The Nigerian Presidential Election Petition Court has reserved its judgment. Apprehension and expectation are playing hide and seek in the air. Judgment Day is here. Theologians, writers and musicians have painted poignant colours of the judgment day. From the 1998-direct-to-video film of John Terlesky with that same title – Judgment Day – depicting disaster in the air as a giant meteor that would soon hit the earth, to the Italian Renaissance painter, Michelangelo’s fresco painting which he labeled The Last Judgment, judgment day has never been a tea party. Rastafari-influenced Donald “Tabby” Shaw, Fitzroy “Bunny” Simpson and Lloyd “Judge” Ferguson of the legendary Jamaican roots reggae harmony trio called Mighty Diamonds, also painted very scary and grim picture of this judgment day. There will be “weeping and wailing and mourning and gnashing of the teeth,” they sang, their dreadlock hairs making pendulumic swings, as if in affirmation. According to them, it is a day “he and she will be judged/ according to the works they have done.”
The petitions filed by Atiku Abubakar, Peoples Democratic Party (PDP)’s presidential candidate, and Peter Obi of the Labour Party (LP) against the Independent National Electoral Commission (INEC)-announced election victory of the All Progressives Congress, (APC) are nearing their denouement. Those who are affiliated to political parties and candidates of the February 2023 elections who have a history of high blood pressure, must, by now, be regularly and faithfully taking dosages of their drugs. Judgment day is nigh, as the holy book says. Nigeria’s version of Michelangelo, Mighty Diamonds and Terlesky’s Judgment Day will be dispensed by a five-man panel led by Justice Haruna Tsammani.
In 1997, there was equally apprehension in the Kenyan sky. In the midst of the reddish firmament, Mwai Kibaki was however very hopeful. He had been announced as coming second against incumbent, Daniel Arap Moi, in the presidential election of that year. According to official results released by the Kenyan electoral commission, Mwai scored 1, 895,527 votes as against Moi’s 2,440,801 votes. Convinced that he had been electorally shortchanged, Mwai filed an action to void the election. He alleged that a horde of malpractices that violated electoral rules had been committed by the incumbent president. Weeks of judicial razzmatazz and mountains of evidence he provided combined to assure him that he would have the day.
On judgment day, as the panel of judges reeled out their figures, Kibaki was still full of optimism, just as River Zambesi regale the world with its huge quantum of water. Then, the dispenser of judgment spoke. Everywhere was silent. And… the petition was flung off the panes like a dirty, soggy rag! The judges climbed the ladder of technicalities to arrive at this frightening junction. Facts suffered colossally. Kibati’s petition was dismissed for “improper service.” In serving the petition against President Moi, ruled the judges, the petitioner fell short of electoral criteria. He had served the petition by publishing it in the Government Gazette. Kibati’s averment was that Moi, as president, was “surrounded by a massive ring of security which is not possible to penetrate.” The judges temporarily became blind to this fact.
Africa’s elections are always torn apart by defects and fraud. Anomalies and disputed results erupt at each election cycle. While the democratic waves of the 1980s and 1990s signified some improvements in elections on the continent, sham elections are still as prevalent as poverty and diseases. Where elections have been held, almost all the time, aggrieved parties angrily go to the judiciary as their last hope to seek redress. Except in a few and negligible instances however, the judiciary has almost always decided presidential election disputes along a particular route: the status quo. The case of Tanzania is even queer as its constitutional provision ousts judicial jurisdiction in hearing challenges to presidential elections. Article 41(7) of the Constitution of the United Republic of Tanzania states unequivocally that, “When a candidate is declared by the Electoral Commission to have been duly elected in accordance with this article, then no court of law shall have any jurisdiction to inquire into the election of that candidate.”
This Status quo was undoubtedly what President Bola Tinubu referenced at the PEPC last month. Asking the court not to nullify his INEC-announced victory, he averred, through his lead counsel, Wole Olanipekun, that strictly and disjunctively reading the constitutional provisions concerning Abuja and Tinbu’s failure to secure 25 per cent of the lawful votes in the FCT, rather than conjunctively with other provisions of the constitution, and thus nullify the election, would bring anarchy in Nigeria. At the election, while INEC announced 8,794,721 votes for Tinubu, it gave Atiku 6,984,520 and Obi, 6,101,533.
