Tinubu, Atiku, Obi and the Presidential Election Petition Tribunal

Expectedly, the INEC declaration of Asiwaju Bola Ahmed Tinubu and Kassim Shettima of APC as winners of the February 25, 2023 Presidential Election met stiff opposition from some candidates who rejected the results and applied to the Presidential Election Tribunal to have it canceled.

But as the Supreme Court has said on Tuesday 9th May, 2023 in the case of Oyetola Vs Adeleke, that INEC’s failure to promptly upload results from Polling Units through BVAS to the IReV portal on election day cannot invalidate an election, and that any petitioner alleging over-voting in an election must be able to produce the BVAS, INEC voters register and/or a certified true copy of an INEC certificate of record for EACH POLLING UNIT to prove same, I am of the humble opinion that the case(s) now in the Tribunal against the declaration was Brought In Dead (BID) or is Dead on Arrival (DOR). At best they are weak.

First, PDP/Atiku’s case against APC/Tinubu is based principally on 2 issues.

Alleged “widespread irregularities, corrupt practices, and non-compliance with the provision of the law during the election”, and;
Non transmission of election results on the day the election held.

The second issue above has been adequately taken care of by the Oyetola Vs Adeleke case. Having discuscussed it here 3 days ago, I think there is no need to over flog it.

The first issue which is based on the claim of “widespread irregularities, corrupt practices, and non-compliance with the provision of the law during the election”, has so far not not only been difficult to prove but has so far remained impossible to prove in any Presidential Election Tribunal in this country. I believe it has been so because of the doctrine of “substantial compliance”.

What is doctrine of “substantial compliance”? It is a doctrine propounded on the world view that it is implicit and conceded that there must be flaws in the conduct of any election in the world. That being the case, the erstwhile late Chief Akinjide Akinjide of the two thirds of 19 Awolowo Vs Shagari case said of the doctrine, that –

“it is impossible to conduct a flawless election but that once there is substantial compliance, then the election should be accepted as having substantially complied with the laws and the return should not be upset”.

That has been the case in this country since 1979 when late Chief Akinjide said of the case of Awolowo Vs Shagari that “you have the doctrine of substantial compliance that is written into all election laws in all countries”.

The case of Obi/LP is not different from that of the PDP except that in their case, LP/Obi have added a claim that Tinubu has failed to score one-quarter of the votes cast in the FCT, Abuja, and should because of the provision of S. 134(1)(b), not be sworn in as president on 29th May, 2023.

Section 134 of the constitution relied on by Obi stipulates that –

“S. 134 (1) A candidate for an election to the office of the President shall be deemed to have been duly elected, where, there being only two candidates for the election

“(a) he has the majority of votes cast at the election; and

“(b) he has not less than one-quarter 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, ABUJA.”
Emphasis mine.

Let me concede that yes truly from 1999 when this constitution came into effect all presidents have won 25% of the votes cast in FCT thus –

Obasanjo 59% in 1999, 49.9% in 2003.
Yar’adua – got 69.6% in 2007
Jonathan – 64.89% in 2011.
Buhari – 51.77%, in 2015 and 36.92%. in 2019.
Tinubu – scored only 19% of the votes cast in FCT, Abuja.

But then in this instant case there are 3 questions to ask here.

A. Does the phrase “AND THE FEDERAL CAPITAL TERRITORY, ABUJA”, in S. 134 (1) (b) of the constitution, mandates that a candidate must win 25% of the votes cast in Abuja?

B. Could it be so even if the candidate wins more than 25% in two thirds of the states (24 states) and has scored the highest number of votes in the federation?

C. Is FCT, Abuja to be considered a state that must be won separately?

By the way take note that Tinubu, Atiku and Obi scored the following votes nationwide –

Tinubu – 8,794,726
Atiku – 6,984, 520
Obi. – 6,101,533

Clearly Tinubu has the highest number of votes cast. He has scaled Subsection (a) of section 134(1)(a).

In addition, Tinubu has scored the minimum 25% of votes in 30 states, Atiku has a minimum of 25 per cent in 21 states while Obi scored a minimum of 25 per cent in 17 states.

Can you in all honesty and by whatever interpretation method adopted, believe that the 2023 presidential election should be canceled and Obi be sworn in as president?

There are 3 main principles of interpretation of legal documents –

Literal Rule
Golden Rule and
Mischief Rule.

If you adopt the Literal rule to interpret the words used in S. 134(1)(b) of the constitution, you will give the words their ordinary grammatical meaning and therefore say yes, Obi is right, the words “and the Federal Capital Territory” means the candidate must win Abuja to be president.

But that will work injustice on Tinubu. For God’s sake the man has won the highest number of votes in the election and he also received the minimum 25% of votes cast in 30 out of our 36 states in the federation. Not just 24 but 30 states.

But he has lost Abuja. Atiku too has lost Abuja. Only Obi secured the minimum 25% in the territory.

To me, the answer to this legal log jam, is simple. We should just adopt the Golden rule of interpretation. By the Golden rule, it has been accepted that in the rule of interpretation of statutes, the wordings of the statute must be given their ordinary grammatical meaning. But that it has also been accepted that where the ordinary meaning will lead to absurdity, the Court should adopt an interpretation that avoids such absurdity. The Supreme Court clearly said so in the case of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545 at 585 paras. F – G where it held thus:

“I must remark here that in the interpretation of any statute or instrument, the object is to ascertain the intention of the legislature that had drawn it.

The framers of our constitution would never have envisaged that a man who has won the highest number of votes in this country and secured the minimum 25% of votes cast in 30 out of our 36 states in this country can have his election invalidated because he didn’t secure 25% of the votes cast in the FCT nor could they have envisaged that the man who came 3rd (not even Atiku who came 2nd) would be sworn in his place. That would certainly be absurd.

I therefore align myself with the argument that section 134(1)(b) of the constitution should be interpreted to simply mean that Abuja is the 37th state of Nigeria and thus 25% in 25 states suffices for one to be president. Tinubu has scored more than that. He has 30 states.

This argument is further reinforced by the fact that FCT, Abuja is always legally treated as a state. Yes, it has no state governor elected as such. It has no state House of Assembly elected by only the residents of FCT, Abuja. But the FCT Minister is the governor of Abuja and he performs all the functions of an elected governor. The National Assembly is the House of Assembly of FCT, Abuja.

You might have noted this when I stood in the House of Representatives in 2016 and opposed the motion that sought to reintroduce ‘park and pay’ policy in FCT, Abuja. Abuja also has commissioners. Our own Adamawa state born Waziri Ahmadu Gulak and Mrs. Olvady Bema were secretaries (Commissioners) for Agriculture and Rural Development in the FCT.

Let me quickly sum up by saying that –

i) I agree with Chief Richard Akinjide that the doctrine of “substantial compliance” will knock off the cases of both PDP and LP.

ii) Their argument that INEC failed to upload the results of polling units onto a central server (IReV) as required by law has been quashed by the case of Oyetola Vs Adeleke.

Finally, the argument of the LP/Obi that since Tinubu has not scored a minimum of 25% of votes cast in FCT, Abuja, he should not be sworn as president in breach S. 134 (1) (b) of the constitution is equally flawed.