Yesterday (May 4, 2023), I tweeted on my Twitter handle that “Given that the FINALITY of election result is decided by the Court, except where the INEC-declared result is uncontested, it’s unconstitutional to swear-in a winner whose victory has not been affirmed by the Court. Where’s the law that says such a winner must be sworn-in? None!”
Since then, I have received a barrage of
direct messages and requests to publicly speak more on this. So, to those who
asked me and in the public interest, below are the short answers to your many
questions:
Yes, the inauguration of a new President on
May 29 is not absolute, neither by the provisions of the Constitution, the
Electoral Act nor any other written law.
And no,
there won’t be any VACUUM if a new President is not sworn-in on May 29. The
Constitution envisaged such an anomalous situation and thus copiously provided
for the rainy day, as follows:
First, Section 135(1)(a) of the Constitution
says that “Subject to the provisions of this Constitution, a person shall hold
the office of President UNTIL when his successor in office takes the oath of
that office”.
If you pay close attention to above
provisions, you will notice that the Constitution never said “until May 29” and
it used the word ‘shall’ which – by settled legal interpretation – means
‘must’. That means that the incumbent President, despite exhausting his eight
years, is not going anywhere until his successor is sworn-in and such a date
could overshot May 29.
Now, you can see that this is not about
Tinubu, because, if you strictly follow the Constitution, neither Atiku, nor
Obi (in addition to Tinubu) would be inaugurated as President on May 29 and Nigeria
will still have a constitutional President.
You will also notice that since 1999, a lot of
‘successors’ or winners of elections, mostly of the gubernatorial kind, had
taken their oaths of office AFTER May 29. So, where did this widespread notion
that May 29 is sacrosanct or absolute come from? It came from mere custom or
political expediency, not from any known black letter law.
Second, Section 136(2) of the Constitution
says that “Where the persons duly elected as President and Vice President die
or are UNABLE for ANY REASON whatsoever to assume office before the
inauguration of the National Assembly, the Independent National Electoral
Commission shall immediately conduct an election for a President and the
Vice-President”.
In plain terms, what the preceding Section 136
is saying is that, apart from death, there are myriad reasons that could
prevent or imperil the President-elect and the Vice, standing together, from
assuming office on May 29 and heavens won’t fall.
One of such other reasons that easily comes to
mind is a Court order, usually of an Interlocutory kind, emanating from the
Tribunal on a Motion; or from an Originating Summons (not an election petition)
succeeding before a Federal High Court on interpretation of the pertinent
constitutional provisions on point, including particularly the said Sections
135, 136, in addition to Section 1(2) of the Constitution vis-a-vis the
absolutism or otherwise of May 29.
To be clear, the Section 1(2) of the
Constitution that is pertinent to this discourse provides that “The Federal
Republic of Nigeria shall not be governed, nor shall any persons or group of
persons take control of the Government of Nigeria or any part thereof, except
in accordance with the provisions of this Constitution.”
In my view, both the Tribunal (under the
Electoral Act) and the Federal High Court (under Section 6 of the Constitution)
have concurrent jurisdiction to delve in the interpretation of these Sections
as they impact on May 29.
Anybody saying that it is only the Election
Tribunal that possesses an exclusive jurisdiction on this matter or that
simultaneously and separately initiating such a Suit before the Federal High
Court will abuse the process of the Election Tribunal is wrong, because the
fundamental business of interpreting the Constitution (the organic law) is
independent of, and should have primacy over everything else, including
particularly a mere election petition before a narrowly-constituted ad hoc
Tribunal.
Now, ponder this: If the result declared by
INEC does not accord with the Electoral Act, it then follows that such result
does not, ipso facto, accord with the Constitution, because the Electoral Act
is a product of (and subservient to) the Constitution – the grundnorm. The
river never flows backwards. Thus, any repugnancy in the Electoral Act must
yield to the demands of the Constitution.
Thus, by virtue of the preceding Section 1(2)
of the Constitution, inaugurating a new President on May 29 while the Court (as
the final umpire) is yet to call the final result would mean that persons (or a
group of persons) have taken control of the Government of Nigeria in a manner
that does not accord with the Constitution.
The clearer and obvious way of understanding
this conundrum is to think of it this way: If a new President is sworn-in on
May 29 and subsequently, the Tribunal or the Supreme Court (again: the final
umpire) invalidates the election, what would you say happened to the Government
of Nigeria during the period the sacked President held office before the final
judgment?
Unarguably, what happened is that, during such
period, the Federal Republic of Nigeria and her government were taken control
of in a manner that did not accord with the Constitution. This is a grave constitutional
injustice that can never be undone. So, by all means, it should be avoided as
the Constitution has enabled such under Sections 135 and 136.
While you ponder this, keep in mind that there
is no express provision in the Constitution, the Electoral Act (the law that
enables elections and transitions) or any other written law that strictly
requires that a challenged winner of an election must be sworn-in on May 29.
Don’t get me wrong. I have no personal or
political animus against any election winner. An election winner surely
deserves the fruits of his victory but it must not be on May 29. It can be
later or even not at all, if the Court – which is the final electoral umpire –
fails to affirm his INEC-victory.
In the unique legal framework of Nigeria’s
elections, INEC is not the end but the means to the end. That end is the Court
(the judiciary) which alone possesses all the judicial powers of the
Federation, including the final powers to declare winners of elections.
So, the smart framers of the Constitution,
having figured that, some day, an occasion will surely arise where a winner may
be unable for ANY REASON to be sworn-in on May 29, they inserted the implicit
‘tenure elongation’ in Section 135 but limited it by the provisions of Section
136 that requires INEC to ‘immediately’ conduct another Presidential election.
If the intendment of this creative Constitution-making was not to ensure
there’s no VACUUM, what then is its intendment?
Thus, in the clear absence of any law
mandating that a swearing-in must proceed apace on May 29, the only reason (or
justification) Nigeria had indulged in such crass unconstitutionality (or
extra-constitutionality) since 1999 was political CUSTOM, and that’s because
the country or the political class was desperate and thus minded to avoid
anything that the military can latch on to continue in power.
Today, that custom, even though initially
convenient and compelling is retrograde and can no longer stand because it is
repugnant to natural justice, equity and good conscience. Above all, it is – by
hindsight – incompatible with the Constitution and Laws of the Federation of
Nigeria in several ramifications.
And mark my word: This thesis does not apply
to the office of the President ALONE. It applies across the board. And until
Nigeria gets its elections right or purges itself through a popular referendum,
the judiciary should ensure that winners of disputed elections must not take
power until the declaration of the final result by the last Court.
If politicians are made aware that power can
only come after the courts (not INEC) have decided the result, it will work
wonders in getting the greatest number of contestants and even INEC and
political partisans to keep in line, play fair and desist from this mantra of
‘go to court’ which is a subliminal insult on the Constitution and the
judiciary.
*Aloy
Ejimakor, a constitutional lawyer, is a commentator on public issues
Very powerful, eloquent and legal statement.
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