By EMMANUEL OGEBE

In the 2007 presidential election trial, Petitioners’ counsel submitted that although a court had never nullified a presidential election, the court should do so to late president Umaru Musa Yar’Adua’s regime.

Ever since then and particularly now as Tinubu also face’s legal challenges to his dubious 2023 election, there have been regurgitations of the same mantra that a presidency has never been annulled by a court in Nigeria even though numerous gubernatorial elections have been.

However this is not entirely the case. 30 years ago, a high court first aborted the presidential election midstream but a high court essentially sacked a sitting federal government amidst the June 12, 1993 political maelstrom several months later.

The following gives some context of the times:

“Bashorun Moshood Abiola was the flagbearer of the Social Democratic Party (SDP) and against all odds, Abiola had won the elections, fair and square. Bashir Tofa of the National Republican Conversation (NRC) had squared with Chief Abiola in the election. Even so Abiola had defeated Bashir Tofa in his ward in Kano…

Midway into the collation and announcement of results by the National Electoral Commission, the Chairman of the electoral body, Professor Humphrey Nwosu was held at gunpoint and forced to stop the announcement of the election results, which was presumably won by Bashorun Abiola.

… by accepting to serve as head of the Interim Government, Chief Shonekan had virtually placed his head on the chopping block.

As days turned into weeks and weeks into months, protests and agitations were unrelenting, Civil Society Organizations (CSOs), political groups and various forces were ranged against the ING. There were calls for the revalidation of the June 12 election. In the same vein, the presumed winner of June 12, 1993 elections Moshood Abiola also vowed to retrieve his mandate.

Above all, the ING faced severe strictures from the media and a heavy campaign was waged against the government because of the delay in returning to democracy and the continued involvement of the military in politics. The government was opposed by pro-democracy activists, civil society organisations, labour unions and students.

However, on 10 November, 1993, Justice Dolapo Akinsanya of the Lagos High Court nullified Chief Shonekan’s appointment and called for Chief Abiola to be sworn in as the elected candidate for the presidency. The judge described the ING as illegal.

Hon. Justice Akinsanya in her judgment had declared as follows: “President Babangida has no legitimate power to sign a decree after August 26, 1993, after his exit, so the decree is void and of no effect.” Consequently, the legality of the Interim Government was determined. Justice Akinsanya ruled that the head of state had no authority to install an interim government.

“It takes us one step closer to the establishment of government based on the consent of the people,” Abiola said in a statement.

Latching on the court judgement, General Sani Abacha forced Chief Shonekan to resign on 17 November 1993, and as the most senior military officer took over as head of state. The rest as they say is history.

Thus the rickety political contraption birthed in crisis and controversy could not stand the test of time. Suddenly, it collapsed like a pack of cards.

Chief Moshood Abiola of the Social Democratic Party has since been recognised by the Federal Government as the legitimate winner of the 1993 poll.”

https://www.eurasiareview.com/24012022-nigerias-interim-national-government-a-political-contraption-set-up-to-fail-oped/

I submit that February 25, 2023 is like it’s close cousin June 12, 1993 though 30 years apart not simply because it was also a Muslim/Muslim Yoruba headed ticket.

“Abiola, with Babagana Kingibe as running mate, secured 8,341,309 or 58.36 per cent of the votes, while Tofa, running with Sylvester Ugoh, had 5,952,087 or 41.64 per-cent. Abiola won 19 out of the 30 states, including Tofa’s Kano State, and the Federal Capital Territory, Abuja.

Although the results came in early, the National Electoral Commission did not start announcing them until June 14. Although the results of the election as collated in each state were known and were widely circulated though unofficially, the electoral commission decided to release them piecemeal.

After 6.6 million votes had been released with Abiola receiving 4.3 million and Tofa 2.3 million, the announcement was stopped.” If Tofa and Shonekan had acted differently – Vanguard News

Like Abiola and Tofa, Peter Obi won Abuja FCT and even Tinubu’s Lagos state. Ironically, the theory of the case of the Labour Party appears to be that when Obi’s structureless movement outperformed all expectations in the polls, INEC and it’s collaborators similarly disrupted the results midstream!

The crux of the matter essentially boils down to these two points:

- Midway through an election that was generally free and fair and massively expressive of the burning will of the people, retrogressive forces in government truncated the process thus annulling the true election outcome by a dubious dark of night court declaration – via the infamous Justice Bassey Ikpeme then and a dubious dark of dawn declaration by the infamous INEC chair Mahmoud Yakubu now.

