Why Nigeria’s Election Petition System is Unconstitutional, By Chidi Anselm Odinkalu

“Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.”

— Section 14(2), Constitution of the Federal Republic of Nigeria, 1999

In 2007, the contest to rule Nigeria was between two sons of Katsina State. From the Katsina Emirate, Umaru Musa Yar’Adua ran on the ticket of the then ruling Peoples’ Democratic Party (PDP) to succeed outgoing president, Olusegun Obasanjo. His elder brother, Shehu, had served as Obasanjo’s second-in-command during military rule from February 1976 to October 1979. From the Daura Emirate, also in Katsina State, Muhammadu Buhari, who also served alongside Obasanjo and Shehu Musa Yar’Adua in that military government, was the leading opposition candidate on the platform of the All Nigeria Peoples’ Party (ANPP).

The Independent National Electoral Commission (INEC) announced Umaru Musa Yar’Adua as winner and Muhammadu Buhari lodged a petition to challenge the declaration. After a prolonged period of litigation, the Supreme Court handed down its decision on 12 December 2008 by a narrow majority dismissing Muhammadu Buhari’s petition.

Of the many things pronounced upon by the court, two stood out:

1. Its refusal to affirm any set of principles to govern the conduct of elections in Nigeria.

2. The formal pronouncement in the leading judgment of Niki Tobi that in elections in the country, “the judges must be the final bus-stop.”

A report on election dispute resolution in Nigeria published earlier this year by the Policy and Legislative Advocacy Centre (PLAC) reinforced this, declaring that the electoral process in Nigeria has now been formally relocated “from ballot to the courts.”

The idea of judges as the “final bus-stop” for determining electoral legitimacy in Nigeria sounds like a wanton departure from the clear constitutional design which confers sovereignty upon the people “from whom government through this constitution derives all its powers and authority.” Judges may be people in the sense of human beings like every other citizen, but as a conclave of decision makers in a court, they are not the people upon whom the constitution confers the mandate to decide who rules the country.

When it comes to contests over elections in Nigeria, the Electoral Act does not provide any room for the people whose mandate is at stake to participate in disputes over the destination of their mandate or what happens to it.

It is problematic enough that judges have now overthrown popular sovereignty as the basis of the mandate to rule in Nigeria and substituted it with a grandiloquent notion of judicial sovereignty. The case of Zamfara State’s Governorship election in 2019 demonstrates how dangerously self-regarding judicial sovereignty has become in Nigeria.

In that year, Mukhtar Shehu Idris, the candidate of the All Progressives Congress (APC), secured 534,541 votes (67.41%) to win the governorship election in Zamfara State, winning in all 14 Local Government Areas. In distant second was Bello Matawalle of the PDP with 189,452 votes (23.89%), losing in every LGA.

However, preceding the vote, APC’s ticket contest had been tied up in contradictory court orders. Though no one disputed the result as the manifest will of the people, the Supreme Court, resolving the pre-election litigation on 24 May 2019, invalidated the APC primaries and disqualified their candidate retrospectively, declaring that the votes cast for APC were “wasted votes.”

Not content with invalidating the votes of more than two-thirds of the voters, the court then declared Matawalle the winner, even though he had clearly lost at the polls. This was election robbery under the ruse of jurisprudence.

There was nothing inevitable about the Supreme Court’s decision. They could have disqualified the APC and ordered a re-run, allowing the people to choose afresh. Instead, the court supplanted popular sovereignty with judicial sovereignty, infantilised the voters, and imposed a rejected candidate as governor.

In January 2008, Nigeria’s Supreme Court ruled in a case that awarded the office of Rivers State Governor to Chibuike Rotimi Amaechi, stating that under the Constitution, the political party, not the individual, contests or wins elections. However, Justice Adesola Oguntade, who delivered that judgment, noted that electoral dispute laws were “intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a citizen under section 36 of the same Constitution.”

Section 36 of the Constitution guarantees that anyone whose civil rights and obligations are to be determined in court shall be entitled to a fair hearing within a reasonable time by an independent and impartial tribunal. In a democracy, no right surpasses the right to choose one’s leaders.

Yet in the Zamfara case and others like in Plateau State (2023 legislative elections), voters were not heard or represented in court even as their votes were invalidated — a clear violation of Section 36.

In Nigeria, where electoral legitimacy has been relocated from the ballot box to the courtroom, citizens are denied standing in disputes over who should wield the mandate they conferred. Strangely, no one has yet challenged the constitutionality of this disenfranchisement. The main objection is the impracticality of joining millions of voters in such litigation — an issue the author promises to address next.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu