OPINION ON THE UPCOMING MAY 29TH INAUGURATION IN
NIGERIA
On the
25th day of February, 2023, Nigeria conducted its presidential election
(amongst others) and Mr. Bola Ahmed Tinubu of the All Progressives Congress
(APC) was declared the winner. While Alhaji Atiku Abubakar of the Peoples
Democratic Party (PDP) and Mr. Peter Obi of the Labour Party (LP) bagged the second
and third positions respectively.
Alhaji
Atiku Abubakar and Mr. Peter Obi did not concede defeat.
They believe,
Mr. Bola Ahmed Tinubu was not qualified to contest the elections, for a myriad
of reasons. Consequently, the presidential candidates of the Peoples Democratic
Party and Labour Party respectively, filed separate petitions on the 21st
day of March, 2023, to challenge the presidential election results.
Despite
receiving the petitions on the 21st day of March, the election petitions
tribunal commenced hearing of the petitions on the 8th day of May,
2023 (47days after the institution of the action). This is regardless of the
fact that Section 153 of the Electoral Act, 2022
provides that an election petition must be heard and judgment must be delivered
within 180 days from the filing of the petition.
The May
29th, 2023, has been fixed for the inauguration of Nigeria’s president elect Mr.
Bola Ahmed Tinubu. And from all indications, the inauguration ceremony will
proceed as scheduled.
However,
in view of the ongoing presidential election petitions, there have been
dissenting opinions/speculation and questions on the legality of the upcoming inauguration
by many Nigerians.
In
other to ascertain the legality of the inauguration amid the hearing of the
presidential petitions, it is pertinent to analyze some provisions of the
Constitution.
Firstly,
Section 1(2) of the Constitution provides thus;
“The Federal Republic of Nigeria shall not be governed, nor
shall any persons or group of persons take control of the Government of Nigeria
or any part thereof, except in accordance with the provisions of this
Constitution.”
With
the above Section in mind, it is my humble opinion that the inauguration of the
president-elect, Mr. Bola Ahmed Tinubu, on the 29th day of May,
2023, is not ‘ABSOLUTE’ neither is it in accordance with the provisions of the
constitution. This is because no-where in the constitution is it stated that a
newly elected president must be sworn in on the 29th day of May
neither did the constitution provide the ‘INAUGURATION OF THE WINNER OF A
PRESIDENTIAL ELECTION’ as a solution/escape from when the election process is been
contested in Court.
However,
the constitution provided for elongation of stay in office by the incumbent
president (section 135) and/or a re-election where for ANY REASON a duly
elected president cannot assume office, which in the situation is an option.
Section 135(1)(a) of the Constitution provides
thus;
“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”.
A
cursory look at this section only proves that the inauguration of a new President
on May 29 is not absolute. The constitution did not state that a new president
must be inaugurated on May 29th and it used the word “shall” which
means “must”. That in my opinion only implies that the incumbent president,
despite exhausting his eight years, can remain the president until his
successor is sworn in. In this case, until the election petition is decided and
a winner is declared.
The
constitution did not expressly provide for appointment of an interim
government, which I think is a lacuna that needs to be addressed, but relying
on this section, the incumbent president can continue to hold office pending
the determination of the election petition ongoing in Court and that way there
won’t be any vacuum if a new president is not sworn-in.
No
elected person whose election is being challenged in court should be sworn in
as it can put the tribunal judges under pressure to act against their convictions.
Further,
Section 136(2) of the Constitution provides thus;
“Where the persons duly elected as President and Vice
President die or are UNABLE for ANY REASON whatsoever to assume office before
the inauguration of the National Assembly, the Independent National Electoral
Commission shall immediately conduct an election for a President and the
Vice-President”.
In
plain terms, what said Section 136 is saying is that, apart from death, there
are myriad of reasons that could prevent or imperil the President-elect and the
Vice, from assuming office.
One of
such other reasons could be the fact that the electoral process in which the
president elect was declared the winner, is contested and a suit is on-going in
Court, in other to determine the real winner of the election. By that reason,
the Independent National Electoral Commission (INEC) can alternatively conduct
another election in line with the provisions of the Electoral Act and the Constitution.
This option might not be the best in the current situation.
In
conclusion, the need to dispose of election related matters before inauguration
of an elected public officer is of national interest and should be brought to
the front line. This is to avoid the non-winner from being sworn in and the
attendant step-down and re-swearing in of the declared winner. The practice of
swearing people in and removing them later through court judgments is not a
great practice for the country. This should be stopped even at state and local
government levels.
Therefore,
to avoid situations like this in future, the Constitution and Electoral Act
should be amended to provide for situations like this. If there is no escape
route for politicians to carry out electoral fraud, there won’t be a-do-or-die
politics during electioneering. The character displayed by politicians to always
create confusion that will satisfy their ego must be cut to size through
complete compliance to the rules.
Author
Chidimma Barbara Ezebube (Barrister-at-Law)
