PEPT: Tinubu Clears the First Legal Hurdle
At long last, the Presidential Election Petition Tribunal (PEPT) finally delivered its much-awaited judgement in the epic legal battle over the February 25, 2023 Presidential Election. After what appeared to be an interminable legal process, the PEPT, without dissent from any of the five learned Justices of the Court of Appeal, declared President Bola Ahmed Tinubu, GCFR of the All Progressives Congress (APC) as the rightful winner of the election, in a judgement which many found to be sound, and some others, not so sound. Legal Pundits George Oguntade, SAN; Norrison Quakers, SAN; Ebun-Olu Adegboruwa, SAN; Joseph Otteh, Kenneth Ikonne and Felix Eghie Sugaba give their critique of the judgement which the opposition parties have already indicated that they will exercise by constitutional right and challenge at the Apex Court
Tribunal Displayed Great Industry and Admirable Erudition
George M. Oguntade, SAN
APM
The APM Appeal which was grounded on what clearly constituted a pre-election complaint, was unarguable ab initio and manifestly frivolous. It really ought not to have been brought, and amounted to a reprehensible waste of valuable judicial time. It was not surprising that the Tribunal had no difficulty in dismissing the Appeal. The surprise was that the Tribunal did not proceed to award substantial punitive costs against the proponents, to reflect the gravity of the abuse.
PDP & LP
On the Atiku and Obi Petitions, I believe that it was a fantastic idea that it was televised live, and the masses could easily follow the facts, evidence and reasoning of the Justices. This, in my view, was effective in countering the usual social media misinformation and misinterpretation that would have followed a closed hearing, and also engender more confidence in the Judiciary by the general public.
Regardless of the final outcome, I believe the Tribunal displayed great industry and admirable erudition, in dealing with the various issues of law that arose for determination. Whilst some of the issues of law had been dealt with in previous cases and the Tribunal was simply guided by and applied the principle of stare decisis, novel issues of law came up for the first time and their decision on these can only serve to enrich our jurisprudence.
Novel Issues
The novel issues are on matters arising from the interpretation of Section 134(2) of the Constitution as amended and Section 4(5) of the First Schedule to the Electoral Act of 2022.
Their decision regarding the Constitutional interpretation of the meaning of “two-thirds of all the States of the Federation AND the Federal Capital Territory, Abuja” is certainly as momentous and earth shaking as the September 1979 Supreme Court Judgement in the case of Chief Obafemi Awolowo v Alhaji Shehu Shagari on what constituted two-thirds of 19 States! The Supreme Court in that case had to engage and decide on the dynamics of political arithmetic, as propounded by the late Chief Richard Osuolale Akinjide, SAN. This time around, the expected Appeal will likely focus on dialectics of the English language on the construction of the word “AND” as used in Section 134(2) of the Constitution. The outcome will be interesting. I believe the resolution will ultimately centre on a holistic construction of the Constitution in determining the legislative intention.
The other knotty point of law is the statutory requirement that witness statements (of both ordinary and subpoenaed) must be filed alongside the Petition within the 21 days statutory period. Should this provision be mandatory and immutable, or should the constitutional requirements of fair hearing dictate that time should be extendable in appropriate situations? The argument I believe, will centre around the difference between technical and substantial justice, regardless of the fact that Elections Petitions are sui generis and the time provisions are scrupulously adhered to. The sacrificial lambs may ultimately be the Lawyers who filed their witness statements out of time (perhaps, due to reasons outside their control), despite awareness of the attitude of the court in construing time provisions in the Electoral Act. Either way, our jurisprudence stands to be greatly enriched.
George M. Oguntade, SAN, Lagos
PEPT Decision: There Should Be No Emotions or Sentiments
Norrison Quakers SAN, FCArb
Introduction/Preamble
The independent National Electoral Commission (INEC) as the body constitutionally and statutorily empowered to organise elections, sometime on the 25th of February, 2023 organised inter alia the Presidential Election and thereafter, declared Bola Ahmed Tinubu of the All Progressives Congress (APC) as winner of the election on the basis of having scored majority of the lawful votes cast at the election. The election was keenly contested, and as expected, the outcome of the election was challenged by way of institution of election petitions by three of the candidates that participated and their respective political parties.
