By Ojudu Babafemi
Raheem Akingbolu takes a look at the impending legal battle between former Vice President Atiku Abubakar and President Muhammadu Buhari
Challenging disputed electoral results is as old as election in Nigeria but it became popular when Chief Obafemi Awolowo challenged the 1979 Presidential election, in which Alhaji Shehu Aliyu Shagari was pronounced winner.
The climax of legal tussle was when Chief Richard Akinjide, the lead counsel for Shagari and National Party of Nigeria (NPN), who later became the Minister of Justice and Attorney General of the Federation, came up with what he called ‘12 2/3 majority’.
The mathematical angle introduced by the senior lawyer attracted huge legal debate, with lawyers in Awolowo camp arguing that the interpretation had no precedence in law.
The rest as they say is history. Nigeria had 19 states then. To win presidential election, the winner must secure simple majority and at least, 25 percent of the votes cast in not less than 2/3 of the states.
In 1983, Awolowo stated that he didn’t go to the tribunal because the 30 days allowed for filing election petition was not enough to present an iron cast case.
Now, it’s 21 days in a country that has grown in population times four or five of that time and the law appears to be more complex now.
Since 1999, when the country returned to civil rule, election petition has become popular in Nigerian political space. After Chief Olusegun Obasanjo was winner of the 1999 election, Chief Olu Falae of the then Alliance for Democracy had approached the tribunal but he was unable to upturn the result of the election.
In 2003, the All Nigeria Peoples Party (ANPP), presidential candidate, Major General Muhammadu Buhari (rtd), also tried unsuccessfully to upturn the result of the election.
This was also the situation in 2007 and 2011, first between the late Umaru Yar’Adua of Peoples Democratic Party and Buhari and later between former President Goodluck Jonathan and Buhari. The 2007 case was even surprising because despite the global condemnation of the election as the worst in Nigeria history, Buhari and his legal team couldn’t prove their case to the satisfaction of the law.
In fact, not even Yar’Adua’s admittance that the election that brought him into power was fraudulent could do the magic for Buhari and his party.
Call for caution
Perhaps as a result of this background and the fact that the 2019 elections cannot be said to be rigged in the way Nigerians perceived rigging, this informed the reason behind the calls from various quarters that Atiku should move on without dissipating his energy into legal war.
The first advice came from Olisa Agbakoba, a Senior Advocate of Nigeria, SAN, who explained why the People’s Democratic Party, PDP, and its presidential candidate, Alhaji Atiku Abubakar, may lose in court.
To many political observers, this statement was seen as coming from an unusual quarter, considering the previous position held by the senior lawyer towards Buhari’s presidency.
Agbakoba, a former President of the Nigerian Bar Association, NBA, had succinctly urged Atiku to assume the role of a statesman instead of going to court.
He pointed out that it would be difficult for the PDP to prove that the votes in the South-East were reduced and to identify whether INEC or APC was responsible.
In an interview with a national newspaper, Agbakoba insisted that there is a lot Atiku can do even though he is not the President instead of going to court.
He explained, “I feel that going to court will not necessarily prove that the election was marred by massive irregularities.
“I feel that the stage Abubakar Atiku has attained now is a national one. And having garnered 12 million votes, I feel that, against all odds, the side of irregularities that came out of the election predicts more to the weak electoral processes that we have.
“I should advise that former Vice President Atiku Abubakar moves into the position of a statesman and leaves a legacy by assisting the civil society, the small parties and the PDP in reconstructing Nigeria on the question of a strong electoral system and the question of a strong legal system.
“There’s a lot Atiku can do even though he is not the President.
“At 74, 73 or 72 years of age, I feel that this should be his last chance. And more so, what will the petition’s outcome be?
In the same manner, human rights lawyer, Mr. Femi Falana (SAN), also insisted that, Alhaji Atiku had “insurmountable legal obstacles” to face at the Presidential Election Petitions Tribunal
Falana, however, said in a statement that the former Vice-President should not be blackmailed not to take the legal step, adding that the calls prevailing on him not to approach the tribunal were uncalled for.
He recalled that President Muhammadu Buhari who was declared the winner of the February 23 election had challenged his losses in court in the successive presidential elections of 2003, 2007 and 2011.
