The courts take centre stage

On Saturday, 25 February 2023, Nigerians flocked to the polls to cast their first votes for the 2023 general elections. The first stop was the presidential and National Assembly elections. These elections are billed as the most competitive and anticipated elections since the beginning of the Fourth Republic in 1999.

The elections also witnessed the nationwide debut of the Bimodal Voters Accreditation System (BiVAS), which further allowed for the electronic transmission of results to be viewed on the Independent National Electoral Commission (INEC) Result Viewing Portal (IReV). 

Many Nigerians were deeply invested in the election results, taking steps to ensure their votes were protected every step of the way. They followed the results closely, from the polling units to the ward and state coalition centres and all the way to the National Coalition Centre in Abuja. It was clear that they wanted to make sure their voices were heard and their votes counted.

Citizens glued to their TV screens awaiting the announcement of the results after the opening of the 2023 General Election National Collation Center in Abuja by the INEC Chairman, Prof. Mahmood Yakubu, and the ground rules set, the Ekiti election result was the first results to be announced. The State Coalition Officers for the Presidential Election (SCOPE) declared the results, setting the stage for the rest of the results from across the country to be tallied. The opening of the collation centre and the announcement of the Ekiti State results marked the beginning of a long and anticipated process of determining the next President of Nigeria.

Why will the elections be challenged?

It boils down to logistical and operational challenges, questions about the actual state of the electronic transmission of votes, incidences of electoral malpractices and an interesting interpretation of constitutional law around the spread of votes required to win the presidency.

The elections experienced many challenges beginning with the delay in distributing electoral materials, which caused a delay in starting the elections. Other issues faced during the elections were underage voting in Kano State, vote buying, voter suppression and intimidation, and snatching and destroying ballot boxes in states such as Delta, Imo, Kogi, Lagos and Rivers. These challenges saw the elections extended to Sunday, 26 February 2023. 

Dino Melaye, a former senator and party agent of the Peoples Democratic Party (PDP) at the National Collation Centre, objected to the results of the presidential election declared for Ekiti State. He claims discrepancies in the results and has demanded that the INEC chairman direct the Returning Officers to simultaneously display and project the tabulation of the results they present on the screen to ensure transparency. He also called for cancelling the Ekiti State presidential election results due to alleged vote-buying, as the total number of votes cast exceeds the number of accredited votes. Finally, he criticised INEC’s reliance on the manual collation and transmission of vote totals and the slow pace of uploading results on the IReV. 

Party agents of the Action Alliance and Labour Party Umar Farouk broadly agreed with the PDP’s observations. In response, INEC boss Yakubu insisted that the commission stood by the Ekiti result. He added that the automatic upload of vote result sheets to the IReV only complemented the manual collation and transmission of votes – which remain the primary means of the election result. The sudden change in INEC’s position, delivered for the first time on national television and in contrast with many of its statements extolling the game-changing effect of the electronic transmission of votes, has posed severe doubts in many of the commission’s credibility and ensured that the validity of the results would be called into question.

The observations of the opposition parties are hardly an isolated occurrence. The National Human Rights Commission (NHRC) released a Preliminary Statement of the 2023 Presidential and National Assembly Elections signed by the Secretary of the commission, Tony Ojukwu. According to the report, there were attempts to intimidate voters and INEC officials by party supporters and thugs in Rivers, Delta, Lagos, Kogi and Imo State. Additionally, NHRC monitors reported that in eight per cent of polling units, accreditation and voting were disrupted for various reasons, including the malfunctioning of election equipment and incidents of violence. The report further stated that in some states, voting was disrupted due to incidents of violence.

The commission reported receiving reports of vote-buying from 42 locations across the country, with most reports coming from Edo, Imo, Jigawa, Kogi, Lagos, Nasarawa and Sokoto states. According to these reports, voters were being offered money or other incentives in an attempt to influence their votes.

On Tuesday, February 28, 2023, a coalition of the People’s Democratic Party (PDP), Labour Party, and African Democratic Congress (ADC) held a press conference in Abuja to call for the outright cancellation of the current election exercise due to allegations of widespread rigging and manipulation of results. The coalition also asked INEC to organise fresh elections that are credible and transparent. This agitation is a sign that those dissatisfied with the results are unwilling to accept the results of the elections without a fight and are prepared to take legal action if INEC does not listen to their pleas.

