The 2023 Nigerian Presidential Elections: All Eyes on the Judiciary
This is part 3 in a three-part series on Nigeria’s 2023 election. Part 1 covers the build-up to the presidential primaries. Part 2 covers the campaign period and the subsequent election, while this part covers post-election issues, especially the litigation in the courts.
What the hell just happened?
Election day had come and gone, and the election results were announced. In the post mortem, why did things pan out the way they did?
How did Peter Obi do it?
Peter Obi’s performance was a shock to many veteran politicians. Of course, the polls said that he would win the elections, but this is Nigeria, polls don’t mean much. While the labor party was an existing party that had a semblance of structure, it was expected that it wouldn’t amount to much.
To everyone’s surprise, Peter Obi got a whopping 6.1 million votes. Almost as much as the Atiku’s 6.9 million votes, and not too far off from Tinubu’s 8.7 million votes.
While it is easy to attribute this performance to the revolutionary yearn of Nigeria’s youths, I think the result owes more to Nigeria’s age old tribal and religious permutations.
Peter Obi’s votes largely came from Christian-dominated areas of the country. The APC was fielding a Muslim-Muslim ticket, which was a slight to the North’s sizeable Christian minority. So, they turned to the only other Christian candidate on the ballot, Peter Obi. You can see the evidence for this in Peter Obi winning most of the Eastern North Central states, which are majority Christian.
He also won most of the votes in the South East and the South-South of the country, which are also majorly Christian. The only Christian votes Peter Obi didn’t really get were from the South West. This is because the people of the South West preferred to vote for their ethnic kinsman, Tinubu, regardless of his religion. The South West is roughly evenly divided between Christians and Muslims, but the Yoruba of the South West identify more with their ethnic group than their religion.
So, most of Peter Obi’s votes were gotten from Christians in the South East, South-South, and North Central. He missed out on the South Western votes, which might have been enough to make him perform much better in the polls.
The tragedy of the PDP
The 2023 election was the PDP’s to win. Without Buhari, the Northern Golden Boy, on the ballot, Northern votes were up for grabs. This was how it panned out, with Atiku and Tinubu going neck in neck for the Northern votes.
However, the PDP was decimated in its traditional strongholds of the South East and South-South because of Peter Obi’s emergence. Let’s not also forget the Kwankwaso’s sizeable 1.4 million votes.
Peter Obi and Kwankwaso were members of the PDP on the eve of the election. However, by errors of omission or commission, they broke away from the PDP to join rival parties. Taking away millions of votes in the process.
In sum, the votes of Atiku(PDP), Peter Obi(LP), and Kwankwaso(NNPP) combined add up to 14.4 million votes. This is almost double the number of votes that Tinubu got. The PDP might have handily won the election with 14.4 million votes, but it couldn’t put its house in order.
Another consequence of this is that 14.4 million Nigerians rejected Tinubu at the polls. But due to some political errors on the part of the PDP, Tinubu took the day. The only person who benefitted from the PDP tearing itself apart was Tinubu. Word on the streets is that he most likely engineered the breakup of the PDP prior to the election. Which undoubtedly is a testament to his political acumen.
We will meet in court
In the end, the PDP and the Labor Party didn’t accept the result of the election. The judiciary would decide who the president would be, as it has always done in all presidential elections from 2003 (save for 2015).
Tinubu Starts His Reign
While the opposition was getting ready to challenge Tinubu’s election in the courts, he was sworn in on the 29th of May.
During his acceptance speech, Tinubu dropped a bombshell. He declared that the fuel subsidy is gone.
For the uninitiated, the fuel subsidy has been an albatross on the neck of the Nigerian state for decades. When Nigeria was “rich” during the oil boom in the 70s, the Yakubu Gowon government decided to reward Nigerians by subsidising PMS. While Nigeria would go on to have a couple of refineries after Gowon, the refineries would become comatose and Nigeria, an oil producing country, would have to import most of its refined oil.
So, we have a situation where Nigeria produces crude, exports the crude, and imports the finished products from the same crude into the country. To protect Nigerians from the vagaries of the international oil market, the Nigerian government subsidises the price of petrol.
Occupy Nigeria
When Goodluck Jonathan was president from 2011 to 2015, he tried to remove the fuel subsidy because it had become a huge part of Nigeria’s recurrent expenditure. There were a lot of symposiums and debates where government ministers gave reasons why the subsidy had to be removed.
Then on January 1st 2012, the Goodluck Jonathan government announced that fuel subsidy would be removed. The whole country went up in uproar in protest against this move. The protests, led by civil society and political parties were christened Occupy Nigeria.
Tinubu and Buhari themselves lent their support to the protests. In the end, the Goodluck Jonathan government backed down and fuel subsidy was restored. The problem would be passed on to the next generation of Nigerian leaders.
As fate would have it, the Occupy Nigeria protest was a catalyst for the formation of the APC. Prior to the protest, the ACN led by Tinubu, and the CPC, led by Buhari were separate opposition parties. But participating jointly in the protests gave them something to bond over. Leading to the formation of the APC, which would go on to defeat Jonathan in 2015.
