LP presidential petition reechoes my contention that Abuja is pivotal in presidential election determination – Judiciary Expert

The recently filed Labour Party Presidential Election petition emphasizes the fatality of the non-compliance with the constitutional threshold of 25% in the FCT for declaration of a president-elect from the Feb 2023 elections.

This reaffirms the submission in my Arise TV interview during my recent Observer mission to Nigeria that Abuja does and should have a deciding vote per our constitution, equity and good conscience.

For anyone to deny Abuja the right to equally have given 25% to a presidential contender would make them not only a stateless people but a colonized people. For the courts to do likewise would be the equivalent of the brazen bullying, battering, bloodying and disenfranchisement of people in certain parts of Lagos as occurred last weekend.

Thankfully, Lagos is not FCT and the constitution does not specifically require 25% in Lagos for the presidency otherwise we would be running a perpetual agberocracy as Lagos has become.

The people of Abuja have graciously accommodated Nigeria at great personal sacrifice and should not be deprived further.

In memory of my dear learned colleague and valiant advocate for the rights of Abuja indigenes, Barrister Musa Panya Baba, who proceeded to glory yesterday, it is my hope that this position of Abuja’s centrality to presidential determination will be judicially vindicated.

Please find below the transcript and video of my Arise TV interview on the 25% requirement and Abuja’s super status.

Emmanuel Ogebe. US Nigeria Law Group, Washington

Barrister Emmanuel Ogebe of US Nigeria Law Group’s Arise TV interview on 2023 presidential elections

– *FCT should have deciding 25% vote in Presidential elections

TRANSCRIPT

 *Adesuwa*: And Nigeria’s outgoing president, Muhammad Buhari, has acknowledged that there were Some technical issues with last Saturday’s election but maintains that the electoral process was Free and fair. He said the declared winner; Bola Tinubu of the governing All Progressive Congress was the best person for the job. In his victory address, Mr. Tinubu urges his rivals and the nation to unite amid escalating tension between the APC and the main opposition parties. He’s accepted that there had been some lapses during voting, but insists they were few and far between and immaterial to the final outcome.

 *Charles Aniagolu:* Absolutely well, the hotly contested election between the three main parties is still going on; of course, it’s the closest it’s been in years, but some say that the PDP and the APC failed to meet the constitutional 25% requirement in the federal capital territory and so cannot win the election. These comments have ignited a conversation and more controversy. Well, let’s try and understand this. We’re joined in the studio by Emmanuel Ogebe, who’s an international human rights lawyer and something of an expert on Nigerian election law. Thank you very much indeed for joining us. Is it, in your assessment, going to be up to the courts to decide the interpretation of that part of the Constitution that deals with the FCT with regard to elections, or is there enough there for it to be explained in just plain language and it doesn’t have to end up in court?

 *Emmanuel Ogebe:*

Well Charles, all elections in Nigeria tend to end up in the courts, and I’ve always said that there are two institutions that midwife elections in Nigeria: INEC and the courts. INEC basically creates the mess, and the courts have to clean up after them, and so clearly this is going to go to the courts now with regard to this specific provision.

However, in legal reasoning, sometimes you find that the language of the law is not the same as that of the average man, and in this case, it has to be resolved by the court in one of two ways: either by a conjunctive reading of the text or a disjunctive reading of the text. Reading it conjunctively would imply that Abuja is part of the 25 states (plus Abuja); reading it disjunctively means the states AND Abuja.

Right, now there are certain schools of thought in election law jurisprudence that say Abuja needs to be treated as a state, but the people of Abuja are like the people of Washington, DC; they don’t have statehood, and they’re desiring statehood, so it would be unfair to them to be used and treated as a state only for election purposes when they literally do not benefit from the democracy that we have. For example, the people of Abuja voted in this election, but next week they’re not going to have elections because they don’t have a governor or members of the House.

Adesuwa: …and indeed because they’ve been clamoring for special status or to upgrade us to a state level, so you’re right when you say that when it comes to elections we give special attention, we then pay attention to Abuja, but you know otherwise we disregard them, so it does mean that the interpretation will end up at the Supreme Court; we’ll leave it to the courts to interpret, is that what you’re saying?

 *Emmanuel Ogebe:*

Yes, it’s going to have to be determined by the courts at this point, and I will tell you personally that I wish that Abuja should have 25% because it will give them a bit of a say in national affairs, and remember, Abuja is an artificial creation.

*Charles: * But wouldn’t that confer social interruption, I mean confer exceptional status, when the other states are grouped together into a block and then you say, “We’ve won two-thirds of these states; let’s take a look, and you know given that you’ve got to win 25% here, I mean that gives us exceptional status?”

