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THE DOCTRINE OF SUBSTANTIAL COMPLIANCE: A doctrine of substantial folly

*Why fools continue to rush in

Optimism, thy name is politics.  Folly!  No!  Optimism! Yes!

Politics is a game; it is a contest; it is competition for power.  Every   human being is said to be a political animal and, therefore, politics can not be extricated from the affairs of men (and women).  So, in the push and shove of daily live, men and women are engaged in a perpetual struggle to outdo one another.  To tame the animalistic instincts in every creature, man employs his intellect to create rules for the contest. Those rules are meant to be followed to the letter.

In matters electoral, there are guidelines and laws that are to be followed.  But there are different types of elections.  Election in the office, union elections, council polls, state constituency elections, federal constituency and senatorial district elections, governorship and presidential elections are all categories of elections.

For the office election, every one sits in and observes.  But the larger elections can not enjoy the benefit of omnipresence. Therefore, framers of the law talk about a doctrine that can aggregate the sum of activities during an election.  It is called the DOCTRINE OF SUBSTANTIAL COMPLIANCE – what a phrase.

In simple, plain language, it is about substantially following the guidelines and laws as stipulated in the conduct of the election.

And that is where the end of the problem begins.

On September 6, 1979, the presidential election tribunal declared that Alhaji Usman Aliyu Shehu Shagari of the National Party of Nigeria, NPN, defeated Pa Obafemi Jeremiah Awolowo of the Unity Party of Nigeria, UPN.

Not satisfied, Awolowo, himself a lawyer, headed for the Supreme Court to seek a determination of section 34 (A) (l) (c) (ii) of the Electoral Decree, 1977 as amended, whether two_ thirds of a state is synonymous with two _ thirds of the total votes cast in that state or the votes cast in two – thirds of votes cast in the territorial or physical areas of the state.  Awolowo also sought to clarify what the duty of the court is or should be where there are two possible meanings conveyed by the words of the statute in question.

And on September 26, 1979, the Supreme Court, in the case, AWOLOWO v. SHAGARI (1979) NSCC 87, gave a final verdict declaring that Shagari won 2/3 of the total votes cast and which makes him the rightful winner of that election.  Awolowo secured 4.9 million out of the 16.8 million votes cast – Shagari, over five million.

Then, the matter was not so much of electoral irregularities but interpretation based on votes secured by Shagari as not constituting two thirds of votes cast in 19 states of Nigeria.  Akinjide, Shagari’s lawyer, came up with 12 two third as the two thirds of 19 states – with the 13th state divided into three and votes cast in two thirds of the state constituting the figure from whence came two thirds of votes said to have been secured by Shagari, earning him the constitutionally required votes.  Though Justice Kayode Eso gave his own differing view, that you do not break a state into pieces, the majority gave victory to Shagari.

Since 1979, there had been other elections with election petitions.  Notable have been the election petitions in 1999 (Olu Falae Vs Olusegun Obasanjo); 2003 (Muhammadu Buhari Vs Obasaanjo); 2007 (Buhari Vs Umaru Musa Yar’Adua); and 2011 (Buhari Vs Goodluck Jonathan).

In all these cases, the litigants were never able to prove that the elections did not substantially comply with the electoral laws.  They could not have.

Let’s spill it: First, substantial, in the context of electoral matters, may be too strong a word to determine.  For, in an area of 356,669 (three fifty six thousand, six hundred and sixty nine square miles), with a voting population of over 70 million, filling over 100,000 (one hundred thousand polling units across 360 federal constituencies spread across 774 local government areas and 36 states, what constitutes substantial?
Where would the tribunal members begin to determine what is substantial?

Would it be a quantum of a quarter of the total activities during election that would constitute substantial or voting affecting a quarter of the voting population or the actual number of those who voted?
Would any litigant be able to assemble all these?

The Justices either at the tribunal or the Supreme Court are the ones to give terminal interpretation of what constitutes substantial and, therefore, any litigant for a presidential election dispute is at the mercy of their interpretation.
Since it is about the law and the optimism of politicians, pursuing a presidential election petition enjoys the benefit of sound counsel from would be lawyers who, in any case are more interested in the legal fees which runs into tens and hundreds of millions of naira and not so much in the ability or otherwise of proving the case.  Yet, presidential candidates are quick to board the fairy boat of optimism in the hope that justice would be served. It never has been.  The case that came closest was that of Awolowo Vs Shagari in 1979.  The nation held its breath because the uninitiated, thriving on sentiments, had hoped for a rerun of sorts.

Enter the DOCTRINE OF CONSEQUENCES! Could the Justices of the Supreme Court allow for a vacuum on October 1, 1979, when the first President ought to have taken office?  No! The DOCTRINE OF CONSEQUENCES was introduced and applied, just as it was done in 2001 in America between George Bush of the Republican Party and Al Gore of the Democratic Party (Read Richard Akinjide’s interview).

Unless the laws governing the conduct of elections are changed, according to Akinjide, proving a presidential election petition and getting judgment may be akin to forcing a Camel through the needle’s eye, SUBSTANTIALLY.


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