2023 GOVERNORSHIP AND
STATE HOUSE OF ASSEMBLY ELECTIONS
Can any court or authority in Nigeria stop the swearing-in of a President-Elect?
By Prince Ejeh Josh & Ebubechi Eze
It’s the duty of lawyers to remove the veil of ignorance on the minds of people in matters of law by setting in motion the true position of the law especially in areas where confusion, misconception and lack of understanding abound. It’s an unacceptable act of notoriety for lawyers, whose duty is to inform and enlighten, to join the herd of ignorant citizens for fear of blackmail, cyberbully or ostracization, to conjecture speculations and falsehoods in a bid to distort the law. Let’s see through this short lens of constitutional voyage on the legal/constitutional impossibility of halting a presidential swearing-in ceremony.
One of the fundamental issues in the country today is the call by some Nigerians on the court to grant an injunction stopping the inauguration or swearing-in of the President-elect, Senator Bola Ahmed Tinubu as the substantive President of Nigeria on May 29 pending the substantive determination of the plethora of lawsuits at the presidential elections tribunal challenging his victory at the February 25 general elections.
Few lawyers and non-lawyers have even approached the Federal High Court and tribunal with applications praying the court/tribunal for an order restraining the Chief Justice of Nigeria from swearing in the president-elect, or in the alternative, to restrain the president-elect from presenting himself on 29 May for taking oath to the office of the president.
The question is whether the court or any other authority has the power to grant this order or stop the swearing-in ceremony. This is purely a constitutional matter, and it’s never in the contemplation of the Nigerian constitution that such would happen.
Nigerians are emotional with politics and law. While politics may allow emotion to determine the outcome of a cause, law, on the other hand, is bereft of emotion or sentiment. It’s all about evidence deducted through fact. Court can only draw its power and authority to grant an injunction or order or give judgment from the body of the extant law of the land. Copious reference(s) must be made to the statute or law from where the court derives its power in arriving at its decision.
Usually, these laws are written codes like the constitution, electoral law, or other statutes and stare decisis et non quieta movere or what is popularly called in our local parlance as judicial precedent/case law. The court does not pander to blackmail arising from bandwagon of ignoramuses to arrive at its decision. Any exercise of discretion by the court, where the law allows, must be done judiciously and judicially with the interest of the society vis-à-vis reconciliation of conflicting forces to bring them in conformity with the law and equity.
The provisions of the constitution are unambiguously spelt out as to the qualifications and requirements for the office of President of the Federal Republic of Nigeria. Once these requirements are satisfied, the bodies sanctioned by the constitution for its implementation will activate the necessary machineries to bring the provisions into effect and execution. Other means at variance with the provisions of the law are regarded as ultra vires, null and void with dire consequences. This is why the constitution outlaws usurpation of power and authority by any means not recognized by it such as military intervention in politics or its intervention in other matters not within its functions or mandate.
Section 130 of the Constitution of the Federal Republic of Nigeria (as amended and hereinafter referred to as the “constitution”) establishes the office of president of the Federal Republic of Nigeria, while section 131 of the constitution provides for the qualifications a candidate must meet before s/he can aspire for the office.
In particular, sections 133 and 134 of the constitution provide detailed situations where a candidate for the office of president will be deemed to have been duly elected. Where in a presidential election, a single candidate or what Nigerians call, unopposed candidate, is contesting, he shall be deemed to have been duly elected to such office if 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).
Where there is more than one candidate vying for the office of president in Nigeria, it’s the contemplation of the constitution that a candidate shall be deemed to have been duly elected, where he has the MAJORITY of votes cast at the election. 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).
The arguments from different quarters following the declaration of Bola Ahmed Tinubu of the All Progressives Congress as president-elect by the Independent National Electoral Commission (INEC) having polled the highest votes cast being a total number of 8,794,726 votes and maintained a clear lead of one quarter of votes cast in two-thirds of the States of the Federation to beat his closet rival and presidential candidate of the Peoples Democratic Party, Alhaji Atiku Abubakar who got 6,984,520 votes, with Mr. Peter Obi of the Labour Party and Alhaji Rabiu Kwankwaso of the New Nigeria’s People Party trailing behind with some distant 6,101,533 and 1,496,687 votes respectively were two pronged; that Tinubu couldn’t muster at least, 25% votes from the Federal Capital Territory, Abuja, robbing him victory since it was a mandatory constitutional requirement, and that the constitution does not make it obligatory or compulsory for a candidate to score at least 25% votes in the FCT since Abuja has no special status conferred on it.
