The swearing-in of a president-elect while his election is being contested at the election tribunal is currently a controversial issue in Nigeria. Some argue that it is unconstitutional and unfair to the petitioners, while others contend that it is necessary to ensure continuity and stability of governance. I will explain in detail the rationale for this practice, examine if there is any constitutional provision in the 1999 Constitution of Nigeria that supports it or is it a blatant disregard for the law or a bold move to secure power? The move to swear-in Ahmed Bola Tinubu as the President while an election petition challenging his victory is still pending has ignited a fierce debate among legal experts and the public alike but is it justified?…..CONTINUE READING...CONTINUE READING
With the benefit of history this may be nothing new after all in the annals of our democracy; in 2007, Umaru Yar’Adua was inaugurated as president despite a legal challenge from his main rival, Muhammadu Buhari. In 2011, Goodluck Jonathan was sworn in as president while Buhari again contested his election in court. In 2019, Buhari himself faced a similar situation when he was inaugurated for a second term while his opponent, Atiku Abubakar, filed a petition against him. These cases highlight the history of political legal challenges the smooth transition of power in Nigeria which to the traditional school of constitutional thought is undisputable evidence that this is a settled course of action. To the reformist school of thought as opposed to the traditionalists, history is never an excuse not to review and change a practice where necessary; a custom or tradition does not become immune to change if there is a need for it. Customs and traditions should be subject to evaluation and updated as society evolves and new information becomes available.
However, let us examine the matters arising from the polarising viewpoints
The 1999 Constitution of Nigeria is the supreme law of the country and it provides for the procedure and conditions for electing a president. According to Section 134 of the Constitution, a candidate for the office of President shall be deemed to have been duly elected if he has a majority of all the votes cast at the election and not less than one-quarter of the votes cast at each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja.
However, if no candidate meets these requirements, a second election shall be held within seven days between the two candidates with the highest number of votes. The candidate with the majority of all the votes cast at the second election shall be declared elected.
The Constitution also provides for the establishment of an election tribunal to hear and determine petitions arising from presidential elections. According to Section 285 of the Constitution, an election tribunal shall consist of a Chairman and four other members appointed by the President of the Court of Appeal. The Constitution also stipulates that an election petition shall be filed within 21 days after the date of declaration of results and shall be determined within 180 days.
The question then arises: what happens if an election petition is still pending at the tribunal when the time for swearing in a president elect arrives? The Constitution does not explicitly address this scenario, but it does provide some clues.
First, Section 135 of the Constitution states that a person elected to the office of President shall vacate his office at the expiration of a period of four years commencing from the date when he took the Oath of Allegiance and oath of office. This implies that the tenure of a president begins from the date he is sworn in, not from the date he is declared elected.
Second, Section 140 of the Constitution states that the person elected as President shall subscribe to the Oath of Allegiance and oath of office before the Chief Justice of Nigeria or any other person appointed by him on a date not earlier than seven clear days from the date of declaration of his election. This implies that there is a minimum period between declaration and swearing in, but not a maximum period.
Third, Section 143 of the Constitution states that the President or Vice-President shall cease to hold office if a resolution is passed by two-thirds majority of all members of an electoral tribunal or court that his election was invalid. This implies that an election tribunal or court has the power to nullify an election after swearing in, but not before.
The rationale for swearing-in a president-elect while his election is being contested appears to be based somewhat on the principle of presumption of innocence and the doctrine of necessity. According to section 36 (5) of the 1999 Constitution of Nigeria, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. By extension, this principle applies to civil matters such as election petitions, where the burden of proof lies on the petitioner to establish that the election was not conducted in accordance with the law and that the result was affected by irregularities or malpractices. Therefore, until the tribunal decides otherwise, the president-elect is presumed to have been validly elected and entitled to assume office.
The doctrine of necessity is a legal concept that justifies an act that would otherwise be illegal or unconstitutional if it is done to preserve the constitutional order or prevent a greater evil. This doctrine was invoked by the National Assembly in 2010 to confer executive powers on then Vice-President Goodluck Jonathan when President Umaru Yar’Adua was incapacitated and unable to perform his functions. Similarly, this doctrine can be used to justify the swearing-in of a president-elect while his election is being contested, as it prevents a power vacuum or a constitutional crisis that could arise if there is no president at the helm of affairs. Moreover, it ensures that the government can continue to perform its duties and responsibilities to the people without interruption or delay.
However, there is no explicit constitutional provision in the 1999 Constitution of Nigeria that supports the swearing-in of a president-elect while his election is being contested. The closest provision is section 134 (1) which states that “there shall be held an election to the office of President not earlier than one hundred and fifty days and not later than thirty days before the expiration of the term of office of the last holder of that office”. This implies that there should be a smooth transition from one president to another without any gap. However, this provision does not address what happens if the election result is challenged at the tribunal.
Based on these constitutional provisions, one can argue that swearing a president elect while his election is being contested at the election tribunal is justified and rational for several reasons.
– It ensures that there is no power vacuum or constitutional crisis in case the incumbent president’s tenure expires before the tribunal determines the petition.
– It respects the presumption of innocence and validity of an election until proven otherwise by a competent tribunal or court.
– It allows for continuity and stability of governance and administration pending the outcome of the petition.
– It does not prejudice or pre-empt the decision of the tribunal or court, as they can still nullify or uphold an election after swearing in.
