that Atiku resorted to attackingTinubu’s person instead of proving his allegations.
“The court cannot give to the petitioners what they have not asked in their final written address. It is my submission that Atiku is a meddlesome interloper.
“We urge your Lordships to dismiss this petition,” Olanipekun argued, adding that Atiku merely dumped electoral documents on the court without proving his suit against Mr Tinubu.
Olanipekun told the court that Atiku won a paltry one quarter of the two-thirds of votes in Abuja as stipulated in the constitution.
On the manual collation of the presidential election results, Olanipekun (SAN) contended that the mode adopted did not diminish the credibility of the electoral process
“Uploading results to IReV whether manually or electronically plays no role in collation of results; it does not add or decrease the number of votes. Collation is physical and manual,” Olanipekun said.
Chief Olanipekun said a recent judgment of the Court of Appeal in Lagos affirmed the discretion of INEC to apply any methodology in transmission of results.
The APC on its part, urged the court to dismiss Atiku’s petition for lacking in substance.
APC lawyer, now the AGF, Prince Lateef Fagbemi (SAN), said Atiku’s witnesses did not dispute the figures (results) reeled out by INEC.
“No one presented an alternative figure of results to counter INEC’s declaration.”
On the issue of 25 per cent votes in FCT, Fagbemi, SAN, argued that toeing the path of argument by Atiku would give overbearing privilege to FCT voters over and above a majority of Nigerians.
He prayed the court to affirm Mr Tinubu’s victory and dismiss Atiku’s petition for lacking in merit.
The tribunal which is the court of first instance in the high-profile case has up till September 16, 2023 to deliver the judgment.
However, before the deadline expires, the tribunal fixed September 6, 2023 for the judgment and communicated the date to all the parties in the case.
PEPC dismisses Atiku’s petition
The court also reviewed the grounds relied upon by Atikuto pray for the invalidation of Tinubu’s victory before dismissing them one after the other.
Specifically, the court gave the same reasons for each of the grounds in the first two cases to dismiss the petition.
No previous presidential election petitions in Nigeria have succeeded.
The outcome of the three election petitions maintained against Tinubu’s electoral victory is however not strange. This is so because since the Fourth Republic berthed in 1999, except in 2015 when the outcome of the presidential election was not contested in court by former President Goodluck Jonathan, all other petitions filed to challenge different presidential elections failed.
1999: Olusegun Obasanjo vs Olu Falae
Vanguard reports that after the 1999 presidential election results were announced, General Olusegun Obasanjo was declared the winner, while Chief Olu Falae filed a lawsuit at the Appeal Court, challenging INEC’s declaration of Obasanjo as winner of the poll, but the court dismissed his petition based on technicalities. Falae later claimed that the election result was altered while he was asleep in the night.
2003: Olusegun Obasanjo vs Muhammadu Buhari
Also in 2003 after the presidential election results were announced in favour of former President Obasanjo, Major-Gen Muhammadu Buhari challenged Obasanjo’s re-election at the Presidential Election Petition Tribunal, but he lost. Even when Buhari went to the Supreme Court, he still failed on the account that he could not prove the various criminal allegations made regarding the conduct of the election.
2007: Umaru Musa Yar’Adua vs Muhammadu Buhari and Atiku Abubakar
The situation was the same in 2007 when Umaru Yar’Adua won a highly controversial presidential election. Even though both local and international observers said the election failed to meet international standards, Buhari and Atiku who contested against YarAdua challenged the election at both the Presidential Election Petition Tribunal and the Supreme Court, also lost over their inability to prove their allegations of election rigging against the electoral umpire.
2011: Goodluck Ebele Jonathan vs Muhammadu Buhari
Vanguard reports that even in 2011 when the presidential election results that favoured Dr Goodluck Jonathan was announced, the defeated parties rejected the result. Buhari challenged Jonathan’s victory, but the Supreme Court dismissed his appeal and affirmed an earlier decision by the Court of Appeal which upheld Jonathan’s victory.
2015: No election petition was filed by Goodluck Jonathan to challenge Buhari’s election.
Perhaps because of the trend, immediately the INEC announced Gen Muhammadu Buhari as the winner of the 2015 presidential election, the then sitting President, Goodluck Jonathan quickly congratulated Buhari and refused to contest the election in court.
The presidential election conducted in 2011 remains the only time in the history of Nigeria’s fourth republic when election results were neither rejected nor challenged in court by a formidable contender.
2019: Muhammadu Buhari vs Atiku Abubakar
The 2019 presidential election held on February 23, 2019, and featured incumbent President Muhammadu Buhari of the All Progressives Congress (APC) and Atiku Abubakar of the Peoples Democratic Party (PDP) as the main contenders. Buhari won the election with 15.2 million votes, while Atiku polled 11.3 million votes.
Atiku and the PDP, however, challenged the result of the election at the Presidential Election Petition Tribunal. They had claimed that the election was marred by irregularities, violence, and rigging.
