2023 Election: The Way We See It

Thu, Mar 23, 2023

21 MIN READ

Interview

THE 2023 general elections may have ended in misgivings, mistrust and castigations against the electoral umpire, Independent National Electoral Commission (INEC). While recriminations continue to be traded by all parties in the election, INEC has so far, received the larger share of the umbrage. THIS DAY LAWYER sought the views of the spokespersons of the Presidential candidates of the three leading political parties in the election, All Progressives Congress’s Festus Keyamo, SAN, People’s Democratic Party’s Dr Daniel Bwala and Labour Party’s Valentine Obieyen, and they spoke their minds to Onikepo Braithwaite and Jude Igbanoi in answering the questions which were put to all three of them on different aspects of the election

‘The Majority have had their Way, in Electing Bola Tinubu’

– Festus Keyamo, SAN

The just concluded Presidential election has been adjudged to be one of the most controversial in the nation’s recent history, with reports of electoral malpractices and BVAS machines that didn’t work, despite the earlier assurance by INEC that they would function optimally. Nigerians saw a few videos of different electoral malpractices; they were not the exclusive preserve of only one party – all the leading political parties were involved. As Lawyers, we are familiar with the saying “he who comes to equity, must come with clean hands”. Are the hands of your party clean enough to come to equity?

People are mixing things up. The BVAS devices did not fail. They were used to properly accredit voters, before they voted. It has replaced the old manual register. The BVAS was also to be used to capture the forms EC8As, and transmit them electronically to the INEC central server. From there, INEC would upload the results to the IREV. That delayed, according to INEC, because the IREV was down as a result of congestion or something like that. So, BVAS did not fail, and the results which were finally uploaded to IREV, to a large extent, were still the same results obtained by Party Agents at the various Polling Units. The little discrepancies so far, are not substantial enough to have affected the overall outcome of the elections.

Given some of the outcries that have trailed the election, observation of international election observers, now the litigation that is following, would you say the election was really free and fair? How well would you say that INEC discharged its constitutional duty?

Our own Nigerian Bar Association (NBA) has issued a report saying only 8% of persons were not satisfied with the processes, before and during the election. Apart from that report, we also can see that the old practices of ballot snatching, massive thumb-printing, etc have greatly reduced. The numbers we are also getting, are also becoming more realistic. So, our elections have greatly improved from previous ones. On a comparative note, this is a great improvement on previous elections. I will say it was largely, free and fair.

Would you say that the 2023 elections met the expectations of majority of Nigerians?

My previous answer above has covered this. When you say ‘majority’, do you mean the people who shout most on TV or radio or the social media? Because, the majority have had their way, and elected the President-Elect, Bola Ahmed Adekunle Tinubu. For now, that is the ‘majority’ that I know of. Any other dissenting voice belongs to the sore losers, or the minority who will have they say, anyway.

What level of confidence do you have in the Judiciary, the last hope of the common man, that justice will be dispensed fairly, in furtherance of Nigeria’s democracy?

I am a member of the Inner Bar, so I take your question to be a rhetorical one, because I hope you don’t expect me to say I have no faith in the Judiciary? However, it appears the Press want to pass a subliminal message to the public, that except the judgement goes a particular way, then justice has not been done. Let me strongly caution against that type of editorial slant.

Some of the major foreign powers like USA and UK have already congratulated the people of Nigeria and the President-elect on the elections, though they also urged INEC to improve the electoral process for the Gubernatorial elections, for the people to eschew violence and inflammatory statements at this critical time, and for politicians to use the “well-established mechanisms for the adjudication of electoral disputes”. What do you make of their position?

It has become the standard position of the International Community and International Observers, to various local election results. Essentially, they are not supposed to interfere in our internal affairs. Their role is merely advisory. So, all this ignorance we see online by some supporters, that they are waiting for ‘validation’ of our internal processes from foreign powers is very unfortunate. They will wait till ‘thy kingdom come!’

The issue of whether a Presidential candidate must win 25% of the votes cast in FCT is also one that has created a huge debate amongst Lawyers. Kindly, share your opinion on this.