 *Emmanuel Ogebe:* 

Yes, but right now they have a disadvantaged status. So, I think it almost straightens out a little if they have a preferred status. But let me say this about Abuja, Abuja is actually an artificial city and is probably like Lagos – one of the most Nigerian cities, maybe more than Lagos, because there are Lagosian who believe they are indigenous but Abuja is all of us. So, it’s almost fair to have a casting vote that makes everything okay, but I agree that it provides Abuja with enormous power.

Something we shouldn’t forget is that this constitutional requirement is for the first election, and so if the first election doesn’t meet that threshold and you have a runoff, that requirement is no longer there.

 *Charles*:

Yeah, we are talking about the first election.

Adesuwa:

But when you described, I mean if we are to interpret this; obviously those against it are not looking at the English interpretation of “AND” But doesn’t that mean that you must win the federal capital territory to become the president of Nigeria?

To give it that spread, the Nigerian president is voted for by all across a particular spread, including Abuja. Isn’t that what this is saying?

 *Emmanuel Ogebe:*  Ironically, this issue has bedeviled Nigerian electoral Jurisprudence for decades and in 1979 elections It went all the way up to the Supreme Court to determine what the definition of

Two-thirds was, and so the courts have created a mathematical formula that actually explains how that ratio is met.

To you and I, the average listener, you think that it means specifically that Abuja must have 25%, but with the percent formula that the courts have created, there’s actually a numeric value attached. You add all the states together and you get there.

Charles: That’s a very good point because I am looking at a senior advocate in Nigeria who sent me that mathematical thing. He says, “Math’s 101. It says two-thirds of the 36 states are 24. Two-thirds of

37 is 24.33, and that would not be admissible unless you see Abuja as the 33, the point thirty-three.

 *Emmanuel Ogebe:*   Yes, and the concept, the reason and the rationale behind this is equity and fairness, and I would like to

compare it with the situation in the U.S., which is that this is the Nigerian equivalent of the Electoral College, except that, in fairness to Nigeria, this is one situation where our own provision is fairer than in the U.S.

The Electoral College in the U.S. was supposed to provide… … Southern slave-holding states with a little more leverage in determining the president of the US and it became anachronistic because you now have a split between who wins the popular votes and who wins the Electoral College and sometimes it’s not the same thing.

So in Nigeria actually I think it is a better model, to have these requirements than to have the Electoral College like in the US. And it’s another test case to really know whether Abuja is going to be taken again for granted, because I think it’s unfair for the people of Abuja not to have self-determination status, and I think it’s only fair to them to be able to have a self-determination status in the presidency.

*Charles: * Yeah, but I think the really critical thing here, which is why this is just so interesting but also a little bit nebulous, is the fact that if you decide to describe Nigeria and you understand the Constitution better than most of us, if you describe Nigeria and you don’t specifically mention the FCT, wouldn’t you be leaving out a component part of Nigeria?

According to some logic, it’s mentioned. You see what I mean? That’s the reason why, so if the opposition goes to court on this, it’ll be good. I mean obviously for a finer definition to be given, but if this is the only point, they want to make, is it likely to work or not?

 *Emmanuel Ogebe:* 

Well, here’s my response to that. All election cases in Nigeria tend to be litigated, except for the 2015 case where, uh, President Jonathan conceded. I flew in from Washington to Nigeria to Vote, and with the cash crunch and everything, I drove all the way to my home state to vote. I got there, and the BVAS refused to accredit me either with my fingerprints or with my eye scan, and so I already felt disenfranchised. And you can imagine how I felt the next day when we saw that the results were not even uploaded for the people who actually got to vote. Now, I voted in 2019, and I can tell you that literally all the people I know who traveled to vote in 2019 didn’t travel to vote this time because they had no money. So, what I’m saying is that a lot of people were disenfranchised because of the cash crunch.

Hey, you denied us the opportunity because we had no money and no input. But is that justiciable? Then, when we link it to the issue of Abuja, the people lined up in Abuja; someone in my compound didn’t get home till 11 pm because he waited to vote; and if we cut out Abuja from determining the presidential election by saying well, “you don’t count,” then we have significantly disenfranchised them, and as previously stated, they have only one election day, which is the presidential election day; they don’t have the governorship election day, so that’s stealing; that’s actually disempowering the people of Abuja more.

Adesuwa: It appears to be simple like logic, but in Nigeria, everything appears to be rocket science. But I want to ask you because you talked about elections and litigation except for the 2015 election. So when it comes to Nigeria’s election, the people decide first then come the justices. Where does that leave the process, what’s the relevance of the voting process, where does that leave us?

