PEPC Judgement: The Verdict Can Destroy Presidential Democracy In Nigeria

 By Olu Fasan

Last week, I put everything aside to watch the ruling of the Presidential Election Petition Court, PEPC, from start to finish! With rapt attention, I picked up the minutiae of the extremely detailed verdict. But after the 13-hour-long ruling, I was utterly despondent about the future of presidential elections in Nigeria. 

*The 2023 PEPC Judges 

Let me start with two general observations. First, the judges worked to a predetermined answer. Because they couldn’t bring themselves to invalidate the election of a sitting president, unprecedented in Nigeria, they found every reason to affirm Bola Tinubu’s election. Courts of first instance are fact-finding courts that seek to get to the bottom of a matter and do justice. But the PEPC used every conceivable procedural technicality to reject virtually all the facts and witnesses presented by Peter Obi and Atiku Abubakar.

LAST week, I put everything aside to watch the ruling of the Presidential Election Petition Court, PEPC, from start to finish! With rapt attention, I picked up the minutiae of the extremely detailed verdict. But after the 13-hour-long ruling, I was utterly despondent about the future of presidential elections in Nigeria. 

Let me start with two general observations. First, the judges worked to a predetermined answer. Because they couldn’t bring themselves to invalidate the election of a sitting president, unprecedented in Nigeria, they found every reason to affirm Bola Tinubu’s election. Courts of first instance are fact-finding courts that seek to get to the bottom of a matter and do justice. But the PEPC used every conceivable procedural technicality to reject virtually all the facts and witnesses presented by Peter Obi and Atiku Abubakar.

At one point, a cynical thought ran through my mind: Did INEC’s and Tinubu’s lawyers write the verdict for the judges? I quickly dismissed the thought but was struck by how the judges treated Obi’s and Atiku’s lawyers, most Senior Advocates of Nigeria, SANs, like morons, who were utterly incompetent and ignorant of the law, but treated INEC’s and Tinubu’s lawyers with total deference, regurgitating their arguments. 

The second observation is that the judges’ words and tone betrayed their biases. For instance, one judge read out the results of the presidential election in the five South-East states and said that “INEC must be an abysmally poor manipulator, if not even an imbecilic one”, to have allowed Obi, instead of Tinubu, to win massively in those states. In other words, if INEC really manipulated the election, Tinubu should have won in the South-East.

Really? The learned judge failed to realise that it’s almost impossible to rig an election where one party is extremely strong; and another is extremely weak: that elections are usually rigged where two parties are fairly equally strong such that it’s easier to manipulate votes and tip the balance in favour of one and against the other. Yet, the erudite judge made hay of the argument that Obi won massively in the South-East, his core base, to “prove” that the presidential election was free and fair, making INEC’s and Tinubu’s case for them!

Leaving aside those general observations, what about the substantive issues? These were FCT’s status; Tinubu’s drug-related forfeiture; pleadings and evidence; and the role of INEC. To me, the PEPC’s decisions were skewed in favour of Tinubu and INEC. There were perfectly legitimate and reasonable positions the court could have taken, if so inclined. 

Let’s start with the FCT issue. The PEPC rejected a literal interpretation of section 134(2)(b) of the 1999 Constitution on whether a winning candidate must score at least one-quarter of the votes cast in Abuja. It said only a broader interpretation would align with the intention of the framers of the Constitution regarding “equality of citizens” and “equality of rights”, set out in the Preamble. The court held: “Equality of rights in every citizen cannot exclude equality of the weight and value of their votes. No, it includes it.”

But if the principle of “equality of the weight and value of votes” is sacrosanct, why did the votes of 8.8million (37 per cent) who voted for Tinubu carry more weight and value than those of 15.2million (63 per cent) who rejected him? The court ruled that Tinubu scored “the majority of lawful votes cast at the election”. But is 8.8million the majority of 24 million? Certainly not! According to INEC, Tinubu scored the “highest” votes among the presidential candidates, but not “the majority of the lawful votes cast at the election”. So, deciding the FCT issue based on “equality of the weight and value of votes” is wrong and defective. 

Similarly flawed is the recourse to section 299 of the Constitution, which says FCT should be treated “as if it were” a state. The phrase “as if” suggests Abuja is not literally a state; hence section 299 says the provisions of the Constitution should be read with “necessary modifications and adaptations” in relation to Abuja. Such “modifications and adaptations” would suit the presidential election, which is sui generis, different from day-to-day issues of governance to which section 299 arguably refers.

Strangely, while the PEPC adopted a broader interpretation on FCT’s status, it chose a narrower one on dishonesty. The court said the word “fine” in section 137(1)(d) of the Constitution only related to criminal conviction. Thus, being a “non-conviction-based forfeiture”, the $460,000 that Tinubu forfeited to the US Government didn’t disqualify him from becoming president, even though it was linked to proceeds of “narcotic trafficking and money laundering”. But if, as the PEPC held, the framers of the Constitution intended that a person who, though not convicted, forfeited assets following criminal conduct can become president, then integrity and honesty are constitutionally and judicially excluded from Nigerian leadership!

Now, let’s turn to pleadings and evidence? Here’s the utter injustice. The petitioner carries a heavy evidential burden, yet the court and the law put insurmountable obstacles in his way. He must file his petition with detailed pleadings and relevant documents within 21 days of the declaration of election results. Anything not filed or “frontloaded”within 21 days would be rejected. With 176,846 polling units across Nigeria, how can a candidate challenging a presidential election assemble all facts and witnesses within 21 days? Yet, the PEPC used non-filing within 21 days and other procedural technicalities to strike out most of Obi’s and Atiku’s pleadings and evidence. The cards are so stacked, both legally and judicially, against a petitioner in a presidential election that the taunt “Go to court” gains potency.

Finally, INEC’s role. The PEPC ruled that despite stating in its Regulations and Guidelines that it “shall” transmit election results “electronically” and “upload” them “to the INEC Result Viewing Portal, IReV”, INEC is not obligated to honour those commitments. The ruling defies the preponderance of English case law discouraging public bodies from frustrating legitimate expectations resulting from their undertakings or representations. If INEC cannot keep its own words, how can Nigerians trust it to conduct credible presidential elections?

Let’s face it, unless reversed by the Supreme Court, the PEPC’s judgement will perpetuate controversial presidential elections in Nigeria and make presidential election petitions unwinnable, as ever. That will endanger Nigeria’s democratic future! 

*Dr. Fasan is a commentator on public issues