Ebun Olu-Adegboruwagboruwa

By Ebun-Olu Adegboruwa

At long last, the Presidential Election Petition Court delivered its long-awaited judgments on the three petitions filed in respect of the 2023 presidential election. All over the world, many people were glued to their televisions and handsets, just to have a taste of the live broadcast of the judgments. There had been tension in the land on the possible outcome of the judgments, with spin doctors spewing inaccurate prophecies of the minds of the justices who sat on the petitions.

Since the February 23 elections, I have tried my best to be aloof from election related events, preferring rather to await the outcome of the petitions in avowal of my firm belief in due process and the rule of law. These judgments are currently circulating online, running into about 800 pages only. Listening to their Lordships and also going through the judgments, it is clear that there are serious issues contained in the judgments that would require further interpretation.

The joy however is that since September 6 when the judgments were delivered, there has been peace across Nigeria, as it should be. This is desirable and should be sustained, since the parties that were directly affected by the judgments have indicated their choice to pursue the process of appeal as stipulated by law.

We should now all await the final decision of the Supreme Court. It may however be necessary to highlight a few issues that need to be addressed or resolved in relation to these petitions and judgments there being no appeal pending yet.

Testimony of witnesses
I noticed that the Court disqualified some witnesses on subpoena based on the fact that they failed to frontload their witness statements on oath before the Court. In the first place, a subpoena is an order of the Court, commanding a witness to appear in court to give evidence or to tender a document. In some cases, these witnesses are government officials who ordinarily should not be within the reach of any of the parties.

By issuing a subpoena, he is made to be a witness of the Court. In some other cases, they may be hostile witnesses who have been summoned by force to testify. In any case at all, witnesses on subpoena should not be made to depose to any statement on oath

It was the court that summoned the witnesses in the first place and they obeyed the order of the court to appear. In any event, subpoenas do not normally contain any directive for the witness to depose to any statement on oath. How then can the same court that commanded a witness to appear before it to testify turn around to disqualify the same witness, who is deemed to be a witness of the court? It just doesn’t add up.

Electronic transmission of results
One of the contentious issues before the Court was that of electronic transmission of results by INEC. It was the contention of petitioners that had INEC followed its own guidelines for electronic transmission of election results real time, then there would have been no cases of manipulation or suppression of results. In this regard, the Court held that INEC is not under any obligation to electronically transmit election results. The Court relied upon the previous decisions of the Federal High Court and the Court of Appeal which it held were binding on the petitioners.

First, this was a fresh election and the petition arising from it was between different parties and under totally different circumstances. The Court should have x-rayed the conduct of INEC in relation to the 2023 presidential election simpliciter, being the subject matter of the petition before it. INEC was not conducting the election of the Rotary Club but the 2023 presidential election in which over eighty million people were registered to vote and over N300B spent from the common purse.

If INEC had through its own guidelines voluntarily made a contract with the people of Nigeria, the Court should hold it bound by that undertaking and/or at least extract cogent reasons why it could not be done. A lot went into the 2022 Electoral Act, the high point of which was electronic transmission of results, which was meant to remove or reduce human intervention in the electoral process.

The decision of the Court that INEC is not mandated to transmit election results electronically is with due respect to their Lordships, a huge setback to election administration and management in Nigeria, as we will now go back to the days of manipulation, falsification of results and general violence, thuggery and even rigging.

It has been said that the most potent form of rigging an election is the stage of collation and transmission of results. By endorsing INEC’s lapses, the Court has unwittingly reversed all the gains of the new electoral law on e-voting. The Court was too fixated on technicalities rather than dwelling on the substantive flaws and misconduct of the electoral umpire. We surely should not and cannot allow INEC to run away with all the mistakes and failures of the 2023 presidential election.

If nothing else, we should use the opportunity presented by these petitions to identify the observable lapses associated with the presidential election with the aim of correcting them to avoid the ugly situation where they could be deployed to haunt us in future elections.

Status of FCT Abuja
In the 2023 presidential election, the candidate who was declared as winner did not receive 25 per cent of votes from the Federal Capital Territory. It was the contention of the petitioners that failure to secure the mandatory 25 per cent of votes from the FCT automatically disqualifies any candidate from being declared as winner of the presidential election.

On this issue, the Court held that a candidate who has won up to 25 per cent votes in each of at least 25 states in Nigeria, does not need to win 25 per cent of the votes in the FCT Abuja.

Abuja is one of the states in Nigeria; Abuja is not different from the other states, and does not enjoy any special status. I tend to agree with this decision. The FCT Abuja has only six area councils. The total votes cast for Senator Ireti Kingibe to represent the FCT in the last election is less than the votes cast for the Honourable Member of House of Representatives for Alimosho local government council, one of the 20 council areas in Lagos State, not to talk of Kano or Oyo states.

What then would qualify the voters of FCT to be rated over and above other voters in Nigeria? Is it the mere fact of its geographical location or its administrative status as the federal capital city of Nigeria?

The Constitution itself states in its section 42 that no citizen of Nigeria shall suffer any discrimination, disqualification or disenfranchisement to which other Nigerians are not subjected to by reason of his geographical location or circumstances of his birth.

Is it an offence to be born in Port Harcourt or to live in Awka? Why should I suffer inferiority status because I voted in Ondo State compared to my fellow free born citizens who voted in the FCT? There is no reasonable logic behind this proposition at all. The FCT has no assembly but rather it is the National Assembly that makes laws for it, it has no governor and no life of its own beyond the federal government of Nigeria. Taking it further, by the principle of federalism, it is the FCT that should be rated lower in rank to the States.

Nomination of Candidates
To my mind, the issue of who represents a political party in any election should strictly be the internal affairs of the party in question. Although the Electoral Act now confers locus standi on any interested person to challenge the eligibility of any candidate, this should be guided by the principle that an outsider cannot cry more than the bereaved.

More importantly however, this issue was decided by the Supreme Court in May 2023 and some of the lawyers for the petitioners were said to have been involved in that case and indeed other cases wherein the issue of the status of the candidates had been resolved.

It amounts to professional misconduct for a counsel who is aware of a decision of the Supreme Court that has decided an issue against him and his client to seek to relitigate the same issue. If at all this should be allowed, counsel owe a sacred duty to the court to make full and frank disclosure of the said case, by stating the facts of that case and the decision reached on it.

He can proceed to state the reasons why he is taking a different position in the present case or why he seeks a departure from the previous decision. But by all means no one should ambush the court.

Adegboruwa is a Senior Advocate of Nigeria (SAN