Election Petitions: Between Public Opinion and Judicial Process

Two Cardinal Principles 

There are two cardinal principles which a large number of non-Lawyers seem to be unaware of, while many of our learned colleagues have simply chosen to ignore them and throw caution to the wind, particularly because some of them may be peeved with the outcome of the elections: 1) the court of public opinion, is not a court of law; and, 2) what may be considered to be immoral or distasteful by society, is not necessarily unlawful. The second principle was one of the first things we were taught in Jurisprudence, as Law Students – if my memory serves me correctly, it was a topic titled ‘Law & Morals’. For example, while stealing is both immoral and unlawful, marrying a mother and a daughter may be immoral, even abominable, but it doesn’t qualify as a criminal offence. And, therefore, those using the court of public opinion and INEC’s alleged unkept promise to showcase their dissatisfaction with the just concluded 2023 general elections, purposely riling the people, inciting disaffection, resentment and hatred amongst the various ethnic groups that form Nigeria, creating an atmosphere of unease and disharmony around the country, should be cautioned that this inflammation of the polity, is detrimental to us all as a nation – it is simply driving us further apart and causing too much bitterness. 

In our society, our dispute resolution mechanism is the judicial process and not the Court of public opinion – see Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). If we want our country to flourish, the only reasonable option open to us is to await the outcome of the election petitions, particularly those concerning the Presidency. Making veiled threats against the Judiciary before the petitions are even adjudicated upon, to intimidate and force them into deciding one way or the other, and attempting to bully and subdue those who do not share your political choices, is absolutely unacceptable. In the case of the latter, see Sections 39 and 40 of the Constitution on freedom of expression/hold opinions and association. 

Clairvoyance & Predicting the 2023 Presidential Election: Nostradamus/‘Nostrakepsy’

About six weeks before the February 25th, 2023 Presidential election, our columnist, Stephen Kola Balogun (My Brief by SKB) asked me which candidate I thought would be victorious at the polls, and I responded that I didn’t see a clear path to victory for any of the three frontline candidates. I actually thought it could go into a runoff election, and so, SKB and I debated about the clumsy provisions of Section 134(3) of the Constitution in case we had to cross that bridge. I felt that each of the leading parties was carrying its own baggage, which stood as an impediment to each party’s victory. 

I gave my general predictions, on how I thought the election would go.

1) LP

For the Labour Party (LP), it was obvious that it would win the South East; a good chunk of Lagos (because of the non-Yoruba population, comprising of a large number of Igbos amongst others, elites and youths); Edo, Delta and the Northern Christians who are spread across different States principally Southern Kaduna, Plateau, Benue, Taraba, Nasarawa. I saw LP as having its base in the South East and amongst the Christians; but, without the South West, North West, North East and parts of the North Central, it would fail to secure the requisite national spread. 

2) PDP

As for the People’s Democratic Party (PDP), it had weakened – split up into three parties – PDP, LP and NNPP; the fact that the LP candidate who was PDP’s Vice Presidential candidate in the 2019 election had left to go it on his own, meant that PDP no longer had a stronghold in the South East; ditto for Kano, since Senator Rabiu Kwankwaso had also quit PDP. But, I predicted that Kano would be split among NNPP, PDP and APC (All Progressives Congress). However, I thought that the PDP would take Adamawa, Bauchi, Akwa Ibom, possibly Cross River (which had always been a PDP State, till the incumbent Governor defected to APC); and there would be a struggle for the North West and some of the North East with APC. Because of the disagreement with the G5 Governors, I didn’t expect the PDP to win the Presidential election in any of their States, translating to a redistribution of the votes in the G5 States between LP and APC (two of the G5 States were in the South East anyway, and would go to LP, while that of Oyo State would go to APC; I knew that Rivers and Benue wouldn’t go to PDP, I had a feeling that both States could be shared between APC and LP). 

3) APC

The APC candidate had serious struggles to contend with. Not only would the stigma of his Party’s non-performance these past eight years affect his chances at the polls, the Party leadership in Government seemed to be working against him. I had written an editorial referring to the unnecessary lingering fuel shortage and currency confiscation/crisis in the guise of a currency redesign policy, as anti-party activities orchestrated to turn the people against the APC Presidential candidate and make him ‘lu le’ (lose) at the polls! The President-elect and other APC candidates had to distance themselves from APC’s bad governance, and the fuel shortage and currency crisis, as there was a backlash from the people. But, I predicted that APC would win all the South West States, Kwara, Kogi, Borno, Yobe, Kaduna, Katsina, and Gombe (while sharing the aforementioned Northern zones with PDP). Interestingly, I expected APC to get at least 25% each in Ebonyi and Imo State, because I thought that the Governors of those States would try to prove to their party, APC, that they were had gained some converts (even though I knew that LP would win South East predominantly). Of course, I also looked at the number of voters, in the various regions, while I thought FCT would be split among PDP, LP and APC.

When I finished my predictions, SKB commented that what I had predicted/analysed showed a better path to victory for APC. I disagreed with him. I maintained that it was unclear.

The election came and went; and while I wasn’t as accurate as the renowned clairvoyant, Nostradamus, some of ‘Nostrakepsy’s’ (my humble self) predictions came true! However, at the end of the Presidential election, contrary to my prediction of a possible runoff, INEC declared a winner – Senator Bola Ahmed Tinubu of APC. 

