Presidential Election Call: Between Equity and Absurdity
3 AGs v AGF Currency Redesign Case: Supreme Court Decision
Kudos to the Supreme Court for holding inter alia last Friday, that the old N200, N500 and N1,000 notes remain legal tender till December 23, 2023. This order is self-executory, and needs no further order for enforcement, that is, no further order is required for the old notes to continue to be used, and for the Banks to continue to accept and disburse them. What this decision has done, is to declare the February 10 deadline and the President’s directive either for the February 10 deadline or the extension of the life of only the old N200 note to April 10, invalid. In Ogbu v State 53 Misc. 2d 740 the Supreme Court held that “when an act or a decision is declared null and void, it is incapable of giving rise to any rights or obligations under any circumstances”.
Some people were arguing that, no order was made to execute the judgement. When such declaratory judgement is handed down, consequential orders which accompany the judgement to enforce it, are not made. The declaration completes the process. See the case of Iragbiji v Oyewinle 2013 13 N.W.L.R. Part 1372 Page 566 at 580 per Rhodes-Vivour JSC. In Gongola State v Tukur 1989 4 N.W.L.R. Part 117 Page 592 per Oputa JSC the Supreme Court held that: “A declaratory judgement is a binding adjudication that establishes the rights and other relations of the parties, without providing for an ordering enforcement”. The proper thing to do after a declaratory order has been handed down, is to file a subsequent action based on the declaration, praying the court for executory orders where necessary. See the case of Dalori v Sadikwu 1998 12 N.W.L.R. Part 576 Page 112 at 113 per Edozie JCA.
In the currency case, the order that the notes remain legal tender till December 2023 completes the process, and this particular order is self-executory and needs no further order for execution. It is a victory, for the Nigerian people. However, it has been argued that if the CBN is required to re-circulate the old notes that it has already collected from the public, an application to the Federal High Court based on the declaratory judgement of last Friday may be necessary. See the case of Dalori v Sadikwu (Supra); Okoya v Santilli 1990 2 N.W.L.R. Part 131 per Agbaje JSC. I wonder! Should it not be automatic that if something has been declared to be legal tender, you should make it available? The reason that you collected it and kept it, is because you unlawfully declared that it was no more legal tender. Now that the Supreme Court has declared it to still be legal tender, those on the other side of the divide of the argument, maintain that no further order is required for CBN to start to recirculate the old notes. Hopefully, we will immediately start to see more money in circulation, and this will ease the hardship the people are presently suffering.
The February 25 Presidential Election: Election Petitions
Last week, Senator Bola Ahmed Adekunle Tinubu of the APC was declared the winner of 2023 Presidential election. Of course, as usual, pre and post declaration, there were allegations of election malpractices. Both PDP and Labour Party (LP) claimed to be the winners of the election, yet, it was APC that was declared the winner!
There are so many matters arising – from LP candidate, Peter Obi, joining the party only three days before he clinched his Party’s ticket in its Primaries, contrary to Section 77 of the Electoral Act 2022 (EA) which requires parties to submit their membership registers to INEC 30 days before the date fixed for primaries, thereby making him unqualified to even run (will this be considered to be a pre-election matter, which should have been brought 14 days after the Primaries?); to allegations of rigging against the APC, and counter-allegations of rigging against the other leading parties, PDP & LP. We saw different videos during the elections (isolated incidents, because, in many other areas like mine, voting went smoothly with no disruption or problems), from someone in Lagos menacingly commanding that Igbos should not vote at a particular polling unit (voter suppression/intimidation), to Igbos claiming that they were denied access to polling units like that of LASU, to ballot boxes and papers in Lagos being burnt in some areas – it is instructive to note that LP, and not APC, won Lagos; we saw an underaged boy in the North, possibly about 6 years old, flashing his PVC and proudly stating that he was voting for the PDP candidate; we saw the COP in Kano ridiculously claiming that it was difficult to tell the difference between a child and an adult, as some people may not be well developed genetically, and in any event, it was INEC that had done the voter registration, who was he to tell registered voters not to vote (when we are all aware that 18 is the minimum age allowed to vote) – it is instructive to note that, neither of the three leading candidates won Kano, NNPP won; we saw two girls in the South East, also not more than 12 years old, proudly flashing their PVCs too, and stating they were voting for the LP Candidate – it is instructive to note that, the LP Candidate won overwhelmingly in the South East; we saw a member of PDP arrested with $500,000 cash confessing that he was given the money by PDP National, Abuja, to bribe INEC Officials and buy votes; we saw a young lady, an INEC Official, somewhere in Enugu State I think, caught trying to pass off votes cast for the LP Candidate as the NNPP Candidate’s, while we also saw a video of voter intimidation somewhere in the South East, in favour of LP.
I make mention of allegations of electoral malpractices that touch on the leading political parties, including the PDP & LP, especially because they are the ones mostly alleging that there were irregularities in the elections; yet, they also played an active role in some of those irregularities. Isn’t it trite that, he who comes to equity, must come with clean hands? However, I suppose this cannot stop anyone from seeking justice, whether they deserve it or not – and this is applicable to all the parties that engaged in election malpractices. Naturally, we expect all these allegations to form the basis of the various election petitions, which are provided for in Part VIII of the EA. We Lawyers, therefore, look forward to novel, groundbreaking decisions, that will enrich our jurisprudence.
