Debo Adejugbe: Election petitions – Contradictions worth revisiting (Y! Politico)

by Debo Adejugbe

Debo Adejugbe Y! Politico 2

 To say the conduct of elections in Nigeria is nothing near the ideal case is stating the obvious (including the phantomly rigged 2011 election); but the handling of election petitions makes a redress impossible most times.

 There is always a burden of expectation attached to history. In our case in Nigeria, we tend to misconstrue such expectations with taking the truth as hostage whenever we can’t deal with the facts. Talk to any high-ranking government official and you will understand my thrust; they paint and recreate scenarios to fit into their imagination of how things should be. In other words, there are several versions of truth, hiding in plain sight. We could learn from history without necessarily agreeing or dissenting to its lessons though.

When the presidential election tribunal, on September 6, 1979, declared that Alhaji Shehu Shagari of the National Party of Nigeria, defeated Chief Obafemi Awolowo of the Unity Party of Nigeria; Awo objected and decided to take his case to the Supreme Court, for them to interpret section 34A(i)(c)(ii) of the Electoral Decree, proving that Shagari did not fulfill the requirements of the electoral law and shouldn’t be declared as the winner of the elections.

The general belief –and one supported by law- was that, for any one of Shehu Shagari (NPN), Obafemi Awolowo (UPN), Nnamdi Azikwe (NPP), Aminu Kano (PRP), or Waziri Ibrahim (GNPP) who scored 33.77%, 29.18%, 16.75%, 10.28% and 10.02% respectively to be declared winner, he must have fulfilled two conditions simultaneously. Those conditions are that he must have polled the “highest number of votes” and have “not less than one quarter of the votes cast at the election in each of at least two thirds of all the (19) states within the federation.”

Shagari, by his number of votes, fulfilled the first condition by polling 5, 688, 857 votes nation-wide as against 4, 916, 651 polled by his nearest challenger, Awolowo. But the second condition wasn’t as straight forward as the first. Shagari had one quarter in 12 states while the votes in Kano held the key to interpreting the “clumsily worded section” that is “devoid of any semantic ambiguity” of the electoral law –as declared by the Supreme Court. Shagari polled 243, 423 of 1, 220, 763 votes recorded in Kano; a mere 19.4% of the total vote cast and by logic hadn’t fulfilled the second requirement.

The Supreme Court, in a judgment favored by six justices, declared that Shagari had fulfilled the second requirement. They arrived at this conclusion by treating the 12 states where Shagari had 25% of the votes as physical states and then fractionalized the 13th state, declaring votes as equivalent to state. They interpreted the second requirement as:

a. winning 25% of the votes cast in 12 states, and thereafter,

b. winning 25% of two thirds of the total votes cast in the 13th state, by scaling down the total votes cast in the 13th by one-third, without correspondingly scaling down the vote of the winning candidate by the same one-third,

c. dividing the scaled down total votes cast in that 13th state by the intact votes of the leading candidate in the 12 states.”

The Supreme Court on September 26, 1979, in its wisdom canceled out one-third of the votes cast for all candidates but left the total polled by Shagari in Kano intact, forgetting that in the process of interpreting a law, they lack the jurisdiction to make new ones to justify their position. Read analysis here.

Justice Kayode Eso, in his dissenting judgment, however disagreed with the reasoning of the tribunal and the basis by which the Supreme Court declared Shagari the winner. Excerpts from his dissenting judgment were devoid of any ambiguity as to why he disagreed.

This brings us to the present dispensation. We have witnessed our fair share of Presidential election petitions, Olu Falae Vs Olusegun Obasanjo in 1999; Muhammadu Buhari Vs Olusegun Obasanjo in 2003; Muhammadu Buhari Vs Umaru Musa Yar’Adua in 2007; and Muhammadu Buhari Vs Goodluck Jonathan in 2011. In all these cases, the declared winner has always been victorious in the Supreme Court. The statistics shows that, since the days of Awolowo Vs Shagari, our presidential elections have all been disputed and the Supreme Court has given us something to think about each time.

To say the conduct of elections in Nigeria is nothing near the ideal case is stating the obvious (including the phantomly rigged 2011 election); but the handling of election petitions makes a redress impossible most times. While we have witnessed a departure to this rule in so many cases in recent times, the Presidential election has become the holy grail for the Supreme Court, they always do their best not to upset the cart by nullifying the election of a sitting President.

A case in point is the Buhari vs Yar’Adua in 2007 where the defendant, in an earlier statement had admitted that the election that brought him to power was fundamentally flawed. The courts however expect the plaintiff to prove that an election did not substantially comply with the “fundamental principles and objectives of the Electoral Law” or get lost, irrespective of malpractices or rigging. As it was in 1979 with “Two-Third”, so it is with “substantial Compliance”.

 The doctrine of “Substantial Compliance” as stated can be vaguely interpreted to mean: “within the acceptable and permissible level of electoral malpractices” in the elections. It means an election, as it was in the case of Buhari vs Yar’Adua, can be fundamentally flawed but still hurdle the trap of “substantial Compliance”. For example: it might have violated the electoral laws but would still be viewed to have complied with such laws. Even for lawyers, that should be very confusing. What then constitute a “free and fair” election?

 Such ambiguous laws can only be made by a National Assembly lacking common sense, but do all they can to fight gay people while endorsing pedophilia.

 Let’s not forget that in the 2007 petition, there was also a dissenting judgment by Justice Sola Oguntade, annulling the election. Those dissenting judgments seem to have a way of resonating with the general populace as representing the ideal judgment. Do not be surprised that the next Presidential Elections will bring out its own set of clumsy issues that would be interpreted away by the learned Justices at the Supreme Court.

 In every war –probably elections too-, the truth is the first casualty. The burden of proof, placed on litigants in these petitions can’t be justified because he is left at the mercy of the interpretations by the Supreme Court Justices, who one way or the other, follow their “unacceptable precedence”.

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Debo Adejugbe is a trained Telecommunications/Electronics Engineer and a certified IT professional living in Lagos. Dad to amazing Hailey and an advocate against Sexual and Domestic Abuses. Debo has political sympathy for the Labour Party. He tweets from @deboadejugbe

 

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

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