Presidential election: Another twelve two-thirds?

ON Nigeria's 'Super Tuesday', February 26, 2008, the presidential election tribunal gave a clean bill of health to the April 21, 2007 presidential election in Nigeria. The tribunal sensed no evil, heard no evil, saw no evil and felt no evil as many of us did with the presidential election. Buhari and Atiku are rumour mongers, the civil society groups who disclaimed the election results are professional agitators, the local and international observers who monitored the election and declared it sub-standard and fraudulent are unruly intruders and liars; INEC did a decent and credible job, so the tribunal declared.

The verdict of the tribunal is akin to that of the 1979 presidential election tribunal. Interestingly, General Olusegun Obasanjo was a major dramatis personae in the two elections. In 1979, it was Uncle Sege (as Obasanjo was then fondly called) who organised the 1979 elections, and handed over power to Shehu Usman Aliu Shagari. In 2007, it was OBJ or Baba (as Obasanjo's new acronyms) who was the chief architect and 'godfather' of Umaru Musa Yar' Adua's nomination and subsequently election into office. Both elections were very controversial, and so were the verdicts of the presidential election tribunals who handled the election litigation cases.

In 1979, five political parties contested the general and presidential elections. These were the NPN, UPN, NPP, PRP, and the GNPP. At the presidential polls, which took place on August 11, 1979, Shehu Shagari of the NPN led with 5,688, 857 votes constituting 33.9 per cent of the total votes cast, while his closest rival was Chief Obafemi Awolowo of the UPN, who had 4, 916, 651 votes constituting 29.2 per cent of the votes cast. Shagari was therefore declared winner of the presidential polls by the electoral commission.

Awolowo filed a petition at the presidential election tribunal claiming that Shagari was not duly elected, as he did not fulfill the electoral provisions for electing a president. The electoral provision which Awolowo anchored his case on was Section 34 (a) (1) (c) (ii), which states that to be duly elected president, apart from having majority votes, a candidate must have "not less than one quarter of the votes cast at the election in each of at least two thirds of all the states of the federation". Awolowo argued that Shagari did not have the required one-quarter of the votes cast in two-thirds of the states of the federation. Awolowo therefore requested for the nullification of Shagari's election and a re-run of the polls.

The main puzzle of the election dispute was what constitutes two-third of nineteen states (then Nigeria had 19 states)? Awolowo's legal team insisted it was thirteen, as a state is indivisible as a geographical entity. Shagari's defense team argued it is not 13, but 12 2/3. That is, a state has to be divided into two thirds, and a quarter of that fraction is what Shagari needed, on top of 12 states. What made the case very interesting is that Shagari had a quarter of the votes cast in twelve states, but not in thirteen. The arithmetical permutation was therefore whether Shagari needed a quarter of the votes in 13 states or 12 2/3 states.

Before the tribunal gave its substantive judgment, it upheld the plea of the defence counsel that Awolowo's request for a re-run of the elections could not be entertained as the time stipulated in the electoral law for run-off election had passed and neither the electoral commission nor the returning officer will be competent to order such elections. The case was almost decided. Eventually, the tribunal ruled that two-third of nineteen states, is twelve two-thirds and therefore reconfirmed Shagari's election.

Awolowo was not satisfied with this judgment and headed for the Supreme Court. At the Supreme Court, there was a split decision. While the majority re-affirmed Shagari's election, Justice Kayode Eso differed. Kayode Eso insisted that states are to be taken as indivisible entities; as such two-thirds of 19 is 13 states not 12 2/3. Shagari carried the day.

The judgment was not necessarily a legal but political one. Shagari had started ruling as president, to nullify his elections would cause some disruption in the political system. For the sake of 'national interest', it was politically expedient that Shagari continues to rule and his election, validated. Sometimes, there is a thin line between the law and politics!

