By Ikechukwu Nnochiri, Abuja
The Presidential Election Petition Court, PEPC, (tribunal) sitting in Abuja, will on Wednesday, deliver judgment on petitions seeking to nullify President Bola Tinubu’s election.
The two petitions, marked CA/PEPC/05/2023 and CA/PEPC/03/2023, were brought before the court by a former Vice President and candidate of the Peoples Democratic Party, PDP, Alhaji Atiku Abubakar, as well as the candidate of the Labour Party, LP, Mr. Peter Obi, respectively.
The Justice Haruna Tsammani-led five-member panel of the court had on August 1, okayed the cases for judgment, after all the parties adopted their final briefs of argument.
While adopting their final written address, Atiku and the PDP, through their team of lawyers led by Chief Chris Uche, SAN, urged the court to declare that President Tinubu was not qualified to contest the presidential poll that was held on February 25.
They prayed the presidential election tribunal to nullify the entire outcome of the presidential election and order a re-run or fresh contest.
Atiku and his party alleged that the Independent National Electoral Commission, INEC, despite receiving over N355 billion for the conduct of the election, deliberately bypassed all the technological innovations it introduced for the purpose of the 2023 general elections.
They contended before the presidential tribunal that INEC acted in breach of the amended Electoral Act, when it refused to electronically transmit the results of the presidential election.
“On the issue of transmission of election results based on new provisions in the Electoral Act, we are all in agreement, including the INEC, that there is a new regime in election management.
“The essence of the innovation was to enhance transparency in the collation of results, which was an area that we usually had problems and not the actual election, and secondly, to enhance the integrity of result declared.
“We agree that INEC had an option and we brought video evidence by the INEC Chairman showing that the electoral body indeed chose an option.
“It is our contention and it is here in evidence that witnesses admitted that results from the National Assembly election were transmitted but that of the presidential election was not.
“A whopping N355bn was deployed for the election, therefore, INEC owes this court and the nation an explanation.
“It is our submission that there was no technical glitch on the election day, rather, there was a deliberate bypass of the technology in order to create room for the manipulation that eventually took place.
“Until the court makes a judicial pronouncement, there may not be compliance to express provisions of the new regime of the Electoral Act.
“My lords, in a situation like this, the burden shifts on INEC to explain. It is not on the Petitioner to explain why there was such a technical glitch.
“We urge this court to hold that there was a deliberate non-compliance. The substantiality of the non-compliance lies in the national spread of the non-transmission of results. It was national and not limited to certain polling units,” Uche, SAN, added.
He further before the Presidential tribunal argued that the forfeiture proceeding that involved Tinubu in the USA, was still subsisting.
“It is our position that time does not run against crime. Even if there is forgiveness in the Constitution, there will always be consequences for sin.
“We urge my lords to adopt the modern trend by leaning towards substantial justice and not technical justice.
“Let this case be the precedent. Let justice be done, the heaven will not fall. We rest our case,” Uche, SAN, submitted.
Likewise, while adopting their own final brief of argument, Obi and the LP, through their lawyer, Mr. Livy Uzoukwu, SAN, argued that there was no glitch during the election but an intentional act to sabotage the outcome of the poll.
Uzoukwu, SAN, while calling for the removal of President Tinubu, insisted that “an election where over 18, 088 blurred results were uploaded to INEC’s IReV portal, is certainly a flawed election.”
He told the court that some of the documents that INEC certified for his clients, included blank copies of A4 papers and pictures.
“That explains their inability to produce original copies of results that they certified,” he added.
Continuing, Obi’s lead counsel, said: “It is not in doubt that the 2nd Respondent, Tinubu, forfeited the sum of $460, 000 in the United States of America, being the proceed of narcotic trafficking and money laundering.
“Our case is hinged on Section 137 (1) (d) of the Constitution, as amended, which clearly provided for disqualification based on fine for offence of dishonesty.”
Meanwhile, all the Respondents in the two cases- INEC, President Tinubu, Vice President Kashim Shettima and the All Progressives Congress, APC- through their respective lawyers, prayed the court to dismiss the petitions as grossly lacking in merit.
INEC’s legal team, led by Mr. Abubakar Mahmoud, SAN, maintained before the Presidential tribunal that the presidential election was not only validly conducted, but was done in substantial compliance with all the relevant laws.
The electoral body argued that the petitioners misconstrued and totally misunderstood the purpose of the technology it introduced for the 2023 general elections.
It told the court that the Bimodal Voter Accreditation System, BVAS, device was introduced for the authentication and verification of voters and for transmission of results from the polling units to the IReV portal.
INEC’s lawyer said there was evidence to show that the Commission went to great lengths to ensure that the technology functioned as designed.
“The applications used on the BVAS device were developed in-house and tested again and again, both for performance and reliability.
“The intention of the 1st Respondent to conduct a world-class election is clear from the evidence that was placed before this court,” he insisted
He argued that no evidence was presented to establish the allegation that INEC made use of an electronic collation system in any election that was conducted in the country, adding that such a system did not exist.
Mahmoud, SAN, told the court that INEC made use of “manual collation system,” admitting however that the Commission experienced a technical glitch that lasted over four hours on the day the presidential poll was held.
