Critical Appraisal Of The PEPT Judgment Part 2

By Kenneth Okonkwo

The Presidential Election Petition Tribunal’s (PEPT) judgment delivered on the 6th of September, 2023 has trumped up some important issues in law. The mere fact that some legal practitioners, surprisingly, even some octogenarian legal minds, are saying that the PEPC followed settled judicial pronouncements on all the matters presented to it, by the petitioners, in reaching its judgment, tells you how fundamentally, and with the greatest respect to the court, antiquated and out of touch, the judgment is. The February 25 presidential election is the first election that was organised under the new Electoral Act, 2022.

Note that the Electoral Act, 2022 is not an amendment of the Electoral Act, 2010, it is a new enactment that introduced fundamental and radical changes in our election process. Any court, therefore, that reaches decisions based on the manually based previous Electoral Acts, without taking into cognizance of the changes made in the law, simply applied a new wine, into an old wine bottle. The consequence is that the bottle will burst and the wine spilled to no one’s advantage. This judgment poses a great danger to our democracy, if allowed to stand. The confusion in the entire judiciary resulting in contradictory judgments from the different tribunals is the beginning of the manifestation of the pitfalls of this judgment. Nobody seems to be sure of what the true position of the law is.

We must note, preliminarily, that the mere fact that the Supreme Court gave a judgment, does not make the judgment correct, it simply makes the judgment final. This means that the judgment is binding on all. There must be an end to litigation and the Supreme Court is the final bus stop for every litigant. When the Supreme Court delivers a judgment based on law, we say justice was done, but when the Supreme Court delivers a judgment based on discretion or technicality, we say justice has been denied. In our legal jurisprudence, the statutory laws are superior to decided cases in our hierarchy of laws. Even the Supreme Court supports this position that the court has no jurisdiction to use its discretion to overule the express provisions of a statute. The role of the Judges is not to make laws, but to interpret them. Delivering a judgment, not based on law, is an unacceptable affront to the powers of the Legislature, who are the representatives of the people. This also poses a duty on the people to hold the courts accountable on how they interpret the law, rather than accepting every judicial pronouncement as sacrosanct. Eternal vigilance is the price to pay for the survival of democracy.

With regards to the above, we will subject the judgment of the PEPC to the rigours of the law and some earlier decisions of the Supreme Court. In this part, we will look at the issue of invalid nomination and double nomination of the Vice-Presidential candidate of the All Progressives Congress (APC), Kashim Shettima. The PEPC held that the Petitioners lacked the locus standi to bring these issues to court to be tried by the court as the issues of nomination of candidates by the political parties, is an internal affairs of political parties. The court missed one important point in this judgment. The cardinal question to be asked is, if the candidates and political parties of the Petitioners in a presidential or gubernatorial election, do not have the locus standi to bring the issues of invalid nomination and double nomination of vice presidential candidates to the court, who has?

The Supreme Court in APC. v. Moses (2021) 14 NWLR (Pt. 1796) p. 319 paras E – G stated clearly that “Section 285(14) – of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which defines what a pre-election matter is, speaks of aspirants, who complain about the conduct of party primaries in respect of the selection or nomination of candidates for an election; aspirants, who challenge actions, decisions or activities of INEC, in respect of their participation in an election; and political parties that challenge actions, decisions or activities of INEC, in respect of nominations of candidates for an election, timetable for an election, registration of voters and other activities in respect of preparation for an election”. The Supreme Court went further in Sulaiman v. APC (2023) 5 NWLR (Pt. 1877) p. 254 para F to emphatically conclude that “pre-election matters are those contemplated by the provision of Section 285(14) of the 1999 Constitution. Any grievance with a political party activity unconnected with the political party’s primaries or any of the instances mentioned in section 285(14) of the Constitution is clearly not a pre-election matter”. Conclusively, pre-election matters are litigations that arise from the primary elections of political parties.

The cardinal question is whether the nomination of the vice presidential or deputy gubernatorial candidate is a pre-election matter? The answer is no, because the nomination of the vice presidential candidate is not done by the political party, nor does the vice presidential candidate emerge from the primaries of a political party. The nomination of a vice presidential candidate is the sole duty of the presidential candidate and it’s done, long after the primaries of political parties have been concluded. The only election the vice presidential candidate participates in is the general election and the only participants in that election are the Petitioners and Respondents in the general election and consequently they are the only parties that have the locus standi to challenge the invalid or double nomination of the vice presidential candidate. To rule otherwise is to make the nomination of the vice presidential candidate an untouchable issue in our electoral jurisprudence because the position of an “aspirant vice presidential candidate” does not exist in our laws.

No presidential aspirant, who participated in the presidential primary election of his party, has the locus standi to question the nomination of the vice presidential candidate, because he did not participate in nominating the vice presidential candidate. If the court denies the Petitioners the locus standi to challenge the invalid or double nomination of a vice presidential candidate, the onus is on the court to tell the whole world, who has the locus standi to do so, for no lacuna is allowed to exist in law. Wherever there’s a law, there must be a remedy. The presidential candidate has the sole power and authority by the Constitution to choose his vice presidential candidate and must swim or sink with his choice. Section142(1)(2) of the 1999 Constitution states “In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid. The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President”.

This constitutional provision talks about nomination of the vice presidential candidate by the presidential candidate and the general election after the nomination. Nowhere in this provision can we find any issue relating to primary election of any political party. Therefore, the Allied People’s Movement (APM), the Labour Party (LP) and the People’s Democratic Party (PDP) are clothed with locus standi to challenge the invalid and double nomination of Shettima made by Tinubu of APC which rendered his nomination ineffective and invalid. The Constitution is very clear that before a presidential candidate is deemed to be validly nominated by his party, he must choose an associate to be his vice presidential candidate. It then means that if the presidential candidate fails, refuses or neglects to choose a vice presidential candidate in a manner contemplated by the law, he is deemed not to have been validly nominated or sponsored by his party. It is crystal clear that one of the constitutional qualifications of a candidate is that he must be sponsored by his party in accordance with the law (See Section131(c) of the 1999 Constitution). The law states that if the vice presidential candidate withdraws from being the vice presidential candidate, he must be replaced within 14 days, and if not, the nomination of the presidential candidate is void. Tinubu did not relace his place holder vice presidential candidate after 14 days of his withdrawal thereby rendering his nomination void, and it was shocking for the PEPC to say that the petitioners, who were the only parties that participated in the presidential election that had Shettima in the ticket didn’t have locus standi to petition on those matters. INEC was not even authorised by law to accept Tinubu’s invalid candidature for the election. If this judgment is allowed to stand, time will come when a presidential candidate will nominate a foreigner to be his vice presidential candidate and the court will say that no party has the locus standi to bring the matter to court for adjudication.

The issue of double nomination was clear. As at 14th July, Shettima held both the Borno Central Senatorial seat and the vice presidential seat at the same time. The reference of the court to a purported letter of withdrawal by Shettima to his party was illogical because the first time Tinubu proclaimed that he had chosen Shettima as his vice presidential candidate was on the 10th July at Daura, and he claimed publicly that Shettima wasn’t aware of it. How can someone resign on the 6th of July, 2023, for the post of the vice president he was not aware that he will be selected as at the 10th. The Labour Party tendered this evidence in court and the court had a duty to discountenance the purported letter to his party as illogical judging the sequence of things. To be continued.