From all indications, the Supreme Court will likely decide the outcome of Nigeria’s tightly contested 25th February presidential election and, in some senses, the judiciary could be on trial.
The main opposition parties have mounted legal challenges to the results declared by the Independent National Electoral Commission (INEC), but they are not the only ones dissatisfied with the electoral process. INEC has acknowledged that there were logistics challenges and “technical glitches” that led to the delay in uploading results from the polling units to the Commission’s Result Viewing or IReV Portal.
Introduced by the Commission as part of its ongoing efforts to strengthen public confidence in the electoral process, IReV was successfully piloted in the recent off-cycle governorship elections. With the introduction of the long-delayed amended Electoral Act 2022, which provides for the electronic transmission of election results, coupled with INEC’s repeated assurances to improve on the delivery of credible elections by leveraging lessons learnt, Nigerians and the international community had expected nothing less from the Commission on 25th February 2023.
However, because an election is a multi-stakeholder enterprise that requires every actor to play their part, it was obvious that some stakeholders dropped the ball on 25th February.
Under the American-style Executive Presidential system being run by Nigeria, a presidential election is a sovereign national responsibility, which the constitution reposes on the electoral umpire, in this case, the INEC.
It is, therefore, not surprising that the Commission has come under severe scrutiny and criticism over what happened on 25th February. Even so, the same constitution and other relevant legal frameworks, including the Electoral Act and guidelines, have also made provisions for how infractions or violations can be addressed. For instance, while peaceful and lawful expression of disappointment/disagreement and peaceful protests are allowed, violent and unlawful actions or statements are prohibited under the law.
The legal frameworks are also very clear on the procedures and conduct of all actors before, during and post-election period. For now, the preoccupation of many concerned Nigerians is what happened on Election Day and immediately afterwards.
In their Reports, local and international observers unanimously said that the electoral process was peaceful in large parts of the country. But they also reported violence, vandalism, snatching of electoral materials, voter intimidation and suppression and alleged fraudulent practices, especially in Lagos and Rivers states, where the police reported more than a dozen arrests.
INEC also noted that polling started late in some polling areas due to the late arrival of polling officials and materials. Consequently, balloting had to continue in some areas, to make up for the late start, while the Commission suspended elections in some trouble spots in at least three of the 36 states of the federation.
The main bone of contention appears to be that despite the reports of disruptions in some parts of the country and particularly the delay in the upload of the results as promised by INEC, the Commission still went ahead to declare Senator Bola Tinubu, candidate of the ruling All Progressive Congress (APC), as the president-elect with 8.7 million of the estimated 25 million votes cast by among the 87 million registered voters.
The Commission further announced that former Vice-President Atiku Abubakar, the flagbearer of the main opposition People Democratic Party (PDP), came second in the presidential contest with 6.9 million votes, while former State Governor Peter Obi of the Labour Party (LP) was third with 6.1 million votes.
The PDP and LP have rejected the INEC declared results. Obi, who put up a surprisingly impressive showing following his mass followership by Nigerian youths, has claimed that he and not Tinubu won the presidential contest.
Meanwhile, INEC has postponed by one week to 18th March, the governorship and State Houses of Assembly elections which were earlier scheduled for 11th March. The Commission explained that this will enable it to reconfigure its Bimodal Voter Accreditation System (BVAS) machines, a key device for national elections.
This was after the opposition and ruling political parties had obtained court orders authorising them to inspect electoral materials used for the 25th of February presidential poll. The court also ordered INEC to provide the political parties with certified digital copies of the BVAS content of the 25th February vote before the reconfiguration.
In recognition of potential legitimacy questions that could trail his presidency, Tinubu, a wealthy former governor of Lagos State, has called on all Nigerians, including his fellow contestants, to join him in building a united country.
He considers himself a kingmaker in APC and has made no secret of his intention to become the “king” this time. Unlike in previous elections, Tinubu’s declaration as the winner by INEC has been greeted by a subdued celebration with Nigeria on political tenterhooks, as citizens and the international community wait and watch the post-election legal fireworks which will undoubtedly end up at the Supreme Court.