Finally, there has been an argument in some quarters, particularly with supporters of the Labour Party that the Constitution requires a successful candidate to not only win the highest number of votes and 25% of the vote share in 24 states but must mandatorily win 25% of the share of votes in the Federal Capital Territory (FCT). This argument is hinged on a strict interpretation of Section 134(2)(b) of the 1999 Constitution which states that:

“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.”

In effect, the crux of their argument turns on the interpretative and qualifying effect of the word “and” in the relationship between the vote share of the states as well as the FCT. The only venue where this potential conundrum can be sorted out is the Supreme Court. The legal drama aside, a Supreme Court finding that upholds this argument could have the effect of instantly making the federal capital an electoral and security flashpoint – an unintended consequence considering that elections in the country’s capital are generally a peaceful affair.

Another unintended consequence of this argument seeing success at the highest court is that the elevation of the FCT to the most important voting district in the country will lead to increased calls for greater representation for voters within the territory. While the FCT sends one senator and two representatives to the National Assembly, there is no independent executive representation. Aso Rock, through the Federal Capital Territory Administration, runs the district. A judicially imposed status change could entice voters to demand greater control over territorial resources by electing their executive leader. In essence, if electoral law would treat the FCT as a state, why not push for it to be an actual state?

The view from outside

The Economic Community of West African States (ECOWAS) Electoral Observation Mission to Nigeria faulted the irregularities associated with the Presidential and National Assembly elections. The report captured the delay in the start of the elections as a result of logistical challenges and violence, which caused the postponements of elections in some polling units in Lagos, Imo, Bayelsa, Rivers and Edo; the unavailability of sufficient quantities of electoral materials in many polling stations across the country; the visible presence of security agents discharging their duties in accordance with the provisions of the law; in some polling units, however, they were inadequate.

In the same vein, the European Union Election Observation Mission to Nigeria released its first preliminary report on Sunday, 27 February, stating that elections were held on schedule, but a lack of transparency and operational failures reduced trust in the process and challenged the right to vote.

Additionally, the International Republican Institute (IRI) and National Democratic Institute (NDI) Joint Election Observation Mission (IEOM), led by Her Excellency Dr Joyce Banda, former President of Malawi, presented its preliminary statement about the elections, made recommendations to INEC in a bid to improve election administration; increase transparency and build confidence in results; Enhancing Accountability in Campaigns; Ensuring Inclusive Elections; reducing Election Violence and Improving the Electoral Information Environment.

These statements by international observer missions are not an afterthought. They may weigh heavily on the minds of court judges as a potential pressure point by foreign powers interested in the vitality of Africa’s largest democracy, especially after the United States slapped some Supreme Court justices with visa refusals for an infamous decision in a state governorship election in Imo.

Will the elections be challenged in court?

Almost certainly.

There is every likelihood that the results of the 2023 general elections will be legally contested. There are a few complications. Confidence in the Supreme Court, where many petitions could end up, is not sky-high in the light of its recent decisions and judgements from lower petition tribunals. The attack on some Supreme Court justices by officials of the secret police on corruption allegations, the forceful removal of a would-be Chief Justice of the Federation by the Presidency for political reasons and the judiciary’s financial and operational dependence on the other branches of government make the prospects of a politically charged, high stakes election trial a foregone conclusion. In short, the eyes of an entire country, most of the continent and more than a few capitals will be riding on the verdict.

Nigerian elections are a notoriously litigious affair. With the operational challenges faced by INEC in delivering a credible outcome and the dwindling state of trust in Nigerian institutions, a lot is riding on the perception that the 2023 elections delivered a fair outcome. While disputes are par for the course, all parties involved in the election process must be aware of this potential outcome and are prepared to accept the court’s decision. The first critical test of Nigeria’s democratic credentials occurred at the ballot box. The next test will be in the courts. For the sake of Africa’s largest electorate and the rest of the continent, it must pass with flying colours.