June 1, 2023

Tinubu’s minority government faces a legitimacy challenge

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By Olu Fasan

BOLA Ahmed Tinubu, the newly installed president of Nigeria, is a product of two great institutional anomalies. One is a deeply flawed Constitution designed to delegitimise the presidency of Nigeria. The other is a Might-Is-Right state that manipulates state agencies to impose its will on the people. These anomalies deny Tinubu’s presidency the strong mandate and legitimacy it badly needs to govern.

Let’s start with the constitutional anomalies. Under section 134 (2) of the 1999 Constitution, a candidate is deemed elected as president, where there are more than two candidates, if: a) he has the highest number of votes cast at the election, and b) he has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the states in the Federation and the Federal Capital Territory, Abuja.

My concern is section 134(2)(a), which requires the winning candidate to have “the highest” number of votes cast at the election. In other words, he doesn’t need to have “the majority” of votes cast, as required under section 134(1)(a), where there are only two candidates. The perverse implication is that, in a competitive election with more than two candidates, a candidate can be rejected by an overwhelming majority of voters and still become president. This poses a huge legitimacy problem, which many countries avoid by requiring a winning candidate to receive more than 50 per cent of the total valid votes.

Take two examples. In Brazil’s 2022 presidential election, Lula da Silva won 48.43 per cent of the votes in the first round. But that wasn’t enough to make him president. He only became the winner after securing 50.90 per cent in the second round. Similarly, in this year’s Turkish presidential election, Recep Erdogan won 49.52 per cent in the first round but was only declared winner after scoring 52.18 per cent in the second round.

Democracy is based on “one person, one vote”, and true legitimacy comes when a winner has more votes, however, small the margin, than all the other candidates combined. 

Sadly, not in Nigeria! According to INEC, Tinubu received 8.79 million votes out of 23.4 million total valid votes in this year’s presidential election. Thus, the vast majority of voters, 14.6 million, rejected him. Put in a percentage term, he secured only 36.61 per cent of the votes cast, meaning that a whopping 63.39 per cent of the voters rejected him. By universal standards, that’s a very weak mandate!

Of course, Tinubu met the constitutional requirement. He scored, according to INEC, “the highest” number of lawful votes cast. But only a bizarre constitution allows someone rejected by 63.39 per cent of voters to become president. 

In a presidential system, where the president is the embodiment of a nation’s sovereignty, it’s hard to justify someone rejected by 63.39 per cent of voters being president.

If Nigeria had a “more than 50 per cent” rule, this year’s presidential election would have gone into a rerun and a winner that reflected the will of the majority of Nigerians, across ethnic and religious cleavages, would have emerged. But thanks to section 134 (2)(a) of the Constitution, Nigeria has a president rejected by an overwhelming majority of voters!

Yet, there’s another constitutional anomaly. Under section 239(1), the Constitution allows the Court of Appeal and, ultimately, the Supreme Court, to determine whether someone was validly elected as president. However, it gives such a long period – 180 days – for a presidential election petition to be concluded and allows, meanwhile, the person whose election is being challenged to be sworn in as president. 

In theory, the Supreme Court can remove a president that wasn’t duly elected. But in practice, the apex court is extremely unlikely to remove a sitting president, however materially flawed his election! What’s more, the majority of Nigeria’s elite class, including the media and several foreign governments regard Tinubu’s presidency as irreversible, a fait accompli.

In an incisive article, Matthew Page, senior fellow at Chatham House, the international affairs think tank, wrote that Western governments are “selling democracy and governance issues short” in Africa, based on the patronising notion that Africa is not ready for genuine democracy and good governance. Thus, it’s not surprising that some Western governments, notably the US, sent delegations to Tinubu’s inauguration, despite worldwide condemnation of the presidential poll and the fact that his election is being challenged in court.

Surely, if Nigeria’s elite class and Western governments already know the outcome of the ongoing presidential election petitions, then, it’s an utter waste of time and resources, both of the courts and the petitioners, to continue with them. But, of course, it’s Nigeria’s democracy and judiciary that are being mocked, that are a laughingstock globally. Elsewhere, all election petitions are concluded before a president is inaugurated. But here, a president entrenches himself in office, seizing all the instruments of power, while the courts purport to be genuinely determining the validity of his election. Who is fooling who?

Which brings us to the second great institutional anomaly: the Might-Is-Right state. Earlier this week, on Arise TV, former President Goodluck Jonathan lamented the state of electoral democracy in Nigeria. “The problem we have,” he said, “is the electoral management body, INEC, and the security agencies,” adding: “INEC shares more than 60 per cent of the blames.” But if INEC and security agencies manipulated elections, who emboldened them? Of course, a powerful state that rides roughshod over the will of the people!

Last week, Garba Shehu, then President Buhari’s spokesperson, said “the Presidency allowed Tinubu” to win. Surely, by “allowed”, he meant the presidency tipped the balance in Tinubu’s favour, using INEC and the security agencies. Yet, in his inaugural speech, Tinubu disingenuously said: “Since the advent of the Fourth Republic, Nigeria has not held an election of better quality.” That’s utterly insulting and provocative! All this matters because a government that lacks legitimacy in the eyes of most citizens, due to a questionable mandate, will struggle to govern

. Pastor Tunde Bakare recently said: “I will never call Tinubu my president.” He probably spoke for millions of Nigerians! Truth is, if the Supreme Court validates Tinubu’s election, he must work extremely hard to win the hearts and minds of Nigerians. His minority government won’t succeed otherwise!