Nigeria had one of its keenly contested and controversial presidential elections on February 25, 2023. Since the election, the phrase “go to court” has become a trend in the country. Every aggrieved party and presidential candidate is urged to go to court and challenge the process that made Bola Tinubu of the All Progressives Congress (APC) the president-elect.
It is on this premise that the CDD Election War Room is writing this explainer to identify what it really entails to “go to court”.
Has anyone ever won at the tribunal? How long does it take to reach a decision? Will the president-elect be sworn-in while the tribunal is still ongoing? This Fact Shield answers all the frequently asked questions about election petition tribunals.
The Election Petition Tribunal
After every election, every candidate, irrespective of the position they vied for, can approach a court of competent jurisdiction to challenge the process or results. The procedures to approach the court and challenge an election result or the process are contained in the 1999 constitution (as amended) and the Electoral Act of 2022.
How many categories of election petition tribunals are there?
Three categories or modes of challenging the process or election results are set out in the constitution. The first two categories are the:
-National Assembly Election Tribunals; and
-Governorship and Legislative Houses Election Tribunals
Section 285(1) established the National Assembly Election Tribunals and vests it with original jurisdiction to hear and determine petitions as to whether–
(a) any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this Constitution has ceased;
(c) the seat of a member of the Senate or a member of the House of Representatives has vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought.
The constitution also established Governorship and Legislative Houses Election tribunals in each state of the federation. This tribunal has original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of the Governor or Deputy governor or as a member of any legislative house.
What is the composition of these Tribunals?
The National Assembly Tribunal, the Governorship, and the Legislative House Election Tribunal shall all consist of the chairman and four other members.
The chairman shall be the judge of a High Court while the four other members shall be appointed from among judges of the high court, Kadis of a Sharia Court of Appeal, judges of Customary Court of Appeal or members of the judiciary not below the rank of a Chief Magistrate.
What is the quorum?
The quorum shall be the chairman and two other members. S.285(4)
Can petitioners appeal?
Petitioners who are not satisfied with the judgment of the tribunals can appeal to the Court of Appeal and any decision reached by the court of appeal is final.
Who handles presidential election petitions?
The third category covers the election petition challenging the results of the presidential election. In this instance, there is no tribunal. The Court of Appeal has the exclusive original jurisdiction to hear, deal and determine the presidential election issues. (Section 239(1) 1999 Constitution).
The current issues raised by Peter Obi of the Labour Party and Atiku Abubakar of the Peoples Democratic Party (PDP) will be first addressed at the Court of Appeal, where a decision will be made.
Can Obi and Atiku appeal the decision of the Appeal Court?
Yes, petitioners can appeal to the Supreme Court, and decisions made at the Supreme court are final.
This constitutional provision implies that the election petition tribunal will consist of three members and one of them will be the Chairman. However, since 1999, the petition tribunal has always consisted of five or seven Judges.
How many days does the Tribunal have to deliver judgment?
The Tribunal must deliver its judgment in writing within 180 days from the date of the filing of the petition.
However, an appeal from a decision of an Election Tribunal or court must be heard and disposed of within 60 days from the date of the delivery of the judgment of the tribunal or court.
This means the issues raised by Obi and Atiku against the process may not be concluded until September-November, 2023.
Who can challenge an election at the Election Petition Tribunal?
Only contestants and political parties can challenge the result or processes after an election.
Has any candidate won at the Presidential Election Tribunal?
Since the country returned to democracy in 1999 and elected Olusegun Obasanjo, a former military administrator as its president, every presidential election has been contested at the election tribunal with the exception of 2015.
On March 15, 1999, Oluyemi Falae filed a suit at the Federal Court of Appeal in Abuja, challenging the Independent National Electoral Commission (INEC)’s declaration of Olusegun Obasanjo as the winner of the presidential election.
Falae, the candidate of the All People’s Party (APP) joined INEC chief, Ephraim Akpata, and 57 others as respondents in the suit. On April 16, 1999, Justice Dahiru Musdapher-led election petition tribunal upheld Olusegun Obasanjo’s victory and dismissed Oluyemi Falae’s petition.
The 2003 Election Petition
Fast forward to the 2003 general election, Olusegun Obasanjo contested for the second term and won. After the election, Muhammadu Buhari of the All Nigeria Peoples Party (ANPP) challenged Obasanjo’s re-election. He approached the presidential election tribunal, and on July 23, 2003, the petition was unanimously dismissed by four out of the five presiding judges.
Dissatisfied by the judgment, Muhammadu Buhari of the ANPP approached the Supreme Court on June 6, 2003.
On July 1, 2005, Justice SMA Belgore delivered the judgment validating the ruling of the Tribunal and maintaining that President Obasanjo won the election.
