If it were a game of football, Team Tinubu would be beating Teams Atiku and Obi, combined, two goals to nil. However, we are not talking soccer here. It is politics. Realpolitik too. Specifically, the February 25 2023 presidential election won by Bola Tinubu and the legal challenge made by Atiku Abubakar and Peter Obi to have the outcome overturned. The two lost again earlier this month at the tribunal that heard their petitions. Now they are headed for the Supreme Court where, if they lose again, it will be all over. But if they defeat Tinubu, that result will wipe out all of Tinubu’s previous wins. If it does pan out this way, it will be a big precedent. In this country, no presidential election outcome has ever been thrown out.
Meanwhile, let’s look at the “understanding” of the two challengers of the Sept. 6th judgement of the panel of the Court of Appeals that declared Tinubu the true winner of the presidential election. Let’s remember that, at this stage, it is not the ballot box that is the focus but the integrity of the bench (or the judiciary). We’ll do well to remember too that Atiku and Obi are long time equity seekers as far as elections are concerned. We’ll look at their contrasting opinions about the judiciary the last time they won their cases in court and now that they have lost.
Let’s start with Obi for the obvious reason that he is a first time runner in the race for the presidency. Firstly, he was not in court to hear the verdict delivered. Something surprising because right up until that day, he was a permanent presence in all the court’s sessions. Away in Awka, Anambra state, on decision day, Obi told journalists that he respected the “findings” of the presidential election petitions panel but rejected the “reasoning and conclusions” in the judgement. With a frown of disappointment on his face, Obi said he had instructed his lawyers to appeal the judgement to the Supreme Court.
Obi’s comportment this time contrasted with his jubilation over court victories he secured in 2003, 2007 and 2009. He ran for the governorship of Anambra state in 2003 as All Progressives Grand Alliance (APGA) party’s candidate. But his opponent, Chris Ngige of the People’s Democratic Party (PDP), was declared the winner by the Independent National Electoral Commission (INEC). After nearly three years of litigation, Ngige’s victory was overturned by the Court of Appeals on 15 March 2006. Obi took office two days later. After only seven months in office, on 2nd November 2006, he was impeached by the Anambra State House of Assembly, led by speaker Mike Balonwu. Obi successfully challenged his impeachment and was re-instated in office February 9 2007 by the Court of Appeals sitting in Enugu.
Obi once again left office on 29 May 2007 following an election in which Andy Uba was declared the winner by the electoral body. Obi returned to the courts once more, this time contending that the four-year tenure he had won in the 2003 election only started to run when he took office in March 2006. On 14 June 2007, the Supreme Court upheld his argument and put him back in office. The court ruled that his four-year tenure was not up until March 2010. On all three victorious occasions, Obi accepted both the courts’s “findings and the reasoning” behind them. But not so in 2023.
Now to Atiku, a serial contestant and loser in presidential polls since 1993 (six times now). In rejecting the court’s decision on the 2023 presidential vote, he lamented, “Our gains in ensuring transparent elections through the deployment of technology was heavily compromised by the Independent National Electoral Commission (INEC) in the way it managed the last presidential election and I am afraid that the judgment of the court as rendered by the PEPC failed to restore confidence in our dream of free and fair elections devoid of human manipulations. My ultimate goal in this pursuit is to ensure that democracy is further strengthened through the principles and processes of fair hearing. Though the judgment of the court on Wednesday is respected, it is a judgment that I refuse to accept because I believe that it is bereft of substantial justice. However, the disappointment in the verdict of the court can never destroy my confidence in the judiciary.”
Backplay to November 2009. A high court had just ruled in his constitutional challenge to President Olusegun Obasanjo’s move to remove him as vice president. The court said Obasanjo couldn’t take him out. Atiku was jubilant, “highly elated”. And his media man then, Garba Shehu, said he saw “three (good) elements” in that judicial decision. “One, the President of Nigeria cannot, without recourse to the constitution, dismiss an elected vice president. The vice president of Nigeria can only leave office upon death, resignation, medical incapacitation or impeachment,” he said. The next element he noted was the court’s ruling that a vice president could differ in opinion with the president and still remain in office.
“The (other) thing is about the president’s lawyers making the point that since the vice president has differed in his political party membership with the president, he cannot continue in that office. The court ruled that the vice president has the right to differ in his political belief or opinion and still remain in office,” he noted. According to him, the Vice President owed allegiance not to the President, but to the people of Nigeria. “That the vice president cannot be disloyal to the president and remain in office: again, the court’s ruling is that the vice president swore to an oath to defend the Constitution of the Federal Republic of Nigeria. So his loyalty is to Nigerians and is to the Constitution and not to the person of the President. These are very key and landmark decisions of the court,” he said.
Atiku, according to Garba, was “highly elated” by that “landmark” court decision. He was “satisfied” and “very much relieved” that it went in his favour. But this year, the court decided against him and because it did so, the judgement of Sept. 6th was “bereft of substantial justice”. And Atiku visibly showed his “disappointment”.
Remember, in the 2023 legal contest, the two challengers did everything to swear the court’s judgement in their respective favour, from assembling very intimidating teams of senior advocates of Nigeria (SANs) to a social media trial of the Court of Appeals justices who heard their petitions. The pressure succeeded in part because, while the justices refused to allow the court sessions to be televised as demanded by Atiku and Obi, they did allow the judgement to be taken by television.
This notion that elections cannot be won and lost outright at the ballot box is what I call The other side of midday, a title I’ve borrowed from Sidney Sheldon’s novel “The Other Side of Midnight”. A political battle taken from the open field into the courtroom where five judges sit to decide whether or not 70 million people have voted rightly is a messy affair, messy particularly for the judiciary. Its officers come under intense pressure to award ‘victory’ one way or another, contrary to what the facts speak. They are personally threatened and subjected to close media scrutiny. A trial within a trial, sort of. I was told the justices who sat to take the 2023 presidential election petitions had had to send their families outside the country for fear of attacks by sponsored political thugs. It ought not to be so. It is high time our politicians accepted that elections should start and end at the ballot. The lesser the visibility of the judiciary in the electoral process the more mature our democracy will have become. It is true, there are fewer election petitions in the country these days than before. But we look forward to seeing them disappear completely. Let politicians be man enough to accept defeat and live to fight another day. Private lawyers can also help by not encouraging election losers to go to court all because there are easy bucks to be earned. The plumb line is drawn.