He added: “Regrettably, however, the failure of the PDP and APC-led Federal Government to reform the electoral process has created insurmountable legal obstacles for election petitioner,”
He also stated that the frustration of election petitioners has been compounded by several judicial authorities, with some decisions holding that “an election cannot be questioned on grounds of corrupt practices”.
Besides, religious leaders and 32 of those who took part in the presidential election have also appealed to the presidential candidate of the PDP not to challenge the outcome of the recent presidential election in court. They spoke under the umbrella of The Forum of Presidential Candidates and Political Parties for Good Governance.
The forum made up of chairmen and candidates of 36 political parties, who contested the election with the winner, President Muhammadu Buhari, specifically urged Atiku to disregard the advice of those asking him to challenge the outcome of the poll in court.
The position of the law
Much as many agree that it is the right of Alhaji Atiku to challenge the result of the election if he is not comfortable with it, it is believed by many legal experts that doing so may be an effort in futility because of the intricacies and legal quagmires associated with the presidential election petition in Nigeria.
Speaking with THISDAY in Lagos, an expert in election petition, Mr. Kabir Akingbolu, also admitted that it is within the right of the PDP candidate to approach the tribunal but argued unequivocally that the standard approved and the quality of evidence expected by the law is difficult to surmount by any presidential candidate.
To this end, he stated that rather than being a panacea to election rigging, election petition tribunal or electoral law set a lot of obstacles in the way of any petitioner, who is willing to challenge the validity or authenticity of election result.
He said: “The electoral jurisprudence in Nigeria has a lot of precedence to show that to upturn an election result, a petitioner must be needlessly be a wizard. First of all, by the state of our laws, any result declared by Independent National Electoral Commission (INEC), enjoys the sanctity of inviolability.
In other words, the law has already presumed that the result is valid and that anybody who challenges the validity of that election results will have to prove beyond reasonable doubts how and why those results are not genuine. This is called the presumption of regularity of official act under the law,”
Another legal practitioner, Mr. Olusola Salawu, while urging Atiku to tread with caution, made reference to a few cases while Atiku’s decision to upturn the result of the election might be a tall dream.
He said: “In MD Yussuf vs Obasanjo, it was held that an election cannot be questioned on grounds of corrupt practices. In Falae v Obasanjo, it was held that it has to be proved that financial inducement was authorized by the winner of an election.
In Buhari v Obasanjo, it was held that the onus of proof on electoral malpractice rests on the petitioner. Besides, several fraudulent elections have been upheld under the doctrine of substantial compliance.
“In Buhari v. Obasanjo (2005) 50 WRN 1 at 311, Pat-Acholonu JSC condemned the massive rigging of the 2003 General election but expressed serious regret over the impossibility of satisfactorily proving nationwide spread of ineptitude, violence, intimidation and other acts of terrorization as well as other barefaced acts that literally chill the bones and wound as Shakespeare said in Macbeth (“make the sinneth heart knock at my few evidence the use of nature”) some of the revelations, that is, where the few evidence was led and proved are blood cuddling”.
On the insurmountable legal hurdles to be crossed before a petitioner can have a fraudulent election annulled by a court in Nigeria, Salawu quoted his Lordship as saying that; “The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call, to the size of the respective constituency.
In a country like our own, he may have to call about 250,000 – 300,000 witnesses. By the time the court would have heard from all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory benefit of any substance.”
In conclusion, the legal practitioner stated that since allegations of electoral malpractice are criminal in nature, a petitioner is required to prove them beyond reasonable doubt.
Meanwhile, a marketing communications expert, Mr. Temitope Ajayi, has also called on Alhaji Atiku not to allow any of his promoters to push him into embracing propaganda while pursuing his case.
In an interview with this reporter on the report in a national newspaper that opposition parties had ‘leaked’ names of panel members, Ajayi said the approach was nothing but cheap blackmail, concocted to discredit the election petition process before taking off.
“I’m not a lawyer but a Public Relations practitioner but with my experience, I know that propaganda and blackmail doesn’t win cases in the court of law but the position of law on the case at hand.
Rather than jumping the gun, I will advise Alhaji Atiku and PDP not to allow desperacy to push them into resulting to blackmail and propaganda because it will backfire. Judiciary is a respected institution that should not be blackmailed into submission,” he said.