The Yar’Adua-Buhari election
On April 27, 2007, Nigeria conducted its presidential election. The election was keenly contested by Umaru Yar’Adua of the PDP, Muhammadu Buhari of ANPP, and Atiku Abubakar of the Action Congress (AC).
Shortly after the election, Muhammadu Buhari and Atiku Abubakar approached the tribunal to challenge the election. On February 26, 2008, the five-man election tribunal panel upheld the victory of Yar’adua.
Dissatisfied with the ruling, the two runner-up candidates approached the Supreme court. On December 12, 2008, the seven-man justice led by Justice James Ogebe ruled that the two runners-up in the vote had failed to show evidence that graft was widespread enough to force an annulment.
However, the judges acknowledged flaws in the election and chided politicians on their combative conduct in the vote and during legal challenges since. Four of the seven Judges upheld the victory of Umaru Yar’adua.
Jonathan vs Buhari 2011
On April 16, 2011, Goodluck Jonathan contested as the presidential candidate of the PDP. He had spent two years as the President, after the demise of Umaru Yar’Adua, the former president.
After the April 2011 election, Goodluck was declared the elected president. However, Muhammadu Buhari who is now contesting under the platform of Congress for Progressive Change (CPC) has decided to challenge the election. On May 8, 2011, the party approached the election petition tribunal at the Court of Appeal in Abuja.
Muhammadu Buhari of the CPC urged the appeal court to nullify the April 16 election and order INEC to conduct a fresh election. The Appeal was dismissed and he approached the Supreme court.
On November 12, 2011, the seven justices on the panel, led by the Chief Justice of the Federation, Dahiru Musdapher, unanimously upheld the victory of Goodluck Jonathan.
2015 election as the outlier
In 2015, Goodluck Jonathan of the PDP conceded defeat and reached out to Muhammadu Buhari of the All Progressives Congress. The 2015 presidential election was accepted by all contenders and was not challenged in court.
Buhari vs Atiku 2019
Fast forward to 2019, Muhammadu Buhari of the APC is seeking re-election while his major contender is Atiku Abubakar of the Peoples Democratic Party (PDP).
Atiku approached the tribunal to nullify the February 23rd election because INEC refused to disclose results transmitted to its central server. However, INEC insisted it did not use a central server for results collation. The five-man tribunal panel in a unanimous decision dismissed Atiku’s petition and upheld Buhari’s victory.
Atiku Abubakar of the PDP approached the Supreme court to challenge the ruling of the election petition tribunal. On October 30, 2019, Justice John Okoro who read the judgment declared that Muhammadu Buhari was eminently qualified to contest and that INEC deployed no central server for the presidential election. The victory was unanimously upheld by the Supreme court judges.
TIMELINE: Supreme Court Verdicts on Presidential Elections
Obasanjo vs Falae 1999
Election date: February 27, 1999
Date of petition: March 15, 1999
Date of decision by Tribunal: April 5, 1999
Date of decision by Supreme Court: Falae did not approach Supreme Court
Decision time: 30 days
Verdict: Elections upheld
Obasanjo vs Buhari 2003
Election date: April 19, 2003
Date of petition: May 20, 2003
Date of decision by Tribunal: July 28, 2003
Date of decision by Supreme Court: November 14, 2003
Decision time: 69 days
Verdict: Elections upheld
Yar’Adua vs Buhari 2007
Election date: April 21, 2007
Date of petition: August 8, 2007
Date of decision by Tribunal: February 26, 2008
Date of decision by Supreme Court: December 12, 2008
Decision time: 492 days
Verdict: Elections upheld
Jonathan vs Buhari 2011
Election date: April 16, 2011
Date of petition: May 8, 2011
Date of decision by Tribunal: November 12, 2011
Date of decision by Supreme Court:
Decision time: 188 days
Verdict: Elections upheld
Atiku vs Buhari 2019
Election date: April 16, 2019
Date of petition: March 18, 2019
Date of decision by Tribunal: September 11, 2019
Date of decision by Supreme Court: October 30, 2019
Decision time: 177 days
Verdict: Elections upheld
The average time from petition to conclusion in the fourth republic is approximately 191 days. Using this timeline for the 2023 elections, a final decision can be reached by the Supreme Court by September 2023.
Will Tinubu be sworn in while Tribunal is ongoing?
Yes, the president-elect (as declared by INEC) will be sworn in on May 29, 2023, in line with the constitution of the country. However, if the Tribunal and the Supreme Court rule that Tinubu did not win the election, he can then be removed.
Depending on the verdict of the court; a fresh election can be conducted if the court faults the entire Feb 25, 2023 election. In a situation where the court upholds the election, but disqualifies the said winner (the president-elect), the runner-up will be declared the winner of the election.
However, there is no precedence for these scenarios at the presidential level.
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