The next generation of leaders that Goodluck Jonathan passed the buck to were the very same leaders who protested against the subsidy removal.
Structural Adjustment Politics
To be fair, all the leading candidates in the 2023 presidential elections said that the fuel subsidies had to go. Fortunately or unfortunately, it was Tinubu who happened to be the one to bell the cat.
This time around, there were no mass protests and strikes. Nigerians were probably fatigued from the higgy haggah of the elections to go on the streets to protest once again.
The only protestations were calls for palliatives to cushion the effect of the subsidy removals. Tinubu responded to these calls and addressed the country, promising palliatives.
Of course, writing a year in the future, barely anything has been seen or heard of these palliatives, in typical Nigerian fashion.
Tinubu Appoints Ministers
While the country was processing the subsidy removal, government business had to continue as usual. Tinubu submitted his list of ministers for screening by the National Assembly.
The list of ministers wasn’t inspiring. Of course, there were some technocrats like Wale Edun, Bosun Tijani, and Ali Pate sprinkled in the list. However, it was dominated by politicians.
This is understandable. The overwhelming majority of people rejected Tinubu at the polls. Making him quite an unpopular president. So, he decided to reward his political allies who stuck with him through “thick and thin.”
There was some curious drama during the ministerial screening concerning El Rufai. Tinubu and El Rufai had a long history. Most times, they were on opposing sides of the table, as El Rufai was a member of the Obasanjo PDP government while Tinubu was the leader of the opposition.
El Rufai finally found himself in Buhari’s camp on the eve of the 2015 election and worked with Tinubu in forming the APC and unseating Jonathan. El Rufai also took his first step into partisan politics by becoming the governor of Kaduna State in 2015.
During the 2023 election campaign, Tinubu got El Rufai on his side. Even pleading with him to work in his government if they win the elections. El Rufai was also at the forefront of the governors who went to court to challenge the naira redesign policy of the CBN. The policy was said to be a move by the CBN governor, Emefiele, to cripple Tinubu’s vote-buying machinery during the 2023 elections. So, it seems like El Rufai was fully on board with the Asiwaju project.
Curiously, during the ministerial screening process, a letter came from Nuhu Ribadu, the National Security Adviser bringing up numerous petitions and allegations against El Rufai’s confirmation as Minister. El Rufai’s confirmation was suspended until the allegations were cleared.
Of course, the National Security Adviser won’t have taken such action if it didn’t have the imprimatur of the president. It seems like Tinubu had not forgiven El Rufai for the numerous times he had run his big mouth in the past.
Seeing where the wind was blowing, El Rufai decided to bow out and reject the nomination as a Minister. He would jet out of the country to pursue a “degree” - the specific thing that Tinubu begged him not to do during the election campaign.
Best Served Cold
Talking about forgiveness. On Tinubu being sworn in as president, one would expect “opponents” like the partisan Central Bank Governor - Godwin Emefiele to find an excuse to go into exile. This was because he had been an instrumental opposition to Tinubu’s emergence as president through the naira redesign policy.
Curiously, he decided to hang around. He probably thought Tinubu had a large heart and would forgive him. After all, in politics, there’s no permanent friend or enemy, only permanent interests.
He was sorely mistaken. Barely a month after Tinubu was sworn in, Emefiele was suspended as the governor of the Central Bank on Friday, June 9. On Saturday, he was arrested by the DSS, apparently while trying to flee through the land border in Lagos.
I guess his travails would be a lesson for ostensibly non-partisan government officials to not muddy their feet in partisan politics.
As the Court Pleases
While all this was going on, in March 2023, Peter Obi and Atiku Abubakar filed their election petition challenging Tinubu’s victory at the polls.
At this point in Nigeria’s democracy, filing election petitions after the presidential election seems to be par for the course. This is because Nigerians don’t really have much trust in the electoral process. So, if they lose out at the polls, they’re quick to assume that it is because of malfeasance by the electoral umpire, INEC.
In Nigerian presidential elections, the election petition starts at the Court of Appeal and ends at the Supreme Court.
Due to times in the past when election petitions would take as long as three years of a four-year term, the Constitution introduced time limits for election petitions. So, now election petitions must be concluded roughly six months after the end of the elections.
We want to watch
Nigerians are very distrustful of their elites. This is quite understandable, considering the state of the country. The judiciary is usually touted as the least corrupt of the three branches of government, but Nigerians still distrust it.
As the election petition commenced, Nigerians on social media circulated pictures of the judges, upbraiding them to be honest and letting them know that eyes are on them, to ensure that justice be done. Of course, justice meant a ruling favourable to the party calling for it.
Perhaps rattled by this invasion of their “privacy” the Court of Appeal rejected calls for the live transmission of the election petition proceedings. The court also instructed that smartphones were not to be allowed inside the court during proceedings, in a bid to prevent people from recording proceedings. The Court was probably wary of snippets from the tribunal being recorded and warped out of context.
On September 6, the Court of Appeal delivered its judgment on the election petition. It confirmed Tinubu as the president and rejected the petitions of Peter Obi and Atiku Abubakar. As a consolation prize to those who wanted to watch, the judgement was televised live. The judgement was delivered for three hours, and even some of the lawyers in the court were dozing off.
