The main opposition candidate in the just concluded presidential election, Atiku Abubakar of the PDP, will launch a strong legal challenge against President Muhammadu Buhari and the ruling APC over allegations of irregularities in the election.
Court of Appeal orders inspection of materials
The Presidential Elections Petitions Tribunal sitting at the Court of Appeal in Abuja has granted an application by Atiku and the PDP for an order compelling INEC to grant them access to make copies and certify documents and materials used for the conduct of the election.
The pre-hearing ex parte application was by their lawyers, Levi Uzoukwu (SAN) and Chris Uche (SAN) and P.A. Akubo (SAN).
The panel presided over by Justice Abdul Aboki comprising Justice Emmanuel Akomaye Agim and Justice Peter Ige however refused the application by Atiku and PDP to be allowed to scan and conduct forensic analysis of the documents.
The panel stated that by the provisions of Section 151 (1) and (2) of the Electoral Act, INEC is only expected to allow the applicants access to inspect and make copies of the documents and to be certified as true copies by the electoral umpire.
Atiku and PDP had requested the panel to make the order compelling INEC to produce the voters register, the smart card reader machines, ballot papers, site back ends and other sensitive materials for inspection and scanning.
Citing the cases of Rauf Aregbosola versus Olagunsoye Oyinlola and Senator Hope Uzodinma versus Osita Izunaso where the elections petitions tribunal made an order permitting the forensic examination of election materials, the panel said the order, which was made during hearing at the tribunal and not at the pre-hearing stage like the Atiku case, was set aside by the Court of Appeal because the “order violated the right to fair hearing by the other parties under Section 36 of the 1999 Constitution.”
“Forensic copies examination by forensic experts cannot be regarded as an inspection of those documents within the grounds of Section 151 of the Electoral Act as amended,” he said.
When is the case likely to be concluded?
Section 239 (1) of the 1999 Constitution provides that the Court of Appeal shall have exclusive and original jurisdiction to hear and determine any question as to whether the validity of a person elected to the office of the President or Vice President. And sub-section (2) provides for its quorum as at least three justices of the Court of Appeal.
The petition must be brought within 21 days of the cause of action, while the time limit for the determination of such petitions according to Section 134 (2) and (3) of the Electoral Act, 2010 will be determined within 180 days (six months). Where there is further appeal to the Supreme Court, such an appeal must be made within 60 days of the Court of Appeal or tribunal judgment.
Both camps set up strong legal teams
Already, the two political parties have begun to assemble a strong team of attorneys to meet in court in what appears to be an epic battle. The APC is trying to woo Wole Olanipekun (SAN) and Akin Olujimi (SAN) to join others like Lateef Fagbemi (SAN) and Festus Keyamo (SAN) on the legal turf.
The PDP has constituted a strong legal team including Tanimu Turaki (SAN), Levi Uzoukwu (SAN), Chris Uche (SAN), P.A. Akubo (SAN) and Paul Erokoro (SAN) among several others.
The pedigree of these senior lawyers is undoubted, and their names are synonymous with many successful election petitions which have helped to strenghten our electoral and constitutional democracy.
The candidates as veterans of legal wars
One of the interesting aspects of the election petition is that the main actors of the two camps are veterans of legal wars. While Buhari had challenged all the previous election results in which he lost up to the Supreme Court, Atiku had also challenged his removal from office as vice president in 2003 and the question of presidential candidacy up to the Supreme Court following his disqualification as candidate of the Action Congress (AC) in 2007.
President Buhari then of the All Nigeria Progressives Party (ANPP) contested the result of the April 2003 presidential election which returned Olusegun Obasanjo of the PDP as winner. But in a split judgment of three to one, the Court of Appeal in Abuja dismissed the petition and unanimously canceled the election result in Ogun State where a certain ethnic group was prevented from voting amid irregularities and non-compliance with Section 134 (1) (b) of the Electoral Act and alleged voter intimidation by the military and police. There was a minority decision by Justice Nsofor.
