Nigeria’s democracy is in limbo as a result of constitutional interpretation

Bola Tinubu will take office as President and Commander-in-Chief of the Federal Republic of Nigeria on May 29 in less than three weeks. However, election petitions to overturn his declaration as the winner of this year’s presidential election are actively underway in parallel. Given that the petitions won’t be decided before May 29, Tinubu could be facing the sword of Damocles of being forced from office. That is theoretically a possibility; otherwise, what purpose do the petitions for the presidential election serve?

Section 239(1) of the 1999 Constitution grants the Court of Appeal and, ultimately, the Supreme Court the authority to decide whether a candidate for president has been legitimately elected; section 136(1) of the Electoral Act of 2022 requires the court to void the election of a candidate who has not been duly elected. Therefore, regardless of how long it takes to resolve the petitions, Tinubu’s election as president could ultimately be declared invalid under the constitution. But that is just a theory.

In reality, petitions for the Nigerian presidential election are otiose and academic. Even when an election is significantly, even materially, flawed, the Supreme Court has never, to date, declared a presidential election invalid. This includes several governorship elections. You might wonder why. Two explanations come to mind.

Realpolitik is one. Those with the authority to take and keep what they have taken are the rightful owners of the spoils. A president who was unjustly elected would mobilise resources and the establishment to prevent the Supreme Court from removing him from office. Another is that the Supreme Court weighs the potential repercussions of overturning an incumbent president’s illegal election and decides against doing so. The Supreme Court has been referred to as a court of law and a court of public policy by some. That is not special in any way. A court of public policy sits in every appellate court. The eminent British jurist Lord Denning was renowned for providing public policy justifications for his judgements and for developing a significant body of case law with solid public policy foundations.

But what exactly is public policy in the context of Nigerian law? Is it to protect staunch vested interests or to preserve democracy? Is it to prevent the political or administrative upheaval that would inevitably follow the annulment of an unconstitutional election, or is it to establish legal guidelines and judicial precedent that would revolutionise Nigerian democracy? Consider this. Political opponents are told to “go to court” after colluding with election officials to rig the presidential election. Why? Because the court will not act in a way that upsets the status quo. But consider the effects and long-term effects if the Supreme Court declared that a president had not been legitimately elected and removed him from office. Given that he would be sitting on a ticking timebomb, hardly any politician would want to win an invalid election and become president! But impunity persists when there are no consequences.

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If a president is removed from office due to a rigged election, the sky won’t fall. The President’s office may become vacant under certain circumstances, including death, resignation, impeachment, and permanent incapacity, as stated in Section 146(1) of the Constitution, which also adds: “or the removal of the President from office for any other reason.” The phrase “for any other reason” obviously refers to the election of a “president” who was not duly elected.

Additionally, under section 146(2), the Senate President would hold the office of President for a maximum of three months while a new president was being elected in cases where a “president” and “vice-president” were found to have been improperly elected and asked to resign from their positions. Would a ‘president’ whose election has been ruled invalid, but who presumably still has control over the armed forces, however, remain silent? The question then becomes whether the military should be loyal to an unelected president or to the Constitution as the Supreme Court has interpreted it. They would, in my opinion, be loyal to the Constitution.

To be clear, I’m not advocating that the Supreme Court rule in favour of or against the presidential election petitions. Not at all. Simply put, I’m refuting the claim that the Supreme Court would never invalidate a presidential election on the basis of public policy. I contend that safeguarding Nigeria’s democracy and creating legal guidelines and judicial precedents that would favourably alter this nation’s democracy, politics, and governance are the public policy considerations that truly matter in presidential election cases.

But a judge must first weigh the law, the evidence, and the argument in a case, and only then should public policy be taken into account when deciding on remedies. For instance, in the UK, a court may rule in favour of a claimant while still withholding a particular remedy due to public policy considerations. The court at least establishes legal principles and precedent for the future by making prospective declarations, even though they do not provide relief. But again, if the law, the evidence, and the argument support annulling a presidential election, there are no public policy reasons not to do so.

Following this year’s seriously flawed elections, Nigeria’s democracy is on edge and in suspended animation. Whether it can be saved depends on how fair and reasonable the Supreme Court finds the election petitions to be. Does it matter that the legitimate expectations raised by promises to use BVAS in the presidential election were disappointed, for example? Does it make any difference that many of the results that were postponed on the INEC portal differ from those that INEC itself announced? Nigerians, particularly the youth, won’t trust INEC again if the Supreme Court rules that these fundamental procedural issues are unimportant, and without trust, Nigeria’s democracy is doomed.

Of course, there are other crucial questions, such as whether a candidate must receive at least 25% of the votes cast in Abuja in accordance with Section 134 of the Constitution, whether a candidate is eligible to serve as president if he voluntarily acquired citizenship of another country in accordance with Section 137(1)(a), and whether a forfeiture of property due to drug-related offences constitutes “any other offence imposed on him by any court or tribunal” in accordance with Section 137(1)(d). These issues will put Nigeria’s electoral democracy and the supreme court’s independence, impartiality, and bravery to the test. The Supreme Court is therefore Nigeria’s last bastion of democracy, and it holds the country’s democratic future in its hands. It is extremely important how it interprets the Constitution and chooses the presidential election petitions. Cross your fingers!