It is a non-issue. I will refrain from giving a robust analysis at this stage, because I am part of the legal team, though I will be announcing my appearance with them in court only after May 29, since I am still in Cabinet up till that day. But, let me just chip in this: if you read Section 134 of the Constitution in conjunction with Section 299 of the same Constitution, then the issue will become clearer to you.

There has been some public outcry on how INEC announced the results of the elections, with many arguing that INEC breached some provisions of the Electoral Act 2022 in so doing, including not uploading the election results. Some even claim that the BVAS was not deployed for accreditation in some areas. Kindly, comment on this, especially as you had your party agents in all the polling units across the country

Do you have the number of polling units affected by this? If you don’t have it, then the question will be useless for this purpose, because we need to know whether the numbers of PVCs collected in those units are more than the number of votes by which the President-Elect beat Atiku Abubakar of the PDP.

How would you rate the Gubernatorial and State House of Assembly elections? Would you say the conduct of this second set of elections was better than that of February 25th?

Well, as at today (Sunday the 19th) results and reports are still coming in, so it would be difficult to make an overall assessment.

Thank you.

Festus Keyamo, SAN, All Progressives Congress

‘The Hands of My Party are Clean’ – PDP’s Dr Daniel Bwala

The hands of my party are clean. We went into the elections with high hopes, having successfully communicated our manifesto to the Nigerian people on what we hoped to do when elected. Our vision and mission centred on the realities confronting the everyday life of the average Nigerian. We have never been this divided along so many fault lines, and APC obviously mismanaged our unity in diversity. So, we projected that if voted in, we would focus on Uniting Nigerians in order to provoke national consciousness and loyalty pursuant to Section 14 of the Constitution. We knew that to be able to do that, we needed to address the economy, security, restructuring, education through a strong private sector led economy. Our plans were widely adjudged as the best by policy experts; therefore, we were upbeat and energised. But, unfortunately the elections were compromised, and here we are approaching the court to seek for redress.

No doubt, INEC failed to discharge its duties in every respect, and the evidence is replete everywhere. Thankfully, even the international election observers which comprise of the European Union, African Union, Commonwealth, NRI etc have, in their joint statement, condemned the election process as fraudulent and far below international best practices. In fact, very recently, the Chatham House stated that INEC has learnt nothing from its past failures. Personally, I think the exercise was merely a Broadway show, rather than election. The whole process looked suspect and scripted, as every effort to draw the attention of INEC to failures such as BVAS bypass, violence, falsification of results, lack of upload into IREV of the results at the poling units etc, all fell on deaf ears. What is of particular note to me, was the abuse of and non-compliance with the Electoral Act 2022, regarding BVAS uploads and particularly, the proviso to Section 65 of the Electoral Act which empowers the Commission via its Chairman to review all polling unit results and conflicts thereof before final collation. The Chairman refused to apply that novel part of the amendment, which would have addressed the concerns around the irregularities. The Chairman claimed he would do that after the final collation, but he failed to do so, and this election is widely viewed as the worst elections in the history of the Republic because of the simple fact that this is the only election in Nigeria’s history, where the entire country was rigged in one swoop through technology.

Would you say that the 2023 elections met the expectations of majority of Nigerians?

The 2023 elections, certainly did not meet the expectations of majority of Nigerians. The victory of the Presidential election, was greeted with graveyard silence for more than one week. The spirit of the Nigerian people has been down ever since, for the simple fact that it did not reflect the wishes of the Nigerian people. There will always be a winner and losers in every election, but when the process and the outcome is marred by irregularities, corruption, vote buying and now an emerging concept of INEC capture, the future is bleak for sure. Historically, Nigeria witnessed a voter registration surge across all age grades. Coming on the heels of #EndSARS, the youths decided to play a role in deciding their future and the next direction of the country. Added to this, were the realities of the third force which created excitement amongst the voting population. The uncertainty that greeted it, the debates, the issues and the media coverage, all played their part in energising the voting population to organise and engage, only to encounter a disappointment during the voting process. Voter suppression, over voting, BVAS bypass, violence etc were all the evils of the past that reared their ugly faces during these elections. So, in a nutshell the elections quite frankly, did not meet our expectations at all, needless to say, they didn’t meet that of the international community either.

