By Olu Fasan
Bola Ahmed Tinubu, the newly installed president of Nigeria, is a product of two great institutional anomalies. One is a deeply flawed Constitution designed to delegitimise the presidency of Nigeria. The other is a Might-Is-Right state that manipulates state agencies to impose its will on the people. These anomalies deny Tinubu’s presidency the strong mandate and legitimacy it badly needs to govern.
Let’s start with the constitutional anomalies. Under section 134 (2) of the 1999 Constitution, a candidate is deemed elected as president, where there are more than two candidates, if: (a) he has the highest number of votes cast at the election, and (b) he has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the states in the Federation and the Federal Capital Territory, Abuja.
My concern is section 134(2)(a),
which requires the winning candidate to have “the highest” number of votes cast
at the election. In other words, he doesn’t need to have “the majority” of
votes cast, as required under section 134(1)(a), where there are only two
candidates. The perverse implication is that, in a competitive election with
more than two candidates, a candidate can be rejected by an overwhelming
majority of voters and still become president. This poses a huge legitimacy
problem, which many countries avoid by requiring a winning candidate to receive
more than 50 per cent of the total valid votes.
ake two examples. In Brazil’s 2022 presidential election, Lula da Silva
won 48.43 per cent of the votes in the first round. But that wasn’t enough to
make him president. He only became the winner after securing 50.90 per cent in
the second round. Similarly, in this year’s Turkish presidential election,
Recep Erdogan won 49.52 per cent in the first round but was only declared
winner after scoring 52.18 per cent in the second round.
Democracy is based on “one
person, one vote”, and true legitimacy comes when a winner has more votes,
however, small the margin, than all the other candidates combined.
Sadly, not in Nigeria! According
to INEC, Tinubu received 8.79 million votes out of 23.4 million total valid
votes in this year’s presidential election. Thus, the vast majority of voters,
14.6 million, rejected him. Put in a percentage term, he secured only 36.61 per
cent of the votes cast, meaning that a whopping 63.39 per cent of the voters
rejected him. By universal standards, that’s a very weak mandate!
Of course, Tinubu met the
constitutional requirement. He scored, according to INEC, “the highest” number
of lawful votes cast. But only a bizarre constitution allows someone rejected
by 63.39 per cent of voters to become president.
In a presidential system, where
the president is the embodiment of a nation’s sovereignty, it’s hard to justify
someone rejected by 63.39 per cent of voters being president.
If Nigeria had a “more than 50
per cent” rule, this year’s presidential election would have gone into a rerun
and a winner that reflected the will of the majority of Nigerians, across
ethnic and religious cleavages, would have emerged. But thanks to section 134
(2)(a) of the Constitution, Nigeria has a president rejected by an overwhelming
majority of voters!
Yet, there’s another
constitutional anomaly. Under section 239(1), the Constitution allows the Court
of Appeal and, ultimately, the Supreme Court, to determine whether someone was
validly elected as president. However, it gives such a long period – 180 days –
for a presidential election petition to be concluded and allows, meanwhile, the
person whose election is being challenged to be sworn in as president.
In theory, the Supreme Court can
remove a president that wasn’t duly elected. But in practice, the apex court is
extremely unlikely to remove a sitting president, however materially flawed his
election! What’s more, the majority of Nigeria’s elite class, including the
media and several foreign governments regard Tinubu’s presidency as
irreversible, a fait accompli.
In an incisive article, Matthew
Page, senior fellow at Chatham House, the international affairs think tank,
wrote that Western governments are “selling democracy and governance issues
short” in Africa, based on the patronising notion that Africa is not ready for
genuine democracy and good governance. Thus, it’s not surprising that some Western
governments, notably the US, sent delegations to Tinubu’s inauguration, despite
worldwide condemnation of the presidential poll and the fact that his election
is being challenged in court.
Surely, if Nigeria’s elite class and Western governments already know the outcome of the ongoing presidential election petitions, then, it’s an utter waste of time and resources, both of the courts and the petitioners, to continue with them. But, of course, it’s Nigeria’s democracy and judiciary that are being mocked, that are a laughingstock globally. Elsewhere, all election petitions are concluded before a president is inaugurated. But here, a president entrenches himself in office, seizing all the instruments of power, while the courts purport to be genuinely determining the validity of his election. Who is fooling who?
Which brings us to the second
great institutional anomaly: the Might-Is-Right state. Earlier this week, on
Arise TV, former President Goodluck Jonathan lamented the state of electoral
democracy in Nigeria. “The problem we have,” he said, “is the electoral
management body, INEC, and the security agencies,” adding: “INEC shares more
than 60 per cent of the blames.” But if INEC and security agencies manipulated
elections, who emboldened them? Of course, a powerful state that rides
roughshod over the will of the people!
Last week, Garba Shehu, then
President Buhari’s spokesperson, said “the Presidency allowed Tinubu” to win.
Surely, by “allowed”, he meant the presidency tipped the balance in Tinubu’s favour,
using INEC and the security agencies. Yet, in his inaugural speech, Tinubu
disingenuously said: “Since the advent of the Fourth Republic, Nigeria has not
held an election of better quality.” That’s utterly insulting and provocative!
All this matters because a government that lacks legitimacy in the eyes of most
citizens, due to a questionable mandate, will struggle to govern.
Pastor Tunde Bakare recently
said: “I will never call Tinubu my president.” He probably spoke for millions
of Nigerians! Truth is, if the Supreme Court validates Tinubu’s election, he
must work extremely hard to win the hearts and minds of Nigerians. His minority
government won’t succeed otherwise!
*Dr. Fasan is a commentator on public issues
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