By Sunday Ani
The recent judgment of the Presidential Election Petition Tribunal for the February 25, 2023 presidential elections in Nigeria has remained a talking point both in Nigeria and in the Diaspora. It has continued to be interrogated by various groups ranging from lawyers to political analysts, human rights activists among others. It has also presented a fresh challenge to the country’s democratic experience. The ruling has raised fresh concerns about the suitability of the 2022 Electoral Act.
The Electoral Act offered a lot of hopes and promises to Nigerians before general elections. However, with the PEPT judgement, Nigerians have just discovered that there are lots of loopholes in the 2022 Electoral Act, and that there is a need for the National Assembly (NASS) to revisit the law and make certain provisions much clearer. For instance, the issue of swearing the elected political officers into various offices while they still have electoral cases in the election petition tribunals, is one area that many Nigerians felt was not properly addressed by the 2022 Electoral Law.
There is a general belief that once somebody has been sworn in, it is usually extremely very difficult, if not impossible, to get the person out of office through election tribunals’ judgment. Those who hold this view have argued that the normal thing in other climes is that all election cases in the tribunals should and must be concluded before the winners are sworn into office. They are, therefore, pushing that the NASS must, as a matter of urgency, start the process of amending the 2022 Electoral Law to plug the loophole before the next general elections in 2027. In other words, it is their considered opinion that since it took the former president, Muhammadu Burhari, quite a long time before he signed the 2022 Electoral Law, the current national assembly should start early enough to amend the law to reflect the fact that all election cases must be thrashed out by the tribunals before swearing in the elected officers.
This, they believe, would deepen the country’s electoral jurisprudence because according to them, once a person is sworn into office, he would deploy the state’s resources and powers to influence the decision of the election tribunal in his or her favour. And to avoid such a situation that puts the judiciary on trial, both parties to the contest must be on a neutral ground. This, they believe, would ensure that justice is delivered, and at the same time protect the sanctity of the judiciary and the judicial officers.
It is also believed that the NASS should revisit the issue of 25 percent of the votes cast in the Federal Capital Territory (FCT), Abuja. Some people believe that the language is clear enough for even the layman to understand its import but with the recent PEPT ruling on that, it is becoming increasingly difficult to believe so; it appears a little nebulous. It is not as straightforward as most people think. Prior to the PEPT ruling on that, most people have interpreted that section of the law to mean that a person who did not get up to 25 percent of the votes cast in the FCT, Abuja, in addition to 25 percent of the votes cast in at least 24 states or two-third of 36 states, would not be declared president of Nigeria. But, the judgement is saying that Abuja is just like any of the 36 states of the federation, and that once a person scores 25 percent in the two-third of the states in Nigeria, the person has won and should be declared president.
But, even with the PEPT judgment, there are those who have continued to argue that Abuja, according to the 2022 Electoral Law, is not the same as any of the 36 states of the federation, and should be treated as such. However, other Nigerians who are confused by the PEPT judgment on that would want the NASS to revisit that section in future amendment and state whether scoring 25 percent of votes cast is compulsory in Abuja or whether it is enough to just get 25 percent of the votes cast in the two-third of the federation, and forget about the FCT. They want the NASS to make it explicitly clear in such a way that nobody will be left in doubt as to what it means.
Nigerians are also pushing for a revisit to the 2022 Electoral Act so that the issue of electronic transfer of election results could also be made very clear. This is because according to the PEPT ruling, the INEC, as it currently stands, is not under any legal obligation to adopt the electronic transfer of polling unit election results. In fact, the PEPT ruling stated that INEC was free to use any method it so deems fit.
However, there are concerns in some quarters as to whether the ruling All Progressives Congress (APC), which ordinarily would be the biggest beneficiary of the current loopholes in the 2022 Electoral Law, would be willing to do that. The question on the lips of many Nigerians is: Will the APC lawmakers be willing and ready to make such an amendment that may not be in their interest in the long run?
