Hurdles before Atiku at poll tribunal

A legal battle will soon begin at the Presidential Election Petition Tribunal where Peoples Democratic Party (PDP) standard bearer Atiku Abubakar is challenging President Muhammadu Buhari’s re-election. Eminent lawyers Olisa Agbakoba (SAN) and Femi Falana (SAN) believe that Atiku faces an uphill task to overturn Buhari’s victory. Are they right? How were previous petitions decided? JOSEPH JIBUEZE revisits the tribunal’s decisions in previous petitions and highlights the hurdles before Atiku.

ALL eyes are on the Presidential Election Petition Tribunal where Peoples Democratic Party (PDP) candidate Alhaji Atiku Abubakar is challenging the victory of his All Progressives Congress (APC) counterpart, President Muhammadu Buhari.

President Buhari was re-elected in the February 23 poll, with 15,191,847 votes as against Atiku’s 11,262,978. The PDP candidate lost the election by a margin of 3,928,869 votes.

But Atiku rejected the result. He alleged widespread “premeditated malpractices”.

“If I had lost in a free and fair election, I would have called the victor within seconds of my being aware of his victory to offer not just my congratulations…

“However, in my democratic struggles for the past three decades, I have never seen our democracy so debased as it was on Saturday, February 23, 2019…

“Consequently, I hereby reject the result of the February 23, 2019 sham election and will be challenging it in court,” Atiku said.

After inaugurating his legal team on March 2, Atiku expressed optimism that his would win in court.

Already, the Presidential Election Petitions Tribunal last Wednesday granted Atiku’s request to be allowed to inspect the electoral materials used by the Independent National Electoral Commission (INEC).

President Buhari, speaking with journalists after casting his vote in the governorship election last Saturday, said he expected Atiku to go to court.

APC chairman Adams Oshiomhole had said the party was ready to meet Atiku in court.

“We hope and we are looking forward to meeting Atiku Abubakar in court. We might also choose to also cross petition because there were many areas we can dispute,” he said.

The APC Presidential Campaign Council spokesman Festus Keyamo added: “We are very anxious to meet Alhaji Atiku Abubakar in court in order to show the world in a conclusive manner the free and fair nature of the comprehensive defeat of Atiku at the polls.”

The APC Presidential Campaign Council legal directorate, through its deputy director for legal, Mamman Yusufari, praised INEC “for conducting the presidential and National Assembly elections in substantial compliance with the law.”

“This affirms the council’s readiness to defend the resounding victory of President Muhammadu Buhari with all the legal expertise at its disposal,” the team said.

But, does Atiku stand a chance at the tribunal? Will he be the first loser of a presidential election to win in court in Nigeria?

National Intervention Movement Co-chairman, Dr Olisa Agbakoba (SAN), and activist-lawyer Femi Falana (SAN) are among those who believe that Atiku has a mountain to climb in his bid to overturn Buhari’s victory.

But, how were previous presidential election petitions resolved?

The 1999 election

Following return to democracy in 1999, former Secretary to the Government, Chief Olu Falae of the All People’s Party (APP) contested against General Olusegun Obasanjo (rtd) of the PDP in the February 27, 1999 presidential election.

Obasanju scored 18,739,154 votes, while Falae polled 11,110,287 votes.

Dissatisfied, Falae challenged Obasanjo’s victory. He urged the Court of Appeal to hold that Obasanjo, being a member of a secret society, Ogboni, was not qualified to contest.

He said Obasanjo was also adjudged guilty of treason and treasonable felony by a Tribunal.

Besides, he said Obasanjo being a public officer by virtue of being a member of the National Council of States was not qualified to contest the election.

Falae argued that the election was voided by corrupt practices contrary to the provisions of the Presidential Election (Basic Constitutional and Transitional Provisions) Decree No. 6 of 1999.

Falae claimed there were widespread irregularities throughout the country.

In the lead judgment read by Justice Dahiru Musdapher (rtd), the Court of Appeal dismissed the petition in its entirety.