The Presidential Election Petition Court (PEPC or PEPT), having concluded the trial, delivered judgement in the consolidated petitions on the 6th of September, 2023, dismissing the petitions for lacking in merit.
Salient Facts, Applicable Law and Case Law
By the provision of Section 285(5) of the 1999 Constitution “as amended” and Section 132 (7) of the Electoral Act, 2022, they jointly state that a petition must be presented within 21 days and by paragraph 4(5), of the Electoral Act 2022 in presenting the petition, it must be accompanied by a written witness statement on oath, which must be filed within the time frame allowed. Incidentally, in the consolidated petitions, the Court was saddled with witness statements on oath which were filed outside the statutory and constitutional time frame, resulting in the processes being struck out. The following cases amongst others have laid this issue to rest. ARARUME v INEC (2007) 9 NWLR (PT. 1038)127; APC v MARAFA (2020) 6 NWLR (PT. 1721) 383.
It is instructive to note that, the election of the candidate of the APC was also challenged on grounds bordering on non-qualification of the candidate at the time of the election, that the election of the APC candidate was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022, and that the APC candidate was not duly elected by majority of the lawful votes cast at the election. These grounds come within the purview of Section 134(1)(a), (b) & (c) of the Electoral Act 2022 and Section 137(1)(d) of the 1999 Constitution, “as amended”.
The Judgement of the Court on the Consolidated Petitions
The following issues can conveniently be distilled from the judgement:
1. The challenge of Peter Obi’s candidature of Labour Party by the APC is an internal issue of the labour Party, which can only be ventilated by a member of the Labour Party.
2. Allegation of double nomination of the Vice-Presidential Candidate of the APC, Senator Kashim Shettima, is a pre-election issue within the confine of his political party, implying that it is an internal matter of the party.
3. The non-qualification of the APC candidate under Section 131 of the 1999 Constitution “as amended” was resolved in favour of the APC and its candidate. To the effect that he was qualified to contest for the office of the President of the Federal Republic of Nigeria.
4. Section 134 (2)(b) of the 1999 Constitution in relation to the FCT, should be read in conjunction with Section 299 of the Constitution giving the FCT a toga of a State, and not a privilege above or higher than other States of the Federation. In other words, it is not mandatory for a Presidential candidate to garner 25% of the votes of the Federal Capital Territory before being elected as the President. All that is required is 25% of the 36 States of the Federation.
5. The allegation of dishonesty flowing from the forfeiture of $460,000 to a Court in America alleged as proceeds of crime, was resolved in favour of the APC and its Candidate, on the grounds that the forfeiture is a civil forfeiture, and no crime was disclosed. For this allegation to bar or disqualify a candidate seeking elective office into the Presidency there must be a conviction.
6. The Petitioners were unable to place credible evidence before the tribunal to be declared the winner of the election, by leading evidence of having majority of the lawful votes garnered at the election.
7. No evidence was adduced for corrupt practices and non-compliance with the provisions of the Electoral Act, particularly as regards over-voting.
8. The Allegation of dual citizenship of the APC candidate was not part of the pleaded facts of the Petitioners, at the time of the presentation of the petition.
9. The Petitioners were unable to discharge the evidential burden of proof placed upon them.
10. The petitions were unmeritorious, and were dismissed accordingly.
What is the Likely Impact on the Polity and Confidence of the Masses in the Judiciary?
The crisis of confidence and the challenge and/or distrust against the Judiciary, is the storm generated by the digital generation many of whom are followers of the candidate of the Labour Party, who in my humble opinion are pained rightly or wrongly that the candidate they expected to win lost. As a country, we now have three generations; the analogue generation gradually phasing out, the high-breed generation comprising of persons infused with analogue exposure and digitally enlightened, while the third generation is the digital generation who are mostly youths and some of whom are participating in the electoral process for the first time in this election of 2023.
I believe we owe the Nigerian masses a duty of explaining and enlightening them, on the outcome the election. Has the judgement occasioned miscarriage of justice in any way or manner whatsoever?
