By Washington Osa Osifo
In the aftermath of the declaration and return of Bola Ahmed Tinubu of the All Progressives Congress (APC) as the winner of the February 25 presidential election, the candidate of the Labour Party – Peter Obi and his party filed an election petition, challenging same. In the petition filed on March 20, the petitioners raised three grounds as follows: That Bola Ahmed Tinubu (BAT) was at the time of the election not qualified to contest the election; that the election of BAT was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022 and that BAT was not duly elected by the majority of lawful votes cast at the election.
Firstly, having satisfied the criteria set out in section 131(a) – (d) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended), it is crystal clear that BAT does not suffer from any of the disqualifying factors as indicated in section 137 of the Constitution.
On the US court forfeiture order allegedly made against BAT and for which the petitioners have premised their claim for his disqualification, a cursory examination of the US Court order as pleaded by the petitioners, it is obvious that it does not share or have any of the six elements/features outlined in the forfeiture order.
Therefore, assuming though not conceding that there was indeed such an order of forfeiture made in October 1993 against BAT, it will not suffice as a disqualifying factor by the tenor of section 137 (1) (d) & (e) above for the following reasons:
The said proceedings from all intent and purposes is not a criminal proceedings and therefore there was no indictment as alleged by the petitioners. Clearly, it was “forfeiture” proceedings and it was solely targeted at the assets or funds of the named defendant in the proceedings and a forfeiture proceeding is no criminal proceedings.
Most importantly, the forfeiture order under reference was issued by a court in the U.S. Clearly, the U.S circuit court is not a “court” or “tribunal” in “ Nigeria” for the purposes of section 137 (1) (d) & (e). A community reading of sub-sections (d) and (e) aforesaid and on the basis of even a literal interpretation will reveal that it is only a conviction and sentence by a court of competent jurisdiction in Nigeria that will suffice for the purpose.
By the express provision of section 4 of the Foreign Judgment (Reciprocal Enforcement) Act, Cap F36 LFN 2004, all foreign judgments must first be registered with the appropriate registry of a High Court in Nigeria before they can be enforced. It is further provided that an application for the recognition of such a foreign judgment must be made within 12 months after it has been delivered.
The other crucial point that negates the probative value of the U.S Forfeiture Order under reference is that it was issued in October 1993 almost 30 years before the election of February 25 that produced the president –elect. Specifically, section 137 (1) (e), provides that if the conviction and sentence is in respect of an offence involving dishonesty, fraud or contravention of the Code of Conduct Bureau, it must not be more than ten years preceding the date of the election.
Therefore, assuming though not conceding that there was indeed a conviction and sentence against BAT by virtue of the forfeiture order, such an order has equally lapsed by effluxion of time.
Another ground of the petition is that of non-compliance. Here the petitioners adopted the standard format of this ground as provided under section 134 of the Electoral Act. However, subject to the preliminary objection that may be filed by the BAT team on the vagueness, nebulousness of this ground of the petition, it is clear that even if considered on its merit, it will not fly. This is because, although the petitioners listed some states that they intend to prove that the conduct of the election was tainted with incidences of non-compliance and irregularities, they failed to plead the particulars of these irregularities or malpractices.
They also failed to plead material facts that they intend to rely upon in proof of these weighty allegations. It is trite in law that allegations of corrupt practices in an election petition, is in the category of pleading the commission of an offence in civil proceedings. Thus, the petitioners herein are fixed with the legal and evidential burden to prove these allegations beyond reasonable doubt.
The Supreme Court has since resolved the issue that allegations of corrupt practices in an election must be proved by the petitioner from one polling unit to the other. There is no room for speculations and conjectures, only the petitioners’ polling unit agents that witnessed the incidences of the alleged malpractices or corrupt practices can lead evidence on them.
On the allegation of irregularities based on the alleged non-uploading/transmission of results, the entire gamut of paragraphs 33 -78 of the petition is suffused with verbose and windy pleadings on how the Electoral Act and INEC Regulations and Guidelines for the Conduct of the 2022 elections made it “mandatory” for the commission to upload and transmit results collated at the polling units to the IREV portal.
However, what the petitioners have not been able to prove is whether INEC failed/refused to upload and transmit the said results to IREV or that it was done but not real time or was done belatedly.
The petitioners could not lead direct and credible evidence on polling units by polling units’ basis, how the delay in the said uploading and transmission of the results as alleged, substantially affected the outcome of the results. It is trite law that unless it is established that the incidences of irregularities substantially affected the outcome of an election, it would not be a ground for nullifying it.
It is not mandatory on INEC to electronically upload and transmit polling units’ results as well as collated results in order to validate them. Electoral Act did not make the “transmission “of results by INEC at any stage of the election and collating process a mandatory requirement.
Specifically, at the level of the polling unit, what is required is for the presiding officer to enter the respective votes of the parties into the requisite Form EC8A, announce loudly the said result and thereafter paste same in a conspicuous place at the said polling unit. The reference to the “transmission” of results thereafter was couched in a manner consistent with record keeping, protecting the integrity of the said Form EC8A and in the overall pursuit of transparency and credibility of the process.
Thus, it is therefore arguable that where there is no transmission of the results in form EC8A, but the results in form EC8A already distributed to the party agents, security agents and already published are available, the results remain valid.
The petitioners have admitted that INEC subsequently uploaded the said results, but they now claim that it deliberately uploaded “blurred” copies of the said results on IREV. The crucial question is, what happened to the carbon copies of the requisite FORM EC8 series given to the polling unit and collation agents of the petitioners? Why the fixation on uploaded/transmitted version of the same results?
The claim that the president-elect did not score up to 25% of the total votes cast in 2/3 of the 36 states of Nigeria and the F.C.T Abuja. The petitioners construed section 134(2) (b) of the constitution as making it incumbent on a successful candidate for election into the office of the president to score 25% of 2/3 of 36 states, which is 24 states in addition to specifically and separately scoring 25% of the total votes cast in the F.C.T Abuja.
Perhaps, this is one of the most pedestrian grounds of the petition. This is because by virtue of section 299 of the Constitution, Abuja is granted the status of a state in the federation. Even on a literal and mischief rule of construction, it is inconceivable that the drafters of the constitution could have contemplated that the F.C.T would be given a higher status than other states in the federation. Stretching this argument to insist that scoring 25% of the total votes cast in the F.C.T is an additional requirement would mean that even if a very popular candidate scores 25% of the total votes cast in the 36 “states” of the federation but failed to score same in the F.C.T Abuja, he would not be elected. That is most outlandish!
•Hon. Bar. Osifo (PhD) writes from Benin City, Edo State.