On the allegation of irregularities and malpractices, the Justice held: “No evidence whatsoever was offered in proof of these allegations.

“A feeble attempt was made through the evidence of PW1 and 15 that INEC allowed more people to vote than would have voted if the projected number of qualified voters, projected at the growth rate of 2.83 per cent based on the 1991 census figures, had been followed.

“The short answer to this connection is that the law has prescribed that INEC must conduct the registration of voters for the purpose of the election.

“For INEC to have adopted any other method would have amounted to an infraction of the clear provision of the law. See Decree No.17 of 1998.

“In my view, I consider that the issue is one that cannot be legitimately considered by this court under S.51 of the decree which outlines the issues that can be canvassed in an election petition.

“In the light of what I have stated above, I come to the conclusion that this petition lacks merit and ought to be dismissed, and I hereby dismiss it in its entirety.”

The 2003 election

Obasanjo was declared winner of the April 19, 2003 presidential election. Dissatisfied, Buhari, then of the All Nigeria Peoples Party (ANPP), challenged it at the tribunal.

On December 20, 2004, in a split judgment of three to one, the Court of Appeal sitting in Abuja, dismissed Buhari’s petition.

The Supreme Court, on July 1, 2005, upheld the Court of Appeal judgment, ending the prolonged legal battle waged by Buhari.

In a unanimous decision of a panel of seven justices, the Supreme Court dismissed Buhari’s petition in its entirety.

The Court of Appeal, in dismissing the petition, had annulled the election results declared in Ogun State, where Obasanjo hails from.

Obasanjo and his running mate, Atiku, got 1,360,170 in the state while all the governorship candidates who contested election in the state, the same day and the same time received 747,296 votes altogether.

The Justices queried the gap between votes recorded for President Obasanjo and those assigned for all gubernatorial candidates in the state, saying it was indefensible, especially when both the presidential and gubernatorial elections were held simultaneously.

Justice F. F. Tabai, who read the lead judgment, said: “All allegations in Ogun State were criminal in nature. They ranged from violence, fingerprinting, official intimidation, bias and falsification of results.”

The three Justices, including Umaru Abdullahi and Mahmoud Mohammed, however, held that the irregularities were not compelling enough to annul the entire presidential election.

Justice Tabai said: “The omission of officers to subscribe to the oath as stipulated by the electoral law does not affect the validity of the election.

“The penalty attached can only be borne by the officers who are supposed to take the oath.

“I find that the omission on their part should not prevent innocent Nigerians from their constitutional rights to vote

“I do not agree either that because election in one state of the federation is nullified, the election in the whole of the federation should be nullified.

“The petition is, therefore, dismissed and N5,000 cost is awarded in favour of every set of the respondents.”

But, a minority judgment read by Justice Sylvanus Nsofor annulled the presidential election on the basis that it was invalid by reason of noncompliance with the provisions of the Electoral Act, especially Section 134 (1) (b).

For instance, he said there was no certification of INEC’s sensitive materials before they were distributed for use for the election.

He held: “I find that the substantial noncompliance with the mandatory electoral law amounts to no election…

“In Adamawa State, for instance, there was massive rigging, malpractice and violence using law enforcement agencies.

“The deployment of military and the police who killed several innocent Nigerians desirous to excercise their voting rights was unconstitutional.

“I accepted the petitioners’ unchallenged evidence and I find that there was violence perpetrated by President Obasanjo and INEC.

“The presidential election could not have been conducted under this situation to qualify this election as free and fair. Democracy and insecurity can never be bedfellows.”

Nullifying the election, Justice Nsofor held that there was no presidential election conducted in states where there was violence.

“The question now is: did President Olusegun Obasanjo secure at least 25 per cent of votes in the last presidential election? The answer is no.

“If the presidential elections in the 14 states of the Federation were said to have been vitiated, then he could not have been said to have secured 23 because the remaining states of the federation minus the 14 states are less than 24 states.