What level of confidence do you have in the Judiciary, the last hope of the common man, that justice will be dispensed fairly, in furtherance of Nigeria’s democracy?

I have high hopes in our Judiciary, firstly, as a law abiding citizen and secondly, as a practitioner of law before the judicial officers everyday. The Nigerian Judiciary has risen to occasion, when the need arises. They have defined the bounds of our national unity. They have sacked Governors, law makers and installed others. They decided on matters that border our unity and faith, peace and progress. Their judgements, over the years, have redefined so many issues around our polity, even where the law makers failed to make a law for peace, order and good government. There are times they fall short of the expectations of Nigerians. There have been judgements that have created sadness and discontent in the polity. Some of the judgements are not merely because the jurists compromised themselves, but because they executed judgements both on law and policy. It is to be noted with regret too, that there may be bad eggs amongst the Judges whose judgements were motivated by bribes or sentiments, but our Judiciary has always used its self-cleansing mechanisms in dealing with erring Judges. As with executive and legislative branches, even the Judiciary sometimes has its challenges, but I have high hopes in the ability of the Judiciary to save our democracy. Let me note a couple of things though, that there would be people who might assume that in Nigeria’s history, Presidential elections have never been annulled due to public policy. Whilst it may be true that it has never happened, it will be a serious error to assume it will be the same this time around because of three reasons, namely, 1) overwhelming evidence and the need to preserve the sanctity of law, both as it is and as it ought to be; 2) flowing from bold precedents set by the Supreme Courts in Austria, Maldives, Kenya and Malawi, that the courts must not shy away from doing what the law provides, because doing so would destroy the very concept of the rule of law and democratic governance; and 3) the need to preserve Nigeria’s national security. These elections present that opportunity to take a closer look at the evidence and law, and ensure that public policy must marry the law this time around.

The congratulations of the US, UK etc is not conclusive proof of either approval or endorsement. It is a diplomatic courtesy that when a United Nations member who shares similar democratic ideals produce leaders through elections, that they congratulate the country and the winner. But, I must say that in the same vein, that the same countries have condemned the process that produced our President-elect as not meeting international standards. In fact, Times London advised that if the outcome is taken to court for adjudication, the court should take a second look. This election would be subjected to the crucibles of the law, and the law tested. It will be interesting to see how it plays out, but I personally think the Supreme Court, in the end, would order a fresh election.

10. The issue of whether a Presidential candidate must win 25% of the votes cast in FCT is also one that has created a huge debate amongst Lawyers. Kindly, share your opinion on this

11. Section 134(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) in determining the winner of the 2023 presidential election is quite clear. I will take the liberty to quote Section 134(2) of the Constitution cited supra. “

A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-

(a) he has the highest number of votes cast at the election; and

(b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja”

Nigeria is a Federation of 36 States and the Federal Capital Territory, therefore “two-thirds if all the states” referenced in subsection 2 (b) of Section 34 of the 1999 Constitution translates to 24 states of the Federation. This is very clear and unambiguous. The subsection proceed further to states “..in the Federation AND the Federal Capital Territory, Abuja”

What this means therefore, is that the 1999 Constitution of the Federal Republic of Nigeria (as amended) places a mandatory requirement in declaring any candidate as winner at any Presidential election under our law, that that candidate must have in addition to securing the highest lawful votes cast, 25% of the votes in 24 States and he must have at least 25% of the said votes cast in the FCT. As for the history, morality or politics of the requirement, in terms of ensuring the winner must have national spread and acceptance, I elect to leave it to the politicians and history teachers.

What I am concerned about is the mandatory requirement of the law, which, with respect, leaves no discretion to any person or body regulating elections in Nigeria. Furthermore, the import of the word “and” in subsection 2(b) of the said section referred to Supra, and wonder whether the 25% threshold excludes Federal Capital Territory, the decision of the Court of Appeal in Dasuki v Director General, State Security Services & Ors (2019) LPELR-48113(CA) is a guide. The court held that “In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition, described the word “and” as “A conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Therefore, Bola Tinubu should not have been declared the winner of the Presidential election, having failed the test of securing 25% of the votes cast in the FCT.

