Possible Landmines for President Buhari in Atiku’s Legal Challenge

By Dr Charles Omole

The verdict of the Kenyan Supreme Court in 2017, annulling and voiding their presidential election contains a lot of lessons for many common law countries of the commonwealth and Nigeria in particular.

The reason for my conclusion is the technical nature of the verdict which many have missed in their comments of the court’s decision as its ripple is felt across the continent. From what I have seen of the Legal submissions of People’s Democratic Party, PDP, the All Progressives Congress, APC, and President Muhammadu Buhari may have cause for concern.

Legal challenges of elections in Africa and Nigeria, in particular, are mostly based on the conduct of the election on the day of voting.

Irregularities with voting methods, citizen’s denial of voting, violence, tampering with voting materials and so on.

The Kenya precedent changed the jurisprudence.

Traditionally, courts have based their verdicts on what happened on d day of elections. It is not a coincidence, that until this verdict in Kenya, no opposition legal challenge of a presidential election in Africa has ever succeeded.

This is the first time in the history of this continent that an opposition won a legal challenge to the Presidential election victory of a ruling party. So there are lessons for all Nations in this salient case; especially Nigeria.

For me, the technical and nuanced elements of the verdict are very important and instructive. Kenyan Supreme Court did not base its decision on what happened or did not happen on election day alone. In fact; a substantial basis of its verdict were events that took place months before.

They examined d conduct of d electoral body, procurement of electoral materials, voters education process, d procedural inaccuracies long before election day, errors with voter’s registration process and notification and so on; plus, some irregularities on the election day itself.

So the irregularities on the day of the election alone may not have been sufficient to void the election; but taken in totality, the Court concluded that there is sufficient confluence of breaches of electoral acts, procedures and the constitution to warrant a new election.

It is not just about what happened on the election day itself. So the lesson for Nigeria is this; Stop focusing just on what happens on election day alone. Plan to rig elections are yrs in the making.

The Independent National Electoral Commission, INEC must be held to high standards in its conducts and procedural adherence to the provisions of statutes.

Many of past Court verdicts in Presidential petitions in Nigeria found some irregularities with activities on election day.

But the court has always stated that these did not rise sufficiently to the level needed to vacate an election victory.

These previous verdicts were based on the facts that the losers tended to make their cases mainly based on irregularities or breaches that took place on Election day. But the Kenyan verdict shows that victory can be better assured if breaches in the entire process are challenged.

If irregularities in the entire electoral process are part of the petition, there could have been a different outcome. If political parties based their challenge on the totality of INEC breaches (if there were any) they will stand a better chance in court than simply focus on one day.

Most of the plan to rig an election would have been executed months before voting day. So any challenge should be based on the totality of actions by INEC, the parties and of course what happens on voting day as well.

It is this the wholesome view of the electoral process that is a worthy legacy of the Kenyan Supreme Court bold verdict in 2017.

An Electoral system is a process, not just an event. The process must, therefore, be executed according to law without any deviation, gross negligence or incompetent management of its provision.

This was my salient takeaway from the Kenyan verdict and a brilliant lesson for Nigeria and our future elections.

Hence, it seems PDP has learned from this verdict based on copies of its legal petitions I have seen.

There is a big focus on INEC’s irregularities before election date.

PDP is alleging many breaches by INEC before the election day itself along with many election day breaches as well.

This approach could push the judicial scale in their favour as the court will have to do a wholesome analysis of INEC performance before and during the election.

Omole is a Lawyer, law scholar and expert in police and national security jurisprudence