The Die is Cast as Tribunal Begins Sitting

With the formal filing of their petitions at the Presidential Election Petition Court in Abuja to challenge the victory of Bola Tinubu of the All Progressives Congress in the February 25 election, the presidential candidates of the Labour Party, Peter Obi; Peoples Democratic Party, Atiku Abubakar; Action Alliance, Solomon Okangbuan; and Allied People’s Movement, Chichi Ojei, have set the stage for the tribunal to sit and address their grievances, Alex Enumah writes

In order to beat the 21-day deadline starting from March 1, 2023 when the Independent National Electoral Commission (INEC) declared the winner of the February 25 presidential election, the presidential candidates of the Labour Party (LP), Mr. Peter Obi; Peoples Democratic Party (PDP), Atiku Abubakar; Action Alliance (AA), Solomon Okangbuan; and Allied People’s Movement (APM), Chichi Ojei, last week formally filed their petitions at the Presidential Election Petition Court to challenge the victory of Bola Tinubu of the All Progressives Congress (APC).

The petitioners are praying for the tribunal to declare that Tinubu was not duly elected by a majority of the lawful votes cast at the election. They want an order mandating the INEC to retrieve the certificate of return issued to the APC candidate and issue a fresh one to them.

INEC Chairman, Mahmood Yakubu, had on March 1 declared Tinubu President-elect on the grounds that his party scored a majority of votes cast at the poll. In the results announced Tinubu polled 8,794,726 votes to emerge victorious. Atiku who came second scored 6,984,520 votes, while Obi scored 6,101,533 votes. Rabiu Kwankwaso of the NNPP came fourth with 1,496,687 votes.

Atiku argued that the non-compliance with the Electoral Act, 2022 INEC has rendered as invalid the election of Tinubu. He maintained that for any of the candidates in the February 25 poll to be declared winner, he or she must score 25% of votes cast in the Federal Capital Territory (FCT), adding that the failure of Tinubu to meet the said constitutional requirement invalidated his election.

He recalled that Prof. Yakubu had repeatedly assured the public that the February 2023 general election would be the best election ever, with the guaranteed use of the Bi-Modal Voters’ Accreditation System (BVAS) and real-time and direct uploading of the polling unit results to the commission’s electronic collation system and Results Viewing Portal (IReV) which were technological innovations in the electoral system that would ensure the transparency of the elections against all forms of manipulation.

It is the case of the petitioners that the bypass and non-use of the BVAS machines in the transmission of the accreditation data and polling unit results of the election fundamentally and substantially affected the integrity of the results announced by the 1st respondent for the 2nd and 3rd respondents and thoroughly discredited the process of the election.

Atiku is invoking the margin of lead principle to assert that INEC’s hasty announcement of Tinubu as the winner of the presidential poll is unconstitutional and without due process. Per the principle, when the margin of lead between the winner and the runner-up is less than the total number of voters affected by cancellations in their different polling units, the election is declared inconclusive and a re-run is organised. 

On his part, Obi in his petition, alleged that there were many irregularities, insisting also that Tinubu and his running mate, Kashim Shettima, were not qualified to contest the election.

He also alleged that the former Lagos State governor failed to win the majority of the lawful votes cast in the election, and just as he could not secure one-quarter of the lawful votes cast in the Federal Capital Territory (FCT), Abuja. He also alleged that the election was conducted in substantial non-compliance with the provision of the law.

The LP candidate, therefore, urged the court to either declare him as the president-elect, in the belief that he scored the majority of the lawful votes during the election, or alternatively, nullify the entire election and order a fresh election.

As part of the grounds for the petition, Obi and his party argued that Tinubu, “at the time of the (presidential) election, was not qualified to contest the election.”

They anchored this claim on the grounds that Tinubu “was fined $460,000 for an offence involving dishonesty, namely narcotics trafficking imposed by the United States District Court, Northern District of Illinois, Eastern Division, in case No:93C 4483″ between the United States of America and Tinubu.

Concerning the alleged non-qualification of Shettima, the petitioner cited his nomination for two separate constituencies – as Borno Central senatorial candidate and vice-presidential candidate for the whole of Nigeria in the same election cycle.

The petitioner also contended that Tinubu “was not duly elected by majority of the lawful votes cast at the time of the election.” He argued that Tinubu did not win the majority of lawful votes cast in each of at least two-third of the states of the federation and the FCT, Abuja. He added that the former Lagos State governor was not entitled to be declared the winner of the election having failed to score one-quarter of the lawful votes cast in the FCT in the election.

