Anxiety as Nigerians Await Court Verdict

As Nigerians continue to monitor proceedings at the Presidential Election Petitions Court where the petitions challenging the outcome of the February 25 presidential election,  Alex Enumah ponders whether they will witness a repetition of historical patterns or an unprecedented display of courage from the judiciary 

The moment many Nigerians have dreaded has arrived – a potential constitutional crisis over the 2023 presidential election. The last time Nigeria went through a similar path was in 1979, when then President Shehu Shagari of the National Party of Nigeria (NPN) faced a similar scenario. At that time, Shagari scored 25 per cent in 12 of the 19 states in the federation.

With the 1979 Constitution requiring him to score at least 25 per cent in two-thirds of the states, a crisis ensued over what should be considered as two-thirds of 19 states: 12 or 13?  The presidential candidate of the Unity Party of Nigeria (UPN), the late Chief Obafemi Awolowo had challenged the declaration of Shagari as the winner of the election. His main argument was that the president did not score 25 per cent in 12 of the 19 states of the federation. But the Supreme Court in its judgment, concluded that it would be “12 two-thirds”- meaning 25 per cent in 12 states and 25 per cent of two-thirds of a 13th state.

The same scenario is currently playing out following the petitions filed by the Peoples Democratic Party (PDP) and its presidential candidate, Atiku Abubakar, and the Labour Party and its candidate, Mr. Peter Obi. Among other reasons, they have asked the Presidential Election Petition Court (PEPC)) in Abuja to determine if the winner of that election met the ‘two-third’ requirement. 

The Chairman of the Independent National Electoral Commission (INEC), Prof. Mahmood Yakubu, had on March 1, returned Tinubu as the winner of the February 25 presidential election with 8,794,726 votes while Atiku and Obi reportedly scored 6,984,520 votes and 6,101,533 votes, respectively.

To be declared the winner of Nigeria’s presidential election, a candidate must also score 25 per cent of votes cast in two-thirds of the 36 states and the FCT. Two-thirds of the 36 states are 24.  

While Obi resoundingly won the FCT by securing 58.85 per cent, Tinubu secured only about 18.99 per cent and Atiku scored 15.5 per cent. This made the petitioners ask the PEPC to either declare them the winner of the election or nullify it and order a rerun.

Section 134 (2) says: “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: (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the 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.

“(3) In a default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be (a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and (b) one among the remaining candidates who have a majority of votes in the highest number of states, so however that where there is more than one candidate with the majority of votes in the highest number of states, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.”

INEC had in its defence, argued that Tinubu did not have to score 25 per cent votes cast in the FCT before being declared president. The electoral umpire further argued that by scoring 25 per cent of the valid votes cast in 29 states, Tinubu “has satisfied the requirement of the constitution to be declared winner of the presidential election, thus rendering the requirement of having 25 per cent of the valid votes cast in Federal Capital Territory unnecessary.”

It stressed that Nigeria’s Constitution confers the status of a state on the FCT (Abuja) “and ought to be recognised as one of the states of the federation.”

The FCT “beyond being the capital of Nigeria has no special status over and above the other 36 states of the federation to require a candidate in the presidential election to obtain at least 25 per cent of the votes cast in the FCT before being declared winner of the presidential election,” the electoral umpire explained.

Inferring the intentions of the framers of the Nigerian Constitution, INEC said a presidential candidate is expected to have “a national geographical spread and broad acceptability from the Nigerian electorate and not meant to bestow a veto power on the FCT or its electorate over the election of a candidate at a presidential election who has otherwise scored one-quarter of the votes cast in two-thirds of the 36 states except in the FCT.”

 It is against the background that Tinubu asked the PEPC that removing him from office on account of his failure to score 25 per cent in the FCT could lead to a collapse in Nigerian law and order. While acknowledging not receiving up to 25 per cent of the votes cast in Nigeria’s capital, he said that this was insufficient to overturn his victory as proclaimed by INEC.

As part of his arguments in two sets of final written addresses obtained by journalists, the president asked the court to disregard the claims by Atiku, Obi and their parties. He noted that acceding to the request of the petitioners could “lead to absurdity, chaos, anarchy and alteration of the very intention of the legislature.”

Tinubu, through his lead counsel, Chief Wole Olanipekun (SAN), stressed that the two petitions seeking the nullification of his victory are not only novel but not familiar with the country’s electoral laws. He argued that the courts have always been careful about giving extreme interpretations of the Constitution that could spark chaos. He added that he would still have won the election even if he didn’t score anything in Abuja and one other state.

“Our courts have always adopted the purposeful approach to the interpretation of our constitution, as exemplified in a host of decisions. In concluding our arguments on this issue, we urge the court to hold that in any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor a ‘royal’ voter; and that residents of the FCT do not have any special voting right over residents of any other state of the federation, in a manner similar to the concepts of preferential shareholding in company law,” he concluded.

Compared to previous election disputes since the enthronement of democracy in 1999, many Nigerians believe that the current petitions are the most strenuously argued allegations of constitutional breach in an election.

Many have implored the court to display unprecedented courage that would end the “go to court” threat to complainants.