Controversial Nigeria’s 9/11 Presidential Election Tribunal Verdict

Introduction

September 11 2001 popularly called 9/11 was a red letter day in the United States of America. On that day al-Qaeda terrorist group led by Osama Bin Laden masterminded attacks on the US. The September 11 assault were a series of four coordinated terrorist attacks by the Islamic terrorist group. The attacks killed 2,977 people (not counting the 19 hijackers who also died), injured over 6,000 others, and caused at least $10 billion in infrastructure and property damage according to Wikipedia. Nigeria’s own 9/11 was last Wednesday when 5-man panel of jurists led by Justice Garba Mohammed Presidential Election Petition Tribunal gave judgement in a petition filed by the Peoples Democratic Party and its presidential candidate, ex-Vice President Atiku Abubakar against the All Progressive Congress and its presidential candidate, President Muhammadu Buhari. The Independent National Electoral Commission who organized the February 23, 2019 presidential election was joined as respondent in the matter.

Nigeria’s 9/11, 2019 was an epochal day in the political history of Nigeria. The judgement was delivered in historic 9 hours which is unprecedented. It was also epochal in the sense that the tribunal allowed a live telecast and general media coverage of the judgement. The coverage cut across print and electronic as well as   public and private media. Recall also that on May 22, President Court of Appeal, Hon. Justice Zainab Bulkachuwa who chaired the initial 5-member panel was pressured to recuse herself from handling the case due to the presumed likelihood of bias due to her husband, Adamu Bulkachuwa being an elected APC Senator from Bauchi State. Even the number of legal luminaries that was involved in the six month legal fireworks was very intimidating. 

Summary of the 9/11 judicial verdict on 2019 presidential election

After about 177 days of legal fireworks, the Presidential Election Petition Tribunal in its over 290-page judgement dismissed the petition filed by the Peoples Democratic Party and its presidential candidate, Alhaji Atiku Abubakar, challenging the victory of President Muhammadu Buhari at the February 23, 2019 poll. The Justice Mohammed Garba-led tribunal unanimously dismissed the case for lacking in merit after resolving all the five issues raised in the case against the petitioners.

The tribunal held that the petitioners merely dumped documents particularly electoral materials, including result sheets, used for the election on the tribunal without demonstrating them by tying the evidence of any of their 62 witnesses to the documents in their bid to prove the allegations in their petition.

The tribunal held that none of the documents tendered by the petitioners was utilised to prove the allegations, such as over-voting. It added that contrary to the claim by the petitioners, Buhari was eminently qualified educationally to contest the election. It added that Buhari did not give false information to the Independent National Electoral Commission to aid his educational qualification to contest the poll as alleged by the petitioner. Justice Garba also held that the petitioners failed to prove that the results were transmitted electronically by card reader.

The controversies

Election petition has always been an emotive exercise as everything, both legal and illegal are done by petitioner and the respondents to ensure favourable judgement of the judiciary. This is because apart from the Electoral Management Bodies viz. the Independent National Electoral Commission and the State Independent Electoral Commission, only the judiciary, according to Section 68 of the Electoral Act 2010 as amended can review whatever the Returning Officer has declared. That being the case it is often not surprising that losers usually call out the judges who ruled against them as having being compromised by the winner.

The first pointer that the presidential election petition of this year will be combustive and exciting was when President Muhammadu Buhari suspended the then Chief Justice of Nigeria, Justice Walter Onnoghen on the strength of a petition by a civil society organization headed by a former aide of the president. Onnoghen was sacked on an order of the Code of Conduct Tribunal dated January 23, 2019. The new CJN Ibrahim Tanko Mohammed was promptly sworn in. In the eye of a section of the public, though it may be a right action but it was wrongly timed. The former CJN who voluntarily resigned in April after his indictment by investigative panel of National Judicial Council was alleged to have been suspended a day to the inauguration of the 250-member panel of judges to hear election petition matters so that he would not be the one to swear them in. His suspension generated tension and division among the political class, lawyers and ethnic jingoists who felt that he was being witch hunted, being from the South-South geo political zone in order to pave way for a northerner to take over his position; a seat that has reportedly not been occupied by a Southerner in over 30 years. Indeed, five of the six governors from his geo-political zone met on Saturday, January 26, 2019 and issued a statement condemning his removal.

Many local and international accredited election observer groups equally expressed deep concern over Onneghen’s removal. For instance, in a January 26, 2019 statement, the EU Election Observation Mission said it is very concerned about the process and timing of the suspension of the CJN, Walter Onnoghen, on 25 January. According to the EU-EOM, “With 20 days until the presidential and National Assembly elections, political parties, candidates and voters must be able to have confidence in the impartiality and independence of the judicial system. With Atiku Abubakar and PDP losing at the tribunal last Wednesday, many of their loyalist are alleging bias.

