By Onyema Omenuwa
Nigeria’s electoral laws need fixing. Granted, there is no perfect human law anywhere but since modern societies institute laws to regulate their affairs, determined democracies all over the world routinely adjust their laws, especially those that impact directly on the overall wellbeing of citizens, to reflect the dynamism of human societies. By so doing, existing lacunae in their laws are fixed for the good of citizens. Sadly, it is hardly so in Nigeria where, in fact, any lacunae in the extant laws are usually manipulated by politicians for ulterior motives.
Take the constitutional provisions, for instance, as it applies to the assumption of office of a newly-elected President or Governor. There is a certain peculiarity that the provisions enable, which casts a serious question mark on the country’s democratic credentials. Its overall impact on governance is such that even those who choose aloofness in political matters cannot ignore it. Viewed dispassionately, the only conclusion it would elicit is that it diminishes the country’s democratic credentials. Yet, that reality seldom triggers any agitation for a change in the laws that permit it.
The very feature in a democracy that allows a President-elect, or Governor-elect, to be sworn into office and assume unfettered executive powers, notwithstanding that their election is still being challenged in the courts by their co-contesters, would overstretch logic anywhere. Yet the 1999 Constitution of the Federal Republic of Nigeria (As Amended) may have unwittingly endorsed the feature by not specifically providing otherwise.
By the provision of section 132 subsection (2) of the Constitution, “An election to the [office of the President] shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.” The leeway provided by the Constitution as the country’s grundnorm, by not barring the assumption of office pending a legal challenge of a presidential or gubernatorial election, is all the unscrupulous politicians need to justify the practice. Otherwise, if politicians were driven by altruism, they would have long sought an amendment of the referenced provision, in view of its glaring drawback, to afford every contestant a level playing field.
Beginning May 29, 1999, when the 4th Republic was birthed with the swearing-in of Olusegun Obasanjo as President, the date has conventionally become the commencement date for the tenure of the president and state governors. Hence, a four-year tenure is reckoned, with May 29 as both the starting and ending point for the President and governors, except for a few states where different dates operate owing to court judgments that nullified governors’ elections subsequent to the May 29 swearing-in date.
From the constitutional standpoint therefore, 30 days before the expiration of presidential tenure on May 29 is April 29. That is the date beyond which an election to the office of the President cannot validly hold. It may be conceded that, ordinarily, a 30-day period is time enough for all activities or ceremonies that will usher in a new administration. But hardly any election in Nigeria is devoid of court challenge, which invariably drags on for a period much longer than the constitutionally provided 30-day period that precedes the presidential swearing-in. This situation foists a fait accompli on the country to swear in the President-elect even while cases against his election are still pending in the courts.
The Constitution further provides under section 285: 21 days after the declaration of results by the Independent National Electoral Commission (INEC), a dissatisfied candidate is mandated to file their petition against the declared winner – (subsection (5), and the court of first instance (election tribunal) is mandated to deliver its judgment 180 days therefrom – subsection (6). Then where there is an appeal against a decision of an election tribunal, the appellate judgment must be delivered within 60 days of the delivery of the tribunal judgment – subsection (7). In spite of these timelines, the declared winner will assume office and take control of all the levers of presidential power as provided in the Constitution.
On assumption of office, the declared winner who has transformed as President would make appointments at his pleasure, and most often, to enable him to exercise such power, he would equally terminate existing appointments. With the President fully in charge of national affairs, including the management of finances, even the defence of the suits challenging his election is financed from the Federal Government’s coffers. Meanwhile his challengers are unduly disadvantaged as they personally bear the enormous financial responsibility associated with prosecuting their individual cases.
It is not rocket science that an appointee usually owes loyalty to the maker of the appointment. Such appointees would ordinarily reciprocate by deploying all ways and means to ensure the continuity of the incumbent’s office and concomitantly safeguard their own appointments. The situation clearly denies a level playing field to the challengers of electoral victors. Which Nigerian politician will not go to any extent to retain the power he has tasted, not least presidential powers? Certainly not in a system that operates with scant attempt at masking the impression that institutions can be corruptively manipulated or influenced to ultimately achieve a purpose.
Being aware that such an uneven playing field awaits every contestant, it has continually been the case that electioneering in Nigeria literally evokes the biblical scenario of the violent taking it by force. The historical experience that demonstrates the insuperability of getting a presidential election nullified and a sworn-in president sacked, gives election manipulators the fiendish confidence to deploy unimaginable violence to ensure that they are declared winner. And when that goal is achieved, the declared loser would be dared to go to court. In Nigeria, being so dared is a derisive way of expressing to the challenger the futility of the recourse.
Indeed, it has never happened that a presidential election was nullified or overturned by a court in Nigeria. Yet it cannot be the case that the declared winner of every presidential election actually won. Curiously, as glaring as it is that the system encourages and rewards electoral cheaters, and despite its resultant dent on the integrity of the electoral process, public discourses hardly centre on the anomaly, unless during the period immediately following declaration of election results. It is not, of course, expected that the beneficiaries of a flawed system would be at the forefront of agitations to change it, but what about the electorate who are unjustly denied the true result of elections? Many may have given up on the electoral system with the attitude that votes do not count. But such attitude can only wreak incalculable havoc on the democratic process. It really assaults the very essence of democracy for a candidate whose election is being disputed to sit comfortably in office and be deploying the resources and machineries of state to counter his challengers. The constitutional provision that allows such should elicit citizens’ outrage and galvanise them to demand for its adjustment.
A reform of the electoral system is therefore direly needed; such that would produce only a President that once sworn-in would not be encumbered by any uncertainty about the continuity of his office. Against this background, it has become compelling that the relevant sections of the Constitution be amended to eliminate all incongruities. The President that will emerge from the next general elections in 2027 should be one whose four-year tenure is devoid of the possibility of judicial nullification.
That possibility can only be guaranteed if time enough is provided by the Constitution for elections to hold and the petitions emanating therefrom disposed of, before swearing-in. Having reckoned a total of 180 days and 60 days as adequate to do so from the tribunal through the appellate court, the litigation processes should accommodate the exact number of days prior to swearing-in. In other words, the presidential election has to mandatorily take place not later than 240 days to May 29.
- Omenuwa is an Abuja-based legal practitioner
