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From Godwin Tsa, Abuja
The Independent National Electoral Commission (INEC), declared Asiwaju Bola Ahmed Tinubu of the ruling All Progressives Congress (APC), as winner of the February 25, presidential election, defeating Atiku Abubakar of the Peoples Democratic Party(PDP) and Peter Obi of the Labour Party(LP), who came second and third respectively.
However, the crisis of legitimacy is looming over the electoral victory of Bola Tinubu as both the leading opposition candidates have filed their petitions challenging the election and Tinubu as the president-elect.
Both petitioners who are laying claim to the presidency, are in their separate petitions, urging the tribunal to invalidate Tinubu’s return by the INEC and declare them winner of the presidential election.
While Obi and his Labour Party predicated their petition against Tinubu on three grounds for determination, Atiku and the PDP rested theirs on four grounds.
Areas of Similarities
There are however some areas of similarities between the two petitions both in terms of the grounds and reliefs sought by the petitioners.
Both petitioners are challenging the qualification and eligibility of Tinubu to contest the election. They both questioned the election on the grounds that Tinubu was not duly elected by majority of the lawful votes cast at the election.
It is also their common grounds that the election of Tinubu was invalid by reason of corrupt practices.
The only area of departure between the two petitions is that while Atiku raised the issue of over-voting and non compliance with the provisions of the Electoral Act 2022, as separate grounds of his petition, the issue, though raised by Obi, did not form separate grounds of his petition.
Strong legal grounds in Peter Obi’s Petition
In ground one of their petition marked CA/PEPC/03/2023, Peter Obi and his Labour Party are contending that Tinubu was ineligible to contest the election.
The first leg of their argument on this is that when Kashim Shettima was nominated by Tinubu as his running mate, he (Shettima) was still the Senatorial candidate for the Borno Central Constituency. That he only withdrew his candidacy a day after he was nominated.
It is therefore the argument of the petitioners that since Shettima was nominated in Borno Central Constituency, and then nominated in the Nigeria’s Constituency as Vice-President, this amounted to multiple nomination and therefore his nomination as Vice President is void, and invalid as it taints the candidacy of Bola Tinubu and so he was ineligible to contest the election.
This appears to be a strong argument looking at the provisions of sections 132 (4), section 142 (2) of the 1999 Constitution and section 35 of the Electoral Act, 2022.
Section 132 (2) of the Constitution states that “for the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.
Section 142 (2) further provides that the provisions of the constitution relating to the qualification for election, tenure of office, disqualification for election, declaration of assets and liabilities, and oath of president shall apply in relation to the office of the Vice President.
Section 35 of the Electoral Act, 2022, provides that where a candidate knowingly allows himself to be nominated in more than one constituency, his nomination shall be void.
Although Obi argued that Tinubu was charged and fined $460.000 for an alleged drug trafficking offence committed in the United States of America (USA) in 1993, it did not appear to be a strong argument on the grounds of Tinubu’s ineligibility. This is because the case was decided in 1993, which is well over 30 years ago. Section 137 (1) (e) of the 1999 Constitution provides that a person would be ineligible to contest if within a period of less than10 years before the date of the election to the office of President, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct.
In his ground two of the petition, Obi and his party argued that the election was invalid by reason of corrupt practices and non compliance with the provisions of the Electoral Act, 2022.
It is their case that INEC issued” Regulations and guidelines for the conduct of elections 2022” and Manual for election officials 2023. By these guidelines, INEC officials were meant to do two key things: (a) Use the Bimodal Voter Accreditation System(BVAS) for accreditation, verification, confirmation, and authentication of voters.
(b) Use the BVAS to upload a scanned copy of the result sheets(Form Ec8A) and electronically transmit the result of the polling unit directly to the collation system and the result Viewing Portal (IReV) in real time.
Obi argues that the uploading of the result was not done, which gave room for manipulation of the results. They added that by this act, INEC failed to comply with the regulations which it set by itself, by failing, refusing and neglecting to instantly transmit and upload the results of the election electronically to the IReV from the BVAS, INEC did not comply with the election provisions.
This is a very strong argument by Obi and his party. The relevant law dealing with this is section 60 (5) of the Electoral Act 2022, which provides that: “In an election the presiding officer shall transfer the results including the total number of accredited voters and the results of the ballot in a manner as prescribed by the commission.
Section 38 of the Regulations and Guidelines for the conduct of the elections. It provides that on completion of the election at the polling units, the presiding officer shall use the BVAS to upload a scanned copy of the EC8A to the IReV. This is further backed up by section 2.9.1 and 2.9.2 of the INEC Manual for election officials 2023, which sets out in detail the procedure for the online and offline transmission of the election results to IReV.
Another strong argument by Obi is the allegations that INEC failed to record the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials, as required by law to be recorded in the states that Tinubu won.
On this point, Section 73 (2) of the Electoral Act provides that an election conducted at a polling unit without the prior recording in the forms presented by the commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the commission for the conduct of the election shall be invalid.
If Obi succeeds on this ground, the law is clear that the affected polling units would be declared invalid by the tribunal.
It is also the arguments of Obi and his Labour Party that Tinubu was not duly elected by majority of the lawful votes cast at the election.
They alleged that Tinubu did not score the highest number of votes; he equally did not garner at least one-quarter of the votes cast at the election in the federation and the Federal Capital Territory, FCT, Abuja, as constitutionally required.
This is a strong argument going by the provisions of section 134 (2) of the Electoral Act, which provides: “ If there is more than one candidate for the election, he /she shall have been duly elected with the highest number of votes cast at an election, and has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the states in the federation and the FCT, Abuja.
Obi is asking for an order of the tribunal that since Tinubu and Shettima were not qualified, then all votes to them are wasted votes.