“The petitioner shall, therefore, be entitled to the reliefs sought. For all these, this petition ought to succeed and it succeeds accordingly.

“May Nigeria never and never again see a black Saturday like April 19, 2003. The presidential election is hereby nullified by me,” the justice said.

Buhari’s lawyer, Chief Mike Ahamba (SAN), said: “We thank Justice Nsofor for the courage to dissent.”

The 2007 election

At the end of his tenure, Obasanjo backed former Katsina State Governor, the late Umaru Yar’Adua, as his successor.

Yar’Adua was chosen on December 17, 2006, as PDP’s presidential candidate, defeating his closest rival, Rochas Okorocha.

In the April 21, 2007 presidential election, Yar’Adua won with 70 of the vote (24.6 million votes). The election was highly controversial.

Buhari, then ANPP candidate, and Atiku, then Action Congress (AC) candidate, challenged the result at the tribunal.

On December 12, 2008, the Supreme Court, in a split verdict of 4-3, threw out the petitions.

Then Chief Justice of Nigeria (CJN), Idris Legbo Kutigi, his successor Aloysius Iyorger Kastina-Alu, the late Justice Niki Tobi, and Musdapher (who also became CJN), dismissed the Buhari’s appeal and upheld Yar’Adua’s election.

Former CJN Justice Maryam Aloma Mukthar, Justice Walter Onnoghen and Justice George Oguntade (rtd), gave dissenting judgments, holding that there was substantial non-compliance with the Electoral Act 2007, which vitiated the election.

In the lead judgment, the late Justice Tobi held: “For the avoidance of doubt, I am not saying by this judgment that all was well with the conduct of the Presidential election conducted in 2007.

“What I am saying is that there was no evidence before the Court of Appeal to dislodge section 146 of the Electoral Act. In the sum the appeal fails and it is dismissed.

“Accordingly, Umaru Yar’Adua and Goodluck Jonathan are the President and Vice President of the Federal Republic of Nigeria.”

Differing with the lead judgment, Justice Oguntade said: “The inevitable conclusion I arrived at is that the failure of the first respondent (INEC) and the Chief National Electoral Officer, Maurice Iwu, to use serialised ballot papers bound in a booklet … shows that the 2007 presidential elections were not conducted substantially in accordance with the principles of the Electoral Act 2006.

“The court below should have nullified the said elections for this reason. The court below went on to say that the petitioner/appellant did not show that the failure to use serialised ballot and have same bound in booklet substantially affected the result of the result of the election.

“With due respect to their lordships of the court below, they were wrong in their view. They failed to bear in mind that the printing of serialised ballot papers and bound in booklets were an act to be performed before the elections were conducted…

“In the final conclusion, this appeal succeeds. I hold the view that the failure of the first and second respondents to comply with section 42 (2) of the Electoral Act which is that ballot papers be serialised and bound in booklets for the purpose of the Presidential elections held on April 21, 2007 is so grave that the said elections ought to be nullified.

“I have advised myself fully that all courts in Nigeria have the duty to enforce our laws dealing with elections in order to ensure transparency, credibility and fairness in all elections in Nigeria.

“I annul the Presidential Elections in Nigeria held on April 21, 2007 and order fresh elections within 90 days from today.”

Some analysts described the judgment as political, saying it glossed over the wrongs because nullifying the election could have resulted in crisis.

The 2011 election

Following Yar’Adua death on May 5, 2010, Jonathan assumed presidential powers when the Senate controversially used the “doctrine of necessity”. He served out Yar’Adua’s tenure and stood as PDP candidate in the 2011 presidential election.

His main challenger was Buhari, who had joined the Congress for Progressive Change (CPC).

Buhari alleged widespread electoral malpractices and rigging.

On December 28, 2011, the Supreme Court in a unanimous decision, dismissed CPC and Buhari’s petition and upheld Jonathan’s victory.