But as usual, on September 11, 2019, the tribunal dismissed Atiku’s petition and upheld Buhari’s victory.
According to a renowned legal practitioner and election petition expert, late Richard Osuolale Abimbola Akinjide, SAN, he had hinted that winning a presidential election petition in court in the country would remain an uphill task with the nature of the Electoral Act used in conducting elections in Nigeria.
In a chat before he died, he had said that there was no where in the world where a flawless election is conducted.
“No! Anywhere in the world, whether it is Europe, America or even in Africa, it is accepted that in a normal democracy, it is impossible to conduct a flawless election.
It is humanly impossible and that is why you have the doctrine of substantial compliance that is written into all election laws in all countries.
“With the doctrine of substantial compliance, it is implicit and conceded that there must be flaws in the election but that once there is substantial compliance, then the election should be accepted as having substantially complied with the laws and the return should not be upset.
“If you look at what happened in 1960 in the United States when John Fitzgerald Kennedy defeated Richard Nixon, there were flaws in the election in Chicago; there were flaws in the elections in Texas.
The majority of Kennedy over Nixon was very thin and supporters of Nixon urged him to file a petition but Nixon said no,” he said, adding that Nixon explained that if he filed an election petition and he won, it would damage, forever, the United States and the legitimacy of the office of the president of the United States.
“Nixon went on to say that it is better for Nixon not to be president than for an American institution to be damaged and, therefore, he refused to file a petition against Kennedy’s victory in 1960 – I was in New York at that time. This is a lesson which our leaders here should learn.
Chief Akinjide, SAN had explained that the reason petitioners would find it difficult to prove electoral malfeasance in court is because our laws provides that the litigant must prove that the elections were flawed.
“The law is the law because when you go to court even on any matter, you must prove your case.
“The onus is on you whether it is an election matter or a land matte you’ve gone to court so you must prove your case. When you say somebody has stolen money, you must prove it. So when you go to court to say an election was flawed, then you must prove your case.
Many other senior lawyers, particularly those who had prosecuted election petitions in the past including Chief Mike Ahamba, SAN and former Attorney-General of Abia State, Prof Awa Kalu, SAN, had agreed with late Akinjide, SAN on the difficulty in proving electoral rigging in court particularly where the scope of the proof involve a big country like Nigeria.
According to Prof Awa Kalu (SAN), in an earlier interview explained that the Electoral Act which prescribed 21 days for aggrieved petitioners to file their petitions together with their witnesses’ depositions had already made it difficult for any petitioner to succeed in court even when he has a strong case against the declared winner of an election.
According to him, “Setting 21-day time frame 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.
“This is because you are talking of challenging the election conducted in 36 states of different sizes and the Federal Capital Territory (FCT). And the law allows the petitioner that is the loser, 21 days to gather his materials and articulate his grievances in a form that can be prosecuted before the tribunal within 21 days.
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.
“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. If you are, also, doing a challenge say in Kano state where you have about 44 local governments, or in Ebonyi where you have less than 15 local governments, it is the same 21 days.
“If you are challenging the victory of a candidate in Lagos state where you have not less than 15 million people, it is also 21 days.
If you now step down, let’s say national assembly election, like the senate, each state has three senators. So, a senatorial district is one third of a state. You also have 21 days to file. You are looking at House of Representatives. The constitution allows a minimum of 8 representatives per state.
“The minimum is eight no matter the size of the state. So, a constituency of the house of representative election is one eighth of the state in question. You also have 21 days to file.
“For house of assembly seat, some house of assembly constituencies cover just a local government. It is also 21 days. For chairmanship and councillorship elections at the local council level, it is also 21 days.
I am doing this analysis deliberately to allow you come to the conclusion with me that there is no way one can justify a law that allows 21 days for the filing of presidential election and the same number of days for house of assembly election. I think the time limit is embarrassing and the imbalance must be corrected if we are to be seen as serious.
“Similarly, the time limit for starting and finishing the presentation of an election petition is also limited to 180 days, irrespective of whether it is a presidential election or house of assembly election. I should also say that it is ridiculous.
“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 an 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 that tribunal 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. To answer your question, it is not possible to file 300,000 witness statements on oath within the allotted time
“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 govt level, then to the state. 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.
“At some state level, you have 3,000 or more. That means, like 3000 multiplied by 36, you see where the problem is. That is why the Supreme Court says a minimum of 300,000 witnesses will be needed to prove a petition seeking to upturn presidential electoral victory.
“This is exactly what the late Hon Pat Acholonu said in Buhari and Obasanjo which was decided in February 2005: “the very big obstacle which anybody who seeks to have the election of somebody that wins presidential election faces is the very large witnesses he must call due to the size of different constituencies.
“In a country like our own, he will need to call about 250,000 to 300,000 witnesses. By the time the court would have heard from all of them with the way our law is couched, the incumbent would have long finished and left office. And even if the petitioner eventually wins, it will be an empty victory bereft of no substance. That is at the Supreme Court,” he explained.
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