An order that he had the majority votes and should be declared winner of the election.
Strong legal grounds in Atiku’s Petition
In their petition marked: CA/PEPC/05/2023, Atiku and the PDP are challenging the election on four grounds.They are that: “The election of the 2nd respondent (Tinubu) is invalid by reason of noncompliance with the provisions of the Electoral Act, 2022. That the election of Tinubu is invalid by reason of corrupt practices. The 2nd respondent was not duly elected by majority of lawful votes cast at the election.The 2nd respondent was, at the time of the election, not qualified to contest the election.
Atiku and the PDP are praying the court for the following:
“That it may be determined that the 2nd respondent was not duly elected by the majority of lawful votes cast in the election and therefore the declaration and return of the 2nd respondent by the 1st respondent as the winner of the presidential election conducted on the 25th day of February, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.
“That it may be determined that the return of the 2nd respondent by the 1st respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily requires the 2nd Respondent to score not less than one quarter (25 percent) of the lawful 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.
“That it may be determined that the 2nd respondent was, at the time of the election, not qualified to contest the said election. That it may be determined that the 1st petitioner having scored the majority of lawful votes cast at the Presidential election of Saturday, 25th February 2023, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria.
In the alternative, Atiku is seeking an “order directing the 1st respondent to conduct a second election (run-off) between the 1st petitioner and the 2nd respondent.
“In further alternative, that the election to the office of the President of Nigeria held on 25th February 2023 be nullified and a fresh election (re-run) ordered.”
In the ground one of their petition, Atiku and his PDP alleged that the election of Tinubu is invalid by reason of non compliance with the provisions of the Electoral Act, 2022. This is a very strong ground that is capable of invalidating the victory of Tinubu if proved by the petitioners.
They alleged that the Election was not conducted in accordance with the provisions of the Electoral Act 2022, and other extant laws and that the non-compliance substantially affected the result of the election, in that the 2nd Respondent ought not to have been declared or returned as the winner of the election.
In addition, they stated that the Election was not conducted in compliance with the provisions of Sections 47(2) & (3), 60(1), (2) & (5), 64(4)(a) & (b), 64(5), (6), (7) & (8), 71 and 73 of the Electoral Act, Paragraphs 3.3.0 and 3.4.0 of the 1st Respondent’s published Manual for Election Officials 2023 (“INEC Manual” or “Manual”), and Paragraphs 19, 35, 38, 40, 41, 42, 43, 47, 48, 50, and 62 of the 1st Respondent’s published Regulations and Guidelines for the Conduct of Elections 2022 (“INEC Regulations” or “Regulations” or “Regulations and Guidelines”).
The petitioners contend that by the combined provisions of the Electoral Act, the INEC Regulations and Guidelines and the INEC Manual, the votes collated at the polling units are to be electronically transmitted with the Bimodal Voter Accreditation System (BVAS) directly and real-time to the INEC electronic collation system and IReV portal.
In the grounds two of his petition, Atiku argued that Tinubu’s election is invalid by reasons of corrupt practices. On this ground Atiku contending that the collation of election results in all the states of the federation, was manipulated by the 1st Respondent (INEC), through the deliberate suppression and discounting of the lawful votes of the petitioners while inflating the scores of the 2nd and 3rd Respondents. (Tinubu and APC).
He listed the particulars of corrupt practices before and during the disputed election to include but not limited to the following, viz, Compromised Printing/Production of electoral materials, manipulation of election material delivery, and compromised printing/production of election materials.
The 1st Respondent manipulated and deliberately “managed” the votes emanating from the polling units in that the 1st Respondent through its officials, suppressed votes of the Petitioners and wrongly credited the 2nd Respondent and 3rd Respondents with the said votes.
The election is invalid on account of corrupt practices. The particulars of corrupt practices before and during the disputed election.
He equally challenged the election of Tinubu on grounds that he was not duly elected by majority of lawful votes cast.
Atiku and PDP further state that the 2nd Respondent (Tinubu) did not score one-quarter (25%) of the lawful 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 as required by the Constitution.
The petitioners state that the 1st Respondent is mandated by law to be guided by the provisions of Section 134(2)(b) of the Constitution and Section 66 of the Electoral Act 2022 and the extant Regulations, Guidelines and Manual for Election in making any return or declaration as to who the winner of the election is.
The petitioners aver that by the provisions of Section 134(2)(b) of the Constitution and Section 66 of the Electoral Act 2022, a return and declaration can only be made in favour of the 2nd Respondent where and if the 2nd Respondent scored 25 percent of the total votes in the Federal Capital Territory, Abuja. The 2nd Respondent did not score 25 percent of the total votes cast in the Federal Capital Territory, Abuja before the 1st Respondent wrongly returned the 2nd Respondent as the winner of the election and arrogantly dared the petitioners to go to court, notwithstanding the protests by the petitioners and other stakeholders.
The petitioners aver that the 2nd Respondent scored only 18.99 percent of the votes cast in the FCT which falls short of the 25 percent required to enable the 1st Respondent validly to declare him as duly elected.
The petitioners also aver that the declaration of the 2nd Respondent by the 1st Respondent as duly elected is unconstitutional, null, void and of no legal effect.
They alleged that INEC and its agents wrongly and deliberately entered wrong scores/results for the under-listed 22 states of the federation.
Most of the relevant laws governing the alleged misconduct, irregularities and infractions captured in the petition by Atiku and PDP have been spelt out in the petition by Obi and Labour party and therefore need no further repetition.
Having all filed their petitions before the tribunal, the onus is now on the petitioners to prove their case through credible witnesses that the above grounds of appeals and other complaints therein are substantial enough to overturn the victory of Tinubu.