Let’s examine some of the issues:
1. The provisions of the Evidence Act Sections 131, 132 & 133 states that the burden of proof is on the person who asserts the existence of a fact to prove same on a balance of probability sequel to Section 134. The Petitioners claim respectively, to have won the election respectively. Did they place credible evidence before the tribunal in proof of their respective claim? All political parties at the counting of votes sequel to Section 60 of the Electoral Act 2022 empowers presiding Officers at polling units to make copies available to candidates or their agents including the Police, duly signed, stamped and counter signed result sheets. This is a statutory provision that exists to the benefit of political parties, but, regrettably this evidence was not placed before the Honourable Court resulting in the Court stating thus:
“It is clear that the petitions from the onset, were engaged in a wild goose chase and inquisitorial adventure.
The petitioners did not understand the explanation of the first Respondent, or were just fixated on their belief that they won the election without any cogent and credible evidence before this Court.
Were they expecting the court to go and gather evidence from the street or the market? Or to be persuaded or intimidated by threats on social media. That is not the way of the Court.” …..Justice Monsurat Bolaji-Yusuf JCA.
It is instructive to note that, this decision merely restated the law. I have carefully read the decision of the Supreme Court in the case of ADEBOYEGA ISIAKA OYETOLA & ANOR. v INEC & ORS unreported decision in APPEAL NO. SC/CV/508/2023 delivered on the 9th of May, 2023 and the following issues have been distilled for consideration:
(1)On transmission of results to the IREV whether mandatory. The court held thus: “It is clear from the provisions of the Regulation 38(i) and (ii) that the collation system and result viewing portal are different from the National Electronic Register of Election Results. The Collation system and result viewing portal are operational during the election as part of the process, the National Electronic Register of the Election Results is a post election record, and is not part of the election process. As I had held therein, there is no part of the Electoral Act requiring presiding officer to transmit the accredited voters in a polling unit or the polling unit result during election to the INEC data base as part of the election process….. Therefore, the case of the Appellants that the presiding officer was bound instantly or on the spot during election to transmit the number of accredited voters and results of the election in the BVAS to the INEC data base or back end server and that in the counting of votes cast at the polling unit the collation of the results of the election, it is the number of accredited voters, votes cast at the polling unit, the collation of the results of the election, it is the number of the accredited voters, votes cast or results transmitted directly from the polling units to the data base that should be taken into account, has no support in any of the provisions of the Electoral Act or INEC Regulation (supra). There is no such duty on the presiding officer.”
(2)On educational disqualification, the alleged awarding institution must disclaim the authenticity and validity of the certificate of qualification being relied upon by the candidate. Which can only be discharged where the school is subpoenaed to give evidence.
(3)To determine over-voting, a party must produce either the original or certified true copies of INEC documents, the BVAS machines, the register of voters and Form EC8A. The court held that: “it is glaring from the provisions of Regulation 48(a) of the INEC Regulations and Guidelines and the Electoral Act that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the register of voters, BVAS and the polling unit result in form EC8A and that the evidence required to prove that there was over-voting, are the record of accredited voters in the BVAS and the polling unit result in form EC8A”.
Conclusion
It is imperative to draw the curtain on this brief expression on the vexed issue of societal perception of the judgement of the Court, by referring to the dictum of Hon. Justice Niki Tobi JSC (of blessed memory) in the case of ATIKU ABUBAKAR v MUSA YAR’ADUA (2008) 19 NWLR wherein his lordship stated thus:
“Courts of Law do not give judgement according to public opinion or to reflect public opinion, unless such public opinion represents or presents the state of the law. This is because the Judge’s clientele is the law, and the law only. Public Opinion is in most instances built on sentiments and emotions. Both have no company with the law. They are kilometres and kilometres away from the law. The pulse of the Nigeria’s public opinion, if I can feel it in this, is to allow the appeal on the speculation or should I say belief that the election was irregularly conducted in violation of the Electoral Act. The concern of the court, is whether the Appellants proved their case”.
