The presidential candidates of the Peoples Democratic Party (PDP), Atiku Abubakar and the Labour Party (LP) Peter Obi at the February 25, 2023 election have both blasted President Bola Tinubu for saying that nullifying the election that produced him as president could lead to anarchy.
Both candidates had in separate petitions filed at the Presidential Election Petition Tribunal (PEPT) in Abuja, challenged the Independent National Electoral Commission’s (INEC) declaration of Tinubu as the president. They are praying the court to hold that at the time of the presidential election, Tinubu was not qualified to contest on the grounds of forfeiture of proceeds from drug trafficking and money laundering in the US, declaration of allegiance to another country other than Nigeria, presenting a forged university certificate, perjury and inability to win the highest votes cast in the election.
In the final address settled by his lead counsel, Chief Chris Uche SAN, Atiku said that INEC’S assertion that he won in 21 States was neither disputed, retracted, debunked not claimed to be error through the proceedings of the Tribunal so far.
Atiku Abubakar urged the court to uphold the declaration by IEC that he won 21 states in the February 25 Presidential election.
INEC had, in its response to Atiku’s petition, asserted that the PDP presidential candidate won 21 states of the Federation in the last presidential poll.
The 21 states listed by INEC as having been won by Atiku and PDP are Adamawa, Akwa Ibom. Bauchi. Bavelsa. Borno, Delta, Ekiti, Gombe, Jigawa, Kaduna, Katsina. Kebbi. Kogi. Kwara, Nasarawa, Niger, Osun, Sokoto, Taraba, Yobe, and Zamfara.
Both candidates also said that for a candidate to be declared president according to the constitution, the person must score 25 percent of valid votes in the Federal Capital Territory. Obi also alleged that Vice President Kashim Shettima, had at the time of his nomination as running mate, already been declared the senatorial candidate of the All Progressives Congress (APC) for Borno Central.
In their final written addresses, which have been submitted to the Presidential Election Petition Tribunal (PEPT), Atiku and Obi’s teams described Tinubu’s statement that there would be anarchy if the election was nullified as cheap, misguided and destructive blackmail.
One of Tinubu’s lead counsels, Wole Olanipekun, had in their written address said that if the election which produced him as president is nullified, it could lead to “absurdity, chaos anarchy and alteration of the very intention of the legislature.”
But in their final written addresses, Obi’s lead counsel, Dr. Livy Uzoukwu said: “A sentence in the 2nd and 3rd respondents address alarmed the petitioners and millions of Nigerians. The respondents went too low and abandoned discretion when they claimed as follows; “Our submission is that the petitioners are inviting anarchy by their ventilation of this issue of non-transmission of results electronically by INEC.” This is a cheap, misguided and destructive blackmail, clearly intended to target the country’s judicalism and constitutionalism. It aims at cannibalizing our democracy.”
Also responding to the threat of anarchy, Atiku’s team led by Chris Uche (SAN) said, “A subtle threat of apocalyptic catastrophe of national chaos and anarchy if a judgment is not given in a particular manner cannot deter a court of law from doing justice. The Court must do justice, rather, ‘let the heavens fall’, but as courageously stated by the Supreme Court in the case of Amaechi v INEC (2008), ‘I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place.”
On the issue of getting 25 percent of votes cast in the 24 states ‘And’ the FCT, Tinubu’s team said the use of ‘And’ in the constitution doesn’t mean that a candidate must score 25 percent votes in the FCT but Atiku’s team cited a Supreme Court judgment in Onochie v Odagwu (2006) and A.G Abia v A.G Federation (2022), where it held that where words were clear and unambiguous, the court must so interpret their natural meaning and none other.
On the issue of forfeiture, Tinubu’s team had argued that the forfeiture is not a fine and that it has exceeded the 10 years statute of limitation and therefore cannot be grounds for disqualification. But Obi’s team said the drug case is not premised on Section 137(1) (e) but on Section 137 (1) (d) of the constitution which has no limitation period. They cited the case of Austin v United States, 509 U.S 602 (1993), where it said the US Supreme Court unanimously held that civil forfeiture ordered in an interim civil action is a fine and a punishment, regardless that it didn’t follow from criminal conviction.
Atiku’s team also submitted that forfeiture, whether ‘civil’ or ‘criminal’ takes its source from commission of a crime and cited the case of Mohammed Abacha v FRN (2014), where the current Chief Justice of Nigeria, Olukayode Ariwoola, ruled that the word, ‘forfeiture’ means the loss of a right, privilege or property because of a crime, breach of obligation or neglect of duty.
On Shettima’s double nomination, Tinubu’s team cited the Supreme Court’s decision in the PDP v INEC (2023) case where the Supreme Court ruled against the PDP, stating that it had no locus to interfere in another party’s matter. But Obi’s team stated that July 6, 2022 which was the date on Shettima’s withdrawal letter cannot be the effective date as he signed INEC’s form EC11C on July 15, 2022 and that until then, he remained in the records of INEC as the senatorial candidate of the APC for Borno Central as at July 14 when he accepted the nomination for the position of Vice President. Obi’s team said these facts distinguished the decision in the PDP v INEC case as they were not canvassed before the Supreme Court and they made the decision not a precedent for the petition.
Obi’s team referenced Justice Haruna Tsammani’s (the lead justice of the tribunal) past ruling on double nomination in the case of Ekeudom v APC (2022), where he ruled that, “This provision of the Electoral Act 2022, clearly stipulates that the invalidity of multiple nominations and by the use of the word, ‘shall’ amounts to a command, a must and an obligation.’
On the issue of INEC’s manual being a legal document, the electoral commission had argued in its written address that its election guidelines and manuals are not legally binding. But Obi’s team said that the courts have in several cases like that of CPC v INEC (2011) and Fayemi v Oni (2009), reiterated that “The manual for election officials issued by INEC are not mere instructions or directions, rather, they are subsidiary legislations which have the force of law. They have their origins from the Constitution and the Electoral Act. Faleke v INEC (2016).”
On the issue of forgery and dual citizenship, Tinubu’s team argued in their written address that his Guinean passport expired few years ago, hence he had ceased to be a citizen of the African country. But Atiku’s team cited Saleh v Abah and Section 137(i) of the 1999 constitution (as amended), where it states that ‘a person shall not be qualified for election to the office of the president if he has voluntarily acquired the citizenship of a country other than Nigeria and if he has presented a forged certificate to the Independent National Electoral Commission.’
“In conclusion, may we respectively commend to your Lordship the words on the marble of the Kenyan Supreme Court in the case of Rola Odinga & Anor, Vs Independent Electoral and Boundary Commission & Ors (2017) KESC 31 (KLR) para, 399, when in nullifying the election that returned H.E. Uhuru Kenyatta as winner of the Kenyan presidential election in 2017, ex-cathedra said:
What the argument that the court should not subvert the will of the people. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so, however popular the invitation may seem. Therefore, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and Ocean; let it boomerang from our hills and mountains.”