- June 12^th’s legitimate winner declared himself president and was arrested for treason and imprisoned while Feb 25^th’s known rigger was illegitimately declared and inaugurated as president.

Those who re-annulled another Nigerian election result electronically, thus hijacking a nation virtually, are scant different from those with guns who annul democracies by declarations at radio stations 40 years ago and must be held accountable for history and posterity. Sadly no one was ever held accountable for the June 12 annulment and the only casualties were Abiola and his wife Kudirat plus scores of Nigerian protesters who were killed. This is why we’ve merely upgraded election annulments technologically and not actually.

However there’s another interesting historical parallel here. Shonekan’s installed Interim National Government was challenged in court just like Tinubu’s installed government has been.

The resulting verdict of a solitary female high court judge, Dolapo Akinsanya, was at once epic, historic, courageous and an unprecedented precedent.

“President Babangida has no legitimate power to sign a decree after August 26, 1993, after his exit, so the decree is void and of no effect.”

“She ordered that a civilian constitution, which was drawn up under Babangida in 1989 but never implemented, go into effect.” https://thenationonlineng.net/akinsanya-judge-who-declared-shonekans-interim-government-illegal-dies-at-79/

Since I left Nigeria last week after a stint covering the election trial, I have seen the parties’ multiple final addresses as the case draws to a close.

While I am yet to read and digest Tinubu’s brief as I await the petitioners’, one primal issue that I will address for illustrative purposes is the 25% of votes in FCT constitutional requirement.

It Is a simple issue that can easily be grasped by the public and most importantly Tinubu has already admitted in court, that he did not obtain 25% in Abuja.

To quote longtime prodemocracy activist turned Senator Shehu Sani, Nigerians have no problem understanding “and” when it comes to “rice and beans.”

With due respect to the esteemed gentleman, the restaurant can say they have only rice but no beans in which case the customer can choose to eat only beans. As a core middlebelter, I submit rather that the proper analogy would be “pounded yam and soup.” In this context, the pounded yam order is inseparable from the soup because pounded yam cannot be eaten alone without soup.

No restauranteur or chef will offer the eater pounded yam without soup because the “and” is conjunctive (together) not disjunctive (separate). What is expected, indeed required of the chef is to return to the kitchen and prepare the accompanying soup.

Section 134(2)(b) of the Constitution provides that:“A candidate for an election to the office of President shall be deemed to have been duly elected where there being more than two candidates for the election- (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 each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”

Tinubu’s defense, citing the apex court’s prior judgment relating to Ogun state’s presidential votes, is “That even if results of elections are canceled in more than one State (including the FCT), that election is not rendered invalid, provided, the winning candidate meets the constitutional requirements of one-quarter of the votes cast in two-thirds of the 37 States contemplated.

“With much respect, any other interpretation different from this will lead to absurdity, chaos, anarchy and alteration of the very intention of the legislature.” (2^nd Respondents’ final address.)

They referred to the case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) where the apex court held thus: “This provision appears clear to me. Where a candidate wins the highest number of votes cast in at least two-thirds of the 36 States in the Federation and the Federal Capital Territory Abuja, he is deemed to be elected …

It Is my conclusion therefore that the cancellation of the election in Ogun State and the other smaller components does not substantially affect the election of the 1^st and 2^nd respondents.”

Firstly, the precedent referenced above is not the same (or “on all fours” as we say in law) with the present Tinubu case as it relates only to Ogun state and any other of the 35 states but NOT Abuja.

While Ogun was not mentioned specifically by name in S. 134(2)(b), the FCT was expressly named in that section thus putting it in a different and distinct class. Consequently, the present case can be distinguished (differentiated) from the preceding Ogun case thereof rendering that precedent inapplicable and allowing the current court come to a different conclusion.

Secondly, the Supreme Court said “thirty six states” and not “thirty seven” as stated by Respondents.

While I disagree with the Petitioners’ argument that FCT’s votes are neither special or mandatory so cannot affect the outcome of the presidential election, I however agree that this, in and of itself, does not nullify the entirety of the election. What it does is vitiate the declaration of a president-elect and sets the stage for a runoff as contemplated and provided for in the constitution. In other words, instead of throw out the pounded yam for lack of soup, return to the kitchen and make the accompanying soup!

I will only add here what I have stated before that FCT has special rights because they don’t have Legislators or governors. The only have an FCT Minister, who is appointed by the President, so it makes sense that they should have the right to decide the president who determines their minister. https://fb.watch/lSGDRmqX4R/?mibextid=jf9HGS

This brings us back to the heroic jurist Dolapo Akinsanya and the unchallenged precedent which she created in unseating a sitting government. What would she say if confronted with the present day scenario?

