Legal Issues Threatening Presidential Election

The February 25 presidential election may end up in protracted litigations if the challenges posed by two clauses in the Electoral Act 2022 and the 1999 Constitution, which are considered as landmines by two senior lawyers, Wole Olanipekun (SAN) and Olisa Agbakoba (SAN), are not addressed, Alex Enumah writes

Since the enthronement of democracy in 1999, Nigerians have always featured two leading presidential candidates, and this had prevented a scenario where a potential winner of the majority votes would run the risk of not meeting the constitutional threshold to be declared winner.

But with the number of political parties participating in the 2023 presidential poll – the Peoples Democratic Party (PDP), All Progressives Congress (APC), Labour Party (LP), and the New Nigeria People’s Party (NNPP) – it could be unpredictable, deeply uncertain, and seemingly destined for a runoff.

Analysts likened the scenario to the 1979 presidential election, which featured such political heavyweights and one presidential candidate, having secured the majority votes, relied on the somewhat controversial mathematics of two-thirds majority of a state, to scale the hurdle.

Like the 1979 event, the 2023 election features leading contenders from each of Nigeria’s major ethnic groups, namely, Atiku Abubakar of the Peoples Democratic Party (PDP), representing the North; Bola Tinubu of the ruling All Progressives Congress (APC), representing the South-west, and Mr. Peter Obi of Labour Party, representing the South-east.  Kano State strongman and candidate of the NNPP, Rabiu Kwankwaso is also staking the claim for northern votes.

Two legal icons, Mr. Olisa Agbakoba, (SAN), and Chief Wole Olanipekun, (SAN), recently raised critical questions about certain clauses in the 1999 Constitution and the Electoral Act 2022, which are the legal provision that could possibly become landmines deployed by the government to determine the eventual winner.

While Agbakoba is seeking clarification over the controversy surrounding Section 134 of the Constitution, which deals with the status of Abuja, the nation’s capital, in the two-thirds majority states’ equation, as highlighted in his letter dated January 17 to the Independent National Electoral Commission (INEC), Olanipekun on the other hand, questioned the power granted INEC in the Electoral Act to take final decision on matters of declaration of scores of candidates, rejected votes and unmarked ballot papers.

Agbakoba had in his said letter asked the INEC Chairman, Professor Mahmood Yakubu, to clarify before Nigerians head to the polls, the requirements for winning the presidential election, particularly as it relates to the Federal Capital Territory (FCT), Abuja, as contained on Section 134 of the 1999 Constitution, to the public.

The former President of the Nigerian Bar Association (NBA) stated that he was “a little worried” about the correct interpretation of Section 134 of the 1999 Constitution that provides requirements to be met by a presidential candidate to be declared the winner. He added that he needed the clarification because the provision of the section was premised on the seemingly ambiguous nature of the section even as it concerns electoral processes.

Agbakoba stated that a careful review of Section 134 leaves possible interpretations that raise three significant questions.

He said: “(1) The requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 states of the federation: does this mean that the FCT Abuja is incorporated in the 24 states? 

“(2) The requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 states of the Federation: does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?

“(3) Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 states of the federation, but failed to score one-quarter of the votes cast at the election at the FCT, be duly elected as President of Nigeria?   

“Finally, Section 134(1)(a) provides that a candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election, the candidate has the majority of votes cast at the election.

“But Section 134(2) provides that a candidate for an election to the Office of President shall be deemed to have been duly elected where, there being more than two candidates for the election, the candidate has the highest number of votes cast at the election.

“The constitution describes the winner in two different languages. One, the winner must score the majority of votes and the other, the winner must score the highest number of votes. This is confusing. To be honest, I am not quite sure of the right answers to my questions.  I just thought to bring this to your attention as something you might wish to clarify to the public.”

On his part, Olanipekun, the Chairman of the Body of Benchers, faulted Section 65 of the Electoral Act, saying it was capable of being abused. He said the power vested in Returning Officers by Section 65 of the Act can threaten free and fair elections.

The section provides: “(1) The decision of the Returning Officer shall be final on any question arising from or relating to – (a) unmarked ballot paper; (b) rejected ballot paper; and (c) declaration of scores of candidates and the return of a candidate provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.”

Olanipekun, also a former president of NBA, speaking in Ado-Ekiti, the Ekiti State capital, when he visited Governor Biodun Oyebanji, wondered why the section was inserted into the Electoral Act and passed by the National Assembly without thorough scrutiny. He believes it is a booby trap for a free and fair election.

The foremost legal luminary contended that it would amount to grave disaster for the electoral process, should the returning officers begin to review already announced results. He argued that the officers were not law courts or tribunals with such powers.

Olanipekun said: “To me, it is a very dangerous section, so novel in the sense that, here you have a section that empowers a Returning Officer to review his decision within a period of seven days. The Returning Officer is not a court of law, not a tribunal, not vested with jurisdiction to exercise quasi-judicial powers or to assume jurisdiction over any matter that is judicial in nature.”

Olanipekun urged the National Assembly to, as a matter of urgency, to delete the controversial section to avert a political crisis capable of consuming the country’s democratic and electoral process.

While in direct response to the Agbakoba’s letter, INEC has declared its ability to conduct a run-off, should that happen, the National Assembly has not responded or attended to Olanipekun’s request.

But trying to counter one leg of Agbakoba’s position, human rights lawyer, Mr. Femi Falana (SAN) said winning the FCT is not a constitutional requirement for a presidential candidate to be declared winner of the February 25, 2023 poll.

Speaking during a live television programme, Falana said Section 299 of the Constitution already recognised the FCT as a state and therefore a presidential candidate does not necessarily need to win the seat of Nigeria’s political power to be declared winner of an election. He stressed that once a candidate gets 25% of votes in 24 states and has a majority of the total votes, he or she should be declared winner by the electoral body.