In this interview with FRIDAY OLOKOR, a former Commissioner for Education in Ondo State, Dr. Remi Olatubora(SAN), analyses the judgment of the Presidential Election Petition Tribunal and how it will enrich the nation’s jurisprudence
You are aware of the judgment of the Presidential Election Petition Tribunal. What are the lessons to be learnt by candidates as Nigeria prepares for future elections?
One thing I will say straight away is that whoever as candidate intends to approach the law court, or election tribunal, for perceived injustice in the conduct of election or redress of perceived injustice, must be prepared very well.
The petitioner must be prepared, even before the election, to look into the possibility of ending up the race in post-election court, that is election tribunal, and that will mean that from the moment you are assigning your polling agents to the various units, you give the necessary training of what to look for and the note to take.
And then you must also be prepared that as the results are being compiled and collated, you are also on your own collating reports from your polling units and then, of course, having your polling units’ agents contact so that you can call them any time that is required to tell the election court exactly what transpired. This will serve a useful purpose. If you have to file a petition for example, the reciprocity of notes taken by your polling agents will be a primary source of material for your lawyers who will trail your election cases if you will have to go to court. What happened during the day the PEPT gave judgment was that people made allegations of non-compliance in respect of some areas without specifically identifying the polling units where those perceived non-compliance took place. For example, somebody said that there was massive non-compliance in AkwaIbom State, or there was massive non-compliance in Ondo State. But it’s not only about the state, you will have to ask which local government, and when you identify the local government, in which ward of the local government. When you identify the ward, you need to go ahead and ask which of the polling units.
So, any complaint about the conduct of election must be referable to a particular polling unit. The nature of your complaints with respect to those identified or disputed polling units must also be specifically stated in your case. If you do not state them in your case, they cannot lead to evidence in what you have not stated in your pleading. The lawyer will say that evidence led in the case of fact that is not pleaded goes to no issue. Going forward, any person who is going for election must prepare to win and must be prepared to lose and this will require that you prepare yourself and your agents and have it at the back of your mind that you might need to approach post-election litigation so that you will not be caught napping and you will not base your complaints on hearsay or speculation. The law requires specific complaint.
For some people, the decision of the tribunal on the status of the Federal Capital Territory appeared not to have been addressed and critics believed that it would have afforded the tribunal an opportunity to really make a definite statement on the FCT status concerning the 25 per cent requirement for a President to be declared.
You know the problem we had during the judgment delivery was that people slept because of the length of the time it took. The lawyers slept and even members of the public who were at home slept. So only the judges perhaps did not sleep but I was awake. I watched the judgment, and that issue of the FCT status was addressed. The constitution says whoever is going to be declared the winner of the presidential election must score the majority of the lawful votes cast.
In the case of the presidential election, it is not good enough that you won the majority of the votes cast; you must win at least one-quarter of the total votes cast in at least two-thirds of the states and the FCT. The issue that came up was whether the FCT enjoys a special status, that is to say, whoever seeks to be declared as president must have at least one-quarter of the votes cast in the FCT, the judges said it is no. The judges interpreted the constitution to have stated that you are required to have at least one-quarter of the total votes cast in two-thirds of 37. That means that for the purposes of calculating the geographical spread of the support of the candidate who is to be declared the elected president, the FCT will be treated as if it were a state. I remembered that the judges emphasised on the issues of freedom and equality and the essential importance of treating individuals in this country equally such that the votes of some of us who are privileged to be in the FCT will not be seen as more important than the vote of the man in Bayelsa or the man in Katsina or the man in Ondo.
If the constitution requires that you should have at least one-quarter of the total votes cast in two-thirds of the states, why should that of the FCT be different? The constitution is clear on that. I must tell you that the interpretation that there is a special requirement that you must have one quarter in the FCT was invented aftermath of the 2023 presidential election and I say that with all due sense of responsibility because you will find that even while delivering judgment, the judges also relied on several decisions of the Supreme Court on when issues of geographical spread have been decided upon in the past.
Looking at the Independent National Electoral Commission’s electronic transmission of results and the verdict of the tribunal, don’t you think that the pronouncement of the tribunal seems to have contravened the provision of electronic transmission of results as contained in the Electoral Act?
I think we all have a lot of mixed understanding of what all of these are about. Look, exactly the provision of the Electoral Act and of course, the manual for election officials and the guidelines and regulations for the conduct of elections in 2022 were applied in the last general elections. The need and substance of all of these are that, there will be manual collation of results, that is, results will be conducted at polling units, the results of the election will be manually computed in form EC8A and then the BVAS will now be used to take photographs of the spreadsheet of the results of the polling unit, and then transferred to INEC result viewing portal, that is iREV.
