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Beyond The PEPT Judgement

Beyond The PEPT Judgement

The 6 September 2023 judgement by the Presidential Election Petition Tribunal (PEPT) was honestly not unexpected. While the judgment did not come to me as a surprise, what rather jolted me was the manner in which it was framed: it was almost as if the judges were the attorneys for the defendants and were therefore visibly angry with the petitioners and their lawyers for daring to bring such petitions before them. The judgments, whatever their merits on points of law, were delivered in very pedantic, if not condescending manner to the petitioners.

Let me mention that I am not a lawyer (though, in addition to my academic qualifications in Political Science and Development Studies, I also have an LLM degree in Media Law from a respected London University). But I am a student of Nigerian election history and have also read some remarkable judgments by famous jurists. Additionally, as a publisher of twenty years standing, with an indexed, peer-reviewed academic law journal (African Journal of Law and Justice System)   in its portfolio of 21 journals, it can be argued that while not an expert in Law, I have been sufficiently exposed to judicial decisions and their interactions with politics. I also followed closely the conduct of the 25 February 2023 presidential elections, including field reports by several media houses and credible election monitors. I was in fact one of the analysts on the February and March 2023 elections for a respected television house in the country. Based on these, I believe I have what can be called an informed layman’s opinion on this matter.

I believed (and still hold to that belief) that the conduct of the Presidential election was neither free nor fair and that  INEC so seriously underperformed that Professor Mahmood Yakubu remaining on as the Chairman of INEC rubs the electoral body of both integrity and legitimacy.  What I was not sure of, (and still not sure of), was whether the observed irregularities in the conduct of the presidential election were enough to alter its outcome as declared by INEC.

Before the judgment I had wagered on a split decision in favour of Bola Tinubu. That was not necessarily because I felt that Tinubu won but because I know it is extremely difficult to unseat a sitting African President, especially one who is generally believed would not be averse to maximally deploying the power of incumbency to achieve a given objective. Largely because  of the closeness of the elections as declared by INEC and the irregularities observed by several election monitors and media houses, I thought there would be a deliberate effort to mollify the petitioners by making the judgment seem close.  In taking this position I borrowed from one of the mythical manoeuvres of the tortoise in Igbo fables. In one of such stories, some people came to abduct Mr Tortoise in the middle of the night from the enclosure which served as his home. Seeing that he stood no chance of effective resistance against them, he requested that they should allow him some minutes to pray before being taken away – a request they obliged him. As the Tortoise walked around the enclosure in supposed prayers, he made sure he left deep foot and finger prints everywhere, after which he told his would be captors that he was ready for them to take him away. As Mr Tortoise was being taken away by his captors, he felt silently satisfied that he was allowed to leave a piece of history for posterity. His belief was if his children and friends came the following morning and found he had been abducted, they would believe he had put up a hell of a fight before he was overpowered.

In essence, the decision by both Peter Obi and Atiku Abubakar to head to the Supreme Court may go beyond the quest to restore what they see as their ‘stolen mandate’ but more for the purposes of history.  It is also their constitutional right to exhaust all legitimate options for seeking redress. Some have called on them to ‘do a Jonathan’ and congratulate Tinubu in the “interest of the nation’ so that the rancour between their supporters and those of Tinubu (which is believed to be heating up the polity) will presumably be attenuated.  I am not sure if this is a good enough reason to dissuade them from their decision to take their case to the Supreme Court because despite Jonathan conceding defeat, Bihari spent most of his eight years in power demonizing and de-marketing his government as well as polarizing the country between those they labelled ‘Wailing Wailers’ and those who are supposedly ‘patriotic’ because they unabashedly supported his government.  In fact some even claimed that Jonathan conceded defeat out of fear or cowardice and caricatured him for that.

Obi and Atiku have also been advised that going to the Supreme Court would be a waste of their money because the outcome might not be different, not just because the decision was unanimous but also because if power of incumbency accounted for the manner in which the judgment was delivered by the PEPT as some argued, the same power of incumbency would likely also be in play at the Supreme Court. A counterpoise to this however is that the petitioners can comfortably afford the cost and in any case you never know because no venture, no success. What is  also often overlooked is that their decision to go to Supreme Court will not only help to enrich our jurisprudence but  might have helped to stave off violence by those who felt dissatisfied by the decision.

Why was the judgment of the PEPT greeted mostly by silence?  While an over-hyped Asari Dokubo and his Wagner-wannabe boys (who celebrate their macho by swaggering around town with palm fronds in their mouths when their age-mates elsewhere are distinguishing themselves in critical professions and emerging technologies) would like to claim credit for this, I doubt if the macho display of his boys was responsible for the quiescence. The way I see it is that a self-reproducing constituency in the South-West, (in particular Lagos), which has been the hub of Nigeria’s protest movement and political activism (from as early as 1908 when the Peoples Union was formed), and has been the inspiration or funders of many popular protests in the country, went quiet since 2015 when the zone aligned itself with the ruling APC.  This meant that unpopular policies that would have elicited wide national protests such as the fuel price hikes under both Buhari lacked the support of those with the skills and resources to activate such protests. It was not Asari Dokubo that prevented popular protests against Buhari’s unpopular policies so Asari so Dokubo cannot claim credit for suppressing any protest.

There are several important lessons from the judgement by the PEPT: One, it will be important for all election petitions to be concluded before the inauguration of the President – and in fact all elected officials.  This is because allowing the President to be inaugurated while the election that brought him to power is still being contested in the courts  (in our type of democracy) means that such a President can maximally deploy the power of incumbency to consolidate his rule and make it more difficult for him to be unseated by the courts.

Two, we need to revisit our democracy with a view to domesticating it to our unique environment. I do not think the current liberal democracy is working for the country. Not only is it prohibitively expensive, elections, as currently conducted, deepen our fault lines and consequently complicate the nation-building process.

Three, I will recommend proportional representation – as against the current first –past- the -post or winner- takes- all.  This means that seats in the legislature will be allotted based on the votes secured by new forms of political parties that will be created.

Four, we should have a collegial Presidency, with five Vice Presidents and a Rotational presidency of two years  each in which the six geopolitical zones will be represented, It should be a single tenure of twelve years for the Presidency. I feel that a presidential election every four years is not spaced out enough for the wounds from one election to properly heal before another set of elections is embarked upon.  I feel that party politics as currently practised alienates many citizens, which explains both low citizen participation in the process and why many citizens unwisely troop out to welcome military coups in some countries.

Essentially we need a Committee to recommend new democratic models of governance for the country, which will then be debated in a new Constituent Assembly.


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