Explainer: What You Should Know About the Presidential Election Petition 

Oluwaseye Ogunsanya 

The 2023 general elections may have come and gone but it is not without controversies surrounding its conduct. Indeed many Nigerians looked forward to the polls with a lot of enthusiasm and a particular interest in the presidential election for many reasons, the obvious one being that it offered them a golden opportunity to change the status quo as it relates to those handling the affairs of the country. It is also important to mention that the election happened at a time when the country is grappling with many challenges such as insecurity in different parts, an unstable economy, and disunity among other things. 

At the end of the exercise, the electoral umpire declared Bola Ahmed Tinubu of the ruling All Progressives Congress (APC) as the winner of the keenly contested election. Tinubu defeated Alhaji Atiku Abubakar of PDP, Peter Obi of Labour Party, Rabiu Kwankwaso of NNPP, and 14 other candidates to emerge as the president-elect in an election said to be marred by many irregularities and misconduct such as money laundering, financial inducement of voters, bribery and conspiracy, snatching of BVAS machines, willful destruction of ballot papers to mention a few. Moreover, there were also complaints of elections not being held in some polling units, and yet, results were still collated and announced for the same polling units.

It is for the highlighted reasons above that some of the major contenders at the presidential poll have refused to concede defeat nor congratulate the president-elect, rather they described the whole process as a sham and have since approached the Court of Appeal which also serves as the Presidential Election Petition Tribunal, vowing to recover their mandate.

Election Petition Tribunal 

It’s a common axiom that no election is perfect in every democracy, it’s the reason why there’s an opportunity for any aggrieved or dissatisfied candidate in an election to challenge the outcome of the process by approaching a specialized court known as an election petition tribunal. Matter of factly, the laws regulating election matters in Nigeria; Section 288 of the Constitution and the Electoral Act, 2022 recognizes and gives adequate provision to this. 

Section 130 (1) of the Electoral Act provides that: “No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court by the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”

The court of appeal is statutorily responsible to set up the tribunals for the presidential, national assembly, governorship, and state house of assemblies elections not later than 30 days before the elections by Section 130(3)(a) of the Electoral Act 2022. In the same vein, the register of the tribunals is expected to be opened for business at least seven days ahead of the elections.

It is important to note that where a petitioner is dissatisfied with the appeal court decision, he/she is free to appeal at the apex court. However, only presidential and governorship election petitions can get to the supreme court. The court of appeal’s decision in cases involving national and state assemblies’ election petitions is final and cannot be further appealed.

Consequently, it is expected that an election petition must be filed by a petitioner within 21 days of the result declaration. Failure to do this within the stipulated time frame means that the petitioner has given up his/her right to contest the result. 

Similarly, an election petition must be heard and judgment delivered within 180 days from the date of the filing of the petition.

According to Kimpact Development Initiative, a non-governmental organization, providing citizens with information on proceedings and the outcome of the election petition tribunals through its recently launched dashboard – a total of 1,044 petitions have been filed across the nation challenging the outcome of the 2023 elections.

Among other things, the dashboard revealed that 470 petitions have been filed against the house representatives election, 327 against the state house of assembly, 180 against the senatorial, 62 against the governorship, and five against the presidential poll.  

Similarly, a total of 257 judges are billed to hear petitions arising from the 2023 general elections which have since commenced sittings across the country. 

Presidential Election Petition Court 

The Presidential Election Petition Court had its inaugural sitting on Monday, this officially signals the commencement of hearing petitions arising from the February 25 presidential election. The court is made up of a five-man panel of justices headed by the presiding justice of the court, Justice Haruna Tsammani. Others are Justice Stephen Adah of the Court of Appeal Asaba division, Justice Misitura Bolaji-Yusuf, Court of Appeal also of Asaba Division; Justice Boloukuoromo Ugoh of Kano division and Justice Abba Mohammed of Ibadan Court of Appeal. 

Setting out the modalities in a welcome remark, the presiding justice informed the court that there were five petitions currently before them which include that of the Action Alliance (AA), Action People’s Party (APP), Labour Party (LP), Allied People’s Movement (APM) and People’s Democratic Party (PDP).

He however stated that for convenience, the court will take the first three petitions today (Monday), and adjourn to Wednesday, while the fourth and fifth petitions which involved that of APM and PDP would be taken Tuesday and then would be adjourned to Thursday. 

Justice Tsammani said, “We are determined to look at the matter dispassionately and give justice to whoever deserves justice.”

He noted that the tribunal would consider the substance of each case over technicalities so that “whoever leaves here will be satisfied that justice has been done.”

He also warned parties against unnecessary applications that could delay proceedings.

The Petitions

The court announced on Monday that five petitions are currently before them which include that of the Action Alliance (AA), Action People’s Party (APP), Labour Party (LP), Allied People’s Movement (APM), and People’s Democratic Party (PDP).

But as of Wednesday, two parties (AA and APP) have withdrawn their petitions challenging the victory of Bola Tinubu in the February 25 presidential election.

The Action Alliance (AA) had withdrawn its petition against Tinubu and the APC on Monday while the Action Peoples Party (APP) did theirs on Wednesday leaving the court with three other petitions by Atiku Abubakar, candidate of the PDP; Peter Obi, candidate of the Labour Party (LP) and the Allied Peoples Movement (APM) to determine. 

Peter Obi’s Petition

The Labour Party candidate polled 6,101,533 votes to come third in the February 25 presidential election. In a show of displeasure at the outcome of the election, he filed his petition through his lawyer Livy Ozoukwu in March. 

