By Olu Fasan
In just over three weeks, on May 29, Bola Tinubu will be inaugurated as President and Commander-in-Chief of the Federal Republic of Nigeria. Yet, in parallel, election petitions seeking to nullify his declaration as winner of this year’s presidential poll are earnestly afoot. Given that the petitions won’t be determined before May 29, a sword of Damocles, in the form of his removal from power, potentially hangs over Tinubu’s head. Theoretically, that’s a possibility; otherwise, what’s the point of the presidential election petitions?
The 1999 Constitution, under section 239(1), allows the Court of Appeal and, ultimately, the Supreme Court to determine whether someone has been validly elected as president; the Electoral Act 2022, under section 136(1), requires the court to nullify the election of someone not duly elected as president. Thus, constitutionally, Tinubu’s election as president could eventually be nullified, however long it takes to determine the petitions. But that’s theoretical.
In practice, presidential
election petitions in Nigeria are otiose, purely academic. The Supreme Court
has nullified several governorship elections, but never, so far, a presidential
election, even when it’s substantially, even materially, flawed. Why, might you
ask? Two reasons suggest themselves.
One is realpolitik. The spoils belong to those who have the power to take and keep what they have taken. A person invalidly elected as president would mobilise resources and the powers-that-be to ensure the Supreme Court doesn’t snatch the power from him. Another is that the Supreme Court considers disruptions that could ensue from nullifying the invalid election of a sitting president and decides against taking that course of action.
Some have described the Supreme Court as both a
court of law and public policy. There’s nothing unique about that. Every
appellate court is a court of public policy. Lord Denning, the famous British
judge, was known for adducing public policy reasons for his decisions, and for
creating an influential body of case law with strong public policy
underpinnings.
But what’s public policy in the Nigerian judicial context? Is it to safeguard democracy or to protect powerful vested interests? Is it to avoid administrative or political disruptions, likely to result from nullifying an invalid election, or to set legal principles and judicial precedent that would transform Nigerian democracy? Think about it. Politicians rig presidential elections, in collusion with election officials, and tell their opponents: “Go to court”. Why?
Because the
court will do nothing to upset the apple cart. But imagine the reverberations
and future repercussions if the Supreme Court were to remove a president from
office on the basis that he wasn’t duly elected. Hardly any politician would
want to become president through invalid election knowing he would be sitting
on a ticking timebomb! But lack of consequences perpetuates impunity.
Heavens won’t fall if a
president is removed from office due to an invalid election. Section 146(1) of
the Constitution says that the office of President can become vacant by reason
of death, resignation, impeachment, permanent incapacity, and then adds: “or
the removal of the President from office for any other reason.” Clearly, that
phrase “for any other reason” envisages the nullification of the election of a
‘president’ not validly elected.
And where a ‘president’ and ‘vice-president’ are declared invalidly elected and thus asked to vacate the offices, the Senate President would, under section 146(2), hold the office of President for a maximum of three months during which a new president would be elected. But would a ‘president’ whose election has been declared invalid but who, presumably, still controls the armed forces go quietly?
Well, in that
case, the question becomes where the loyalty of the armed forces lies: with an
illegitimate president or the Constitution as interpreted by the Supreme Court?
I believe their loyalty would be with the Constitution!
Now, to be clear, I’m not suggesting the Supreme Court should determine the presidential election petitions one way or another. Far from it. I’m simply responding to the argument that the Supreme Court would never nullify a presidential election on public policy grounds.
I submit that the public policy considerations that really
matter in presidential election cases are safeguarding Nigeria’s democracy and
setting legal principles and judicial precedents that would positively change
democracy, politics and governance in this country.
But a court must first consider
a case based on law, evidence and argument, and only consider public policy
with respect to remedies. For instance, in the UK, a court may find in favour
of a claimant and yet refuse to grant certain remedy on public policy grounds.
By granting prospective declarations, albeit without relief, the court at least
sets legal principles and precedent for the future. But I repeat, there are no
public policy reasons for refusing to nullify a presidential election if the
law, evidence and argument justify it.
Nigeria’s democracy is on tenterhooks, on suspended animation, following this year’s deeply flawed elections. Whether it can be salvaged depends on whether the Supreme Court’s decisions on the election petitions are reasonable and just. For instance, does the frustration of the legitimate expectations created by promises to use BVAS in the presidential election mean nothing?
Does the fact that many of the
results belatedly posted on the INEC portal are different from what INEC itself
announced mean nothing? If the Supreme Court decides that these fundamental
process issues don’t matter, well, Nigerians, especially the youth, won’t trust
INEC again and, without trust, Nigeria’s democracy is doomed.
Of course, there are other critical issues: from whether a candidate must have at least one-quarter of the votes cast in Abuja, under section 134 of the Constitution, to whether a person is qualified to be president if he voluntarily acquired the citizenship of another country, under section 137(1)(a), and whether a drug-related property forfeiture amounts to “any other offence imposed on him by any court or tribunal”, under section 137(1)(d).
