Bola Ahmed Tinubu, the newly installed president of Nigeria, is a product of two great institutional anomalies. One is a deeply flawed Constitution designed to delegitimise the presidency of Nigeria. The other is a Might-Is-Right state that imposes its will on the people. This is not how Nigeria’s president should emerge. And leaving aside Tinubu’s well-known character and integrity deficits, the truth is that the institutional anomalies deny his presidency the strong mandate and legitimacy it badly needs to govern.
Let’s start with the constitutional anomalies. Under section 134 (2) of the 1999 Constitution, a candidate is deemed to have been elected as president, where there are more than two candidates, if: 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 in each of at least two thirds of all the states in the Federation and the Federal Capital Territory, Abuja.
My concern here is section 134(2)(a), which requires the winning candidate to have “the highest” number of votes cast at the election. In other words, he doesn’t need to have “the majority” of votes cast, as required under section 134(1)(a), where there are only two candidates. The perverse implication is that, in a competitive election with more than two candidates, a candidate can be rejected by an overwhelming majority of voters and still become president. This poses a huge legitimacy problem, which many countries avoid by requiring a winning candidate to receive more than 50 per cent of the total valid votes.
If Nigeria had a “more than 50 per cent” rule, this year’s presidential election would have gone into a rerun and a winner that reflected the will of the majority of Nigerians
Take two multiparty democracies: Brazil and Turkey. In Brazil’s 2022 presidential election, Lula da Silva won 48.43 per cent of the votes in the first round. But that wasn’t enough to make him president. He only became the winner after securing 50.90 per cent in the second round.
Similarly, in this year’s Turkish presidential election, Recep Erdogan won 49.52 per cent in the first round but was only declared winner after scoring 52.18 per cent in the second round. Democracy is based on “one person, one vote”, and true legitimacy comes when a winner has more votes, however small the margin, than all the other candidates combined. Put simply, he must have the majority of the total votes cast in the election.
Sadly, not in Nigeria! According to INEC, Tinubu received 8.79million votes out of 23.4million total valid votes in this year’s presidential election. Thus, the vast majority of voters, 14.6million, rejected him. Put in a percentage term, he secured only 36.61 per cent of the votes cast, meaning that a whopping 63.39 per cent of the voters rejected him. By universal standards, that’s a very, very weak mandate!
Of course, Tinubu met the constitutional requirement. He scored, according to INEC, “the highest” number of lawful votes cast. But only a bizarre constitution allows someone rejected by 63.39 per cent of voters to become president. In a presidential system, where the president is the embodiment of a nation’s sovereignty, it’s hard to justify someone rejected by 63.39 per cent of voters being president of a nation.
If Nigeria had a “more than 50 per cent” rule, this year’s presidential election would have gone into a rerun and a winner that reflected the will of the majority of Nigerians, across ethnic and religious cleavages, would have emerged. But thanks to section 134 (2)(a) of the Constitution, Nigeria has a president rejected by an overwhelming majority of voters, creating serious weak-mandate and weak-legitimacy problems!
Yet, there’s another constitutional anomaly. Under section 239(1), the Constitution allows the Court of Appeal and, ultimately, the Supreme Court, to determine whether someone was validly elected as president. However, it gives such a long period – 180 days – for a presidential election petition to be concluded and allows, meanwhile, the person whose election is being challenged to be sworn in as president. In theory, the Supreme Court can remove a president that wasn’t duly elected. But in practice, Nigeria’s apex court is extremely unlikely to remove a sitting president, however materially flawed his election!
What’s more, the majority of Nigeria’s elite class, including the media, and several foreign governments regard Tinubu’s presidency as irreversible, a fait accompli. In an incisive article, Matthew Page, senior fellow at Chatham House, the international affairs think tank, wrote that western governments are “selling democracy and governance issues short” in Africa, based on the patronising notion that Africa is not ready for genuine democracy and good governance. Thus, it’s not surprising that some Western governments, notably the US, sent delegations to Tinubu’s inauguration, despite worldwide condemnation of the presidential poll and the fact that his election is being challenged in court.
Surely, if Nigeria’s elite class and Western governments already know the outcome of the ongoing presidential election petitions, then, why is the hearing continuing? It’s an utter waste of time and resources, both of the courts and the petitioners. Sadly, though, it’s Nigeria’s democracy and judiciary that are being mocked, that are a laughingstock globally.
Elsewhere, all election petitions are concluded before a president is inaugurated. But here, a president entrenches himself in office, seizing all the instruments of power, while the courts purport to be genuinely determining the validity of his election. Who is fooling who?
Which brings us to the second great institutional anomaly: the Might-Is-Right state. Last week, on Arise TV, former President Goodluck Jonathan lamented the state of electoral democracy in Nigeria. “The problem we have,” he said, “is the electoral management body, INEC, and the security agencies,” adding: “INEC shares more than 60 per cent of the blame.” But if INEC and the security agencies manipulated elections, who emboldened them? Of course, a powerful state that rides roughshod over the will of the people!
Recently, before leaving office, Garba Shehu, then President Buhari’s spokesperson, said that “the Presidency allowed Tinubu” to win the election. Surely, by “allowed”, he meant the Buhari presidency tipped the balance in Tinubu’s favour, using INEC and the security agencies. Yet, in his inaugural speech, Tinubu disingenuously said: “Since the advent of the Fourth Republic, Nigeria has not held an election of better quality.” He lied!
But why does this matter? Well, it matters because a government that lacks legitimacy in the eyes of most citizens, due to a questionable mandate, will struggle to govern. As Professors Paul Collier and Tim Besley, co-authors of the seminal report on state fragility, put it, “legitimacy reflects a self-fulfilling belief that power has been acquired and is being exercised appropriately”.
They argued that where legitimacy problems exist, due to a belief that power wasn’t acquired appropriately, the government concerned will lack capacity to “call on voluntary compliance by citizens”. Similarly, the mandate hypothesis in political economy posits that a government that didn’t win a strong mandate in an election may struggle to pursue radical reforms because it may not be able to carry people along.
For instance, while the removal of the oil subsidy is desirable, the Tinubu government can’t behave as if it had a strong mandate for the policy. It doesn’t. Therefore, it must tread carefully and consult widely to secure the buy-in of key stakeholders.
Recently, Pastor Tunde Bakare, the Serving Overseer of the Citadel Global Community Church, vowed: “I will never call Tinubu my president,” saying there were “widespread malpractices during the 2023 elections.” He probably spoke for millions of Nigerians, who believe Tinubu acquired power inappropriately, thanks to INEC’s seeming complicity.
Thus, it goes without saying: If the Supreme Court validates Tinubu’s election, he must work extremely hard to win the hearts and minds of Nigerians.