 *Emmanuel Ogebe*:

Yeah, this has been called by an American jurisprudentially “the tyranny of an oligarchy “when you have a court of 12 or 9 as they have in the US decide an election for a hundred or millions of people, it appears unjust. Now as you know, elections in the US are generally not contested until we had Trump who filed over 50 lawsuits claiming election fraud and he lost all of them and even his lawyers are facing disciplinary charges from the BAR. Gulianni was suspended by the New York BAR. So, it’s not something that happens often there but in Nigeria it is something that comes with the territory. Today I was on the phone with a retired Justice of the Supreme Court; he laughs and says “listen, this happens all the time in Nigeria.”

Now I want to clarify that Judges generally, appellate court judges usually don’t want to tamper with the decision of the lower court judge and the rationale is this, lower court judges take evidence from witnesses and so he has the first-hand grasp of the demeanor of the witnesses, so before you overturn his findings you have to be really sure that he erred in law.

So that same principle applies and is extended to election appeals. the Justices actually take it very seriously and say “Look, millions of Nigerians voted, and before we annul their votes, just this handful of us, let’s be very sure that this reached an egregious level that would make for an overturn.”

Um, in 2007, there was a really horrendous election, and that case obviously went to court, and the judges had to look, and the standard is: “Was there substantial non-compliance?”

What was intriguing in that case is that one of the contestants — I wouldn’t name him — shot himself in the foot because he said, “You know, I was excluded from the election.”

What had happened was that the ballots were printed before the elections and he was excluded; he went to the Supreme Court, which said he should be added on; they printed fresh ballots; and he went in at the last minute, and so he made two claims.

One was that “I was excluded and secondly, my votes were not properly counted”, and the court said “you can’t make two contradictory claims – if you are excluded, then you had no votes, but you are arguing that you are excluded and your votes were not properly counted, which means that you won votes and you were not excluded”, and that’s how he lost the petition.

So, the litigation is very technical, and it takes a lot of good lawyering to get it right. The second candidate in that election lost his petition, and you will not believe why. In their petition they had two sets of complaints, one was criminal in nature, and one was civil in nature, and so with law, you have two standards of proof for criminal and civil, and for the criminal, it has to be proved Beyond Reasonable Doubt.

For the civil, it has to be proven on the balance of probabilities, and so that candidate’s lawyer went into court and said, “You know what? I’m abandoning all my criminal allegations that we filed,” and because of that, most of his case was gone, and the determination was on the civil allegations, which was on the balance of probabilities.

Adesuwa:  If I hear you correctly, are you saying it’s impossible to overturn an election such as the presidential election in Nigeria because it would be difficult to prove because we have a situation on the ground where the major opposition political parties boycotted the collation of results because they felt the election was a sham and you know one of them the labor party has today said we are heading to the courts, but when I hear you speak, I mean, I’m not a legal person, but you seem to sound to say it is almost impossible to overturn a presidential election in Nigeria.

 *Emmanuel Ogebe*:

It’s a difficult standard to meet but again with good lawyering. One of the most intriguing aspects of this election is that Peter Obi is in it now because his gubernatorial race was lost and he challenged it in court, becoming the first governor in this dispensation to reclaim his mandate

through a court. Yes, and so, um, we imagine that given his legal prowess and dexterity in overturning that election and obtaining the governorship, he has a track record of being able to pull that off again.

Now, with regard to some of the pre-election issues involving parties that lost primaries, and when they go to court, they say, “Hey, our party has its own constitution and its own guidelines for this process in the primaries, and they were not followed,” and the courts pay attention to that, so you cannot come around and say if a party’s own guidelines were violated and the law looked at them, we cannot turn around and say INEC’s own guidelines should be disregarded by the courts. The referee shouldn’t change the rules in the middle of the game.

Charles: We’ve got about 30 seconds before we have to go, it’s fascinating talking with you. But just very quickly, a challenge now very likely because they said they will be going to court, there’s a timeline that when a challenge must be lodged but is there a timeline when a court must make a judgment?

 *Emmanuel Ogebe*:

Yes, so what has happened is that a lot of litigation went on for so long that sometimes someone would get a victory three years later and end up serving for only one year? There was

a constitutional amendment to limit the time that these cases could be heard, and now that has had two effects. One is that it kicks the citizens and their cases back to the end of the line and prioritizes political actors over, you know, ordinary citizens in the quest for justice, which is an unfair outcome, but the other unfair outcome is that the courts and judges have said, “Oh, you know, time has run out, so we’re just ending this now.” So, it has its pluses and its minuses, right?

 *Charles*: Okay, I want to thank you very much. It was indeed a pleasure talking with you. Emmanuel

Ogebe is an international human rights lawyer and an expert on Nigerian election law, and I can see why you’re an expert.

Emmanuel Ogebe: You’re too kind, thanks!

Video

https://fb.watch/jqMwPzKUF_/?mibextid=jf9HGS

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