These issues will test the independence,
impartiality and courage of the apex court, and the integrity of Nigeria’s
electoral democracy. So, it’s not a cliché: the Supreme Court is the last hope
of democracy in Nigeria; it holds Nigeria’s democratic future in its hands. How
it interprets the Constitution and determines the presidential election
petitions matters hugely. Fingers crossed!
*Fasan is a commentator on public issues
134 (2b)
ReplyDeleteTo avoid legal sophistry, to accord common man and layman the protection of the law, laws must be interpreted literally using the simplest interpretation. Generally and where possible Laws and its interpretation are not and should not be sophisticated, not subject to interpolation, deduction, sophistry of the legal luminaries.
Overwhelming majority of people for whom the law is meant for are not legally trained and for this reason, laws in general are or should be written with commonly understood and simplest verbiages.
Though not science, however, law and its interpretion sometimes adopt scientific or even mathematical methods for an objective and reasonable understanding. Because law and its interpretation always try to arrive to truth, the objective truth when possible. And objective truth takes precedent over subjective facts in everything including in legal interpretations.
134(2b) continued
ReplyDeleteThough not science, however, law and its interpretion sometimes adopt scientific or even mathematical methods for an objective and reasonable understanding. Because law and its interpretation always try to arrive to truth, the objective truth when possible. And objective truth takes precedent over subjective facts in everything including in legal interpretations.
Section 134(2b) of the constitution states, where there is more than 2 candidates, to be declared as winner of the presidential election, the candidate must have scored the highest number of votes casted, received 25% of vote in at least two third of the 36 states and Abuja.
First "and" is an addictive conjugate.
In logic "and" means that two things must both be true for the statement to be true. Only one or the other is not enough. Meaning, that two third of states and (plus) Abuja. QED.
134(2b) continued
ReplyDeleteThe framers of the 1999 constitution with all intent and purposes accorded Abuja very special status. The constitution was drafted and given by northern political irredentists who make no secret of their intention to give north political dominance in Nigeria, through lopsided state creations. Because states are prominent factors in deciding governance in Nigeria, in the sharing of national cake, the northern military irredentist that framed the constitution obviously intended to accord Abuja state and or special status. But not just state status but to make Abuja a deal breaker in choosing the President of Nigeria, for obvious reasons even as I do not like this Abuja's deal breaker status.
Remember Abuja is in the north, therefore a northern state and therefore would most likely vote north, so the famers may have thought. Therefore section 134(2) is neither suffering language aberration nor language deficiency. 134(2) was intentionally and deliberately skewed. So the interpretation of 134(2) cannot be different from the deliberate intentions of the framers and what they stated in 134(2) of the constitution. The intentions of framer in 134(2) is no secretive.
We may may not like the skewed nature of 134(2) but it is what it is, in the constitution. And by layman's and simple interpretation, plus the known intentions of the framers on section 134(2), it is therefore 25% in 24 states plus 25% in Abuja. The constitution did not say 25% in two third of the states which is 24 states, it did not say two third plus1, that is 25 states, Abuja or not inclusive. The constitution in the simplest interpretation and understanding says, 25% in 24 state 'and' Abuja. And this simplest interpretation is what is most important for the common and layman who are the overwhelming majority, as the constitution is for their welfare and for their understanding. Sofiscated interpretation or legal sophistry is required only where there is no simple interpretation and understanding of the law.
There's no ambiguity in the meaning of 134(2b). I agree, 134(2) may not be reasonable, sensible and just in putting Abuja in this very high pedestal, but there's is no ambiguity in the language, in the interpretation, in the meaning, in the understanding, and in the intentions of 134(2). And as stated above, we know why the famers of the 1999 constitution placed Abuja so high, in the selection of the President of the country. There could be more reasons for the framers' action.
134(2b) continued
ReplyDeleteThe primary responsibility of the court is to interpret the law using the literary or simplest interpretation method. Where there's no literary or simple interpretation, the court then can apply, Reasonableness, Just and Sensible, interpretation. Remember reasonableness, just and sensible interpretations are all subjective perceptions per the judges while simply and layman interpretation is what the people see, know and understand as the law.
As much as 134(2b) seem not fair to the other states, it also not fair, not reasonable, not sensible and not Just that a presidential candidate that won in 36 states, won 25% in 36 state and Abuja but lost the popular vote by just one vote cannot be declared the president elect. Fact is that 134(2) is not ambitious, literal and simply interpretation of 134(2), is 25% in two third of the 36 states plus 25% vote casted Abuja. We agree this Abuja status in determining presidential election is too powerful and not fair to the other states. But fairness of the law is different from the meaning of the law. And meaning of the law is the most simplest interpretation of that law. Because simplest interpretation is neither sophistry nor subjective.
Per the 1999 constitution, clinching the Presidency is not by electoral college methodology but rather by clinching certain sets of numbers that are of equal importance or significance; plurality of votes, 25% in 36 states 'and' 25% of vote casted in Abuja.