The above constitutional provision has become a contentious issue with ripple effect and multiple interpretations by legal practitioners and analysts down to the common man on the street. In fact, it became a free-for-all intellectual excursion with people negotiating confusion into their minds. Fallacies are wrapped in sensationalism and packaged like the Catholic Holy Communion and sold out to undiscerning minds as unquestionably conclusive. Everyone assumed the position of a legal expert, heating up the charged political atmosphere spiraling the call for an interim government or in wild language, military junta.
A call for an interim government, I strongly hold, is a deviation from the freedom of expression or thought to an extreme state of treason and an invitation for military coup. The constitution creates an incontrovertible window of balance of interest and harmonious social order in situation where parties are aggrieved at the outcome of elections. It creates the tribunal and courts where justice will be speedily dispensed within a timeframe. Section 285 of the constitution provides for the expeditious proceeding in elections matters. It doesn’t contemplate coup as some Nigerians are presently calling for one in whatever nomenclature they had applied. It doesn’t envisage INTERIM GOVERNMENT (emphasis mine) which is an abrogation of the law of the land.
Indeed, the constitution is apposite as to where the tenure of the president can be extended. Section 135 (3) of the constitution provides that the extension of the tenure of the office of president could only be allowed with the sanction of the National Assembly where the country is physically at war and the president considers it IMPRACTICABLE TO HOLD ELECTIONS (emphasis mine). Aside this, no other act, commission or omission can give the president or any other authority such as the court the power and jurisdiction to extend the expiring tenure of a president or order for an interim government by whatever names or stop the swearing-in of a President-elect declared as such by INEC in exercise of its functions.
On the issue of the 25% requirement of a presidential candidate in the FCT, I have had the opportunity to peruse different opinions by senior lawyers, ripostes and arguments. It is interesting as they add to the corpus juris of our jurisprudence. However, let me quickly note that some positions taken by known senior lawyers were fraught with biases and veered from sound legal foundation. They’re at best, mere sociological and political in orientation and do not speak the language of the law. Some even applied mathematics without logic in the explanation of the word “AND” used by sections 133 and 134 of the constitution as regards the status of the FCT, Abuja.
The court is a court of justice rather than technicalities. It looks at the substance rather than the form. It’s in pursuit of justice that Equity evolved to ameliorate the harshness and injustice occasioned by the common law. It is, however, surprising that many senior lawyers still believe in the substantive application of technicalities to knock off rival parties and subvert substantial justice. The court had, over time, developed various canons of interpretation of statute in order to navigate a way out of the rigidity of the common law by giving it reasonable meaning that will dispense manifest justice. On this, rules such as the literal, golden, mischief, progressive, etcetera rules of statutory interpretation have provided latitude for reasonability in applying the law.
Section 299 of the constitution deals a fatal blow to whatever argument that the Capital Territory, Abuja, is conferred with a special status in the execution of the constitution. The section clearly provides that “the provisions of this constitution SHALL apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation…” In order to leave no one in doubt, it goes further to provide that all the legislative powers, executive powers, judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and the courts established for the FCT. The deliberate elucidation of the vestments of these powers on the above bodies is only for convenience in administration and not for any special purpose or status.
Sections 300, 301, 302 etcetera of the constitution further provide a foolproof module that liken the FCT to one of the states of the federation and no more subject to necessary alterations for conformity. The law is well settled that the High Court of the FCT as provided for in sections 255 to 259 and the High Court of a State as provided for in sections 270 to 274 are both referred to as courts of coordinate jurisdiction. This seals the coffin of whatever centrifugal argument creating a dichotomy between the status of a state and that of the FCT as one transmogrified with a special status.
On the word ‘AND’ (emphasis mine) as used in sections 133 and 134 of the constitution; a community reading of the provisions of the constitution, particularly, section 299 and the accompanying sections will leave no one in doubt that the intendment of the draftsmen were clearly unambiguous as the word is conjunctive. It does not separate or isolate the FCT from other states making it a special case. The FCT shall be treated, subject to specific provisions and adjustment in the constitution, as one of the states of the federation. It can be safe, therefore, to submit that barring military intervention—which is not feasible at the material time—no court or any other authority can stop the swearing-in of a President-elect. Aggrieved parties should exhaust the abundance of redress system the constitution has provided.
Contents provided and/or opinions expressed here do not reflect the opinions of The Pacesetter Frontier Magazine or any employee thereof.
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