It is not the first time that Nigeria’s major election will be decided by the apex Court. However, the country has never been as divided along ethnic and religious lines as under the eight-year administration of outgoing APC President, retired army general Muhammadu Buhari.
The ruling party has been immersed in internal disputes exacerbated by government’s controversial decision before the presidential poll, requiring Nigerians to swap their old local currency (Naira) bills for new ones. That decision which led to cash scarcity, coupled with heightened insecurity and petrol scarcity in the oil-producing nation, compounded the socio-economic hardships in Africa’s most populous nation and the continent’s largest democracy.
The Central Bank of Nigeria had explained that the currency swap would enable it to mop up excess cash from the monetary system. Yet, there is the perception that the measure was aimed at curbing vote-buying by politicians, who use money to corrupt the electoral system.
Ironically, Tinubu and some top officials of the APC have done everything to distance themselves from the government’s controversial currency swap policy, with one of the officials publicly telling supporters at a recent campaign rally that: “(President) Buhari is on his own,” on that policy.
Some governors of APC-controlled states also took the matter to court, which ruled that both the old and new currencies should remain in circulation until 31st December 2023.
Under the prevailing circumstance, it remains to be seen whether President Buhari’s pledge to bequeath a legacy of credible elections will be realised.
Even so, the political storm and recriminations generated by the 25th of February presidential election should not be allowed to erode hard-earned incremental improvements to the electoral process in Nigeria from 1999 when the country returned to civilian rule after prolonged spells of military dictatorships.
With all the criticisms over its handling of the presidential election and the potential impact on its reputation, it should not be lost on the public that INEC meant well in introducing the BVAS machine and IReV as tools for the improvement of the electoral process in Nigeria.
As stipulated under legal instruments governing elections in the country, the political parties and INEC are within their rights to approach the law courts for clarifications.
It therefore, behoves all political actors, particularly politicians, their parties, and supporters, to eschew violent conducts or utterances that could undermine peace and security in the country. The 25th of February presidential election will not be the last in Nigeria.
Indeed, the rescheduled governorship vote provides INEC with an opportunity to begin the work of redeeming its bruised reputation.
Since there is no perfect election, an electoral umpire can be forgiven where there are unintended human or technological failures. It is expected that valuable lessons on public information and crisis communication management might have been drawn from the 25th of February experience for improved performance going forward.
There were reports that INEC’s server was hacked. It is also possible that other security/classified information on what transpired on 25th February is unavailable in the public domain.
Nonetheless, the Commission cannot be absorbed of its constitutional responsibility on public information. Perhaps, assuming it had proactively and effectively communicated its challenges, particularly regarding the upload of election results to the IReV in real-time, public response could have been more empathetic and reactions by the political parties might have been different.
There is no doubt that the use of the BVAS machines has brought some improvements to the electoral process by preventing fraud and drastically reducing the erstwhile outrageous vote returns, which characterised Nigeria’s past elections.
The fact that only BVAS-verified and accredited voters are allowed to cast their ballots is a welcome change as part of efforts to stem electoral malpractices. The opposition parties that rejected the outcome of the 25th of February presidential vote seem generally satisfied with the results of the parliamentary elections held on the same day using the same BVAS machines.
Even so, more work is required for continuous improvement of the electoral process, including a thorough audit of what happened on 25th February. There is also the urgent need to roll out the overdue Electoral Offences Act with unambiguous sanctions/punishment for offenders to serve as a deterrent against impunity bedevilling the electoral process.
Now that the electoral disputes have shifted to the courts, the burden rests on Their Lordships to do their job without let or hindrance. The fate of Nigeria and its more than 214 million citizens are at stake.
The judges are expected to acquit themselves creditably with patriotism and a high sense of responsibility. They owe their allegiance to Nigerians, especially the youths who came out in their numbers to demand what they call transformative changes in the governance systems.
Their Lordships must validate the old dictum, which describes “the court as the last hope” of the citizens, knowing that their decision on the 25th of February presidential election could have far-reaching consequences on Nigeria’s political future.
*Paul Ejime is a Global Affairs Analyst and Consultant on Strategic Communications, Media, Governance Issues & Elections