Nigeria: A Problematic Presidential Inauguration (Part II)

“Bola Tinubu won February's election with 37% of the vote, a victory that is being challenged in court” was published by the BBC on 29 May 2023.

Editors’ note: this article is the second 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.

Nigerian jurisprudence has long grappled with the delicate task of defining the normative content of the right to fair hearing within a reasonable time in the context of electoral disputes.

For instance, Unongo v Aku - a landmark case from the Second Republic - impugned the constitutionality of certain statutory provisions that stipulated a 30-day timeline for the determination of election petitions in the High Courts.

The Supreme Court held that the mandatory timeframe, calculated from the date of an election, contravened the principle of separation of powers as well as the constitutional guarantee of fair hearing within a reasonable time.

Whilst affirming the jurisdiction of the legislature to regulate procedural matters concerning election petitions, the Court reasoned that the statutorily imposed timeline discounted the peculiar context of such cases and encroached on substantive and inherent judicial power concerning case management.

Electoral Disputes: Hasty Justice or Delayed Justice?

The principle of fair hearing, as conceptualised in Unongo, required adequate time for the ventilation of electoral grievances as well as the careful consideration of the complex evidentiary issues involved in election petitions.

According to Obaseki JSC, who concurred with the lead judgment, it was inappropriate to ‘sacrifice justice on the altar of speed’ and the courts retained their constitutional role as ‘the judge of how they can best expedite judicial business before them.’

Electoral justice, based on these premises, required ‘the full and free exercise of the right of the parties to present their cases through their witnesses and counsel’ as well as ‘the obligation of the judges to give full and effective consideration to the evidence led and the addresses of counsel if any in their decisions.’

By the same token, Bello JSC, who also issued a concurring opinion, bemoaned the risks attached to ‘hasty or hurried justice.’ Against this backdrop, the Court struck down the impugned statutory provisions as unconstitutional.

The Current Position

Judicial hostility towards mandatory timelines in electoral cases has waned since the Supreme Court’s 1983 decision in Unongo.

As highlighted in Part I, section 285 of the extant 1999 Constitution (as amended) attempts to strike a balance between precipitate and protracted adjudication by providing timeframes for the determination of election petitions. However, further reform is required insofar as the extant legal framework fails to prevent electoral adjudication processes from extending beyond the commencement date of the four-year tenure of incoming administrations.

In this regard, there are good grounds for arguing that the lack of legal resolution of the pending election petitions in advance of the presidential inauguration ceremony, held on 29 May 2023, is problematic.

Proposed Reforms

As a means of resolving this problem in future cases, the 1999 Constitution could be amended to substitute the current system with a one-tier electoral adjudicative model in presidential election petitions.

This model would entail conferring original and final jurisdiction on the Supreme Court in such cases. Adopting this measure would also be consistent with electoral dispute resolution processes in other African countries, such as Kenya and Ghana, where presidential election disputes are resolved directly by apex courts. In this regard, Article 140 of the Kenyan Constitution empowers litigants to file presidential election petitions directly in the Supreme Court while the Ghanaian Supreme Court similarly exercises original jurisdiction over such cases by virtue of Article 64 of the 1992 Constitution.

To address the normative concerns expressed in Unongo whilst simultaneously upholding the principle of timeous dispute resolution, the proposed constitutional reforms could incorporate revised timelines that adequately enable the parties and the Supreme Court, respectively, to present their cases and deliver judgment in advance of the date of handover to an incoming administration.

As a practical short-term measure – without prejudice to the suggested constitutional reforms - the judiciary may nonetheless play an ameliorative and progressive role in defence of the principle of timeous dispute resolution. A prominent legal practitioner, and former president of the Nigerian Bar Association, has rightly suggested, with reference to the recent presidential election, that the Tribunal could, in any case, have resolved important aspects of the petitions relating to constitutional interpretation in advance of the presidential inauguration.

On this perspective, the Tribunal, by deploying a doctrine of severance, could have isolated, and promptly determined, aspects of the petitions relating to the relatively straightforward contention that the 1999 Constitution mandatorily requires a successful presidential candidate to obtain the 25% vote threshold in the Federal Capital Territory (FCT), Abuja.

The idea is that where election petitions involve interpretative questions that can be determined without recourse to complex factual evidence or convoluted evidentiary procedures, such cases may be timeously disposed of well in advance of the current 180-day adjudicative timeframe.

Beyond consolidating the petitions filed by Obi and Atiku, the Tribunal did not adopt this time-saving approach in adjudicating over the ongoing proceedings. In any case, it is reportedly set to dispose of the petitions by 16 September 2023 – more than three months after the presidential inauguration. 

“To decisively tackle the many political, developmental, and socio-economic problems bedevilling the country, a President must be well placed to exercise credible and undisputed constitutional authority.”

Electoral Justice: Dispute Resolution Before Inauguration?

Interestingly, Nigerian electoral history provides some support for the proposals concerning the timeous resolution of post-election disputes. When Nigerians initially adopted the presidential system of government in 1979 to mark their transition to democracy, after thirteen years of military dictatorship, they grappled with a heated legal dispute over the presidential election results.

In this connection, Obafemi Awolowo, one of the runner-up candidates in the August 1979 presidential polls, challenged the Federal Electoral Commission’s  declaration of Shehu Shagari as president-elect on the ground that he had ostensibly failed to satisfy the statutorily prescribed minimum territorial vote requirements for a valid presidential election.

The Presidential Election Tribunal and Supreme Court respectively, timeously resolved the legal dispute in Awolowo v Shagari in advance of the presidential inauguration. As such, Shagari assumed presidential office on 1 October 1979 on the basis of a relatively solid electoral mandate: his victory in the presidential election was declared by the electoral umpire and subsequently duly upheld within the judicial process.

When his re-election was challenged by Waziri Ibrahim, an unsuccessful candidate in the 1983 presidential polls, the Supreme Court again affirmed the principle of timeous dispute resolution, by determining the election petition in advance of the presidential inauguration.

Regrettably, commitment to this principle was subsequently weakened during the early years of the Fourth Republic. For instance, the Supreme Court handed down its final judgment, dismissing a petition against the contested results of the 2007 presidential election, in December 2008 - one year and six months after the presidential inauguration.

This unsatisfactory state of affairs necessitated previous amendments to the 1999 Constitution aimed at streamlining timelines for determining election petitions at the trial and appellate stages. Nonetheless, as pointed out earlier, the current adjudicative timelines remain unsatisfactory.

Conclusion

Having been inaugurated as president on 29 May 2023, Tinubu takes office based on a disputed and controversial mandate.

As these blogposts have shown, there are substantial, multiple, and unresolved legal disputes surrounding his return as the successful candidate in the recent presidential election. As such, the country needs to urgently address principled and democratic objections to the current systems of electoral dispute resolution that routinely fail to dispose of pending election petitions in advance of a handover to incoming administrations.

Furthermore, some recent judicial rulings dismissing, on technical locus standi and jurisdictional grounds, other election-related lawsuits on the eve of the inauguration ceremony do not address the problem insofar as they do not amount to a substantive determination on the merits of the ongoing election petitions.

To decisively tackle the many political, developmental, and socio-economic problems bedevilling the country, a President must be well placed to exercise credible and undisputed constitutional authority.

While timeous judicial determination of electoral disputes is by no means a magic bullet, it may nonetheless usefully settle salient legal questions concerning the constitutional legitimacy of an incoming administration. It is evident that only leaders who possess credible and legitimate democratic mandates can unite the country in the aftermath of what has been an exceptionally volatile and acrimonious election cycle.