If you’re looking for a nice lullaby, you could watch the video of the judgement below.
On 19th of September, Peter Obi and Atiku filed their appeals against the judgement of the Election petition tribunal.
The Supreme Court would be the final arbiter.
These are the Issues
The contention of the Labour Party and the PDP at the election petition tribunal was centred around the following three main issues:
INEC’s failure to electronically transmit the results.
Tinubu’s Failure to Secure 1/4 of the votes in the FCT.
Tinubu being fined $460,000 for drug-related offences disqualifies him from contesting as president.
I’ll address the issues individually.
INEC’s Failure to Electronically Transmit the Results
Prior to the election, INEC had promised that results from individual polling units would be electronically transmitted to a publicly accessible electronic viewing portal (IREV).
However, on election day, there were “glitches” that prevented INEC from uploading the presidential election results to iREV. Curiously, the results for the federal legislature elections that were conducted at the same time as the presidential elections were uploaded without a glitch.
In the end, INEC jettisoned the electronic transmission of results and used the standard manual collation that Nigeria has been using since time immemorial.
At the election petition, the opposition cried foul. They sought to invalidate the presidential election because INEC didn't follow Clause 48 of its guidelines which prescribed the use of electronically transmitted results for collation.
The Supreme Court stated that according to the provision of S. 135 (1) of the Electoral Act 2022, the only time an election would be invalidated by noncompliance with specified rules is if the noncompliance substantially affected the result of the election. Also, the noncompliance would stand if the conduct of the election was substantially done according to the provisions of the Electoral Act.
The court also noted that Clause 93 of the INEC guidelines, creates a hierarchy of results transmission. The most important is the physical copy of the results from the polling units. If that isn’t available, recourse would be made to the electronically transmitted result. If that is unavailable, then the collation officer can use a copy of the result with the police or party agents.
So, basically, the electronically transmitted results aren’t important when there are physical copies of results present.
The Supreme Court also noted that the iREV is not a collation centre. It’s just a viewing portal to allow members of the public to see the results in real-time. The real results are those that are manually collated in collation centres.
Tinubu’s Failure to Secure 1/4th of the votes in the FCT
To be considered validly elected as Nigeria’s president, in additon to getting the majority of votes, a candidate has to win a quarter of the votes in 2/3rd of the states of the federation. Tinubu had 1/4 in more than 2/3rd of the states, except for the FCT, where Peter Obi handily won most of the votes.
This is the provision of S. 134(2) of the Constitution:
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
The opposition contended at the petition that this means that the Federal Capital Territory has a special status and as such, a candidate needs to specially win 1/4 of the vote in the FCT before he can be said to have won the election.
The Court disagreed. It also noted that according to the provision of S.299 of the Constitution, the FCT should be considered a state. As such, the FCT isn’t given any special status during the election. Instead, it should be taken into account like any other state in the calculation of two-thirds of the states of the federation.
The court noted the absurdity in the contention of the opposition.
Assuming that a candidate scores the highest number of votes in a presidential election and has 25% or one-quarter of votes in 30 out of 36 states and Abuja but failed to secure the 25% in the FCT Abuja, are we saying that he cannot be president? Is that what the legislature intended? I do not think so.
Tinubu being fined $460,000 for drug-related offences disqualifies him from contesting as president.
The spectre of Tinubu’s drug-related past is one that has hung over him. Right from his time as Lagos State governor.
At the election petition, the opposition claimed that going by the provision of S. 134 (1)(d), the fine imposed on him disqualifies him from contesting the election.
This is the provision of S. 134 (1)(d):
(1) A person shall not be qualified for election to the office of President if -
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal;
The Supreme Court disagreed. It held that the seizure of money was a civil forfeiture. This is a situation where a person who isn’t convicted of an offence has his property seized. The court ruled that Tinubu wasn’t tried and convicted of the offence, and as such, he wasn’t barred from contesting by the provisions of S. 134 (1) (d).
We didn’t win, but he lost
One curious thing to note at the election petition was that neither the Labor Party nor the PDP claimed to have won the election. Rather, they sought to find a way to disqualify Tinubu and the APC through “technicalities”.
The Supreme Court, per John Inyang Okoro, JSC noted:
I have strenuously combed through the respective briefs of the parties vis-a-vis the record of appeal, I am unable to find any alternative figure put forward by the Appellants(PDP) as their rightful votes scored in the election, other than the scores presented by the 1st Respondent (INEC) showing that the 2nd Respondent (Tinubu) scored the highest number of votes. It is presumed correct.
What next
It’s safe to say that this brings us to the end of our journey in exploring the 2023 election. I decided to start from the 2023 election because it was the most recent historical event as at the time I decided to start this substack. So, I had to record the event before everyone “forgets”.
For my next post, I’m going to go down history lane, to start from the period immediately pre-independence. I would be covering the titans of Nigeria’s founding like Obafemi Awolowo, Nnamdi Azikiwe, and Sir Ahmadu Bello.
I’ll also keep on covering historical events in Nigeria as they happen. I hope that 2000 years from now, people will refer to my posts when talking about Nigeria’s history.