“Professor Mahmoud Yakubu has no legitimate power to declare a president-elect after February 25, 2022 elections because the 25% votes in FCT constitutional threshold was unmet, so his declaration is void and of no effect.”

She would order that the operative constitutional provisions should go into effect. If she could do this during a military diarchy, how much more under a pseudo democratic constitutional order?

It should be noted that the Interim National Government case was a classic in superlative litigation tactic and strategy.

Apart from the sheer brilliance of plaintiff’s counsel, (Prof Kassunmu SAN, if my memory serves me well) the legal team strategically withdrew their initial prayer seeking the swearing in of Abiola as president and confined their quest to a declaration on the status of the government. I believe this brilliant tactical revision paved the way for the historic and heroic judgment that followed.

Incidentally, rather than chaos as hinted at by Tinubu’s counsel, Nigeria’s first judicial annulment of a constituted federal government had an opposite reaction.

The Washington Post of 11^th November, 1993 reported her Judgment with the caption “Nigeria Ruled Illegally, Says Judge” and reported as follows:

“Judge Dolapo Akinsanya issued the ruling in a case brought by thwarted presidential contender Moshood Abiola. She told a packed courtroom that Nigeria’s military ruler, Gen. Ibrahim Babangida, who stepped down Aug. 26, had no authority to install an Interim government.

Abiola said in a statement “This is a significant victory for the people of Nigeria.”

“Abiola was not in court, but thousands of his supporters cheered the verdict. Many people poured onto the streets of Lagos calling for Abiola’s installation in the presidency, which he is widely believed to have won in a June 12 election annulled by Babangida for alleged vote-rigging.”

It Is unclear why Justice Akinsanya who was only four years at the bench spent all her 16 years at the Lagos high court despite her landmark judgment. Since Lagos has the largest high court in the land and is therefore highly competitive, it is likely she never reached seniority to elevate her. Regardless, special effort should have been made to utilize her talents more nationally.

Nevertheless today, five justices of the court of appeal find themselves in her shoes though arguably in a less dangerous clime than a military-imposed and composed regime.

Justice Akinsanya retired from the Lagos Judiciary on February 21, 2006. According to reports, “The then governor, Bola Ahmed Tinubu, described Akinsanya as “one of the heroines of the present democracy in Nigeria for the courageous judgement she delivered against the legality of the Interim National Government in November 1993,” at her demise in November 2020, aged 79, days to the anniversary of her great verdict.

I could find nothing on line with the full judgment to include here and the only published reports re her verdict were from the New York Times and the Washington Post. No wonder people fail to remember this precedent because we continue failing to record even our present history. Fortunately most of my writing is from memories indelibly imprinted on my mind as a young human rights lawyer then.

Justice Akinsanya appears not to have been given any national honors or special recognition for her bravery despite putting the Nigerian judiciary on the world map. Thus is the lot of many silent jurists who daily confront fear to bravely withstand powers that be or want to be.

If a national honour could posthumously be bestowed upon Abiola in recent past, I dare say Justice Dolapo Akinsanya is just as deserving being a solitary voice on the bench that defied a military monstrosity of illegality.

For a proper grasp of her full historical significance, the Nigerian Supreme Court when trying to grapple with the legality or otherwise of a military coup, came up with a novel but ignoble notion that it was equal to “a revolution.” Justice Akinsanya did not play semantics with illegality and the heavens did not fall.

(This special report is dedicated to Hon. Justice Raphael Agbo who died this month and was on the 2007 presidential election court. He was the most senior judge of the court of appeal after the President.)

•Being Part 10 of the 2023 Election Court Diary of Emmanuel Ogebe, Esq, a prominent US-based international human rights lawyer and Nigerian pro-democracy advocate with the US NIGERIA LAW GROUP in Washington. In June, he marked the 27^th anniversary of his abduction and torture by Gen. Abacha for demanding an investigation of the assassination of pro-democracy icon Kudirat Abiola over the June 12 election annulment. His advocacy led to the naming of Kudirat Corner by Nigeria house in New York, the US designation of Boko Haram as a foreign terrorist organization and International Criminal Court Prosecutor’s determination of crimes against humanity in Nigeria amongst others.

•PHOTO CAPTION: Emmanuel Ogebe pictured beneath the New York City renamed “Kudirat Abiola Corner” opposite the Nigeria House

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