The above statement of the late jurist lucidly addresses this issue of perception, which is rooted in the saying that pleadings and evidence win cases, and not emotions and sentiments.
Norrison Quakers, SAN, FCArb, Constitutional Lawyer, Lagos
Presidential Election Verdict: Time for Sober Reflection
Ebun-Olu Adegboruwa, SAN
The verdict of the Presidential Election Petition Court (PEPC) was not totally unexpected, given the stark realities facing us as a nation and the state of the law. The principles of presumption of regularity of elections and that of substantial conformity, make it extremely difficult to prosecute elections successfully.
In this particular case, the burden placed upon the Petitioners in order to upturn the election, was practically insurmountable. To make matters worse, INEC practically fought the Petitioners to a standstill, as if it was an interested party in the whole process.
I honestly do not think that anyone expected a different verdict from what was delivered in Abuja last Wednesday, particularly the Lawyers. The tension was completely unnecessary.
Unbundle INEC
This is why we emphasise always that the focus of anyone hoping to birth a true change in our electoral history, should be on the electoral umpire. Without first unbundling INEC to make it more independent, non-partisan and effective, anyone declared “winner” will most often coast to victory in the election tribunal.
Last Wednesday’s verdict should be a reason for sober reflection by all, especially for the parties in court, their Lawyers and all lovers of democracy. The petitions could have been decided purely on points of law, and within few days of the election.
There can be no real victory in the resolution of the legal issues by the court, when the fabric of our democratic engagements seem to have been hijacked and compromised. Part of the lesson in this process is for us to go back and review the electoral process, and the litigation following it. INEC as it is presently constituted, cannot birth any credible election in Nigeria.
In all, maybe there was too much expectation that the status quo would be upturned, whereas, many of the principles of law canvassed, had long been settled by the Apex Court.
While encouraging all parties to continue in towing the paths already defined by law for the ventilation of grievances, we owe Nigeria an urgent duty to dismantle INEC, urgently.
Ebun-Olu Adegboruwa, SAN, Lagos
PEPT Judgement Retrogressive, and Derails Hope for Credible Elections in Nigeria
Joseph Otteh
The Sept 6, 2023 Presidential Elections Presidential Tribunal (PEPT) Judgement, is, respectfully, hugely disappointing and will damage efforts to ensure that, going forward, elections in Nigeria are better conducted and produce credible and fair outcomes.
We take no position on whether the candidate whose election was challenged, was legally qualified to contest for the office of President of Nigeria. We note only that the PEPT simply “buried its head in the sand”, using exponential doses of legal technicalities to defeat public expectations that it would actually interrogate the facts of the February 25th Presidential election process.
The PEPT discountenanced substantial amounts of testimonies and evidence, simply by saying they were either filed out of time, or were introduced using wrong procedures. It is deeply unfortunate that in the 21st century, Nigeria’s Judiciary is applying principles better suited to inanimate objects than to living things and living processes which are inherently dynamic in nature, and are influenced by the ebbs and flows of human nature. The question the PEPT’s judgement raises, is whether Nigeria’s electoral jurisprudence should keep its focus on the merits and substance of electoral complaints, or turn on the outcome of a blistering and exacting scrutiny of whether electoral complaints adhered to all requirements of all legal rules. Without a well-reasoned philosophy of electoral jurisprudence, Nigerian courts are returning outcomes that are difficult to reconcile with our national aspirations for much better electoral systems.
Better Approach to Election Petitions
The PEPT justified its austerely legalistic approach to the petitions on the ground that election petitions are sui generis forms of proceedings and, for that reason, required procedural perfection and rigidity. As we have said elsewhere, sui generis proceedings have no inherent or organic need to require procedural rigidity. On the contrary, election petitions are matters of high public interest, and deserve a liberal, flexible and merits-centred approach to their resolution, not sub-serving, diversionary legalisms. The merits-centred approach enables courts engage with the real merit and substance of matters of very high public interest, and in an election matter, that interest lies at the very heart of democratic governance. Complaints about electoral malpractices – rigging, violence, fraud, voter suppression, interference with ballots, results falsification and corruption – raise issues that extend well beyond the personal rights or interests of the petitioners in an election, or their electoral fortunes. Their grievances implicate wider public interests in the integrity of the electoral process, and the sustenance of representative/constitutional democracy. The core purpose of adjudicating electoral petitions is, (eligibility questions apart), to enable a court establish who was validly elected into a political office by voters. If courts are not resolutely committed to playing this role, they can easily get entangled in a web of tempting distractions. The PEPT judgement represents, we respectfully submit, the court missing its way, losing sight of the big picture, by focusing instead on miniature, subordinate details of form.
