The farce of a presidential tribunal, By Dele Agekameh


#TrackNigeria: Last Wednesday, the result of the February 23 Presidential election was upheld by the Presidential Elections Tribunal. The tribunal had been sitting on a petition filed by Atiku Abubakar and the People’s Democratic Party, PDP. The supporters of Atiku Abubakar, former vice-president and lead petitioner, had been confident of a decision in Atiku’s favour. In preparation for the anticipated tribunal victory, they had coined the refrain “Atiku is coming”. After a relatively long wait, since the petition was filed in March, the judgment came with no vindication, no victory and no celebrations for Atiku. Now, as anyone could have predicted, the tussle is set to move to the Supreme Court.

The flurry of election petitions that came after elections were conducted earlier in the year were expected. As at April 16th, when most of the elections had been concluded, the Court of Appeal revealed that a total of 766 petitions had been filed by politicians and their political parties. The Presidential Election Tribunal had received one ‘major’ petition from Atiku and a number of interlocutory applications, including preliminary objections.

As the petition began to flesh out at the tribunal, it became apparent that there were two main issues on which Atiku and PDP’s action relied. They are the issue of President Muhammadu Buhari’s educational qualification and the issue of existence (or non-existence) of a central server at the Independent National Electoral Commission, INEC. These two issues were subject to pre-judgement analysis and conclusions by legal practitioners and non-lawyers outside the tribunal for months. Despite the lay and expert opinions on the issues, it was the tribunal’s decision that was vital. And last Wednesday, it went in favour of the president.

More comments have poured in after the tribunal’s judgement, with clearly differing reactions as is wont to happen in a case such as this. For those that are consciously or unconsciously in Atiku’s camp, the judgement is seen as a travesty and a miscarriage of justice that has reduced proof of educational qualification to a mere sworn affidavit that can be obtained in a court for 500 naira. For others, the tribunal has finally put to bed the absurd petition against the results of the 2019 presidential election.

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Whichever way one swings on the issue, it is doubtful that the petition has been a constructive judicial exercise. The benefits to Nigerian law from the petition and its result is minute, to say the least. The lawyers on both sides, especially those on the side of the petitioner, had reduced an issue of national significance to an incongruous debate and a comedy of errors through their spurious allegations and absurd defence put up against them. The election petition was a case of lawyers earning their fees by all means necessary, to the exclusion of logic and national duty to the law and the flag of Nigeria.

To begin with, section 131 and 137 of the constitution is clear about qualifications for a person standing for election as president. Specifically, and most relevant to the first issue of qualification, section 131 (d) of the constitution states that a person shall be qualified for election to the office of President, amongst other things, if “he has been educated up to at least the School Certificate level or its equivalent”. Section 318 (1) of the constitution further defines “school certificate or its equivalent” in sub section (b) and (c) as “(b) education up to secondary school certificate level; or (c) primary six school leaving certificate or its equivalent”; and (i) service in the public or private sector in the Federation in any capacity acceptable to INEC for a minimum of ten years and (ii) attendance of courses and training in such institutions as may be acceptable to INEC totalling up to a minimum of one year.

That section continues, to include ability to read, write and communicate in English as part of the criteria to satisfy the requirement for “school certificate or its equivalent”. As the president’s primary school education was never in issue, and as such not contested, the question of educational qualification should have been dropped instantly. The constitution is clear. That alone should have put the matter to rest without reading on to the other provisions which the president clearly fulfils. In other words, as the president’s lawyers clearly stated, the question of his secondary school certificate was immaterial.

Military training in Nigeria and overseas (taught in English) and public service in different capacities for many years, including as Commander-in-Chief, albeit through extra-judicial means, clearly surpasses any assumed equivalent of “school certificate”. To have launched into a full scale legal argument on that moot point, Atiku’s lawyers not only took their client for a ride, but they took the entire nation for the same frivolous ride.As the courts would say, they seemed to be “on a frolic of their own” in their attempt to justify their exorbitant fees, the figures of which will drop jaws outside legal circles.

The issue of servers brought to light the dubiousness of INEC’s lawyers. The existence of the server was flatly denied. That strange denial was both a disservice to the country and a disrespect of the courts. If the judiciary and all the lawyers involved were serious, it should have led to a charge of perjury, in the least. Without regard to whether the electoral law provides for the transmission and collation of results to/through a server – which the tribunal judged in the negative – there was a greater obligation on INEC and its lawyers to use that opportunity to furnish the country with details of its operations and the direction it is taking electoral reform.

But INEC and its lawyers chose to rubbish the testimony of people who took part in the exercise and transmitted data through the card readers. It is one thing to say that the servers were not used for collation or were not a legally required part of the process, it is another to flatly deny the existence. Anyone in the world of tech knows that data must be transmitted to a central point which could be regarded as the “server”. In a case of national importance, it was an egregious move to lie about this.

The other issues of electoral malpractice are notoriously difficult to prove in a presidential election in Nigeria. The volume of evidence required because of manual processes is almost impossible to acquire, and the time truly needed, prohibitive. This is why lawyers routinely dump documents on the court, as in this case. As it appears from the current position of the law, only self-incrimination and confessions can lead to a successful contest of a presidential election. Much judicial time would be saved if the lawyers are truthful to their clients.It is not an accident that no presidential election contested since 1999 has succeeded. It is unlikely that Atiku and PDP will be the exception, even in the face of the egregious denial by INEC.

The foundations of the case against President Muhammadu Buhari’s election were shaky. To add to that, truth and logic had been suspended in the case, with personal attacks that defied logic. From the frivolous contest of the President’s certificate by Atiku’s lawyers, to the absurd argument over Atiku’s nationality by the president’s lawyers, the tribunal was an exercise in futility, made worse by INEC’s slap on the face of Nigerians about the server. In all of this, the country and its legal jurisprudence lost woefully.

In the end, what was really on trial was the integrity of the lawyers that were involved in the case. On all sides, they failed the test and the tribunal failed to rebuke them accordingly. The Supreme Court now has the opportunity to call them out. It will not change the outcome of the election, but it will go a long way in pushing a much needed self-appraisal on the part of the lawyers.

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“From the frivolous contest of the President’s certificate by Atiku’s lawyers to the absurd argument over Atiku’s nationality by the president’s lawyers, the tribunal was an exercise in futility, made worse by INEC’s slap on the face of Nigerians about the server. In all of this, the country and its legal jurisprudence lost woefully”

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