For example, in polling unit 002 of Agenebode, the total result declared was 500 and I was present there and my agent was given a copy. If in the collation centre that result turns out to be 5,000, I should be able to go to iREV to crosscheck what was posted from the polling unit in the eyes of everybody and then what eventually turned out at the polling unit. So in this particular election, all the major political parties at least like the Peoples Democratic Party, the Labour Party, the All Progressives Congress had their polling unit agents all over, and the case that was presented before the court, there was not a single instance in which anybody complained that the results that were computed and declared in the polling unit were altered before it got to the collation centre. The complaint was that, yes, INEC promised electronic transmission, electronic transmission of photographs of results, not electronic transmission of figures. I want us to know the distinction. What happened in this election was that the result of a polling unit will be photographed and sent to iREV.
Talking about INEC, a lot of people believe that the petition could have been decided clearly on the point of law and within a few days of the election. To them, the 180-day provision should be reviewed in line with best global practices. Immediately after the election is concluded, petitioners can go to court and the judgment delivered before swearing in the winner. Don’t you think that it is time for this aspect of the law to be reviewed?
Let me say that we are making incremental progress in our electoral reform. I remember the OlusegunMimiko and OlusegunAgagu’s case. The election tribunal lasted for two years because as the law stood then, there was no time limit set within which to determine election cases. So, the Ondo State Election Tribunal of 2007 lasted till 2009 and then eventually the matter went to the Court of Appeal. The Court of Appeal then was the final court in the petition for governorship elections. Today, it is the Supreme Court that is the final court. So, by the time Mimiko left the Court of Appeal with victory, Agagu had been governor for two years and two months in an election that was eventually nullified.
Now, this was the position that the system found to be unacceptable and then the law was amended and was reduced to at least 180 days at the trial court, 60 days in the Court of Appeal, and for cases like the governorship that will eventually get to the Supreme Court, it must not be more than 60 days at the Supreme Court.
Can’t this thing be done within one month?
What you are proposing is an area where I also agree with you that we have to improve upon but the improvement should not be focused on post-election litigations alone. The improvement on our law must also be focused on the activities preparatory to the conduct of the election and of course events that happened on the day of election.
Let us devise an electoral system that will be foolproof. If we devise an election system that is foolproof there will be fewer litigations and if there are fewer litigations, then of course the judicial resources will not be overstretched. Look, the point is that, it is not only the issue of law. You can have that law and good people to operate the law and the outcome will still be good. The point that public analysts have not hammered upon very well is the attitude of politicians themselves. Immediately after a law is reformed, the politicians begin to look for the loopholes and how to sabotage them and these are what eventually show up during post-election litigation.
What can you say about parties approaching the Apex Court because they are not satisfied with the PEPT judgment?
I have hope in the Supreme Court, I have practised law in this country for 30 years and I have seen the Supreme Court work in the past 30 years. I have the Supreme Court giving hope to the hopeless but it has to be on the basis of fact and law.
The case that was not submitted in the election tribunal cannot be invented at the Supreme Court because at the Supreme Court, you cannot amend your pleadings.
The Supreme Court will ask what lawyers call cold fact, and that is already on the record. There is hot fact, the one you exchange when you appear at the trial court; and there is the cold one. The cold facts are the papers that you have filed at the trial court or the intermediate court, then you bundle them together. We call it records of proceedings or records of appeal as the case may be.
So that will be the basis on which your litigation at the Supreme Court will be decided. You cannot at that point again bring in new facts. You cannot bring in fresh facts; so if your petition is deficient already, it is cold fact and there is nothing that the Supreme Court can do.
Sir, Nobel Laureate, Prof. Wole Soyinka said the presidential candidate of Labour Party in the 2023 election, Peter Obi did not win the election, despite the belief of his supporters. The revered literary icon has been heavily criticized by Obidients. What is your reaction to this?
Wole Soyinka has stated the truth of the matter; even though he is not a lawyer, Soyinka should be known as a man who is never flippant with any opinion that he offers in the public space. And I am so sure before he offered that opinion, he must have sat down some lawyers who are conversant with the case, and would have heard from them. But the truth of the matter is that the petition filed by Peter Obi and other parties are in the public domain. We have all read all these documents. If you take Peter Obi’s petition on its merit, there is not pleading that support the claim that Peter Obi won the majority of votes lawful cast, no complain was made against the scores that were attributed to Atiku, so how is he going to overtake Atiku who best him with over 1 million votes to emerge as a winner of an election, even if you take the votes of Asiwaju out of it. I think we can say that Peter Obi won the election on social media but lost at the polls.