Back to 2007 elections: There were so many election observer groups-local and international, which monitored the April 21, 2007 presidential election in Nigeria. While most of them alluded to the fact the election was slightly better than the first set (April 14, 2007-governorship and state house of assembly elections), it was nonetheless roundly condemned. The Transition Monitoring Group (TMG), which is the largest local observer group, the regional organization group-the ECOWAS Observer Mission, and the EU observer mission, amongst others, unanimously pronounced the elections to be neither free nor fair, characterized by rampant rigging, irregularities and shoddy and questionable preparations by INEC.

The TMG, which had about 50,000 trained election monitors across the country referred to it as, "elections programmed to fail". In its preliminary report, the TMG observed, "Our monitors throughout the country noted and documented numerous lapses, massive irregularities and electoral malpractices that characterized the elections in many states. Based on the widespread and far-reaching nature of these lapses, irregularities and electoral malpractice, we have come to the conclusion that on the whole, the elections were a charade and did not meet the minimum standards required for democratic elections. We therefore reject the elections and call for their cancellation. The Federal Government and the Independent National Electoral Commission (INEC) have failed woefully in their responsibility to conduct free, fair and credible elections".

ECOWAS, which is basically an inter-governmental institution, of which Nigeria is a major player, did not have kind words on the elections. The ECOWAS Observer Mission in its preliminary report noted several cases of irregularities and logistical nightmares, which compromised the credibility and transparency of the elections. These include the sitting of polling stations in unsuitable and obscure locations, shortage and uneven distribution of materials, voting by underage, incidences of ballot box stuffing, and serious problems associated with the counting and collation of votes. In conclusion, ECOWAS noted, "In several collation centres observed across the country, the collation of results was delayed considerably, seriously challenging the transparency of the collation and tabulation of election results".

The European Union Election Observer Mission was not constrained by diplomatic niceties in condemning the elections. The caption of the EU preliminary report was, "Elections Fail to Meet the Hopes and Expectations of the Nigerian People and Fall Far Short of Basic International Standards". The report reads, "The 2007 state and federal elections have fallen far short of basic international and regional standards for democratic elections. They were marred by poor organization, lack of essential transparency, widespread procedural irregularities, significant evidence of fraud particularly during the result collation process, voter disenfranchisement at different stages of the process, lack of equal conditions for contestants and numerous incidence of violence. As a result, the elections have not lived up to the hopes and expectations of the Nigerian people and the process cannot be considered to have been credible".

The 'men and women of God' were also on the field; faith based groups-both Christian and Islamic groups deployed observer missions to monitor the elections. None gave the elections a pass mark! Can all these election observers be wrong? I was on the field as a part of a coordinating team of one of the biggest election monitoring groups. What I saw was how not to conduct elections. I was ashamed as a Nigerian with what I saw on the field.

Could it be that like the 1979 presidential election tribunal verdict, there is a convergence between the law and politics, with the latter superseding? The civil society has reacted swiftly to the tribunal's judgment. The Alliance for Credible Elections (ACE) questioned whether it is not a seal on hope for the electorate and the end to judicial activism that has sustained Nigeria's democracy thus far. In a poetic phrase, ACE noted, "the judgment is a castle of ice designed and crafted in the cold icy chambers of the judges rather than in the hallowed chambers of justice and conscience.... The judgment is a blow to the rebuilding of the moral community in our body politics. It shows we are not ready to clear the evil forest of political irresponsibility". More reactions are expected!

On an anecdote, a friend of mine once was told me that there are two professions that can make or mar politics and governance. The first is the legal profession (bar and bench) and the second, accounting. The legal profession can help interpret the law either to check the excesses and illegalities of politicians or to manipulate the political process in their favour; and the accounting profession can help either to check corruption by politicians or assist them in peculating national resources.

Today, the legal profession is on trial; the fate and future of Nigeria should not be sacrificed on the altar of legal technicalities and political expediency. What matters is the will of the people, and the judiciary must not compromise that!