We must however, bear in mind that the EA does not envisage a perfectly conducted election, nor can an election be automatically invalidated because of allegations of malpractices. Section 135(1) of the EA provides that, an election shall not be invalidated by reason of non-compliance with the EA (obviously, many of the complaints about the elections qualify as electoral offences/non-compliance under the EA), if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of the EA and the non-compliance did not affect substantially the result of the election. It is left for the Tribunals and Courts, to decide upon the definition of ‘substantial’ in the context of this election.
The Section 134(2)(b) of the Constitution Controversy
One of the questions that seems to be occupying the front burner presently, is the issue of the interpretation of Section 134 of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution), Section 134(2)(b) in particular. By declaring Senator Bola Tinubu as the winner of the election, it is obvious that INEC’s interpretation of Section 134(2)(b) is not that a candidate must score 25% of FCT votes.
Last week, several people telephoned to ask me for its interpretation. My response was that, it depended on which side of the divide they were on! The interpretation has been reduced to which ethnic group one belongs to, or the political party they support! For the people on the side of those who the election results did not favour, especially LP, because LP was the only party that secured up to 25% of the votes cast in FCT, then the interpretation of Section 134(2)(a) & (b) would be that only a candidate who scored the highest number of votes cast, 25% of two-thirds of all the States (24 States) and 25% of the Federal Capital Territory (FCT) could be declared the winner of a Presidential election, thereby rendering Bola Tinubu ineligible to be declared winner.This interpretation, I submit, is however, somewhat absurd, because, firstly, if the provision meant 25% of FCT, it would have stated so. In Buhari v Obasanjo 2005 13 N.W.L.R. Part 941 Page 53 at 205-206, the Supreme Court held inter alia thus: “In interpretation of a statute, once the words used are clear, ordinary meanings of the words in it are given to them”. Also see the case of Awolowo v Shagari & Ors (1979) LPELR-653(SC) per Atanda Fatai-Williams JSC (later CJN) where the Supreme Court held that: “The duty of the Court is to interpret the words that the legislature has used; those words may be ambiguous, but, even if they are, the power and duty of the Court to travel outside them on a voyage of discovery are strictly limited”. The Apex Court went on to state that: “….if the words of an Act admits two interpretations, they are not clear; and if one interpretation leads to absurdity and the other does not, the Court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretation”. I submit that the interpretation of 25% of the votes cast in FCT as a must leads to an absurdity, and as such, must be rejected.
Secondly, insisting that the provision means 25% of Abuja specifically, confers some kind of special status on FCT which the other States of Nigeria do not have, since no particular State is mentioned for the 25% spread, just as long as it is two-thirds of all the states. Section 299 of the Constitution, states inter alia that the provisions of the Constitution shall apply to FCT as if it were one of the States. This provision was confirmed in the case of Ibori v Ogboru & Ors 2005 6 N.W.L.R. Part 920 Page 102 at 116 where the Court held inter alia that: “In other words, the Federal Capital Territory is to be treated like a State; and it is not superior or inferior to any State in the Federation”. A conclusion that a Candidate, who for example scored the highest number of votes cast, and a 25% spread in all 36 States except Abuja cannot be the winner of an election, I submit, is not only inequitable and absurd, but makes the FCT superior to all the other States of Nigeria, if a requirement which isn’t necessary or applicable in all the other States of the Federation, is necessary or applicable there. This is unconstitutional (see Section 299 of the Constitution). It would also be strange that FCT which has only one Senator and two members of the House of Representatives, as opposed to the three Senators and eight or more House of Representative members per State (see Sections 48 & 49 of the Constitution), should suddenly have more stringent conditions and be elevated above and superior to other States for the purposes of voting. Another absurdity.
Consequently, if those asking for the interpretation were interested in hearing it from the side of the law, I would say that the interpretation of Professor Itse Sagay, SAN, that the provision means 25% in 25 States, is the most plausible interpretation. The reason is that, all the States and FCT which is taken as if it were a State, would be two-thirds of 24 States, and additionally FCT, bringing the total to 25 States. This makes good sense. Nevertheless, with the caveat that this certainly does not translate to 25% of Abuja in particular, just that it should be added to the two-thirds of all the States to include it as part of the spread of the States. How else would the drafters of the Constitution have referred to FCT to include it as one of all the States, if not by its name? To then conclude that, having to identify FCT to include it in the general spread envisaged by Section 134(2)(b) by mentioning its name, FCT, as it is not known as FCT State or Abuja State like the other States are known, for example as Oyo State, Anambra State, Kano State and so on through the 36 States, means that a candidate must score at least 25% specially in FCT, I submit, is an over-stretch.
Conclusion
Professor Sagay’s interpretation of Section 134(2)(b) of the Constitution, is certainly credible and tenable, more so than 25% of FCT which seems to be not only rather far-fetched, but unsupported by a community reading of Sections 134(2)(b) & 299 of the Constitution, amongst other provisions. See the case of Ibori v Ogboru & Ors (Supra). However, the confusion that this provision causes because of its clumsy drafting style, cannot be understated. This is yet another provision, that requires attention. Perhaps, a simple ‘inclusive of’ FCT instead of ‘and’; or clearly stating that FCT should be an additional State, would have been ideal.
Space constraints do not allow me to go into the more convoluted Section 134(3)(b) of the Constitution, the provision for a second election, which isn’t applicable to the recently concluded Presidential election, but is pari passu with Section 179(3)(b) of the Constitution, with regard to Gubernatorial elections, and could be an issue if the need for a second election in any of the States arises from the March 11 elections.
P.S.
The Inspector General of Police, Usman Alkali Baba, turned 60 last Wednesday. There has been silence on the fact that from that day, he ceased to be a serving Police Officer!