In a seven to zero ruling in favour of Jonathan and the PDP, the court declared that even where irregularities occurred during the election that gave Jonathan a fresh four-year term, the CPC Buhari failed to prove them.

Justice Olufunmilayo Adekeye, who read the lead judgment, said: “The judgment of the lower court is affirmed and consequently the third respondent (Goodluck Jonathan) …won the election conducted on 16 April 2011.”

Justice Adekeye said elementary law demands that an accuser seeking to nullify an election must sufficiently back such a case, and not table the defendant’s frail argument as evidence of wrongdoing. She said the petitioners failed to do so.

The petitioners had alleged that majority of the election figures from the states were unrealistic.

According to results announced by INEC, Jonathan won in many states with margins as high as 99 percent to 100 percent of registered voters, figures dismissed by analysts and critics as impracticable.

Those arguments stood central to the CPC’s logic in seeking a cancellation of the elections, but the evidences provided did not seem impressive to the apex court.

Reacting to the judgment, Buhari said: “This Supreme Court has proved no better than the Supreme Courts of 2003 and 2007…

“What happened in this year’s 2011 elections eclipsed all the other elections in the depth and scope of forgery and rigging.

“Initially there were high hopes that after 2003 and 2007 a semblance of electoral propriety would be witnessed.

“The new chairman of INEC, Professor Jega, was touted as competent and a man of integrity. He has proved neither.”

‘Why Atiku faces a huge challenge’

Agbakoba said proving that an election was rigged was no easy task. According to him, not only must  Atiku prove that there were electoral irregularities, he has to show that they affected the election results.

He said: “The former Vice President will face an uphill task, given the circumstances of challenging the election results.

“My initial decision to charge the former Vice President not to go to court is based on the fact that President Buhari has subverted the Supreme Court by the removal of the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen, and the appointment of the Acting Chief Justice of Nigeria.

“My perception is that we need to resolve the status of the Supreme Court. I wonder what is taking the National Judicial Council (NJC) so long.

“I am also worried about the historical precedent, as no petition on presidential election result has ever succeeded.

“As one of Nigeria’s experienced election petition lawyers, I know that the burden of proof to succeed in an election petition is unfairly huge.

“We first have too prove that there are electoral irregularities and in my view, once you prove this, you should succeed.

“Unfortunately, even if you prove electoral irregularities, you will have to show how that affected the results of the election.

“Remember that the gap between former Vice President, Atiku Abubakar and President Buhari is about four million votes,” Agbakoba said.

He, however, emphasised that Atiku is constitutionally entitled to approach the tribunal to challenge results he said were “manifestly riddled” with electoral irregularities.

My personal advice has become irrelevant. I fully support and wish former Vice President, Atiku Abubakar every success,” Agbakoba said.

Falana, in the same vein, said Atiku had “insurmountable legal obstacles” to face at the tribunal, adding that the former Vice-President should not be blackmailed not to take the legal step.

The SAN said successive administrations’ failure to reform the electoral process created insurmountable legal obstacles for election petitioners.

“The campaign that Alhaji Atiku Abubakar should not seek redress is totally uncalled for. Aggrieved by the general elections of 2003, 2007 and 2011 conducted by INEC, Candidate Muhammadu Buhari sought redress in court.

“Adams Oshiomole and other APC leaders have had cause to claim their mandate through the court.

“Even some APC members who lost the just-concluded National Assembly elections have announced plans to challenge the return of their opponents by INEC.

“Therefore, Alhaji Atiku Abubakar should not be blackmailed or begged by any group of people not to challenge the presidential election held in the country on February 23, 2019.

“Regrettably, however, the failure of the PDP and APC-led Federal Government to reform the electoral process has created insurmountable legal obstacles for election petitioners,” he said in an interview with Punch.

According to Falana, 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”.

He said judicial authorities had upheld many elections despite the fact that the polls were marred by malfeasance.

