The one-third president elect and March 11th vote

In what will go down as the worst presidential election in Nigerian history, Bola Tinubu, presidential candidate of the ruling All Progressives Congress (APC) and a documented drug-trafficker, was declared president-elect by the Independent National Electoral Commission (INEC) in early March 2023 with just about one-third of the vote. Two-thirds of registered Nigerian voters wanted someone else to be president.

The February 25th election was not only marred by gross irregularities on the part of INEC and its officials, but was also tainted by widespread voter suppression, intimidation and violence. Even by its own admission, INEC did not run a free and fair election for the highest office in the land despite numerous assurances that it will do so.

Nigerians were hugely excited about the polls this time around after a hard-fought amendment to the electoral law for electronic transmission of election results to curb rigging. To their dismay, the upload of election results was either hampered by infrastructural constraints, network issues or deliberate human-instigated delays.

Obi and Abubakar have a responsibility to see through the judicial review of the electoral process to the very end. And in the aftermath, all stakeholders should abide by the final ruling of the court

In some places, well-meaning voters provided stand-by generators to ensure electronic voting infrastructure remain well-powered. Others brought their private internet facilities to assist with uploads. In general, many electoral officers at polling units, quite deliberately some think, wouldn’t or couldn’t upload election results to INEC’s central server on time.

With the benefit of hindsight, it did not seem that INEC really cared for the electronic transmission of results. INEC did not wait for the uploads to its servers nor did it allow for the 7-day review process for disputed results at polling units before declaring a winner of the presidential election.

Days afterwards, with most of the election results now uploaded on its central server, candidates and political parties are now seeing results that are quite different from what INEC announced. With such weighty evidence, the chances that aggrieved candidates that head to the courts will prevail is high.

Peter Obi of the Labour Party and Atiku Abubakar of the main opposition People’s Democratic Party have already been granted approval by the courts to inspect INEC’s cache of documents and server uploads to prepare their cases.

Some think that the courts might be a dead end. I disagree. The problem of corruption in the Nigerian judiciary is not so much that judges can decide cases however they wish as much as the imperfections of the law. This is why lawyers can argue any side of a case.

There is always some wiggle room within the law to argue a side. And while judges have some discretion on logic, nuance, and interpretation of the law, they are required to discuss their reasoning and conclusions substantially. This is why even as losing parties may disagree with a final court judgement, it is rarely the case that the judgement will not have merit when juxtaposed with the law.

There are three main dimensions that the aggrieved candidates will argue. First, INEC was required to transmit results electronically and announce results based on the electronically transmitted results. Second, there is a requirement for the declared winner to have garnered at least 25% of votes in the Federal Capital Territory (FCT), as per a previous Supreme Court interpretation in a case involving Muhammadu Buhari, the outgoing Nigerian president, in 2008.

Third, an independent collation of authenticated election results from polling units are not only significantly at variance with that INEC announced but substantial enough to have altered the outcome of the election.

An optimal approach will be to argue all three as opposed to choosing just one. The potential argument against the first issue is that INEC is not mandatorily required to transmit results electronically or rely solely on results that are electronically transmitted.

On the second point, opposing counsels will argue that the FCT is a state for the purpose of the election, which to my mind is a weak point when precedence has been set on the issue in a previous presidential election tribunal case.

The third angle is perhaps the most tiresome and potentially least effective, as after having convinced the panel of judges of irregularities, there is the additional burden of proving that the irregularities were material enough to shift the relative scoring, or weigh on the fulfilment of the requirements to declare a winner and thus cause a rerun.

What Mr Tinubu will be counting on is that a desire for stability will moderate the national sentiment, especially amongst the elite. Judges are human beings too. And the cream at the Supreme Court are also well aware that the judiciary is an arm of government and that their rulings have national security implications. Thus, there is a very high judicial threshold for upturning the results of a presidential election. And this is the case, not just in Nigeria, but in every developing democracy around the world.

Still, it is not without precedent that a hugely flawed presidential election such as this will be overturned for not only being done according to law but for precisely national security risks if it were not corrected. Kenya and Malawi come to mind.

Their courts ordered new presidential elections after it was substantially proven that the first ones were flawed. Abubakar have a responsibility to see through the judicial review of the electoral process to the very end. And in the aftermath, all stakeholders should abide by the final ruling of the court.

But the 2023 elections are not over. New subnational state governors and members of their respective parliaments will be elected on March 11th. It will be a huge mistake for voters to ignore the March 11th poll out of angst or frustration owing to their experience in the February 25th presidential poll. Some fear there would be even worse violence in the subnational elections. I disagree.

The ruling APC party is well-aware that many Nigerians are angry with the outcome of the presidential election. Mr Buhari and Mr Tinubu are almost certainly worried that EndSARS-type protests could break out. In fact, it must be hugely surprising to them that Nigerians have generally been calm thus far despite their disillusionment with the conduct and outcome of the presidential poll.

But the latent pent-up anger in the populace is palpable. One way of managing that is for Nigerians to be allowed to come out in droves to vote for state governors of their choice and for the electoral process to be not only free and fair but according to the electoral law.

Thugs planning violence are constrained this time around too, as their sponsors will not want to create any opportunity for nationwide protests, as the March 11th subnational polls will be fertile ground for such if voters are attacked or disenfranchised yet again. It is common sense. It is game theory. It is the reality.

So make sure to vote on March 11th, as a good outcome, one that makes the country officially a 3-party state, with about a third of governors from each of the leading three political parties, is the only insurance against an unfavourable outcome from the presidential election petition process that could still affirm Tinubu as president.

Bear in mind, state governments and legislatures are required for constitutional amendments. And judging from the election results of the federal members of parliament elected on February 25th, a united opposition may not only have a chance to preside over both the House of Representatives and the Senate but will very well be able to rein in a still likely Tinubu presidency either way.

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