Presidential tribunal, the ambush and political judgement

The 2023 general election will go down in history as the most significant opportunity lost in the country’s electoral history. Going by the presidential tribunal judgement, the general election is just another disturbing illustration of the tactics utilised by the cabal in Nigeria that has been in control of the country’s state power for decades.

The fact is: this general election has the best preparations. All of the money was generously and on time released. The Electoral Act 2022, which Muhammadu Buhari kindly signed into law as president, also provided the legal framework and essential missing pieces, namely electronic components – electronic accreditation, voter identification, and real-time uploading of results from the polling units.

The leadership of INEC, especially its chairman Mahmood Yakubu, and director of information and voter education Festus Okoye, were assuring Nigerians every step of the way. The Electoral Act 2022 featured such measures that would ensure the best election in the country’s history. (By the way, Festus Okoye’s five-year term as INEC’s national commissioner for information and voter education, which began on July 25, 2018, as representative of the south-east geopolitical zone in the commission, came to an end with Sam Olumekun’s appointment as his replacement days ago).

The Electoral Act 2022 Sec 64( 4) unambiguously and copiously states that: “A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the— (a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act; and (b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act.” The supreme court needs to review these specific clauses as mandatory and compulsory, which is both the intendment and spirit of the Electoral Act.

To ensure real-time uploading of results from the polling units, the country invested over N100 billion in digital infrastructures. However, INEC abandoned the electronic process when it came to collating the results of the presidential election for very strange reasons.

It became evident after listening to a 12-hour perplexing ruling by the presidential election tribunal that Nigerians who were encouraged by the leadership of INEC had been duped. The INEC gave up on real-time results posting and switched to the laborious, rigging-prone manual collation process.

This ruling completely violates section 64(4) and is superfluous. The tribunal held that the IReV is a viewing portal, not a portal for collating results, and claimed that electronic results collation was not provided for in the act. This may be the case, but the tribunal spared no words for the commission notwithstanding the criminal violation and cognizance of the INEC guarantees to the Nigerian electorates. Instead, they chastised the petitioners for failing to obtain their results from the polling units as a mark of their seriousness.

Even though the duplicate results provided to party polling agents are legitimate, tenable, and admissible in court and have been used to return candidates(e.g. Uzodinma vs. Ihedioha), the tribunal should have required INEC to make the copies from their commission available. The tribunal continued to defend INEC’s nebulous actions and the defendants in the most clumsy terms read out to Nigerians in total disdain, which led the citizens to wonder if the PEPT was not partisan and descending into the arena.

While many of the tribunal’s opinions may be legally sound, one must also question why the tribunal accepted the evidence and witnesses in the first place and then waited until the judgement to point out what it afterwards deemed to be unsuitable and inadmissible. With this approach, the tribunal became the petitioners’ main adversary rather than the umpire, and one that was less concerned with delivering justice and discovering the truth.

One can appreciate the dread they felt as they considered the possibility of impeaching a sitting president, which is not the aim but telling Nigerians who won. Yes, yet another gap in our legislation that permits a president-elect to take the oath of office while the tribunal is still deliberating on the presidential election outcome. The tribunal will be sympathetic to the president without the president having to say a word, and his appointees—ministers and others—including an attorney-general could be working behind the scenes to keep their jobs. Nigeria has been the only nation in the world to permit such an unusual deviation and it has been the practice since 1999.

Even though the tribunal is constrained, one still expects it to avoid ambushing the petitioners who are in court to vent and seek redress. The tribunal determined that the witnesses and evidence were out of order for the petitioners missing the deadlines for submission. Election petitions are time-barred. But how on earth are the aggrieved candidates going to frontload the witnesses’ written depositions in a presidential race if they have to file within 21 days after the declaration? This is virtually unattainable. Yet, during the judgement, depositions of witnesses that were filed later were rejected. Why were they allowed in the first place if they weren’t relevant at the time of filing or throughout the examination and cross-examination of the witnesses?

The tribunal’s declaration that the judges did not even look through the boxes of documents submitted to it should be considered the most heartbreaking. The IReV downloads of INEC results were used by the petitioners and should be enough. The admission of these documents and the statistical analysis of the results of the 2023 presidential election should have taken place if the tribunal was indeed interested in justice and establishing who won the presidential election.

It should be emphasised that the tribunal purposefully withheld the results of the 2023 presidential election from Nigerians by stopping the IReV documentary evidence set before it. By putting the petitioners under legal pressure based solely on technicalities, the tribunal opted for the political verdict rather than determining where the mandate of the Nigerian electorates lies.

Although the court is not Father Christmas, the tribunal should be aware that, if the results provided by the petitioners were not sufficiently presented, they have to request that INEC make available the results that they used to declare Bola Tinubu president.

Therefore, the verdict was an ambush, nuanced for political correctness, and therefore a betrayal of the public’s legitimate expectations. By doing this, they shifted the responsibility for informing Nigerians of the outcome to the supreme court, just as INEC shifted the same to the tribunal.

What is more, if the ruling of the apex court on the matter is also time-barred, the supreme court might not be able to order a retrial for the petitions, in which case the effects on the nation’s eroding democracy will be fatal by putting the majority of Nigerians who voted back into apathy mode.

The core issues were deliberately sidestepped by the tribunal and buried in the hubris of banalities and technicalities. Even though one may agree that the concerns with the constitution and electoral act regarding the qualification of a presidential candidate may have flipsides – 25% in the FCT, double nomination, $460,000 forfeiture, etcetera – the core issues should not have been kicked aside as nonissues. No, it shouldn’t be like that. Let it be known that the judiciary abdicated responsibility as long as it does not reveal to Nigerians who won the 2023 presidential election.

The judiciary as an arm of government is muddling its role. Muddling through is a science that has its side effects, drawbacks, and repercussions. If the court is indeed the common man’s last resort, the country’s judicial system must live up to that fundamental expectation and this cannot be achieved by abdicating responsibility.

Law Mefor, an Abuja-based forensic and social psychologist, is a fellow of The Abuja School of Social and Political Thoughts. He can be reached via [email protected]; Twitter: @Drlawsonmefor.