Another major controversy around this 9/11 judgement was the initial involvement of the President, Court of Appeal who empaneled the 250-member Election Petition Tribunals. As earlier said she was pressured to recuse herself which she did on May 22. Even thereafter she was accused of deliberately delaying naming her replacement.  When she eventually named Justice Mohammed Garba as her replacement on June 10, the legal team of Atiku Abubakar and PDP in the course of the tribunal sitting accused INEC and APC of working in cahoots to frustrate their petitions.  The PDP accused INEC of disobeying court order to allow its presidential candidate, Atiku Abubakar inspect election materials. In a statement on Saturday, March 16, 2019, the opposition party said that INEC was in the ploy with the ruling All Progressives Congress that won the 2019 presidential election, describing the act as deliberate and wicked.

The PDP legal team also lamented the tribunal’s rejection of its request to inspect INEC’s purported server which it claimed contained information to the effect that it defeated President Buhari by 1.6 million votes. Another controversy that dogged the hearing of the petition of Atiku and PDP came to fore on Friday, July 12, 2019 when their lawyers claimed that some of their witnesses were waylaid by “armed men” on their way from Zamfara State.

Even after the 9/11 judgement by Justice Mohammad Garba panel, the legal team of Atiku and PDP has also accused their lordship of not promptly making available the judgment to enable them proceed on appeal to Supreme Court which they have to do within 14 days of judgement of the tribunal. In a statement issued on Friday, September 13, 2019, the Peoples Democratic Party raised alarm over what it called the “undue delay” by the Presidential Election Petitions Tribunal to release the record of its judgment. It alleged in the press release that: “Our party fears that this development is lending credence to suspicion in the public space that the judgment is being tampered with and altered, in the name of correcting errors, knowing that there is no way the verdicts can stand the scrutiny of the Supreme Court.”

My prediction came through

In my commentary published on Wednesday, April 16, 2019 entitled “Will Nigerian judiciary deliver electoral justice?” I had observed inter alia as follows:” it is quite amusing how the All Progressives Congress and Peoples Democratic Party and their presidential candidates are going about their cases at the election tribunal. First, Atiku Abubakar and PDP challenged the qualification of President Muhammadu Buhari on the basis of not possessing the minimum academic qualification. PDP and Atiku went ahead to claim victory via a purported result obtained from INEC’s server by an organisation called factsdontlie.com. PDP and its presidential candidate is claiming to have won the 2019 presidential election by over 1.6 million votes.

These two grounds of petitions among others seem to me as straw-grabbing. INEC has rightfully claimed not to have officially transmitted results of elections in 2019 electronically. APC is also alleging hacking of INEC’s website and has asked security agents to arrest the presidential candidate of APC. Truly, I doubt if any tribunal or court will admit such nebulous exhibit that is not a certified true copy from the election management body. However, I wait to see how the tribunal will rule on that exhibit. On the other count of academic qualification of the president, did PDP and its presidential candidates read Section 131 and 318 of the Nigerian Constitution?

Let me be more specific. The Interpretation of School Certificate as given in Section 318 of the Constitution is this: "School Certificate or its equivalent" means (a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (b) education up to Secondary School Certificate level; or (c) Primary Six School Leaving Certificate or its equivalent and -

(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and (iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission, and (d) any other qualification acceptable by the Independent National Electoral Commission;

On the other hand, news report has it that APC too has claimed that Atiku Abubakar was not qualified to contest as the president of Nigeria being that Jada, his hometown in Adamawa was under Northern Cameroon as at the time of his birth in 1946. Really? Anyway, what does the constitution say about qualification for election? Section 131 again spells it out. A person shall be qualified for election to the office of the President if - (a) he is a citizen of Nigeria by birth.

However, the same constitution in Section 25 says in subsection (1) as follows: “The following persons are citizens of Nigeria by birth-namely- (a) every person born in Nigeria before the date of independence; either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria.” On page one of   his autobiography published in 2013 entitled “My Life”, Atiku Abubakar claimed that his grandfather is from Worgu in Sokoto State and his mum was born of a father from Dutse, capital of Jigawa State. The claims made there have not been controverted. Can APC prove Atiku Abubakar as a foreigner with the above stated fact? I doubt!”

Imperative of electoral reform

Atiku and PDP had made it known their desire to appeal the 9/11 judgement. They have every right to do so and I wish them well at the Apex Court. Nonetheless, the judgement of the Justice Garba judicial panel has thrown up a number of issues which has made it imperative to have electoral reform. Some of them include the desire to upwardly review the number of days for presidential election petition. It is unfortunate that the judicial panel accused PDP of dumping exhibits on it without witnesses to prove their case. In a July 1, 2019 proceedings at the tribunal, PDP had said it planned to call 400 witnesses to prove its case. However, in the 14 days’ period it had to do so, the petitioners could only call 62 witnesses. I hereby propose constitutional amendment to increase the number of days to be given for presidential election petition considering that presidential candidates have the entire country as a constituency.

It is also desirable to review Section 318 which has ridiculous explanation to what constitute School Certificate or its equivalent. This has to be streamlined. Even minimum academic qualification for political office in Nigeria should be raised to University First Degree or Polytechnic HND. It should also be a requirement for electoral contestants to attach Certified True Copy of their results to their nomination forms. Lastly, Nigeria electoral law should be amended to allow for electronic transmission of results in order to enhance electoral integrity. When approved, INEC should mandatorily test-run it in a bye election or one of the off-cycle governorship elections before deploying it wholesale in a general election.