Electronic Voting

In the period leading up to the enactment of the Electoral Act 2022 (EA), many imagined that this new legislation would somehow change the whole electoral process, and make it fully electronic. This was simply wishful thinking! They did not expect that, apart from the better accreditation device (BVAS, instead of the card reader), the electoral process would more or less, remain the same – manual. A perusal of  the EA shows that it has not removed the manual processes from the conduct of our elections, since by virtue of Section 60(1) – (5) of the EA, ballot papers are still used and counted, the number of votes scored by candidates are entered into a Form by POs, co-signed by candidates or party agents, making the signed Forms available to the necessary parties and announcing results are all done manually. So, what would even be uploaded via the Result Viewing Portal (IRev), would still be derived from a manual process (see Sections 60-74 of the EA generally).

With all the debate about electronic voting in 2021, and the back and forth between the National Assembly and President Buhari, Nigerians failed to read the ‘small print’ of the much-serenaded EA properly! In a 2018 editorial, I had alluded to the fact that the provisions of the then Section 52(2) of the EA 2010 concerning electronic voting, were rather wide and non-specific, and the proposed amendment thereto was clumsy. On its very first outing, the EA has proven itself to be somewhat lacking, and has left room for a floodgate of confusion to be opened. For one, Section 152 of the EA, the interpretation/definition clause, fails to define electronic voting specifically and what the process entails. On this, a further amendment is required. 

One of the main objects of outrage and controversy consequent upon the 2023 general elections, was that INEC failed to upload the results electronically from the polling units, using the IRev. But, the truth of the matter is that nothing in the EA actually makes it mandatory for INEC to upload results via IRev, and there are no consequences for failure to do so in the EA. Section 78 of the Constitution empowers INEC to register voters, and conduct elections (also see Item F 15 Part 1 Third Schedule to the Constitution). See the case of Alagbaoso v INEC & Ors (2023) LPELR-59702 (SC) per Helen Moronkeji Ogunwumiju JSC on the powers of INEC to organise, undertake and supervise elections; NDP v INEC 2013 6 N.W.L.R. Part 1350 per Olukayode Ariwoola JSC (now CJN). Section 50(2) of the EA clearly provides that voting at an election and transmission of results under the EA, shall be in accordance to the procedure determined by INEC. This obviously makes it lawful for INEC to use any procedure it deems fit, not just for voting, but for the transmission of results (which is also part of undertaking or conducting the elections). Section 60(4) & (5) of the EA further confirms the latitude given to INEC, for the Presiding Officer (PO) of a polling unit to announce and transfer results in a manner prescribed by INEC. 

When I gave the election petitions a fleeting look (since the matter is sub judice, it’s not proper to discuss them in depth), I was rather amazed to read averments which placed emphasis upon the fact that assurances were given by INEC that results would be transmitted electronically in real time, and the failure of the Commission to honour its word. I read newspaper reports in Punch and Tribune, published on February 22 and 23 respectively, in which the INEC Chairman stated at a meeting with international election observers, that election results would not be transmitted electronically due to the fear of hacking, but that BVAS would be used to photograph the result sheets which would be uploaded into IRev. 

As much as those who may have it in for INEC may not want to hear it, we all know that what is of importance in law are the provisions of the law, and not promises or assurances! What is therefore relevant, is whether INEC breached the EA by not electronically uploading the raw results immediately upon voting through IRev. At best, INEC not keeping to its word, raises a moral issue of reneging on its previous assurances – the aforementioned issue morals, therefore arising here. While not using IRev to show election results in real time may have been annoying,  the provisions of the EA referred to above, do not make not uploading results to IRev, unlawful. 

Section 50(2) of EA doesn’t  provide for electronic transmission of results, only for transmission in accordance with a procedure determined by INEC. This means that electronic transmission isn’t mandatory, and therefore, there’s no consequence provided in the EA for the non-usage of this process. Where then, is the noncompliance? What would make its non-usage, a viable ground of noncompliance with the EA in an election petition? Nothing. This is yet another issue in the EA, that requires attention. It is however, unlikely that this omission can vitiate the election results, or can even be considered to be an election malpractice/noncompliance, unless it can be proven that the results recorded in the result sheets were manipulated, and such manipulation must be substantial, to substantially affect the results of the election – Section 135(1) of EA. In the case of Maku v Al-Makura & Ors (2016) LPELR-48123(SC) per Onnoghen JSC (as he then was), the Supreme Court held inter alia that, where an election petition alleges noncompliance with the EA in an election, the Petitioner has the duty of proving that the noncompliance substantially affected the result of the election; also see Wike v Peterside (2016) LPELR-40036(SC) per Kekere-Ekun JSC where the Apex Court held that a Petitioner complaining of noncompliance with the EA 

“must prove it polling unit by polling unit, ward by ward, and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with, as a result of the noncompliance”. 

Conclusion 

It appears that in the case of not using IRev to transmit election results in real time is not fatal to the elections, because under the EA, INEC has the power to transmit results as it determines. Therefore, the issue of noncompliance with the EA in this regard, cannot arise. Maku v Al-Makura & Ors (Supra). And, even if the 2023 INEC Guidelines provided for the use of IRev, it goes to no issue, as the guidelines are inferior to the EA, which doesn’t so provide. In Jegede & Anor v INEC & Ors (2021) LPELR-55481(SC) per Agim JSC, the Apex Court held inter alia that: “Failure to obey the directive or instruction of the 1st Respondent (INEC) in the said Regulations or Guidelines, cannot be relied on as a ground for an election petition to invalidate the election…..because such failure is not contrary to the EA 2010…..Section 153 of the EA 2010 clearly made regulations, guidelines and manuals, subject to the provisions of the EA”. This means that, even if INEC failed to follow its guidelines with regard to electronic transmission of results, as long as this failure didn’t breach the provisions of the EA, it is of no moment. It appears that the Petitioners may have to rely on the more solid grounds of their petitions, not the issue of the failure to transmit results electronically/use IRev in real time. 

Going forward, hopefully, some of these observations will be taken into consideration in making amendments to the EA, to make for a better electoral process.