Nigeria: A Problematic Presidential Inauguration (Part I)

"Nigerian flag" by Pete unseth is licensed under Creative Commons BY-SA 4.0.

Editors’ note: this article is the first in a two-part series of blog posts focused on the contested presidential election in Nigeria by Ugochukwu Ezeh. All posts in the series can be read on the African Law Matters blog.

The quest for credible electoral processes has indeed been a protracted and agonising struggle for much of Nigerian history. Regrettably, initial hopes that the 2023 polls would break this cycle were shattered by the considerable dissension and heated controversy that greeted the announcement of the presidential election results.

The ongoing post-election disputes are not unwarranted. Although keenly contested by eighteen different political parties, the presidential election featured three particularly prominent candidates: Atiku Abubakar, of the People’s Democratic Party (PDP); Peter Obi, of the Labour Party; and Bola Ahmed Tinubu, who ran on the platform of the ruling All Progressives Congress (APC).

In the event, the presidential polls took place on 25 February 2023 in a volatile context characterised by worrisome cases of voter suppression and intimidation; severe security challenges; considerable ethnic and religious tensions; pervasive logistical failures, and disturbing incidents of electoral violence, among other forms of alleged electoral irregularities and malfeasance.

The Contested Presidential Election

The electoral management body - known as the Independent National Electoral Commission (INEC) - declared Bola Ahmed Tinubu, the APC presidential candidate, as winner four days later. This declaration was pointedly rejected by Atiku Abubakar and Peter Obi, the other frontline candidates, whose party agents staged a joint walkout from the national collation centre for the presidential election.

Against this backdrop, both candidates respectively filed election petitions at the Court of Appeal, sitting as the Presidential Election Tribunal, in a bid to overturn the election result.

Both petitioners, respectively, challenge Tinubu’s eligibility for presidential office on constitutional grounds; contend that the joint presidential and vice-presidential ticket sponsored by the ruling APC at the election was marred by fatal legal defects; and impugn the election returns made by INEC for alleged non-compliance with binding legal procedures for the accreditation and authentication of voters.

The cases also centre on alleged vote rigging and other forms of electoral malpractice as well as the legal implications of the electoral umpire’s failure to ensure electronic transmission of the presidential election results.

To guarantee the nationwide acceptability of electoral mandates, section 134 of Nigeria’s 1999 Constitution requires a successful presidential candidate to win the majority vote and obtain, as a minimum criterion, 25% ‘of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory [FCT], Abuja.’

On the contested results declared by INEC, Tinubu secured the foregoing majority vote requirement but nonetheless obtained about 18.99% of the votes in the FCT. The petitioners also dispute the constitutional validity of his return as president-elect on this ground by arguing that the FCT vote threshold constitutes an integral aspect of the minimum electoral requirements.

Although Tinubu, qua respondent, strongly disputes this interpretation, the controversy is further complicated by its unprecedented character - all other successful presidential candidates, since the transition to civilian rule in 1999, obtained the prescribed vote threshold in the FCT. Taken together, both petitions therefore raise several salient questions concerning the credibility and legitimacy of the outcome of the presidential election.

“[T]here is a strong case to be made, on grounds of public policy, for ensuring the prompt resolution of election disputes prior to a presidential inauguration. Measured against this standard, the current system of electoral dispute resolution leaves much to be desired.”

Situating the Problem

One conspicuous feature of the Nigerian electoral system is that processes of electoral adjudication often extend beyond the inauguration of a new administration.

The 1999 Constitution, which governs the current Fourth Republic, attempts to strike a balance between speedy and prolonged adjudication by providing timeframes for the determination of election petitions. Accordingly, section 285(5) of the 1999 Constitution stipulates a 21-day window-period, from the declaration of election results, for filing a presidential election petition.

