Supreme Court must salvage Nigeria’s democracy –

May 8, 2023 Mary

In just about three weeks, on May 29, Bola Tinubu will be inaugurated as President and Commander-in-Chief of the Federal Republic of Nigeria. Yet, in parallel, election petitions seeking to nullify his declaration as winner of this year’s presidential poll are earnestly afoot.

Given the petitions won’t be determined before May 29, as it should, a sword of Damocles, in the form of his removal from power, potentially hangs over Tinubu’s head. Theoretically, that’s a possibility; otherwise, what’s the point of the presidential election petitions?

The 1999 Constitution, under section 239(1), allows the Court of Appeal and, ultimately, the Supreme Court to determine whether someone has been validly elected as president; the Electoral Act 2022, under section 136(1), requires the court to nullify the election of someone not duly elected as president. Thus, constitutionally, Tinubu’s election as president could be nullified, however long it takes to determine the petitions. But that’s theory.

In practice, presidential election petitions in Nigeria are otiose, purely academic. The Supreme Court has nullified several governorship elections, but never, so far, a presidential election, even when it’s substantially, even materially, flawed. Why, might you ask? Two reasons suggest themselves.

One is realpolitik. The spoils belong to those who have the power to take and keep what they have taken. A person invalidly elected as president won’t allow the power to slip away. Rather, he would mobilise resources and the powers-that-be to ensure the Supreme Court doesn’t snatch the power from him. Don’t ignore the enormous powerplay!

Heavens won’t fall if a president is removed from office due to an invalid election

Another is that the Supreme Court itself considers disruptions that could ensue from nullifying the invalid election of a sitting president and decides against taking that course of action. Some have described the Supreme Court as both a court of law and of public policy. Well, there’s nothing unique about that. Every appellate court is a court of public policy. Lord Denning, the famous British judge, was known for adducing public policy reasons for his decisions, creating an influential body of case law with strong public policy underpinnings.

But what’s public policy in the Nigerian judicial context? Is it to safeguard democracy or to protect powerful vested interests? Is it to avoid administrative or political disruptions, likely to result from nullifying an invalid election, or to set legal principles and judicial precedent that would transform Nigerian democracy?

Think about it. Why do politicians rig presidential elections, in collusion with election officials, and tell their opponents: “Go to court”? Because the court will do nothing to upset the apple cart. But imagine the reverberations and future repercussions if the Supreme Court were to remove a president from office on the basis that he wasn’t duly elected. Hardly any politician would want to become president through invalid election knowing he would be sitting on a ticking timebomb! But lack of consequences perpetuates impunity.

Let’s face it. Heavens won’t fall if a president is removed from office due to an invalid election. Section 146(1) of the Constitution says the office of President can become vacant by reason of death, resignation, impeachment, permanent incapacity, and then adds: “or the removal of the President from office for any other reason.” Clearly, that phrase “for any other reason” envisages the nullification of the election of an invalidly elected ‘president’.

And where a ‘president’ and ‘vice-president’ are declared invalidly elected and thus asked to vacate the offices, the Senate President would, under section 146(2), hold the office of President for a maximum of three months during which a new president would be elected. But would a ‘president’ whose election has been declared invalid but who, presumably, still controls the armed forces go quietly? Well, in that case, the question becomes where the loyalty of the armed forces lies: with an illegitimate president or the Constitution as interpreted by the Supreme Court? I believe they would side with the Constitution!

Now, to be clear, I’m not suggesting the Supreme Court should determine the ongoing presidential election petitions one way or another. Far from it. I’m simply responding to the argument that the Supreme Court would never nullify a presidential election on public policy grounds. I submit that the public policy considerations that really matter in presidential election cases are safeguarding Nigeria’s democracy and setting legal principles and judicial precedents that would positively change democracy, politics and governance in this country.

But a court must first consider a case based on law, evidence and argument, and only consider public policy with respect to remedies. For instance, in the UK, a court may find in favour of a claimant and yet refuse to grant a certain remedy on public policy grounds. However, by granting a declaration, albeit without relief, the court sets legal principles and precedent for the future. But I repeat, there are no public policy reasons for refusing to nullify a presidential election if the law, evidence and argument justify nullification.

Nigeria’s democracy is on tenterhooks, on suspended animation, following this year’s deeply flawed elections. Whether it can be salvaged depends on whether the Supreme Court’s decisions on the election petitions are reasonable and just. For instance, does the frustration of the legitimate expectations created by promises to use BVAS in the presidential election mean nothing? Does the fact that many of the results belatedly posted on the INEC portal are different from what INEC itself announced mean nothing? If the Supreme Court decides that these fundamental process issues don’t matter, well, Nigerians, especially the youth, won’t trust INEC again and, without trust, Nigeria’s democracy is doomed.

There are other critical issues: from whether a candidate must have at least one-quarter of the votes cast in Abuja, under section 134 of the Constitution, to whether a person is qualified to be president if he voluntarily acquired the citizenship of another country, under section 137(1)(a), and whether a drug-related property forfeiture amounts to “any other offence imposed on him by any court or tribunal”, under section 137(1)(d). How would the Supreme Court interpret these provisions and decide these issues?

Take Abuja’s status. The Constitution says in section 134(1) that, to be elected as president, a candidate must a) have the highest number of votes cast at the election and b) have “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.”

The conjunctive word “and” has divided senior lawyers: some say a candidate must secure one-quarter of the votes cast in Abuja to be president; others disagree. Well, in my view, many canons of interpretation support the former’s position.

The commonest canon is the literal rule, which favours the plain meaning of the word. Given that “and” means “plus”, “in addition to” and “as well as”, the provision obviously requires one-quarter of the votes cast in Abuja. Another is the “effet utile” rule, which assumes every word in a document is meaningful. So, “and” has an intended meaning. Then, there’s the “lex specialis” rule, which says that the specific trumps the general. The word “and” in section 134 is specific to a presidential election. Some have argued that it would be “absurd” to make having one-quarter of votes cast in Abuja a condition for becoming president. But what if that’s the original intent and purpose of section 134?

Of course, these are ultimately matters for the Supreme Court. But the apex court is the last hope of democracy in Nigeria; it holds Nigeria’s democratic future in its hands. How it interprets the Constitution and determines the presidential election petitions matters hugely. Would it salvage Nigeria’s fragile democracy? Fingers crossed!