By Taiwo Abiodun-Oni
I must again make another disclaimer to the effect that the contents of this piece is merely academic and is not intended to act subjudice to the inherent powers of adjudication vested in the Nigerian Presidential Electoral Tribunal by both the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2022.
Peter Obi’s Presidential Election Petition Part II: Background
Peter Obi was one of the candidates for the Presidential election that held on the 25th of February, 2023 in Nigeria. He represented the Labour Party and was adjudged to score 6,101,533 by the Independent National Electoral Commission.
Peter Obi through his team of lawyers have just submitted an election petition to challenge the results of the election. His petition has highlighted three grounds which are represented in lay-terms as:
a. That Bola Ahmed Tinubu was at the time of the election not qualified to contest.
b. That the election of Bola Ahmed Tinubu was invalid by reason of non-compliance with the Electoral Act/ Double Nomination/ IREV
c. That Bola Ahmed Tinubu did not satisfy the 25% votes cast in the FCT.
For this round, I, consider one part of GROUND ‘B’ which borders on the fact that Kashim Shettima was not qualified to participate in the February 25,2023 Presidential Election having knowingly allowed himself to be nominated in two constituencies as Senator Borno Central District and as Vice Presidential candidate.
The one part of the SECOND ground on which the Peter Obi Presidential election petition seems to be hinged upon borders on the point that Shettima is disqualified from participating in the February 25,2023 Presidential Election having knowingly allowed himself to be nominated in two constituencies as Senator Borno Central District and as Vice Presidential candidate.
This ground cited the provisions of sections 29(1), 33, 35, and 84(1)(2) of the Electoral Act, 2022 as relevant statute in support of this ground.
THE RELEVANT LAWS
For clarity, i will reproduce the provisions of these sections:
1) Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.
(1) A candidate for an election shall be nominated in writing by such number of persons whose names appear on the register of voters in the constituency as the Commission may prescribe.
(2) A person shall not nominate more than one person for an election to the same office.
(3) Any person who contravenes subsection (2) commits an offence and is liable on conviction to a fine not more than N100,000 or imprisonment for a term of three months or both, but his or her action shall not invalidate the nomination.
A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate : Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the Commission for the election concerned.
Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.
(1)A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission. (2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus.
The issue of Locus Standi
This issue raised in the Obi petition seems to have been treated by the court of appeal in its decision given on the 25th of March, 2023 in the suit filed by the PDP against Tinubu, APC and Shettima. A declaration that by the provisions of Section 35 of the Electoral Act 2022, the 4th Respondent (Shettima) is disqualified from participating in the February 25,2023 Presidential Election having knowingly allowed himself to be nominated in two constituencies as Senator Borno Central District and as Vice Presidential candidate of the 2nd Respondent (APC).
The court of appeal acting in appellate jurisdiction held that the PDP lacked the locus standi to institute, maintain or demand the reliefs it sought as it was not an aspirant in the primaries of the APC and that Section 285 (14) (c ) of the 1999 Constitution does not grant it locus to challenge either the primaries or the nomination of Shettima.
Delivering judgment in the appeal on Friday, a three-member panel of the court of appeal led by James Abundaga had in fact described the PDP as a “busybody”, who dabbled into issues that were internal affairs of the APC. The Court consequently dismissed the PDP appeal for want of merit and awarded in favour of each of the respondents, namely APC, its Presidential candidate Asiwaju Bola Tinubu, Senator Shettima and the Independent National Electoral Commission (INEC), the sum of N5 million.
The issue of Pre-Election Matters
Also, for clarity, Section 285(14)(c) which forms part of the fourth alteration to the constitution is reproduced as follows:
‘a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has bot been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election….
By virtue of the above provisions t is important to note that as been considered as a pre-election matter. The implication of this is that, the one part of Ground B is considered a pre-election matter and should have been brought before the election held.
The fourth alteration to the Constitution in Section 285(9) also provides that a pre-election matter must be filed not later than 14 days after the occurence of the event. Kashim Shettima was officially nominated for the position of VP on July, 20, 2022, that is, some 270 days ago.
Not, only this, also very recently, the practice was questioned by the Supreme Court in the case of Toyin Obayemi v People’s Democratic Party (unreported Suit No SC. 308/2018) wherein the appellant had filed a pre-election case at the Federal High Court on 10th April 2015 to challenge the nomination of the 3rd Respondent on grounds that he forged the waec certificate submitted to INEC. In delivering its judgment in January 2019 the Supreme Court dismissed the appeal on the ground that it was filed after the 60 days stipulated by section 285 of the Constitution notwithstanding that the said amendment which limits the time for pre-election matters came into force on June 18, 2018 i.e. during the pendency of the appeal. In fact, the amendment took effect three months after the filing of the appeal. In justifying the position of the Court, Tanko Muhammad JSC as he then was held that “Thus, once an appeal comes outside the time set out for its determination, the court has no jurisdiction to entertain it.
The Labour Party/Peter Obi
As the APC prepares to file its reply to the Petition, the court’s decision in the PDP case may be used as a precedent to argue that Obi’s petition similarly lacks merit, especially since the issue of Shettima’s nomination has already been addressed by the Court of Appeal. However, the outcome may depend on whether the Tribunal considers Obi’s petition to have a different standing or basis compared to the PDP case.
Hence, while the chances of Peter Obi’s petition succeeding at the Nigerian Presidential Election Tribunal may be limited based on the Court of Appeal’s decision in the PDP case, it remains to be seen how the Tribunal will approach and rule on the matter.
Peter Obi’s Petition is likely to fail on this ground.