In the petition, Obi submitted that Tinubu “at the time of the (presidential) election was not qualified to contest the election” and argued further that the president-elect “was not duly elected by a majority of the lawful votes cast at the time of the election”.

Consequently, the petitioners are asking the tribunal to determine that all the votes recorded for Tinubu in the election “are wasted votes, owing to the non-qualification” of the president-elect and Shettima. 

“That it be determined that the 2nd respondent ( Tinubu) having failed to score one-quarter of the votes cast at the presidential election in the federal capital territory, Abuja was not entitled to be declared and returned as the winner of the presidential election held on 25 February 2023,” the petitioner said.

“That it is determined that based on the remaining votes (after discountenancing the votes credited to the 2nd respondent) the 1st petitioner scored a majority of the lawful votes cast at the election and had not less than 25% of the votes cast in each of at least 2/3 of the states of the federation, and the federal capital territory, Abuja and satisfied the constitutional requirements to be declared the winner of the 25th February 2023 Presidential election.”

Obi wants the tribunal to issue an order directing INEC to present him with a certificate of return as the duly elected president of Nigeria.

However, in the alternative, the petitioners have asked the tribunal to make “an order canceling the election and compelling the 1st respondent (INEC) to conduct a fresh election at which the 2nd respondent (Tinubu), 3rd respondent (Shettima) and 4th respondent (APC) shall not participate”.

Subsequently, the court on Wednesday adjourned Obi’s petition to May 17th.

Atiku’s Petition 

The Peoples Democratic Party candidate who came second in the presidential poll with a total of 6,984,520 votes asked the Presidential Election Petition Court to declare him Nigeria’s president-elect.

Alternatively, he urged the court to cancel the election and then order a fresh election due to alleged irregularities that marred the 25 February poll in thousands of polling units.

The petition which has seven prayers anchored on five grounds in the petition was filed by his team of senior lawyers led by Joe-Kyari Gadzama, a Senior Advocate of Nigeria (SAN). 

Laying four bases for the petition, Atiku and the PDP said Mr. Tinubu’s election “is invalid because of noncompliance with the provisions of the Electoral Act, 2022.”

Atiku also argued that INEC’s “failure to electronically transmit the election results in real-time” compromised the outcome of the presidential poll.

He added that the alleged substantial non-compliance with the law affected the result of the election, in that” Mr. Tinubu “ought not to have been declared or returned as the winner of the election.”

Atiku further contended that INEC “wrongly returned” Mr. Tinubu “as the winner of the election, allocating to him 8,794,726 votes while ascribing to him (Atiku) 6,984520 votes.”

He explained that contrary to INEC Chairman, Mr Yakubu’s repeated assurances in the build-up to the general elections to conduct the best election in Nigeria’s democratic history, the electoral umpire failed to electronically transmit results in real-time from polling units to INEC’s “electronic collation system and Results Viewing Portal (IReV)” using the Bimodal Voters Accreditation System (BVAS) machines.

He equally premised his petition on the ground that the margin of lead – 1,810,206 votes – was less than the number of Permanent Voters Cards (PVCs) collected in “the polling units where elections were canceled and did not hold across the country.”

Consequently, Atiku argued that INEC’s declaration of Mr. Tinubu as the winner of the poll was “hasty, premature and wrongful.”

Among other prayers, Atiku urged the court to determine that Mr. Tinubu was “not duly elected by a majority of lawful votes cast, and therefore the president-elect’s victory is unlawful, wrongful, unconstitutional…null and void.”

He also prayed the court to determine that Mr Tinubu at the time of the election was not qualified to contest the said election.

Consequently, Atiku’s Petition was adjourned till May 18th by the court.

APM’s Petition

The Allied Peoples Movement (APM) in its petition, contended that the withdrawal of Mr. Ibrahim Masari, who was initially nominated as the Vice-Presidential candidate of the All Progressives Congress, APC, invalidated Tinubu’s candidacy given Section 131(c) and 142 of the 1999 Constitution, as amended.

The party argued that there was a gap of about three weeks between the period that Masari who was listed as the 5th respondent in the petition, expressed intent to withdraw, the actual withdrawal of his purported nomination, and the time Tinubu purportedly replaced him with Senator Kashim Shettima.

It further argued that Tinubu’s candidacy had elapsed at the time he nominated Shettima as Masari’s replacement.

According to the petitioner, at the time Tinubu announced Shettima as the Vice Presidential candidate, “He was no longer in a position, constitutionally, to nominate a running mate since he had ceased to be a presidential candidate of the 2nd respondent having regards to the provisions of Section 142 of the 1999 Constitution.”

The president-elect however asked the tribunal to dismiss the petition filed against him by the APM. 

The pre-hearing of APM’s Petition was further adjourned till May 18th. 

Conclusion

As the hearing of petitions filed by Obi, Atiku, and APM goes underway at the presidential election petition court, Nigerians are eager for the outcome as some have asked that the hearing should be broadcast live, Atiku and Obi have also joined this call by filing a motion. 

Also, they have been divided opinions on whether the inauguration of the president-elect should be put on hold pending the determination of the petitions at the PEPC. By and large, the inauguration will still go on on May 29th as planned. 

Eventually, there are three possible outcomes from this process, the first outcome is for the court to uphold the election result as originally announced by INEC, and the second outcome is for the election to be nullified and a fresh election ordered. Meaning that a new exercise must be conducted by INEC not later than three months from the judgment.

While the third outcome is for the election result to be rejected, the initially declared winner removed and the petitioner installed as the actual winner of the election.

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