In similar vein, section 285(6) prescribes a 180-day timeline wherein the Court of Appeal, which has original jurisdiction in presidential election petition cases, is to deliver its written judgment. Following from this, section 285(7) provides a further timeframe of 60 days for the determination of appeals against judgments of the Court of Appeal in such cases.

In this regard, presidential election petitions are decided by recourse to a two-tier adjudicatory system: the Court of Appeal determines such cases at first instance with appeals against its decisions terminating at the Supreme Court.

Be that as it may, it is not uncommon, in the current Fourth Republic, for candidates who are declared as winners in contested elections to assume office despite pending litigation against the election results. I argue, with reference to the contested 2023 presidential election, that this system of dispute resolution is objectionable for several reasons.

First, it is anti-democratic and unprincipled given the legitimacy deficits that inevitably arise when an incoming administration is inaugurated in the face of unresolved electoral disputes. In this regard, a reasoned decision on the merits is necessary to either confirm or disavow the constitutional (il)legitimacy of a contested electoral mandate.

Second, protracted systems of electoral adjudication may prove disruptive if the courts ultimately overturn the disputed results. The lack of a definitive conclusion of the ongoing electoral adjudication process can hardly engender the atmosphere of stability and certainty that should ordinarily characterise the inauguration of a newly appointed democratic administration.

As such, there is a strong case to be made, on grounds of public policy, for ensuring the prompt resolution of election disputes prior to a presidential inauguration. Measured against this standard, the current system of electoral dispute resolution leaves much to be desired.

A Problematic Inauguration  

On 29 May 2023, Bola Tinubu was inaugurated as Nigeria’s fifth president since the advent of the Fourth Republic in 1999.

A presidential inauguration marks the formal investiture of the declared winner of an electoral contest. This event entails the official conferment of constitutional authority on a person who then becomes, ipso facto, entitled to exercise the momentous and far-reaching powers associated with presidential office.

Section 5 of the 1999 Constitution, for instance, vests the executive powers of the Nigerian federation on the President. This provision also authorises an incumbent president to enforce and implement the Constitution as well as laws enacted by the National Assembly.

In this respect, aggrieved parties have legitimate grounds for demanding final decisions, on the merits of pending election petitions, in advance of a presidential inauguration.

One might object that an inauguration ceremony does not constitute a juridical fait accompli given that an unlawful or invalid return may be duly overturned in the courts in appropriate cases. Proponents of this perspective may also emphasise that the jurisdictional competence of the courts to nullify an invalid mandate, at the gubernatorial level, is already well established in Nigerian electoral jurisprudence.

Although no presidential election has been judicially nullified in the country’s electoral history, there is nothing in principle preventing the courts from doing so where a compelling case can be made for such a course of action. Furthermore, on this argument, where the electoral management body declares a winner, a presumption of validity should enure in favour of the declared mandate until it is duly set aside within the judicial process.

This objection unjustifiably discounts the normative significance of an electoral process that ensures the fair and timeous resolution of electoral disputes. The exercise of political authority, in genuinely democratic societies, is ultimately rooted in the credibility of electoral processes, and disputes concerning the legitimacy of election returns ought to be resolved in a fair and timely fashion.

By the same token, the objection overlooks the peculiar context of transitional societies and fledgling democracies wherein the (un)lawfulness of the conduct of the electoral umpire is often directly in issue in post-election litigation. A presumption of validity in favour of impugned elections may be inapposite in such contexts given the deficiencies of electoral and other democratic institutions. Electoral adjudication should proceed from an even-handed premise unencumbered by presuppositions in favour of the credibility and legitimacy of disputed elections.

Following the declaration of results, aggrieved parties ought to be afforded meaningful opportunities to ventilate their grievances in an independent and impartial adjudicatory forum. The highly charged disputes that arise from contested elections require fair, dispassionate, and principled analysis of relevant factual contexts and legal frameworks.

Therefore, adopting - as a point of departure - a presumption of validity in favour of impugned electoral processes may undermine fair hearing in such contexts.