Given the PEPT’s narrow focus, it drew blank on, and missed important contexts which ought to have played a major part in informing the resolution of the petitions. It did not take account of Nigeria’s chequered history of badly run elections, vote manipulations and fraudulently contrived results; it did not factor in the long struggles to reform Nigeria’s electoral process, and the reforms introduced to reduce electoral fraud/malpractice, and how BVAS and IREV played into that strategy. It also failed to acknowledge the importance of transparent elections, and of maintaining the integrity of votes cast at elections; it did not consider how the introduction of technology (such as BVAS and IREV), was geared towards improving electoral transparency and increasing public confidence in election outcomes. Instead, the PEPT’s focus simply narrowed down to the legal mandatoriness of using the new IREV technology. The PEPT treated the IT reforms intended to remedy past electoral malpractices as though they had no electoral value or purpose of their own, reducing them to sterile, discretionary third-wheel additions to the electoral process.
Not taking account of that social and political context, it was easy for the Court to reduce the huge significance of its assignment, to simply the task of nitpicking the legal forms and procedures through which the election was challenged. With granular precision and proficiency, the court struck out, bit by bit, the elements of the cases presented by the petitioners, based on one procedural miss or another, hardly looking over into their merits, and when it did, it was mostly to override them with some argument of their legal inadequacy.
The Judgement also ignored the disrespect with which INEC treated its responsibility, both to the nation and the court itself. Right before the court, INEC played fast and loose with its obligation to provide sought-for documents to petitioners who demanded the materials to put forward their cases. Yet, the Court gave INEC a free pass, letting it off without as much as a tap. But, so readily bought into INEC’s narrative justifying everything that happened on election day.
Conclusion
The PEPT Judgement, will not predictably win judiciary sceptics over. Instead, it will further alienate the Judiciary from the people they serve, and extend the existing credibility gap between people and courts. If the petitioners should deserve to lose the cases they brought to court, let it be clear first, that justice was served them, and that they had their day in court.
Joseph Otteh, Executive Director of Access to Justice (A2J)
My Reservations on the PEPT Judgement
Kenneth Ikonne
Witness Statement on Oath
First, on the holding that the witness statement of an unwilling subpoenaed witness must be front-loaded and filed along with the petition. The Court of Appeal was merely enacting a factual impossibility, which has invariably resulted in a miscarriage of justice with the resultant striking out of critical oral and documentary evidence of petitioners’ witnesses.
The petition must be filed, within 21 days of the declaration of the result of the election. Within those 21 days, the panel which will issue and sign the subpoenas wouldn’t even have been inaugurated. How then, do you compel the INEC Chairman or REC to donate to you a witness statement on oath against his wish, without a subpoena ordering them to do so?
The applicable legal maxim in the circumstances is les non cogit ad impossibilia, meaning “the law does not compel the impossible”! Also applicable is the maxim, impotentia excusat legem”, meaning “the law does not punish a person for not doing what he lacked power to do”: SEE HALSBURY’s LAWS OF ENGLAND, 4th Edition Reissue, Volume 44(1), paragraph 1448, page 884.
Electronic Transmission of Results
Secondly, the policy implication of holding that INEC is under no obligation to transmit results electronically, signals a return to the era of collation fraud and untrammelled impunity! The better view would have been that even though a duty exists to transmit results electronically, it had not been established by the Petitioners that the failure to do so substantially affected the result of the election in this instance! The implication of the judgement on the point, is that all the innovations and checkmates against electoral fraud contained in the 2022 Electoral Act have been capriciously cast into the dustbin of history!
