The Presidential Election Petitions Court (PEPC) on Wednesday concluded its work, with a verdict that the declaration of President Bola Ahmed Tinubu, candidate of the All Progressives Congress (APC), as winner of the February 25, 2023, presidential election was in order. The court dismissed the petitions filed against Tinubu’s victory by the Peoples Democratic Party (PDP) and its candidate, Alhaji Atiku Abubakar. It also dismissed the petition of the Labour Party (LP) and its presidential candidate, Mr. Peter Obi. Likewise, the tribunal dismissed the petition of the Allied Peoples Movement (APM). In summary, the tribunal said that the petitions against Tinubu lacked merit and, therefore, affirmed his victory.
One must note that the five justices of the PEPC set a record of delivering the longest judgment in the history of Nigerian judiciary. A judgment, which started in the morning, lasted till in the night, with a highlight of lawyers and observers in court dozing and sleeping uncontrollably. Indeed, Justice Haruna Simon Tsammani, Justice Stephen Adah, Justice Mistura Bolaji-Yusuf, Justice Boloukuoromo Ugo and Justice Abba Mohammed did steal the show that day. They dominated television and radio stations, from morning to night. It was their day. Whether it was their day of glory or day of ignominy is a matter for debate.
The tribunal has done what its members think is justice. It is left for the parties holding the shorter need of the stick to decide what to do. They have three options: Appeal the judgment by going to the Supreme Court, which is the last arbiter; rest their case, go home and do nothing else; or to appeal to God. For the last option, as they say, anybody who is dissatisfied with the last judgment of the court can only appeal to God.
The Labour Party has rejected the judgment. The PDP has also rejected the judgment. In the coming days, all attention will shift to the Supreme Court, even though some people are already appealing for them to sheathe their swords and let sleeping dogs lie. One must say that it is the fundamental right of aggrieved people to seek redress in court. No matter the sentiment, nobody should tell PDP, Atiku, LP and Obi not to exercise such rights. They have the inalienable right to fight their court cases to the end, no matter the odds. If, eventually, the Supreme Court says that their petitions lack merit and, therefore, dismisses them, they would have satisfied themselves that they fought a good fight, using all lawful avenues.
The tribunal’s justices have, in their wisdom, decided that what happened during the presidential election and the outcome thereof were satisfactory for a country whose citizens are struggling to have faith in democratic processes. The tragedy of it all is that many people expected the verdict delivered by the tribunal the way it came. Many Nigerians were ready to bet that the tribunal would not rule otherwise. Their belief was not because they did not think that nothing was wrong with the presidential election result. No. It was simply because they believed that a Nigerian President cannot be removed from office by any court, no matter how terrible the election is. The Nigerian court has become so predictable, especially when it comes to election matters, that people no longer expect any surprise from it.
The justices of the Court of Appeal have had their way. It is not out of place for some of us to also have our say. Having analysed the verdict of the tribunal and the grounds on which the verdict was premised, one cannot help to wonder what law really is. Is law the Constitution? Is law the decision of the parliament after due lawmaking process? Is law the document on which the decision of the parliament, regarding actions and inactions, is written? Is law what the judges and justices say it is?
From the judgment of the presidential election tribunal, one is persuaded that law is what the judge or justice says it is. In dismissing the argument on alleged double nomination of Vice President Kashim Shettima, for instance, one of the justices stated that, going by the provisions of the Constitution, the Vice President was qualified to contest the election. He went ahead to state that, since the Constitution is supreme to other laws and must prevail over other laws, it was only the provision of the Constitution regarding the qualification or otherwise of a candidate in an election that would prevail. And he dismissed the arguments of the petitioners.
Inasmuch as one is not contesting the status of the Constitution, one must say that no judge or justice should, by insinuation or declaration, present other laws as being irrelevant. The Constitution is supreme, quite all right. However, there are laws made by the parliament for good governance. A judge declaring that a law made by parliament is inconsistence with the provisions of the Constitution is offering an opinion. For a judge’s opinion, which may be skewed or wrong, to now override a law made by parliament on the pretence that it is inconsistent with the provisions of the Constitution is untidy.
The Constitution of Nigeria provides that, for any candidate to be declared winner of the presidential election, such a candidate must have the highest number of votes, win at least 25 per cent votes in two-thirds of 36 states in Nigeria and also 25 per cent in the Federal Capital Territory (FCT). What the presidential election tribunal has made of the law is that Nigeria now has 37 states, since, by the interpretation of the justices, there is no special status for FCT and, therefore, the conjunction “and” in that provision of the Constitution means “including.” One finds it hard to believe this interpretation because it is jaundiced and looks like working from the answer to the question. If FCT has equal status with other states of the federation, why is it, for example, that only one senator represents FCT at the Senate, when other states have three each? Besides, one finds it difficult to defend, if questioned by one’s child, the position that “and” means “part of.” This is not English language.
It is really sad and in fact insulting that the tribunal could look Nigerians in the face and declare that electronic transmission of election results is not compulsory and that the Independent National Electoral Commission (INEC) was at liberty to use whatever mode it deems fit to transmit results. If electronic transmission of result, real-time, was not compulsory, why did the INEC invest billion of naira in technology for the conduct of elections in the country and also made a promise to transmit results electronically? By the verdict of the tribunal, the country wasted money on something that was not only meant to be used but also unnecessary.
On the 2023 presidential election, the judiciary has one more hurdle to cross. As the presidential election petitions go to the Supreme Court, Nigerians will wait for the outcome, despite being skeptical. When the Supreme Court justices preside over the cases in the next two months, they should bear in mind that justice should not just be done but should also be seen to have been done. The justices should actually worry that the acceptability of verdicts on election matters is declining. Court judgment on election matters appears to be degenerating. It has declined from the era when election tribunals had split decisions to a position where all judges and justices have the same opinion on legal matters.
In this country, election tribunal (Supreme Court) determined the presidential election with a split decision between the late Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN) and the late Alhaji Shehu Shagari of the National Party of Nigeria (NPN) in 1979. It was in this country that the Supreme Court (election tribunal) recorded a split decision in the case between immediate past President, Muhammadu Buhari, and the late former President Umaru Musa Yar’Adua in 2007. In both cases, there were minority rulings in favour of the candidates, who eventually lost in court. Such outcomes give the people some faith in the judiciary to the effect that interpretation and understanding of the law and legal issues cannot be one-way or seen from the same prism when many learned minds are looking at it.
Since 2015, the presidential election tribunals have operated in a manner Yoruba people would call “gbogbo ero” (everybody) fashion, with the judges going one way in point of law, interpretation of law and position in law. Since then, no judge or justice has risen up to have a dissenting and minority judgment. The courage and knowledge of law by the Justice Kayode Esos and Justice Walter Onnoghens appear to have taken flight from the judiciary when it comes to election matters. These days, judges behave and think alike in election matters, leaving hapless Nigerians bemused.