“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.”
– Section 135 (1) of Electoral Act 2022
There were over a thousand election petition cases filed at different tribunals and courts challenging the outcome of the 2023 general elections held between February 25 and April 15, 2023. However, none of these generated as much furore as the three petitions filed by Allied Peoples Movement, Peter Obi and Labour Party, and Atiku Abubakar and Peoples Democratic Party. Under our electoral jurisprudence, the candidates and the political parties that sponsored them have the locus standi to challenge the outcome of any election in which they participated in. After six months of legal fireworks by the petitioners and the respondents, the Appeal Court, sitting as court of first instance in the presidential election dispute resolution, upheld the election of President Bola Tinubu and All Progressives Congress. The unanimous judgment of 798 pages lasted an unprecedented 12 and a half hours and was beamed live to the world.
In my own opinion, the judgment was sound, well researched and based on law and not emotions. Before I proceed to buttress my viewpoint on the verdict, it’s noteworthy that I have been a development worker cum consultant since 1999, which is 24 years now. I have been an accredited observer at all the general elections conducted by the Independent National Electoral Commission since 1999 and some of the off-cycle governorship and State Independent Electoral Commission-organised local government elections. I have had the privilege of being accredited election observer in the United States in 2010, Ghana in 2008, Egypt in 2014, and Uganda in 2016. As a consultant, I have done extensive research on many of our democratic institutions such as the Electoral Management Bodies, political parties, National and State Assemblies, media, civil society organisations and security agencies. I have also organised training programmes for judges of the election petition tribunals. Aside from research and analysis, my other forte is capacity building.
Since the 2023 election was held, I have written several opinion articles on the polls and granted interviews to many broadcast media on it. Of great importance was my participation in the three out of the four editions of the Town Hall meetings organised by Fix Politics Initiatives in collaboration with the Africa Independent Television. The 4th edition of the #FixPolitics Dialogues focusing on the 2023 elections with the theme: “2023 Elections: Challenges, Lessons & Prospects for The Future of Democracy in Nigeria” was held on Thursday, July 20, 2023 at the AIT studios. At the last forum, I warned Nigerians hoping that the 2023 presidential election would be nullified to moderate their expectation as the court would base its judgment on the issue of substantial compliance.
According to section 135 (1) of the 2022 Electoral Act as reproduced in the opening paragraph of this piece, election shall not be nullified or invalidated except there is substantial non-compliance with the electoral laws. During the last #FixPolitics Dialogue I recall citing an example of a school examination. When a teacher or lecturer scored a student or pupil excellent in a subject, it does not mean the fellow scored 100 per cent. He or she may actually have scored 75 marks missing 25. A student is awarded ‘B’, very good when he scored between 60 and 69. ‘C’ meaning credit is the remark for a student who scored between 50 and 59. This means despite missing 50 out of 100 marks, the student is still deemed to have passed the exam and does not need to rewrite the subject. Even someone who scored 40 marks out of 100 is said to have a weak pass.
Elections can be likened to those examination scores. The Independent National Electoral Commission did not perform excellently well in the conduct of the last general elections. As earlier inferred, I was an accredited observer in the elections on the platform of Nigerian Women Trust Fund and was deployed to observe the polls on February 25, 2023 at the Abuja Municipal Area Council. There was the late commencement of the polls, voter distribution was haphazardly done and some voters couldn’t locate their polling units. Furthermore, there was inadequate provision of assistive materials for Persons with Disabilities as devices like Braille Ballot Guide for the blind, Magnifying Glass for persons with albinism, were not used and access to polling units by persons on wheelchair or crutches was difficult. Priority voting for pregnant women, nursing mothers, the elderly and PWDs were not observed in many of the polling units my team visited around the Karu, Mararaba, and Nyanya axes. There was also the big elephant of late upload of presidential election results despite repeated assurances by the INEC chairman, Prof. Mahmood Yakubu, that the PU results would be uploaded on the IREV (INEC Result Viewing) portal in a timely manner.
Are all of these infractions enough for the five justices of the Court of Appeal to overturn Tinubu’s electoral victory? The answer by their lordships is NO! Really speaking, as I have said at many events, INEC’s performance during the 2023 general elections is suboptimal but it was not a failure. This is because in spite of all the aforementioned shortcomings, they were not sufficient enough to invalidate the polls. Unlike in the pre-election phase when there was the high incidence of election-related violence, the election days were largely peaceful, most of the voters were able to cast their ballot in spite of the late commencement of the polls and disenfranchisement of the few, though there could be rigging in some of the polling units, it was not widespread.
The Justice Haruna Tsammani-led five-member panel held that the petitioners could not prove their case of massive fraud and did not call any of their over 133,000 polling agents as an eyewitness. That is strange! My knowledge of election dispute resolution shows that when a petitioner makes a case of electoral fraud which borders on criminal allegations, the petitioner must prove corrupt practices or fraud in each of the polling units, wards, and local governments before coming to state level. It is not enough to make sweeping statements of fraud in a state without details of the PUs, wards, LGs where these crimes took place. Mark you, there are 176, 846 polling units, 8,809 wards, 768 LGs and six area councils as well as 36 states plus the FCT where the presidential election was held. Assuming without conceding that there was fraud or rigging in 20 per cent of the PUs, is that substantial enough to invalidate the polls? The answer is NO! More so, a petitioner has to prove the rigging beyond reasonable doubt in a maximum of 180 days with each of the witnesses being examined and cross-examined by both the petitioners and the respondents’ legal teams.
The court also settled some points of law. For instance, we living and working in the FCT are not peculiar or special citizens hence the fact that the APC presidential candidate did not score 25 per cent of votes in the FCT but had more than the basic requirement of 25 per cent of valid votes in two-third of all the states means he is validly elected. The court has also resolved issues bordering on double nomination and qualification and non-qualification. The PEPC says it’s a pre-election matter which can only be filed by members of the political party that produced the candidate at the Federal High Court. It is also surprising to me that the petitioners decided not to frontload the witness statements of some of their witnesses as prescribed in Practice Direction and Electoral Act 2022. All said and done, it is well within the right of the petitioners to approach the Supreme Court for the final determination of their cases, I advise that those making wild allegations of bribery or inducement of their lordships should desist unless they have incontrovertible evidence to back up their claim.