By Chidi Odinkalu
Most people do not know or remember that, strictly speaking, there were and remain no official results for Nigeria’s 2007 presidential election. Organised by the Independent National Electoral Commission, INEC, the vote itself occurred on April 21, 2007 under Maurice Iwu, a professor whose academic discipline coincidentally was alchemy. His main qualification for the position of Chairman of the INEC was that he was close to President Obasanjo’s fixer, Andy Uba.
The results began trickling in the following day. Under Nigeria’s Constitution, a winner of a presidential election must secure the highest number of votes in addition to winning a minimum of 25% of the votes in at least 24 of the 36 states of the federation. What this means is that it is impossible to declare a lawful result in a presidential election until the results in at least 24 states have been computed.
The recently departed legal scholar Professor Ben Nwabueze, SAN, recalls
in his 2009 book on Judicialism and Good Governance in Africa, that two days
after the vote, on April 23, 2007, INEC Chairman, Maurice Iwu “excusing himself
from the collation of results exercise in which he and the party agents were
engaged at the INEC headquarters, left the room and announced the Peoples
Democratic Party, PDP, candidate the winner on the basis of results
electronically transmitted to him from 13 states while the results from 23
states were still being awaited”. Ondo was the 13th state whose result
computation Iwu abandoned to announce the fictional outcome.
In announcing the results,
Professor Iwu “neither gave the figure of the total votes cast nationwide nor
the percentage scored by each of the candidates. There was also no
state-by-state breakdown of the result announced.”
On the face of the record, the
results declared by Maurice Iwu’s INEC failed to comply with the minimal
requirements for certification of results in a presidential election. Even
today, 17 years later, no one knows or can give the state-by-state breakdown of
the results in the 2007 presidential election.
This was only one of the many
problems with that vote, which occurred in the aftermath of the rejection by
the National Assembly of President Obasanjo’s effort to grant himself a
prohibited third presidential term. Following that event, Obasanjo appeared
desperate to ensure that the election returned his hand-picked successor, Umaru
Yar’Adua.
The ballot papers used in the
election were not serialised, which made it impossible to control for ballot
contamination. Following the vote, INEC indulged in what judges subsequently
described as “abracadabra”, in many places producing entirely fictional results
for what an election tribunal described as “elections that did not hold.”
This set the stage for the
election petition by the leading opposition candidate in the 2007 election,
Muhammadu Buhari of the All Nigerian Peoples Party, ANPP, against the man whom
Maurice Iwu had announced as winner, Umaru Musa Yar’Adua. In his petition,
Muhammadu Buhari asked the presidential election petition tribunal to find that
the election and results announced by Maurice Iwu had failed to comply
substantially with the Constitution and the Electoral Act. Central to Buhari’s
case was the absence of serialised ballot papers which, he argued, enabled
ballot stuffing and ballot contamination on an unprecedented level.
According to section 146(1) of
the Electoral Act of 2006, “an election shall not be liable to be invalidated
by reason of non-compliance with the provisions of this Act if it appears to
the Election Tribunal or court that the election was conducted substantially in
accordance with the principles of this Act and that non-compliance did not
affect substantially the result of the elections.” Having lost on a split
decision at the election petition tribunal, Muhammadu Buhari’s appeal to the
Supreme Court turned on the question of what “the principles of this Act”
meant.
In deciding the controversial
contest for the Anambra South senatorial district in 1983 between Chukwuemeka
Odumegwu-Ojukwu v Dr. Edwin Onwudiwe, the Supreme Court had considered the
meaning of a similar provision in the Electoral Act of 1983 and explained that
“the essence of democratic elections is that they be free and fair and that in
that atmosphere of freedom, fairness and impartiality, citizens will exercise
their freedom of choice of who their representatives shall be by casting their
votes in favour of those candidates who, in their deliberate judgment, they
consider possess the qualities which mark them out as preferable candidates to those
others who are contesting with them.”
In 2007, however, Justice Niki Tobi writing for the majority of the
Supreme Court walked back these principles, complaining instead the notion of
“principles” governing elections was “vague, nebulous and large” as well as
confusing. Reducing the entire exercise to a farce, Justice Niki Tobi, himself
a former law professor and dean of a leading law faculty, blamed his inability
to offer clarity in the principles governing democratic elections on “my lack
of adequate knowledge”.
Making no pretence to anchor its
holding in the Electoral Act, the Supreme Court held that a petitioner in a
presidential election petition bears the burden to show “not only substantial
non-compliance but also the figures, i.e. votes that the compliance (sic)
attracted or omitted.” Put another way, the petitioner in an election petition
has the burden of proving not just a negative but also of assigning a numerical
value to its consequences.
On the question of
non-serialisation of ballot papers, therefore, the court disingenuously claimed
that it had no proof that the non-serialisation favoured one side or
disfavoured the other.
A minority of the court,
comprising George Oguntade, Aloma Mukhtar, and Walter Onnoghen, dissented,
taking the view that “it is important that at the conclusion of an election, an
unbiased observer should be able to see that the election was free, fair,
transparent, and that no room had been left open for malpractices to occur. If
deliberately or through inadvertence, those in charge of the elections had left
room for anyone to doubt the integrity of the process in the election, then it
is my view that the fundamental principles of the election have been
compromised.”
In the end, however, the
majority view prevailed and the Supreme Court validated the 2007 election
structured to enable ballot stuffing and which announced a winner without a
lawful result. The refusal of the Supreme Court to affirm any principles
applicable to elections effectively reduced Nigeria’s elections to a demolition
derby of illegality. In validating that result the way it did in 2008, the
Supreme Court empowered judges to re-write election laws into meaningless
pieces of artifice.
Invited shortly after the
decision in this case of Buhari vs. Yar’Adua to deliver the distinguished
lecture at the Nigerian Institute of Advanced Legal Studies, NIALS, in front of
an audience, including the then Chief Justice of Nigeria, Professor Ben
Nwabueze, SAN, accused the Supreme Court of indulging in “perverse and narrow
legalism” and of abdicating its responsibility of judicial decision making to a
tyranny of “considerations of political expediency.”
This was a major landmark in the
evolution of the supreme confusion that saddled the country with the judicial
debacle in the most recent cases concerning Plateau and Kano states. The resort
by the Supreme Court to publicly slapping down the Court of Appeal in these
cases cannot be seen as progress as long as it fails to acknowledge its role in
condemning Nigerians habitually since 2007 – in the words of Professor Nwabueze
– “to be ruled by a government that has no claim to legitimacy.”
*A
lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
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