It is on these bases therefore, that I think, in my humble view, that the judgement is largely unphilosophical. There should have been a more creative and innovative way of dismissing these petitions, in order to retain the reverence of the watching public. The Learned Justices of the Court of Appeal, merely failed to employ the law to advance the electoral reforms embodied in the new innovations incorporated in the new Electoral Act!
Kenneth Ikonne, Lagos
PEPT: How Far Can We See?
FEP Sugaba
«And the Lord said unto Abram, lift up now thine eyes, and look from the place where thou art northward, and southward, and eastward and westward: For all the land which THOU SEEST, to thee will I give it, and to thy seed forever.” Genesis 13:14-15.
In our quest for power and other spoils of office, we act and behave as if we are at war with people of another country. We employ whatever means to achieve our desired goals. It doesn’t matter if those means, engulf and set the entire country ablaze. Karl Maier`s book on Nigeria, This House Has Fallen, Nigeria in Crises (Westview Press 2000), captured it vividly. It says about Nigeria, “There is a complete split between power and moral right, and unless you have access to power, you have nothing. Everyone is seeking instant gratification. No one is prepared to think of the future. Nigeria is the land of no tomorrow”.
Indeed, Nigeria is the land of no tomorrow, not because we are deprived of natural resources, not because the weather is unfavourable, not because we are not hard working, not because we are not educated, not because we are not created by God, but because we have simply refused to see far. No man goes beyond how far he can see. A nation without vision, condemns herself to doom. As intellectually endowed as Nigerians are, one would expect them to see afar.
Let nobody be surprised by the computer-generated textbook called judgement, that was read to us by the Court of Appeal on the Presidential election. It was, predictably, put most appropriately by a prominent Bishop in a trending video. He says, “The Judges in the tribunal are not from Singapore, and didn’t fall from heaven. They are Nigerians, as corrupt as all of us. So, that we will be realistic in our expectations”.
The Court says we should see no evil, hear no evil or speak evil of Tinubu, APC and INEC. They make no mistakes, commit no offence. Their words and actions are supreme. No blemish, no questions. No room for amendment. No room for improvement. No discussion. That is how far we can see.
We are to accept that INEC can violate its own rules, guidelines, regulations, shifts the goal posts right or left, backward or forward, at its whims and caprices to favour its chosen ones. In other words, INEC pronouncements are not to be regarded and believed. Its regulations and guidelines are not casted. WARNING: Do not take INEC seriously. Period. If you do, you pay the price.
As Chairman of APC, Adams Oshiomhole told Nigerians that even if it remained only him and Buhari, Buhari would win his second term. With confidence he pointedly said, “the result will be announced, and then you can go to court”. Wike alluded to this in his recent interview with Channels TV. There is no amount of evidence, that can satisfy a Judiciary that is compromised. Damn if you do, damn if you don’t. Did Buhari not say Ganduje’s Dollar Video was fake? Given the volume of evidence, in print and electronic form presented at the tribunal, we are told that there was no evidence. In other words, the Appeal court is literarily telling Atiku and Obi to provide the head of a lion as evidence.
Nigeria has come to her boundaries. This is how far we can see. This is how far we can go. The country goes nowhere, beyond her thinking and vision.
Atiku and Obi will go to the Supreme Court. Same Supreme Court who delivered judgement for Uzodinma, Akpabio and Lawan. Without any iota of doubt, it will reiterate the judgement of the Appeal court. Except the Judges have suddenly changed and become Singaporean citizens, and are no more Nigerians. The Lawyers will have their pay for work done. That is how far we can see.
But, Life will continue.
Our Judiciary? It will remain the Nigerian Judiciary. Corrupt and inept. It will remain the Judiciary of the rich and powerful. It will continue on the path of self-destruction. Because, it benefits the mighty in our midst. It does not matter that our institutions are being derogated and stripped of any usefulness. It does not matter that, the people’s confidence in those institutions has been completely eroded. It does not matter if the actions of the Judiciary, deprive the land of tomorrow.
Here we are.
This is how far we can think. This is how far we can see.
FEP Sugaba, Freelance Writer, Zurich, Switzerland