Leading the argument about the conclusion of all election cases in the tribunal before swearing in is the Catholic Bishops of Nigeria. The clerics under the umbrella of Catholic Bishops’ Conference of Nigeria (CBCN), have suggested that pressure should be put on the government to initiate reforms that would enable all the election petitions to be determined before the swearing-in and inauguration of new administrations. The Catholic Bishops have challenged the Civil Society Organisations (CSOs), the media and Nigerians to take up the responsibilities, considering the fact that they have the platform to amplify the call and achieve that for the betterment of Nigeria. They also appealed to the courts handling elections petition cases across Nigeria to be fair, just and credible in their judgements. It is their considered opinion also that such consideration would inspire confidence in the electoral process and encourage every citizen to work for the common good of Nigeria.
The suggestions were contained in a communique released at the end of the second plenary meeting of the Catholic Bishops’ Conference of Nigeria (CBCN) held in Abuja.
In the communique signed by the CBCN President, Archbishop Lucius Iwejuru Ugorji, they expressed disappointment with what transpired in the last general elections, despite several promises and assurances by the Independent National Electoral Commission (INEC) that the elections would be free, fair and credible.
“The 2023 general elections have come and gone. However, the process is not fully over as many of the announced outcomes are still being challenged in the tribunals and courts.
“In the communiqué issued after our first plenary assembly in February this year, we urged the INEC and its officials to ensure transparency, honesty and fairness in the conduct of the elections. We thanked the Federal Government for enacting the Electoral Act 2022 and the Commission for introducing the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV), as well as for repeated assurances that the results of the elections would be transmitted electronically in real time from the polling units.
“On that strength, we enjoined all eligible citizens to participate in the elections as a fulfillment of their civic responsibility. Expectedly, Nigerians trooped out and voted during the elections, looking forward to a free, fair and credible process but the conduct of the elections was marred by many pitfalls and irregularities.
“There were threats, intimidation, violence, poor logistics, inducement, impunity and manipulation of results, as well as lack of transparency, as reported by our commissioned election observers from across the country.
“We fear that the effects of these irregularities may engender voter apathy, and adversely affect the confidence of citizens in future elections. Nevertheless, we still encourage the electorate to always hope in God and not to despair in the exercise of their civic duties. We are pleased to note that many of the aggrieved persons opted to seek redress through the courts rather than inciting people to violence.
“As the judicial determination of the election petitions is ongoing, we continue to call on the tribunals and the courts to be fair, just and credible in their judgements in order to inspire confidence in the process and encourage every citizen to work for the common good.”
Another proponent of the view that election cases should be over before swearing in of winners in any election is the president of the Middle Belt Forum (MBF), Dr. Pogu Bitrus. He is of the opinion that elections should be held much earlier so that all election litigations could be thrashed out before swearing in of the winners. This, according to him, is to safeguard the judiciary from manipulations by the executive arm of government. “It will be a good development,” he added.
“More importantly,” he said: “The Electoral Law 2022 is not invalidated by what the INEC and PEPT did. What should be done is to yank off that section that says INEC could choose whichever methodology it wishes to employ in an election. It should be removed from the Electoral Act, so that if the electoral law says use technology, INEC must use technology; it cannot change the rule mid way. It is what the law says and not what the INEC says that stands. If the law says, use BVAS, it has to be used. If the law says, download, it has to be downloaded. So, all those ambiguities have to be removed from the electoral law, so that we can have a firm institution that will give us credible elections.”
On the argument in some quarters that the issue of 25 percent votes cast in the FCT should be revisited by the National Assembly to make it much clearer, he said: “There is nothing like making it clearer again because English language is English language, and I think the Supreme Court, in the past, has made clarifications on the same issue. Twenty five percent in the two-third of the states in Nigeria and 25 percent in the FCT is very clear. The ‘And’ is a conjunctive word; it is up to the Supreme Court to tell us clearly that it is conjunctive, and if that is the case, then what the PEPT did is a nullity. So, the issue is: what does the ‘and’ mean? Is it conjunctive? “Well, we have been told to go back to school and learn some English. Yes, we will go back to school to learn some English but the Supreme Court has to give a clear interpretation of that word ‘and;’ whether they will wave it off is another thing.