On the other hand it is equally forcefully arguable that swearing a president elect while his election is being contested at the election tribunal is problematic and irrational. I will also examine the applicability of common law doctrine that parties must maintain the status quo when a matter is submitted to a court for determination.
First of all, let me state that I am not taking sides with any of the candidates or parties involved in the 2023 presidential election. My aim is to analyse the legal and constitutional implications of swearing in a president elect whose victory is being challenged in court by his main opponent.
According to the Constitution of Nigeria, a person shall hold the office of President until when his successor in office takes the oath of that office. The wording of Section 135 (1) (a) states that:
“Subject to the provisions of this Constitution, a person shall hold the office of President until –
when his successor in office takes the oath of that office;”.
This may be interpreted to mean that Buhari, the incumbent President, despite exhausting his eight years, is not going anywhere until his successor is sworn-in and such a date could overshot May 29, which is the customary date for inauguration. The Constitution never said “until May 29” and it used the word ‘shall’ which means ‘must’ hold office until his successor in office takes the oath of that office.
Therefore, it is not mandatory to swear in a president elect on May 29 if his election is still being contested in court. Doing so would be problematic and irrational for several reasons.
First, it would undermine the authority and independence of the judiciary, which is the final arbiter of electoral disputes. The Constitution states that where a question arises as to whether any person has been validly elected as President or Vice-President, such question shall be determined by the Federal High Court (Section 133). The court has not yet determined this question as regards the 2023 presidential election, since the petition filed by Atiku Abubakar and Peter Obi of the PDP is still pending before it.
Second, it would create confusion and uncertainty in the polity, as there would be two persons claiming to be the President of Nigeria at the same time. This could lead to a constitutional crisis and a breakdown of law and order. Imagine what would happen if the court eventually nullifies the election of Bola Tinubu and declares Atiku Abubakar or Obi as the winner. How would Tinubu vacate office peacefully? How would Atiku or Obi assume office smoothly? How would Nigerians react to such a dramatic turn of events?
Third, it would violate the common law doctrine that parties must maintain the status quo when a matter is submitted to a court for determination. This doctrine means that parties should not do anything that would affect or prejudice the outcome of the case before the court. Swearing in a president elect while his election is being contested in court would amount to prejudging the case and rendering it moot. It would also amount to contempt of court, which is punishable by law.
Fourth, it would also waste public resources and time that could have been used for governance and development.
Fifth, swearing a president elect who is facing legal challenges over his victory disregards the rights and interests of the millions of Nigerians who voted for other candidates and who are seeking redress through the tribunal. It shows disrespect for their democratic choice and their constitutional right to challenge the election results. It also denies them the opportunity to witness a peaceful and orderly transfer of power based on the verdict of the tribunal.
Cardinal John Onaiyekan’s reported opinion is in line with this view- it is better to wait for the court to decide who won the election according to the wishes of the people. This would ensure respect for the rule of law, democracy and peace in Nigeria.
In summary swearing a president elect while his election is being contested at the election tribunal is problematic and irrational because:
– It undermines public confidence and trust in electoral integrity and democracy.
– It creates uncertainty and confusion about who is legitimately in charge of affairs.
– It exposes a president elect to legal risks and challenges that may affect his performance and legitimacy.
– It may lead to wastage of public resources and time if an election is nullified after swearing in.
– It may trigger political tension and violence if an election is overturned after swearing in.
Therefore, the best course of action would be to wait for the tribunal to conclude its hearing and deliver its judgment before swearing in any president elect to avoid these potential pitfalls.
This perspective would entail some changes in the constitution or some legal rulings to be valid. A compromise between the two conflicting views might be a viable option for the National Assembly to explore, in order to resolve all the disputes arising from elections before the candidates take office.
The time limit for filing and determining petitions is another contentious issue in Nigeria’s electoral system. According to section 285 (5) and (6) of the 1999 Constitution of Nigeria, an election petition shall be filed within twenty-one days after the date of declaration of results, and an election tribunal shall deliver its judgment in writing within one hundred and eighty days from the date of filing of the petition. These time limits are meant to ensure speedy resolution of electoral disputes and finality of electoral outcomes. However, they have also been criticized for being too short and unrealistic, especially considering the complexity and volume of evidence involved in some cases. Some have suggested that the time limit for filing petitions should be extended to allow more time for aggrieved parties to gather and present their evidence, while others have proposed that the time limit for determining petitions should be shortened to reduce the uncertainty and tension that linger during the litigation process.
One possible way to extend or shorten the time limit for filing and determining petitions is to amend the constitution accordingly. This would require a bill initiated by either two-thirds majority of members of both houses of the National Assembly or by a proposal supported by at least two-thirds majority of all state houses of assembly. The bill would then have to be passed by two-thirds majority of both houses of the National Assembly and approved by resolution of at least two-thirds majority of all state houses of assembly. Alternatively, another way to extend or shorten the time limit for filing and determining petitions is to enact an electoral act that would provide for such modifications. This would require a simple majority vote by both houses of the National Assembly and assent by the president. However, such an act would have to be consistent with the constitution and not infringe on its provisions.
In conclusion, while swearing-in a president-elect when his election is being contested at the election tribunal is a practice that has historical, legal and practical justifications, it lacks clear constitutional backing which leaves it open for a challenge…..CONTINUE READING