Dr Daniel Bwala, Legal Practitioner and Barrister Lincolns Inn, London (NP), People’s Democratic Party

‘The Most Corrupt Election, in the History of Electioneering in Nigeria’ – LP’s Valentine Obieyen

Engaging in election malpractices, is the function of people’s character. A lot has been written about the Presidential candidate of the Labour Party, Mr Peter Obi; however, none of the writings has impugned on his character. On the contrary, during electioneering, we saw the dirty and unbelievable past of some of the contestants, bordering on all forms of corruption and drug-dealing. Logically, those found wanting, by extension, have the character traits to engage in election malpractices with the clear conscience of nature. The man whose character does not entertain vices, would hardly engage in such things. I can therefore tell you with surety, that Mr Peter Obi has not, and will not even be part of, where such is discussed.

On the issue of BVAS machine that did not work, it is very clear that it was an essential part of the plan by those that rigged the election – the President, INEC Chairman and Senator Bola Ahmed Tinubu. Have you asked yourself why, amidst the universal criticisms of the BVAS machines that did not work, only one party has not condemned it.

On the election being adjudged as one of the most controversial, may I add that it is the most corrupt election in the history of electioneering in Nigeria. The painful thing is that with BVAS, it would have been the best, since it has comfortable safe guards, but like everything Nigeria, we missed that opportunity of proving to the world that we have come of age as a nation and as a people. With what happened, most civilised countries are now looking at Nigerians as a nation of barbarians, because of the indiscretion of a few.

Given some of the outcries that have trailed the election, observation of international election observers now the litigation that is following, would you say the election was really free and fair? How well would you say that INEC discharged its constitutional duty?

INEC failed woefully. Beyond INEC, our President, General Muhammadu Buhari would probably be remembered as the worst President since independence. I can understand the crude urge to rig elections, many years ago. However, with where we are today and where other countries are, it is heartbreaking that a leader who professes patriotism, would allow such avoidable disaster to befall the country today. While other countries are struggling to move forward, we are content to move backwards.

In the past, even with hitches here and there, international observers had given kudos to the conduct of our past elections. However, all of them condemned the last Presidential election, because the rigging was brazen and stupefying.

Would you say that the 2023 elections met the expectations of majority of Nigerians?

I have already described it as an election that ought to have been the best, because the designers of BVAS correctly provided safe guards against the evils of elections in Nigeria – over-voting, thumb-printing, ballot-snatching, amongst others. However, by aborting the working of BVAS, it turned out to be the worst election. It did not meet the expectations of Nigerians and of the whole world, especially other Africans that look up to us for direction and guidance.

What level of confidence do you have in the Judiciary, the last hope of the common man, that justice will be dispensed fairly, in furtherance of Nigeria’s democracy?

There appears to be a consensus among Nigerians, pointing to the loss of faith in the Judiciary. All I want to say here is that, while not agreeing with them, this is an opportunity for the Judiciary to reassure Nigerians. Here, may we remember the immortal words of Aristotle, that “separated from law and justice, man is the worst of all beasts”. If justice is not done, we are simply craving a return to the state of nature. Nobody wants that for our dear country. The Presidency has moved some steps towards that, it is left for the Judiciary, peopled more by mature and circumspect men, to halt the descent into hell.

I do not have the list of those who have congratulated him or not. In international diplomacy, offering of congratulations are normal, but not in any way meant to be a stamp of legitimacy. One would even notice that the congratulations are coming reluctantly, and what does that show you? Have you noticed that Nigerian Governors are not congratulating him? They know that Nigerians are angry, and would vote against those that do so. They are probably waiting to do so after the election. This shows us that offering congratulations, is mostly perfunctory.

The issue of whether a Presidential candidate must win 25% of the votes cast in FCT is also one that has created a huge debate amongst Lawyers. Kindly, share your opinion on this

The framers of the Constitution, are clear about that provision. If they wanted Abuja to be considered among other States, they would have used the word “including”, but they clearly used “and” to show that Abuja stands independently of other States. Why seek interpretation of a word that is plain and not ambiguous?

Valentine Obieyen, Labour Party

Thank you All.

Tags: Daniel Bwala Festus Keyamo INEC Labour Party Nigerian Bar Association

Subscribe to Our Newsletter

Keep abreast of news and other developments from our website.