By Aloy Ejomakor
On May 4, 2023, I tweeted on my Twitter handle that “Given that the FINALITY of election result is decided by the Court, except where the INEC-declared result is uncontested, it’s unconstitutional to swear-in a winner whose victory has not been affirmed by the Court. Where’s the law that says such a winner must be sworn-in? None!”
Since then, I have received a barrage of direct messages and requests to publicly speak more on this. So, to those who asked me and in the public interest, below are the short answers to your many questions:
Yes, inauguration of a new President on May 29 is not absolute, neither by the provisions of the Constitution, the Electoral Act or any other written law.
And no, there won’t be any VACUUM if a new President is not sworn-in on May 29. The Constitution envisaged such an anomalous situation and thus copiously provided for the rainy day, as follows:
First, Section 135(1)(a) of the Constitution says that “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”.
If you pay close attention to above provisions, you will notice that the Constitution never said “until May 29” and it used the word ‘shall’ which – by settled legal interpretation – means ‘must’. That means that the incumbent President, despite exhausting his eight years, is not going anywhere until his successor is sworn-in and such a date could overshot May 29.
Now, you can see that this is not about Tinubu, because, if you strictly follow the Constitution, neither Atiku, nor Obi (in addition to Tinubu) would be inaugurated as President on May 29 and Nigeria will still have a constitutional President.
You will also notice that since 1999, a lot of ‘successors’ or winners of elections, mostly of the gubernatorial kind, had taken their oaths of office AFTER May 29. So, where did this widespread notion that May 29 is sacrosanct or absolute come from? It came from mere custom or political expediency, not from any known black letter law.
Second, Section 136(2) of the Constitution says that “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 the preceding Section 136 is saying is that, apart from death, there are myriad reasons that could prevent or imperil the President-elect and the Vice, standing together, from assuming office on May 29 and heavens won’t fall.
One of such other reasons that easily comes to mind is a Court order, usually of an Interlocutory kind, emanating from the Tribunal on a Motion; or from an Originating Summons (not an election petition) succeeding before a Federal High Court on interpretation of the pertinent constitutional provisions on point, including particularly the said Sections 135, 136, in addition to Section 1(2) of the Constitution vis-a-vis the absolutism or otherwise of May 29.
To be clear, the Section 1(2) of the Constitution that is pertinent to this discourse provides that “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.”
In my view, both the Tribunal (under the Electoral Act) and the Federal High Court (under Section 6 of the Constitution) have concurrent jurisdiction to delve in the interpretation of these Sections as they impact on May 29.
Anybody saying that it is only the Election Tribunal that possesses an exclusive jurisdiction on this matter or that simultaneously and separately initiating such a Suit before the Federal High Court will abuse the process of the Election Tribunal is wrong, because the fundamental business of interpreting the Constitution (the organic law) is independent of, and should have primacy over everything else, including particularly a mere election petition before a narrowly-constituted ad hoc Tribunal.
Now, ponder this: If the result declared by INEC does not accord with the Electoral Act, it then follows that such result does not, ipso facto, accord with the Constitution, because the Electoral Act is a product of (and subservient to) the Constitution – the grundnorm. The river never flows backwards. Thus, any repugnancy in the Electoral Act must yield to the demands of the Constitution.
Thus, by virtue of the preceding Section 1(2) of the Constitution, inaugurating a new President on May 29 while the Court (as the final umpire) is yet to call the final result would mean that persons (or a group of persons) have taken control of the Government of Nigeria in a manner that does not accord with the Constitution.
The clearer and obvious way of understanding this conundrum is to think of it this way: If a new President is sworn-in on May 29 and subsequently, the Tribunal or the Supreme Court (again: the final umpire) invalidates the election, what would you say happened to the Government of Nigeria during the period the sacked President held office before the final judgment?
Unarguably, what happened is that, during such period, the Federal Republic of Nigeria and her government were taken control of in a manner that did not accord with the Constitution. This is a grave constitutional injustice that can never be undone. So, by all means, it should be avoided as the Constitution has enabled such under Sections 135 and 136.
While you ponder this, keep in mind that there is no express provision in the Constitution, the Electoral Act (the law that enables elections and transitions) or any other written law that strictly requires that a challenged winner of an election must be sworn-in on May 29.
Don’t get me wrong. I have no personal or political animus against any election winner. An election winner surely deserves the fruits of his victory but it must not be on May 29. It can be later or even not at all, if the Court – which is the final electoral umpire – fails to affirm his INEC-victory.
In the unique legal framework of Nigeria’s elections, INEC is not the end but the means to the end. That end is the Court (the judiciary) which alone possesses all the judicial powers of the Federation, including the final powers to declare winners of elections.
So, the smart framers of the Constitution, having figured that, some day, an occasion will surely arise where a winner may be unable for ANY REASON to be sworn-in on May 29, they inserted the implicit ‘tenure elongation’ in Section 135 but limited it by the provisions of Section 136 that requires INEC to ‘immediately’ conduct another Presidential election. If the intendment of this creative Constitution-making was not to ensure there’s no VACUUM, what then is its intendment?
Thus, in the clear absence of any law mandating that a swearing-in must proceed apace on May 29, the only reason (or justification) Nigeria had indulged in such crass unconstitutionality (or extra-constitutionality) since 1999 was political CUSTOM, and that’s because the country or the political class was desperate and thus minded to avoid anything that the military can latch on to continue in power.
Today, that custom, even though initially convenient and compelling is retrograde and can no longer stand because it is repugnant to natural justice, equity and good conscience. Above all, it is – by hindsight – incompatible with the Constitution and Laws of the Federation of Nigeria in several ramifications.
And mark my word: This thesis does not apply to the office of the President ALONE. It applies across the board. And until Nigeria gets its elections right or purges itself through a popular REFERENDUM, the judiciary should ensure that winners of disputed elections must not take power until the declaration of the final result by the last Court.
If politicians are made aware that power can only come after the courts (not INEC) have decided the result, it will work wonders in getting the greatest number of contestants and even INEC and political partisans to keep in line, play fair and desist from this mantra of ‘go to court’ which is a subliminal insult on the Constitution and the judiciary.
Aloy Ejimakor, a constitutional lawyer, wrote from Abuja.