“For instance, a petitioner is required to prove that there is substantial non-compliance and that the non-compliance has substantially affected the results of the election.

“In Yussuf v 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 authorised by the winner of an election.

“In Buhari v Obasanjo it was held that the onus of proving electoral malpractice rests on the petitioner. Several fraudulent elections have been upheld under the doctrine of substantial compliance.

“In several cases, winners of fraudulent elections that were annulled were allowed to take part in rerun elections ordered by the courts,” Falana said.

Other hurdles

A Senior Advocate of Nigeria, Adebayo Adenipekun, who was involved several high profile election petition cases, told The Nation that it was difficult for presidential election petitions to succeed because of the legal requirements that must be met.

He said beside the fact that allegations of criminality are expected to be proven beyond reasonable doubt, a petitioner also has to prove non-compliance with the electoral and show that such non-compliance substantially affected the election.

He said: “Presidential elections affect the whole country. It’s not easy to prove non-compliance in 774 local government areas, unlike governorship elections, and it also not easy to prove electoral offences beyond reasonable doubts.”

Human Rights Law Service (HURILAWS) Senior Programme Officer Collins Okeke, was of the view that materials and evidences litigants would rely on to build their cases are with agencies whose commitments cannot be easily determined.

“There is the likely scenario in which justice could be denied  some of those entitled to it simply because those statutorily in custody  of those election materials such as INEC, the police and other security agencies involved choose to be tardy and willfully uncooperative.

“In 2015, this played out in several states across the country.  INEC refused to allow some Petitioners and Respondents access to materials used for elections even after the Courts had ordered that materials be made accessible.

“The 2018 Electoral Act Amendment Bill tried to address this mischief by providing that any election officer who fails to obey a court or tribunal order with respect to inspection or production of materials shall be liable to imprisonment for 2 years without an option of fine.

“Regrettably, the 2018 Electoral Act Amendment Bill was not signed into law by the President,” he said.

Okeke also argued that the constitutional timeline for conclusion of election petition is a double edged sword.

“Once an election petition is not concluded within 180 days from the date the petition was filed by the petitioner, an election Tribunal no longer has jurisdiction to hear the petition and this applies to rehearing. The period of 180 days shall at all times be calculated from the date the petition was filed.

“It has been advocated that Section 285 of the 1999 Constitution and Section 134 of the Electoral Act be amended to provide exceptions to the election petition timelines, e.g., for days to stop counting where there is a stay of proceedings, and for days to start counting afresh where there is an order for de novo hearing of an election petition.

“It will be interesting to see if the courts will shift its position on the issue of timelines,” he said.

Okeke also pointed out that INEC’s decision to use the card reader without the National Assembly amending Section 49 of the Electoral Act, 2010 (as amended) may be a big issue.

“The card reader may be the only authentic document if and only if the National Assembly amends the Electoral Act to provide for card readers. It is only then that card readers would be relevant for nullifying elections.

“The implication of the Supreme Court decision is that the Approved Guidelines and Regulations for the Conduct of Elections made by INEC pursuant to powers conferred on it by Section 160 (1) of the Constitution of the Federal Republic of Nigeria, 1999, cannot supersede the provisions of the Electoral Act, 2011 (as amended),” Okeke said.

Another lawyer, Dele Igbinedion, said it was not an easy task to inspect the materials in the entire federation, to enable Atiku “file and maintain” his petition.

“Last time PDP tried this strategy of inspecting INEC materials in their Governorship Election Petition in Edo State (Pastor Osagie Ize-Iyamu’s Petition against Governor Obaseki), it ended disastrously.

“After inspecting, they applied to the Tribunal to permit them to count to results. The good Pastor’s lawyers were still counting and tabulating the results when the time constitutionally allotted for the election petition expired. The petition died an untimely death.

“With that experience under their belt, I wonder why Atiku’s lawyers decided to adopt the same ill-fated strategy in such a much vaunted petition which is designed to recover a purportedly ‘stolen’ mandate,” he said.