Why Nigeria’s Election Petition System Is Unconstitutional

 By Chidi Anselm Odinkalu

“Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” Section 14(2), Constitution of the Federal Republic of Nigeria, 1999.

In 2007, the contest to rule Nigeria was between two sons of Katsina State. From the Katsina Emirate, Umaru Musa Yar’Adua ran on the ticket of the then ruling Peoples’ Democratic Party (PDP) to succeed outgoing president, Olusegun Obasanjo. His elder brother, Shehu, had served as Obasanjo’s second-in-command during military rule from February 1976 to October 1979. From the Daura Emirate, also in Katsina State, Muhammadu Buhari who also served alongside Obasanjo and Shehu Musa Yar’Adua in that military government, was the leading opposition candidate on the platform of the All Nigeria Peoples’ Party (ANPP).

The Independent National Electoral Commission (INEC) announced Umaru Musa Yar’Adua as winner and Muhammadu Buhari lodged a petition to challenge the declaration. After a prolonged period of litigation, the Supreme Court handed down its decision on 12 December 2008 by a narrow majority dismissing Muhammadu Buhari’s petition.

Of the many things pronounced upon by the court, two stood out. One was its refusal to affirm any set of principles to govern the conduct of elections in Nigeria. The other was the formal pronouncement in the leading judgment of Niki Tobi that in elections in the country, “the judges must be the final bus-stop.” A report on election dispute resolution in Nigeria published earlier this year by the Policy and Legislative Advocacy Centre (PLAC) reinforced this, declaring that the electoral process in Nigeria has now been formally relocated “from ballot to the courts.”

The idea of judges as the “final bus-stop” for the determination of electoral legitimacy in the Nigeria sounds like a wanton departure from the clear constitutional design which confers sovereignty upon the people “from whom government through this constitution derives all its powers and authority.” Judges may be people in the sense of human beings like every other citizen, but as a conclave of decision makers in a court, they are not the people upon whom the constitution confers the mandate to decide who rules the country.

When it comes to contests over elections in Nigeria, the Electoral Act does not provide any room for the people whose mandate is at stake to participate in disputes over the destination of their mandate or what happens to it. 

It is problematic enough that judges have now overthrown popular sovereignty as the basis of the mandate to rule in Nigeria and substituted it with a grandiloquent notion of judicial sovereignty.  The case of Zamfara State the Governorship election in 2019 demonstrates how dangerously self-regarding judicial sovereignty has become in Nigeria.

In that year, Mukhtar Shehu Idris, the candidate of the All Progressives Congress (APC), secured a total of 534,541 votes or 67.41% of the votes cast to win the contest for the office of governor of Zamfara State. He clearly won the vote in each and all of the 14 Local Government Areas of the State. In a distant second was Bello Matawalle of the PDP who secured 189,452 votes or 23.89% of the votes cast, less than 25% of the votes cast in the state. Mattawalle also lost in every LGA in the state.

Preceding the vote, however, the contest for the ticket of the APC was the subject of competing and contradictory orders from various courts in the country, both state and federal. Nobody alleged that the result was anything other than the manifest will of the people. But in resolving the complicated pre-election litigation on 24 May 2019, the Supreme Court invalidated the APC primaries, disbarred their candidate from the contest retrospectively and pronounced that “this being so, the votes credited to the [APC candidates] in the 2019 general elections in Zamfara State are wasted votes.”

Not content with throwing the votes more than two-thirds of the voters of the state into the dust-bin, the Supreme Court went further and pronounced as the winner, Bello Matawalle, who had been beaten hopelessly into an insignificant second position. This was election robbery under the ruse of jurisprudence.

There was nothing inexorable about the order made by the Supreme Court in this case. The court could have invalidated the primaries of the APC. Indeed, it could still arguably have excluded the APC from the contest. But faced with the reality of excluding over two-thirds of the voters of the state from having a say in who governs them, the structure, text and spirit of both the constitution and the idea of government founded on the will of the people required the Supreme Court in that case to do only one thing – order a re-run so that the people of Zamfara State could look at the candidate on offer and choose who to rule them. Instead the court chose to supplant popular sovereignty with judicial sovereignty, infantilise the voters and install as governor for the people of Zamfara State a person whom they looked at and roundly rejected at the polls.

At the beginning of January 2008, Nigeria’s Supreme Court decided in the case that ultimately handed the office of the Governor of Rivers State to Chibuike Rotimi Amaechi that under Nigeria’s constitution, it is the political party alone that contests or wins an election. However, in a little-noticed line in that judgment, Adesola Oguntade, who delivered the judgment of the court, cautioned that law governing political or election dispute resolution in Nigerian constitution and law was “intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a citizen under section 36 of the same Constitution.”

The basic requirement of section 36 of the Constitution is a guarantee that a person or group whose “civil rights and obligations” are liable to be determined in a court of law, “shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.” In a system of government founded on one person one vote, no civil right or obligation competes for primacy on an equal footing with the right of citizens to choose who governs them or how to constitute their government.

Yet, when the Supreme Court decided in 2019 that the votes of a super-majority of the people of Zamfara State in the governorship election were “wasted”, it did not bother to hear from any of the affected voters or their legal representatives. In Plateau State, where a judicial hit-squad from the Court of Appeal did something similar to the voters in the legislative elections in 2023, again, the people could not be represented. It is difficult to contemplate a clearer violation of section 36 of the Constitution.

In Nigeria where the decision on whom to confer the mandate to rule has been relocated by fiat of the Supreme Court from the ballot box to the court room, citizens are currently denied standing to participate in disputes involving the identity or determination of the person or party on whom they have conferred that mandate. The surprise is that no one has sought to bring this to the attention of the courts as such or challenge the lawfulness or constitutionality of this fundamental design flaw in Nigeria’s election petition system. The main objection to this is that it could be both confounding and inconvenient to ask potentially millions of voters to join in such proceedings. We will address this objection fully next.

*A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu