That Call for Mass Action
By
I am not a politician but like most Nigerians I am politically aware and active. I am nevertheless compelled to lend an opinion on the "rejection" by the presidential hopefuls who contested the April 19 2003 presidential election against Chief Olusegun Obasanjo. I speak first as a Nigerian and secondly as a lawyer.
The Controversy
The Independent National Electoral Commission (INEC) has declared Chief Obasanjo the winner of the election and the duly elected president of the Federal
Republic of Nigeria. By INEC's calculation Chief Obasanjo received votes in excess of twenty million to defeat his closest rival Major General Muhammadu Buhari
by a margin of twelve million votes.
The result of the presidential election has been "rejected" by the other presidential candidates who would be referred to hereafter as the "opposition" as the
context allows. Several reasons have been advanced for rejecting the result and they include allegation of electoral malpractices and rigging like ballot
stuffing, stealing of ballot boxes, voter-intimidation, collusion by INEC officials and the Police to falsify results, etc. Some opposition candidates have also
rejected the result because in their opinion there was no election. Others have rejected the result because they were the actual winner and not Chief Obasanjo.
The opposition has called on their party members and the electorates that "voted massively" for them to rise up and defend their votes. One such opposition
candidate was asked in a BBC interview how this is to be achieved. Is it by civil disobedience, protest rallies, riots or litigation at the election tribunal?
The candidate refused to commit himself to a specific answer but it was clear that he meant to incite the people against the authority of the State.
The opposition has further called on INEC not to swear in Chief Obasanjo on May 29 2003. They have vowed not to recognize the government of Obasanjo if sworn
in. They have hinted that their feelings will only assuaged if the election is annulled and fresh election conducted soonest.
Interestingly, some of these candidates have not considered the option of contesting the result at the election tribunal. Others that have considered the option
do not see that as an option because they have no confidence in the tribunal and I assume the entire judicial process.
What Do We Make of this?
This question will likely be running through the minds of every peace loving and law abiding Nigerian at the moment. Several questions have besieged my mind
since April 22 2003 when a group of leaders of the opposition parties hijacked in a most uncivilized manner INEC's press conference to call for the annulment of
the result.
I would love to ask some of these candidates claiming they won the election if they are genuine and sincere in their claim. Would they have won the election if
it was free and fair assuming this election was not? If the cannot answer this question in the affirmative perhaps they may wish to emulate the chairman of the
Alliance for Democracy (AD) who honourably conceded defeat.
I would also ask whose mandate they profess to defend and protect. Is it theirs or that of the electorate? If that of the electorate, have they sought the views
of the electorate? Given the spontaneity of their outburst it is doubtful that the electorate was consulted but assuming they were what advice did the
electorate give?
The beauty of democracy is that those in power must never see themselves as representing their interest but that of the people. The voice of the people is the
voice of God is a popular cliche‚. Another fundamental element of democracy the world over is that the minority should have their say but the majority will have
their way. So assuming again that these candidates voiced the views of their people after full consultation, the question would be what proportion of Nigerians
do they represent, a minority or majority? Do the majority of Nigerians want to go through another round of presidential election under the rain or scorching
sun? This is doubtful.
It is very easy to incite and instigate people against the government in power whether for a good or bad cause and sometimes against good sense and judgment.
Sometimes it is difficult to project where a protest will end and mayhem will start. If the aggrieved opposition candidates succeed in their quest to pitch the
people against the government I hope they have prepared themselves for another June 12. For among the people they are calling out to war are those who voted for
Obasanjo and wanted him to win. Will it not be legitimate for these ones to defend their mandate? The result is better imagined than experienced. The European
and American independent observers will not be here when Nigeria is engulfed in a conflagration. The Nigerians that will lose their lives, limbs, loved ones and
properties would be the losers while these foreign countries will reap enormous benefit from the fall of the giant of Africa.
Can We Try Due Process?
Another question that must be asked is whether there is a chance that the presidential result can be altered by the election tribunal or the courts if presented
with credible evidence of electoral malpractices? If so is it not premature and speculative of the opposition to waive aside these institutions that are the
fulcrum and pillars of democracy? I read a lot of cynicism and lack of confidence by the opposition in the judicial process. Could they be influenced by the
knowledge that Chief Obafemi Awolowo contested the presidential result in 1979 and Chief Olu Falae did the same in 1999 and they both lost?
If that is the case I would like to remind the opposition that times have changed. Perhaps they will recall that it is the same judiciary that in a landmark
decision opened up the political space to allow the registration of 28 political parties, without which some of the opposition candidates would never have had
the opportunity of being a presidential aspirant. Can Chief Gani Fawehinmi who spearheaded the legal battle up to the apex court legitimately claim that he has
no confidence in the same judicial system? Or have we forgotten the Resource Control suit so soon or the Anti Corruption suit. The judiciary without question
asserted its independence and progressive views in those cases. I do not see why the courts cannot be trusted now.
Who Can Annul the Result of the Presidential Election?
This question is apposite for two reasons. First, does the fact that the opposition rejects the result annul it? Secondly, INEC's reaction to those calling for
the annulment of the result is that it cannot do so and only the courts can do so. What's the position?
The first question can be disposed of by saying that rejection of the result by the opposition does not annul the election. At best it can only affect its
legitimacy. INEC is also correct in its assertion that it cannot annul the election. Nowhere in the Electoral Act 2002 is INEC given such power. The Electoral
Act anticipates that there will electoral malpractices and has made provisions to take care of such event. Part VI of the Act creates several electoral offences
covering the issues raised by the opposition candidates including wrongful voting and false statements of results.
Under the Act an election may be questioned on the grounds that the election was invalid by reason of corrupt practices or that the person that was declared
winner was not duly elected by majority of lawful votes cast at the election. The Act views seriously the result announced by INEC. So an election shall not be
liable to invalidated as the opposition attempts to do even where it appears to the Election Tribunal that an election offence has been committed if it appears
to the Tribunal that the election was conducted substantially in accordance with the principles of the Electoral Act and the electoral offence did not
substantially affect the result of the election.
The question this throws up is did the anomalies raised by the opposition candidates substantially affect the result of the election. In other words if the
results in the local governments of states the electoral malpractices are alleged to have occurred are deducted from the twenty million votes announced in
favour of Chief Obasanjo will he still emerge the winner? Every evidence points to the fact that Chief Obasanjo would still have won. I think this is the crux
of the matter.
Final Thoughts
The worst democracy is in the long run better than any military regime. The fact that even the best military regimes hand over to a civilian democratic
administration attests clearly to this fact. Democracy cannot be imported or bought. It is home grown and nurtured. It does not mature overnight it takes time,
pains and sacrifices. We cannot escape this by seeking shortcuts.
It is important to remind the opposition candidates that INEC has presented Chief Obasanjo with a Certificate of Return as the winner of the election. By this
Act INEC has become functus officio as far as the presidential election is concerned. Anything that has to be done, to wit cancellation of the result, if
possible, can only be done by the election Tribunal or the appeal courts. The presentation of that certificate also makes Chief Obasanjo the de jure President
of the Federal Republic of Nigeria. He will become de facto President after being sworn in on May 29 2003. If for any reason he is prevented from being sworn in
let's say by a coup de tat he can claim his legitimate mandate even from exile or prison.
The situation calls for deep meditation, cautious action and wise counsel. Any impulsive action may turn out to be ill advised.
April 2003