Going to court
Posted: 06/Mar/2019

It now looks certain that the PDP’s candidate in the presidential elections, Alhaji Atiku Abubakar, GCON will challenge his loss to APC’s President Muhammadu Buhari in the Election Tribunal and possibly all the way to  the Supreme Court. He will be in company of hundreds of other candidates from his own party, the ruling party and smaller parties who are aggrieved over their losses. Next week, following the governorship and state assembly elections, hundreds more aggrieved losers will brief lawyers and head to Tribunals. In keeping with the Nigerian tradition, the vast majority of electoral mandates will eventually be determined by the judiciary. This is good for lawyers and bent judges, but very bad for  a political system and an electoral process that do not seem capable of generating confidence that they can produce genuine losers and winners. In 2015, INEC announced a winner, and an unusual political initiative got in the way of a hallowed tradition and left the matter where INEC left it.

The nation will now have to wait for some considerable period to hear the final word on who is elected President. We have been down this path many times in the past, which makes 2015 a major aberration. Perhaps that glitch is the impetus behind the flurry of activities from the National Peace Committee and a few other do-gooders to persuade the PDP and Atiku not to avail themselves of their constitutional rights to challenge the election through the judicial channel. Now Nigerians are curious over what exactly was put on the table to persuade President Jonathan and his party to abandon the fight at the whistle blown by INEC. It is not just that it was completely out of national character, but many people are not persuaded by Jonathan’s claim that he chose to abandon his right to challenge his loss in order to save the nation from a certain bloodbath. Nor is it easy to convince many that the Peace Accord signed in 2015 and replicated in 2019 was worth more that the value of the paper it was written on. Both candidates and their parties made such a mockery of the Accord, you will be forgiven for believing that politicians had changed the meaning of peace while members of the Committee slept.
It will be charitable to assume that those who are involved in persuading the PDP and Atiku to abridge their rights are concerned that the legal path could prolong tensions usually associated with elections and render the nation more vulnerable to post-election crises, particularly if INEC’s verdict is overturned. There is also the additional consideration of huge cost of repeat elections. What is not charitable is to ignore history and justice in the search for a shorter route to peace. President Buhari and VP Atiku are distinguished veterans of the legal option, and Buhari in particular wears his three battles all the way to defeat at the Supreme Court with such pride, you would think he will be the first to applaud Atiku’s insistence on sustaining a valued tradition. But what do we see instead? First a poorly-designed effort to persuade Atiku to forego the legal option by the Peace Committee. If reports of his “demands” for abandoning his right are correct, he must have pulled them out of a considerable store of anger and certainty that Buhari will not touch them. They relate to basic functions of INEC, demands that Buhari compels it to perform them, and tampering with security infrastructure that will deprive the ruling party of some strategic advantages. Not one of the legions of foreign and respectable domestic observers ,monitors and muscles have made the case that Atiku will damage the democratic process by challenging his defeat through the judicial process.

A few more voices have been raised against the decision of Atiku to go to court, including some clergy who urge him not to go against God’s will. There is apparently a religion that teaches that God is discernible only around electoral victories pronounced by INEC ,not losses. If APC is involved in these third-party attempts to stop a scrutiny of its victory, it must be involved in a multi-pronged defence. It has another front that PDP says is intended to intimidate it and dissuade it from proceeding to the courts. Two persons who are very close to Atiku and the campaign are currently being interrogated by the EFCC. Its elected legislators are talking tough, hinting at a very difficult future for the current PDP leadership, which includes Atiku’s campaign chief, Senate President Saraki who has lost his seat. It is, itself, preparing to challenge some rather embarrassing losses such as those of Senator Akpabio. It is a long shot, but there could be a hand of the APC in widespread, discreet and loud voices warning Atiku not to waste his time and additional, considerable fortune in litigation. These feed the speculation that APC’s case is wobbly.
Atiku and the PDP are upbeat about winning their case and claiming their “stolen” mandate. Atiku is not taken in by arguments that he will be an outstanding statesman if he resists the temptation to explore becoming president through the judicial avenue. PDP must be terrified by the prospects of another four years in opposition, and may be thinking that abandoning the fight at this stage amounts to total capitulation. Whether they are standing on solid ground here or playing psychological games, it will be important to interrogate the 2019 elections in a judicial context. The nation may have gained from Jonathan’s historic (and now, unique) concession, but it missed an opportunity to x-ray an election that returned an even narrower margin of defeat than the 2019 elections. Both elections suffered major management deficiencies. More worrying, some basic failures observed in the 2015 elections, such as the failure of Smart Card Readers to function as designed have been repeated. Both elections were postponed. The efficiency and neutrality of election and security personnel has been widely questioned. There are claims that results have been merely written or substantially altered in many parts of the country.

PDP says it has evidence that the presidential elections were rigged. The only case that can be made against its presenting the evidence behind this claim is that it could be proved right. Otherwise, it should be encouraged to go ahead and save the nation from the specter of living under the authority of leaders with stolen mandates. What does it lose by going to court? It could fail to convince judges that it has a good case, and lose tons of money as well. What could it gain? A vindication that Buhari’s victory was rigged and the possibility of a second bite. What will the nation lose by the litigation? A longer wait for all processes to be exhausted. What will it gain? An opportunity to expose the electoral process to a critique that may improve its performance and its obligations to the principle of accountability. It will be afforded an additional opportunity to validate the real winner and reinforce perceptions and legitimacy. It will be interesting to see whether the judiciary in its current shape and form can stand the pressure to be just to all parties and interests. The elections at the end of this week could also affect dispositions towards the value of judicial involvement in deciding who is our next President.