“Thank God the FCT indigenes have gone to court to say that if their status is the same with other states, they should be allowed to enjoy the benefits that other states are enjoying. So, let us wait for whatever the Supreme Court will say as a ruling,” he submitted.
A legal practitioner and chairman of the NBA-SPIDEL, Dr. Onyekachi Ubani stressed that election litigation is one of the three stages that election must go through before it is seen to have been concluded, and argued that if that is the case, then the argument that cases must be thrashed in tribunal before swearing in is as plausible as it is okay. He said: “The proper position is that elections have three stages. There is the registration of voters. There is the voting proper and the announcement of the result. And there is the stage of adjudication where anybody that feels aggrieved goes to court. So, it is these three cycles that complete an election. Some people are arguing that if the three stages are the stages we must go through to complete an election cycle, why don’t we complete the process before the person that won an election is sworn in. It is an argument but a very good and valid argument. It is to avoid a situation where the person whose election is challenged will be in power and some other things will happen that will put one party at a disadvantaged position. It will give everybody equal opportunity, so it is an argument.
“But there are those who said instead of wasting time, we should just swear in the person pending the time when the case is trashed out; that law has not changed. So, some people are now clamouring that we can take a look at that position of the law, and see what we can do in order to correct it so that whoever is said to have emerged by INEC will not be sworn in until all the cases surrounding his or her emergence is trashed at the tribunals or courts. If there is any person that is aggrieved, let there be an opportunity that is given to that person in court and all election cases must be concluded before swearing in. It is an argument and it looks like an argument that sounds plausible and okay.”
On the confusion surrounding the 25 percent votes cast in the FCT, he also said: “But you know the matter is in the Supreme Court, why don’t we wait until the Supreme Court makes the final pronouncement. The matter is still part of the grounds of appeal, so we have to wait for the Supreme Court to make the final pronouncement on that.”
For another lawyer and former national chairman of the All Progressives Grand Alliance (APGA), Maxi Okwu, he lamented that what appeared to many Nigerians, an appreciable leap forward was being drawn back by the courts.
He said; “It was the belief of many Nigerians that there has been an appreciable leap forward in the 2022 Electoral Act. You recall how the thing went up and down and how many times former President Buhari refused to sign it. Eventually, it was a relief that he signed it. Now the courts, to me, are trying to claw back all the improvements and all the novel provisions that could have engendered better electoral engagement and satisfying the yearnings of most Nigerians.
“You see how people trooped out to get their Permanent Voter Cards (PVC) and INEC was overwhelmed. So, their hopes have been dashed for now. But, I believe that the Supreme Court will restore some of the lost grounds for so many reasons. Even though the Supreme Court has done a double step judicial gymnastics some time ago, in the case of the Imo State Governor, Hope Uzodimma, Senator Ahmed Lawan and the Senate President, Godswill Akpabio, I am still hopeful that by the time they take these cases coming out from the election petition tribunals that have given us conflicting judgements, depending on panel, we might still have cause to heave a sigh of relief.”
He also described as ideal, the issue of waiting for the election petition matters to be concluded in courts before swearing in the winners. “That is what it should be because the fact is that it will be difficult to knock out a sitting president or even governor, given the Nigerian circumstances and our political architecture. It can be done here. It is just a matter of will power and applying the law strictly. So, if anything can be done by law; that will be wonderful. Remember that at first, there was no time limit. Some persons, like Peter Obi, took three years to recover his mandate as governor of Anambra State from Chris Ngige. Now, there is time limit. You cannot play cat and mouse game with a petition against you. It can be done; it is not impossible. If we have a more proactive electoral umpire obeying the law and not playing with our sensibilities, nobody needs to go to court. When you lose you know that you have lost. That should be what we need to look forward to and not resorting to court to conclude our election all the time,” he stated.
On the issue of whether the 25 percent votes cast in the FCT is a requirement for becoming president of Nigeria, he was clear on his position. He said: “My take on the issue of 25 percent in the FCT is clear. The issue is very simple; it is clear enough that the FCT is not a state, period.”