He said it was not true that the glitch was contrived to create an avenue for the results of the election to be manipulated.
“The petitioners have failed to establish that there was human interference that led to the said glitch and they have also been unable to prove how the failure to upload results in real time, affected the outcome of the election.
“The contention of the petitioners on the alleged 18, 088 blurred results goes to no issue because the results uploaded to the IReV did not in any way suggest that the original copies were also blurred.
“They have not tendered original copies of the Form EC8A that was made available to their agents,” Mahmoud submitted, saying the allegation by Obi and the LP was for “mere dramatization as nothing concrete was adduced to prove that the said blurred results on the IReV portal was the same with the original copies.”
On the issue of Tinubu’s alleged failure to secure 25% votes in the FCT, INEC’s lawyer accused the petitioners of inviting the court to “adopt an interpretation that will result in absurdity.”
INEC told the court that it was illogical for the Petitioners to claim that a candidate must secure 25% votes in the FCT to be declared winner of a presidential election.
It argued that such an argument would run contrary to the spirit and intendment of the drafters of the 1999 Constitution, as amended, adding that FCT ought to be regarded as the 37th state of the federation that is without a special status during elections.
Similarly, President Tinubu and VP Shettima, while adopting their written address, urged the presidential tribunal to dismiss all the petitions.
Addressing the court through their team of lawyers led by Chief Wole Olanipekun, SAN, the duo, said it would not be in the public interest for the court to set aside the decision of the electorates that led to their victory at the poll.
Arguing that the petitioners completely failed to discharge the burden of proof that was required of them by the law, Chief Olanipekun, SAN, further accused both Atiku and Obi of merely dumping documents before the court.
He told the presidential tribunal that his clients won one-third of the votes in the FCT, adding that Obi had no locus to challenge the outcome of the election since his name was not found on the register of the LP.
On the issue of the forfeiture proceeding that led to the imposition of a fine against Tinubu, Olanipekun, SAN, relied on section 137 (1) (e) of the 1999 Constitution, as amended, to argue that his client could not be disqualified since over 20 years had elapsed since the case was decided.
“Even if there was a sentence before, it is no longer to be reckoned with,” adding, “My lords, may we submit that the 2nd Respondent is not under any fine.”
Besides, he argued that should the court order a rerun election, Obi and the LP would be precluded from participating in it, going by the provision of section 134 of the 1999 Constitution, as amended, which he said allowed only the winner of the annulled election and the second runner-up, to participate in such poll.
On his part, counsel to the APC, Prince Lateef Fagbemi, SAN, urged the court to hold that Tinubu scored over 25% in about 29 states, adding that “to do otherwise will amount to constitutional absurdity.”
He argued that Obi was “over-ambitious” in his petition when he requested for a rerun poll, notwithstanding that he would not be legally qualified to participate.
Fagbemi, SAN, stressed that all the issues the petitioners raised against President Tinubu have all been decided by various courts.
“There is hardly any point agitated by the Petitioners that has not received judicial pronouncement and resolution,” he argued.
On the issue of the forfeiture order by the court in the USA, Fagbemi, SAN, argued that it was not an indictment that was capable of disqualifying Tinubu from contesting the presidential election.
“Assuming without conceding that he was indicted, it happened over 20 years ago and the Nigerian Constitution is a forgiving one that does not breed hatred,” he submitted.
He argued that the Petitioners failed to establish that Tinubu had dual citizenship, adding that the Nigerian Constitution recognized that a citizen by birth could not be disqualified from contesting an election.
Masari, Shettima, VP slot
The presidential tribunal had also reserved judgment on a third petition that was lodged against President Tinubu by the Allied Peoples Movement, APM.
Specifically, APM, in its petition, contended that the withdrawal of Mr. Masari, who was initially nominated as the Vice-Presidential candidate of the APC, invalidated Tinubu’s candidacy in view of Section 131(c) and 142 of the 1999 Constitution, as amended.
The party argued that there was a gap of about three weeks between the period that Masari, who was listed as the 5th Respondent in the petition, expressed intention to withdraw, the actual withdrawal of his purported nomination, and the time Tinubu purportedly replaced him with Senator Shettima.
It further argued that Tinubu’s candidature had elapsed at the time he nominated Shettima as Masari’s replacement.
According to the petitioner, at the time Tinubu announced Shettima as the Vice Presidential candidate, “he was no longer in a position, constitutionally, to nominate a running mate since he had ceased to be a presidential candidate of the 2nd Respondent having regards to the provisions of section 142 of the 1999 Constitution”.
More so, APM, contended that Masari’s initial nomination activated the joint ticket principle enshrined in the Constitution, stressing that his subsequent withdrawal invalidated the said joint ticket.
It, therefore, prayed the presidential tribunal to declare that Shettima was not qualified to contest as the Vice-Presidential candidate of the APC as of February 25 when the election was conducted by INEC having violated the provisions of Section 35 of the Electoral Act, 2022.
“An order nullifying and voiding all the votes scored by Tinubu in the presidential election in view of his non-qualification as a candidate of the APC,” as well as an order to set aside the Certificate of Return that was issued to the President by INEC.