Buhari again challenged the result of the 2007 presidential election won by Umar Musa Yar’Adua particularly, the non-serialisation of the ballot papers which he claimed substantially affected the election result against him. But he lost at the Supreme Court by four to three of the panel justices.
He again challenged the outcome of the 2011 presidential election as candidate of the against PDP’s Goodluck Jonathan. And at the Supreme Court, the result of the election was upheld.
During the 2007 presidential election, Atiku Abubakar’s AC was disqualified by INEC based on a federal government white paper indicting him on alleged corruption. When Atiku challenged the action of the electoral umpire, the Supreme Court agreed with him that while Section 21 (8) (9) of the Electoral Act, 2002 empowers INEC to disqualify candidates, Section 32 (4) (5) off the Electoral Act, 2006 vested such powers on the courts. It therefore restored Atiku’s candidacy.
The issue of the removal of the vice president from office following his conflict with then president, Olusegun Obasanjo and his defection to the AC after their first term was another case. This took Atiku up to the Supreme Court in 2004. The apex court held that by the provisions of Sections 142 and 143, the method for the removal of the vice president is not similar to the vacation of seat for members of the National Assembly when they defect from their sponsoring political party.
The running mates of both camps, Prof Yemi Osinbajo and Peter Obi, are not new to election and constitutional litigations. For instance, Osinbajo, a Senior Advocate of Nigeria, who as the Commissioner for Justice and Attorney General of Lagos State between 1999 and 2007, initiated several suits on contentious constitutional questions.
One of the suits is suit number: SC.353/2001 between the AG, Lagos and AG of the Federation which centred on the powers of the state to regulate urban and regional planning.
It was instituted in 2001 by the Lagos State government to among others, challenge the constitutionality or otherwise of the Urban and Regional Planning Act, 1992. The decision was made in favour of the states.
Osinbajo also in 2001 led the Lagos team in the case of the eight littoral states of Akwa Ibom, Bayelsa, Cross-River, Delta, Lagos, Ogun, Ondo and Rivers challenging the position of the federal government that natural resources located within the continental shelf of Nigeria are not derivable to the states. But the Supreme Court in that suit ruled that the low-water mark of the land surface is the limit for determining revenue accruals to the states as per Section 162(2) of the 1999 Constitution.
On his part, Peter Obi was a dogged and resolute fighter even during his tenure as governor of Anambra State where he won four landmark judgments. He was first elected in 2003 under the platform of APGA but PDP’s Chris Ngige was declared winner. Obi’s mandate was restored by the Court of Appeal on March 15, 2006. But on November 2, 2006, he was impeached by the state House of Assembly over unsubstantiated allegations and his deputy, Dame Virgy Etiaba, was sworn in. But he was again reinstated by the Court of Appeal on February 9, 2007.
Following the victory of Andy Uba in the May 29, 2007 governorship election, Obi returned to the Supreme Court contending that the tenure he won in 2003 only started running in March 2006. On June 14, 2007 the Supreme Court upheld his argument and returned him to office. Obi’s tenure then ran undisturbed till March 2010 when he won a re-election till March, 2014 when he handed over to Willie Obiano.
Atiku has right to go to court – Lawyers
There were initial misgivings over Atiku’s decision to challenge the result of the February 23 presidential elections. But lawyers say it is within his constitutional right to go to court.
Olisa Agbakoba (SAN) said he initially advised Atiku not to go to court because he felt he would not get justice.
“It is clear to me that the presidential election results were manifestly riddled with electoral irregularities. Now that former vice president Atiku Abubakar has approached the court, it is important to emphasise that he is constitutionally entitled to do so,” he said.
Also, Abuja based human rights lawyer, Hamid Ajibola Jimoh, said the Electoral Act has provisions for politicians to exercise their discretion of either approaching the courts to redress or accept the election’s outcome in good faith. (Daily Trust)
