Peter Obi v INEC – Analysing the Petition

Both of the leading opposition candidates have filed their petitions challenging the election of Asiwaju Bola Ahmed Tinubu (BAT) as the President of the Federal Republic of Nigeria, and in today’s newsletter we will be doing a brief analysis of the petition filed by Mr Peter Obi (PO) – as this is the petition we have been able to get our hands on. Once we get our hands on the petition filed by Alhaji Atiku Abubakar, we will do an analysis on that as well.

You guys will recall that in our newsletter a couple of weeks ago we did a breakdown of the election petition process in Nigeria. So, if you didn’t read it or need a refresher – check out our article on the election petition process in Nigeria

a.  The first argument is that when BAT’s vice presidential nominee – Kashim Shettima was nominated as the Vice Presidential candidate, he was still the Senatorial candidate for the Borno Central constituency. He only withdrew his candidacy a day after he was nominated. PO is arguing that since Shettima was nominated in Borno central constituency, and then nominated in the ‘Nigeria’ constituency (regarding the VP nomination), this is multiple nomination and therefore his nomination as VP is void , and therefore since his nomination was invalid, it taints the candidacy of BAT – and so he was therefore ineligible to contest the election.

Section 132(4) of the 1999 Constitution states that for the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.  Section 142(2) further provides that the provisions of the Constitution relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President. In order words Section 132(4) should apply to Vice Presidents. Finally, Section 35 of the Electoral Act 2022 provides  that where a candidate knowingly allows himself to be nominated in more than one constituency, his nomination shall be void.

Lawpadi Verdict – This seems like a strong argument, if it is proven that the Vice Presidential candidate had a dual nomination at the relevant time. We shall wait to hear what the tribunal decide.

b.  The second argument is that BAT was charged and fined $460,000 for an offence committed in the USA involving dishonesty – narcotics trafficking in 1993, and a decree of forfeiture was ordered against him, and based on this was ineligible to run for the office of President.

Section 137 of the 1999 Constitution deals with what grounds make an individual ineligible to run for the office of President. Specifically, 137(1)(e) of the 1999 Constitution provides that a person would be ineligible to contest if within a period of less than 10 years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct.

Lawpadi Verdict –  This does not seem to be a very strong argument, and we think it is unlikely to be upheld by the tribunal. This is because the case in the USA was decided in 1993 (30 years ago). The Constitution states it has to be a conviction within the last 10 years.

a. PO’s argument here is that INEC issued “Regulations and guidelines for the conduct of elections, 2022” and the Manual for election officials 2023. By these guidelines INEC officials were meant to do two key things:

PO argues that the uploading of the results was not done, which gave room for manipulation of the results, and therefore due to non-compliance with the regulations by INEC (which they set themselves) by failing, refusing and neglecting to instantly transmit and upload the result of the election electronically to the IReV from the BVAS, INEC did not comply with the election provisions.

Section 60(5) of the Electoral Act 2022 provides that in an election the presiding officer shall transfer the results including the total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission. Then in Section 38 of the Regulations and Guidelines for the conduct of elections, it provides that on completion of the election at a polling unit, the presiding officer shall use the BVAS to upload a scanned copy of the EC8A to the iREV. This is further backed up by Section 2.9.1 and 2.9.2 of the INEC Manual for Election officials 2023 which sets out in detail the procedure for the online and offline transmission of the election results to IReV.

Lawpadi Verdict  – This seems like a very strong argument, we shall wait to hear what the tribunal decides.

b. PO further argues that INEC has refused to comply with the order of the courts to make available the election records in its custody. Specifically, they have denied having any Forms EC6A and EC8B from Rivers State; in Bayelsa they only provided Form EC8A in 4 out of 8 Local Government areas, and Forms EC8B in 7 Local government areas; they provided all the forms for Benue State; but then refused to provide forms for all the remaining 33 states and the FCT.

Section 74 of the Electoral Act 2022 provides that within 14 days after an application is made to INEC by any of the parties to an election petition, they must provide the documentation and failure to comply is a offence liable on conviction to a maximum fine of N2m or an imprisonment term of 12 months, or both. Further, the Supreme court already ordered INEC to provide the documentation. If they have not done so, then the INEC Chairman could be charged with contempt of court – which is a criminal offence.

Lawpadi Verdict – This seems like a strong argument. However, this is on its own is not enough to invalidate the election, but it does create criminal liability for the relevant INEC officials involved.

c. Finally, PO alleges that INEC failed to record the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials – as required by law to be recorded, in the States that BAT won.

Section 73 (2) of the Electoral Act 2022 provides that an election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of results sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid.

Lawpadi Verdict – This is a very strong argument. If PO’s team can conclusively prove that this was not done, then the law is clear that the polling units affected would be invalid.

PO alleges that not only did BAT not score the highest number of votes; he also did not get at least one quarter of the votes cast at the election in the Federation and the FCT Abuja as constitutionally required.

Section 134(2) of the Electoral Act provides that if there is more than one candidate for the election, he/she shall have been duly elected with the highest number of votes cast at the election, and 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

Lawpadi Verdict – this is a novel issue of law on constitutional interpretation. It seems like a strong argument, but we shall wait to hear what the tribunal decides.