Amongst reliefs they are therefore seeking from the court includes; a determination, “that the 2nd respondent was not duly elected by a majority of lawful votes cast in the election and therefore the declaration and return of the 2nd respondent by the 1st respondent as the winner of the presidential election conducted on the 25th day of February, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.

A determination “that the return of the 2nd respondent by the 1st respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily requires the 2nd Respondent to score not less than one quarter (25%) of the lawful votes cast at the Election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja.

Besides, they urged the court to hold that Tinubu as at the time of the election was not qualified to contest the said election.

They, however, prayed that in the alternative:  “It may be determined that the 1st petitioner having scored the majority of lawful votes cast at the presidential election of Saturday, February 25, 2023, be returned as the winner of the said election and be sworn in as the duly elected President of Nigeria.

“An order directing the 1st respondent to conduct a second election (run-off) between the 1st petitioner and the 2nd respondent.”

“And in further alternative: That the election to the office of the President of the Federal Republic of Nigeria held on February 25, 2023 be nullified and a fresh election (re-run) ordered.”

Also, Obi put forward five prayers in court. Three of them are alternative prayers to the two main ones. In his two main prayers, he urged the court to declare Tinubu and Shettima unqualified to contest the February 25 presidential election.

Still under the first prayer, he urged the court to declare that Tinubu did not score the majority of the lawful votes cast in the election. He asked the court to declare that he satisfied the constitutional requirements to be declared the winner of the February 25 presidential election after the deduction of alleged illegal votes from Tinubu’s scores.

In the second main prayer, Obi urged the court to invalidate Tinubu’s victory due to his failure to win one-quarter of the lawful votes cast in the FCT.

When THISDAY raised issues with the consequential declarations, a source in the Obi’s legal team said his pleadings would be amended later within the period allocated for the litigation. He said the amendment would drop the request for outright cancellation of the election and replace it with his declaration as the winner of the elections. The source added that the strategy is to outsmart the INEC, which wanted to frustrate the case.

Another analyst who spoke with THISDAY said what Obi’s lawyers did with the declarations was to put both the tribunal and INEC in particular in the eye of the storm by coming to defend the integrity of the election it conducted in breach of your own enabling law and guidelines.

“I have had the opportunity to read the entirety of the Petition filed by Mr. Peter Obi and the Labour Party and I must not fail to commend the team of lawyers for the hard work they put into the exercise, within the shortest possible time despite the obstacles they faced in accessing relevant documents.

“My immediate take on the petition from a legal perspective is that the team decided to play safe by opting for more legally inclined grounds to anchor the petition, as against a more robust reliance on facts that would require more work to establish at the tribunal and may become subject to the court’s interpretation of whether those factual situations substantially affected the outcome of the election, which is usually an uphill task for a petitioner. 

“In my humble view, it was a bold and audacious move and tactics, as it puts pressure on the tribunal and makes it difficult for its members to circumvent, as any decision to the contrary would and could deal a serious blow to the moral fibre of the tribunal.

“If I may explain, the major grounds are: The non qualification of Tinubu and Shettima to contest the election, on grounds of breach of election guidelines as to conviction for dishonesty with respect to the forfeiture proceedings against Tinubu in the US and Shettima nomination as vice presidential candidate whilst still already a candidate for senate, meaning he had dual nominations. 

“The response of their lawyers to these two grounds for questioning the nomination of the two persons by the party viz-a-viz the position of the law, would determine clearly whether this ground of non-qualification would succeed, particularly with respect to Tinubu, as he is now constrained to bring more facts about the forfeiture proceedings into the public space in defence of his right to contest the election, or risk the tribunal reaching a conclusion that he was ab initio not qualified to contest. Interesting days are ahead.

“For me the strongest ground in the petition, is the second  ground which challenges INEC directly and their conduct of the election which alleges a breach of the constitution, the electoral act and the manual/guideline issued by INEC for the conduct of the election.

“This is purely a legal ground and I suspect greatly that the consistent reference to the Amazon Web Service which is the host of INEC’s cloud service, is the clincher, as any contradiction between what the proposed witness from Amazon that the lawyers intend the court to issue a subpoena, would damage INEC greatly. 

“This second ground is what I believe Obi referred to as challenging the process. On the whole, I foresee great and brilliant arguments by lawyers on both sides in the days to come.  I look forward to reading INEC, Tinubu, Shettima and APC’s responses. I also expect nothing less than brilliant rebuttal responses from their equally endowed team of lawyers.”

It is now up to the tribunal to do justice especially with the reactions that trailed the elections. Even the judges themselves are based in the country. Where they did not witness all that transpired, they read and watch them on videos and television stations.

While interesting days lie ahead, many Nigerians are looking forward to the judiciary to carefully look at the petitions and do justice to them.