PEPT’s Verdict and the Task Before the Supreme Court, by Farooq A. Kperogi
I finally got a chance to read the verdict of the Presidential Elections Petitions Tribunal. Being completely emotionally uninvested in the outcome of the last presidential election (because on the issues that really matter— such as subsidies for the poor—Bola Tinubu, Atiku Abubakar, and Peter Obi are indistinguishable), most of the tribunal’s judgment was unsurprising.
Because the conduct of elections in Nigeria are typically shambolic and inept, as with everything else in the country, I think it’s valid to question the credibility of electoral outcomes. It’s equally legitimate to suspect the independence of the judges who hand out verdicts, including the current one, more so that the first certified true copies of the judgment that circulated in the public sphere had a header that read “Tinubu Presidential Legal Team.”
In any case, in an August 29, 2020, column titled “Aso Rock Cabal’s Judicial Cabal on Election Petitions,” I exposed confidential information that a high court judge shared with me about the sodding moral hideousness of electoral tribunal judgements. The judge said there was a cabal of judicial bandits in Buhari’s Aso Rock who wrote election tribunal judgements.
“The actual writing of the judgments is usually done by a consortium of justices and legal practitioners,” I wrote. “This subversion of justice by a conclave is a low-risk-high-reward undertaking. Members of the judicial cabal are routinely compensated with promotion and financial reward.” So, it isn’t far-fetched to accuse judges of the PEPT of wheeler dealing.
Nonetheless, no neutral, independent-minded person would fail to see that Atiku Abubakar and Peter Obi had really weak cases. If a judicial cabal wrote the PEPT judgement, Atiku and Obi made the job easy for the cabal.
The centerpiece of the electoral petitions against Tinubu’s victory was that Tinubu should be disqualified from running for the last presidential election because of a whole bunch of things they alleged against him, most of which revolved around questions of his irrefutable moral turpitude. Unfortunately, immorality isn’t always illegality.
The petitions were high on emotions, conjectures, moral posturing, grandstanding, logical absurdities (such as insisting that candidates must win 25 percent of the FCT to win a presidential election thereby making Abuja more important than every part of Nigeria, that Tinubu should be disqualified for a voluntary civil forfeiture of drug money in the US more than three decades ago, that Tinubu should be disqualified because of false and ignorant claims that he didn’t graduate from Chicago State University, or for perjuries he committed more than 20 years ago, etc.) than on legally sound, substantive arguments about the election itself.
They didn’t present foolproof, unimpeachable evidentiary facts, like Atiku did in 2019, to show that their actual votes were higher than INEC gave them—and thereby higher than Tinubu’s actual votes. Wishful thinking, online bullying, tendentious accounts of events, and coarse, primitive, illiterate invective against people who have different opinions are not substitutes for substance. Neither are mass delusion and blind political cultism guarantees of electoral victory.
The evidence for electoral irregularities they presented to the tribunal were, for the most part, inept, tangential, weak, and easily disputable. Plus, they are also guilty of these irregularities in their own areas of popularity. It isn’t enough to allege; you should prove your allegations beyond all shadows of doubt, beyond merely providing libidinal raw materials for the wet dreams of your worshipful supporters.
You don’t need to be a lawyer to know that the petitions had not a snowball’s chance in hell of upending Tinubu’s victory. Only self-indulgent, illusory hope would dispose people to expect to get anything out of the petitions.
Obi’s wildly Trumpian dissimulation is the most mystifying for me. It beats me how, with a narrow electoral focus, he thought he won a “mandate” that was “stolen” and how he could somehow have been declared the winner of an election in which he finished third without first asking the tribunal to invalidate the votes of the second-place finisher. By what logic would the tribunal have declared Obi the winner without first nullifying Atiku’s votes, which Obi didn’t ask for in his petition?
In other words, the petitions weren’t as much about the vote as they were about who Tinubu was and wasn’t (most of which made more moral than legal sense) and why Tinubu should be disqualified, and a rerun ordered that would exclude Tinubu. That doesn’t strike me as a serious challenge.
The petitions are predictably heading to the Supreme Court where they will get a final legal burial. But I am glad that the appeals will help get us legal closure on two thorny issues once and for all: the electoral worth of the Federal Capital Territory and the intent of the framers of the 1999 constitution when they barred dual citizens from running for elective positions.
It’s apparent to anyone with even a basic understanding of the English language that the constitution merely regards the FCT as equivalent to a state for the purpose of determining the geographic spread of votes cast during a presidential election. It would be absurd for the constitution to confer supernumerary electoral value to the votes of the residents of the FCT by requiring that winning 25% of votes there is a precondition to be declared president.
It makes neither logical, linguistic, nor political sense to isolate a small part of a whole and arbitrarily elevate its electoral value above others. The verdict of the Supreme Court will bury this nonsense forever.
The tribunal’s ruling on the challenge to Tinubu’s alleged dual citizenship is its worst, and I hope the Supreme Court will give us clarity on it. Sometime last year, I had an impassioned dialogic exchange about dual citizenship with a newspaper editor who has a law degree. It was from him I first became aware that I had been misinformed about the issue.
Full disclosure: I am a dual citizen of Nigeria and the United States. I thought I could never run for an elective office in Nigeria, but wondered why former Senate President Ahmed Lawan, former House of Representatives Speaker Femi Gbajabiamila, former Senate President Bukola Saraki, and several others who are dual citizens held elective offices.
Well, it has turned out that there are preexisting court judgments that basically say dual citizenship is disqualifying only if Nigerian citizenship is acquired through naturalization.
In a 2004 case between Dr. Willie Ogebide and Mr. Arigbe Osula, for example, Justice Walter Onnoghen held that “… it is clear and I, hereby, hold that the acquisition of dual citizenship by a Nigerian per se is not a ground for disqualification for election… particularly where the Nigerian citizen is a citizen by birth. That is the clear meaning of the provisions in sections 66(1) and 28 of the 1999 constitution when taken together.
“The only Nigerian citizen disqualified by the said sections is one who is a citizen of Nigeria by either registration or naturalization, who subsequently acquires the citizenship of another country in addition to his Nigerian citizenship…”
Similarly, in 2022, Justice Oghohorie ruled that the dual citizenship of Cross River State deputy governor Peter Odey didn’t invalidate his eligibility to run for office because his Nigerian citizenship was acquired at birth.
However, in spite of these precedents, the Federal High Court in Port Harcourt invalidated the candidature of Rivers State APC governorship candidate Tonye Cole on account of dual citizenship. Our courts obviously have no respect for precedents, but I hope the ruling of the Supreme Court on the matter will establish once and for all whether people who were born Nigerian but acquired another citizenship later in life are disqualified from running for elective offices.
Of course, it would also be reassuring if the Supreme Court grants legal protection to the technological safeguards that INEC spent billions to acquire in order to assure voters that it would run a credible poll but whose use the tribunal said was optional and discretionary.