Lamentations are mounting on how men in Khaki gun their ways into presidential palaces in Africa. The latest is Niger. One of the principal reasons putschists give for their irreverent stomping on democratic governance is the absence of electoral legitimacy in mandates that propel African leaders into office. Many writers have singled out African judiciary as enablers of these khaki lords. They say that African judges’ flimsy dismissal of electoral cases on the basis of technical flaws and non-adherence to electoral procedural rules, leading to failure to give consideration to merits, seem to render African judges as emergent guns in the hands of civilian dictatorships.
This is said to make the judiciary fully complicit in the various stases suffered on the continent in the consolidation of electoral democracy.
Take for example Cote d’Ivoire. In 2010, all eyes were on the Ivoirian judiciary. Coming from years of conflict and instability, elections were eventually held in this French-Speaking African country. After the first round, no winner was produced and a run-off was ordered which pitted incumbent Laurent Gbagbo against the main opposition candidate, Alassane Dramane Ouattara. After this highly charged election, Chairperson of the Independent Electoral Commission, (IEC), Youssouf Bakayoko, announced Ouattara winner with 54.1 per cent of votes cast. Gbagbo was announced to have scored 45.9 per cent, leading to Gbagbo heading for Cote D’Iroire’s Constitutional Council. His pleading was for the court to annul Ouattara’s announced election on claims that the elections were massively rigged in Quattara’s northern stronghold. Without an adequate response from Quattara, the Council then voided almost 600,000 votes belonging to Ouattara and declared Gbagbo winner with 51.45 per cent of votes cast. Some of the grounds for the nullification of Quattara’s election sounded spurious and queer. One was that results were announced in a hotel rather than IEC’s office. Second that, results were announced outside of the prescribed three days by the constitution. The 600,000 votes nullified could not be substantiated on account of either ballot theft or over-stuffing.
Same thing happened in 2012 in the Ghanaian case of Nana Addo Dankwa Akufo-Addo and John Dramani Mahama. The petitioner had raised main issue of allegations of over-voting and voting without biometric verification which the law required; absence of signatures of presiding officers on some results sheets, contrary to the law; and the occurrence of the same serial numbers for different polling stations. His averment was that, upon the deduction of alleged tainted votes from announced votes, the man eventually declared president-elect, Mahama, could not have garnered the 50 per cent-plus-one-vote which the Ghanaian constitution required for majority win at the said election.
On judgment day, majority of the judges submitted different reasons why the election must be upheld. The most instructive was that, granted the presence of these complained anomalies, the conduct of the election was in “substantial accordance with the Constitution.” Lawyers quarreled with such jurisprudence as queer and worrying. Why wish away anomalies that were patently contrary to the Constitution? To take them to account translated to mean that the man who was declared winner of the election failed to so qualify. Retired Ghanaian Justice of the Supreme Court, Sophia Ophelia Adjeibea Adinyira and member of the United Nations Appeal Tribunal, had submitted that, in her view, “public policy favours salvaging the election and giving effect to the voter’s intention.” Legal dinosaur, Lord Denning, had stated that, contrary to the Ghanaian court ruling, even if an election is substantially held in accordance with the law, yet assailed with minor infractions that have an effect on the result, the election is vitiated and voidable.
What will the Justice Tsammani-led PEPC do on judgment day which is few days from now? Or, put differently, what do I think the PEPC will do? It will fly without perching, keeping feathers ruffled, regrettably. The Nigerian judiciary cannot afford to disappoint ghe company it keeps in the African desert of justice. What then will happen? Nothing! Absolutely nothing! Call me a pessimist, but there will be some huff and puffs on the social media and our natural inclination to go inside the cocoon of religious resignation and mundane issues of tribe and personal alliances will take an upper hand. And we will continue another cycle of underdevelopment which Africa is destined to. Like the Greek god Sisyphus condemned to push the boulder to and fro from creation to eternity, we will.