Funmilayo Odude, Legal Practitioner, Damod Law Practice

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The law, not the judiciary, to blame in PEPT judgment 13 Sep 2019

The judgment of the Presidential Election Petition Tribunal (PEPT) in respect of the petition filed by the People’s Democratic Party (PDP) and its presidential candidate in the 2019 general election, Atiku Abubakar, challenging the emergence of President Muhammadu Buhari’s victory in the election was delivered on Wednesday, the 11th of September, 2019. The ruling has generated diverse reactions.

A number of people on social media have expressed disappointment at the judgment and have harshly criticized the judiciary for failing to deliver on its mandate as the ‘last hope of the common man.’ They blamed the tribunal for not correcting the ‘charade’ that was the 2019 general elections.

It would appear that many people were hoping that the members of the tribunal (comprising justices of the Court of Appeal), who by virtue of them being Nigerians, ought to have been aware of the various incidents and acts that trailed the last elections. Hence, the justices should have nullified the elections based on general public sentiments. Others simply hoped the judiciary would find reasons to rid Nigeria of the ineptitude of the Buhari administration.

However, much of the burden placed on the judiciary is misplaced. While this is not an endorsement of the entire judgment of the tribunal, it is important to clarify that the judiciary can only enforce the law as it is. It cannot ‘correct’ Nigeria’s problems beyond the ambit of the existing framework of our legislations.

One major way to illustrate this point is the decision of the tribunal with respect to the eligibility of President Buhari to contest the elections and the failure to attach a certificate to his application form submitted to the Independent National Electoral Commission (INEC). Many have expressed disappointment in the judiciary’s position on the level of qualification required for the leader of Africa’s most populous nation.

Unfortunately, the judiciary did not create the law. It merely interpreted it. The qualifications for eligibility to run for the office of President are contained in Section 131 of the Constitution. The Constitution’s provisions for eligibility are: (i) citizenship of Nigeria by birth; (ii) attainment of the age of thirty years (it used to be forty years prior to 31st of May, 2018 when the President signed the Not Too Young to Run Bill into law); (iii) membership of a political party and sponsorship of that political party; and (iv) education of at least School Certificate level or its equivalent.

The same educational requirements are applicable for the offices of the Vice-President (Section 142(2)); Governor and Deputy Governor (Sections 177(d) and 187(2)); Senator and member of House of Representatives (Section 65(2) (a) and member of House of Assembly (Section 106(c)).

Section 318 of the Constitution defines “School Certificate or its equivalent” thus:
“(a) a Secondary School Certificate or its equivalent or Grade II Teacher’s Certificate, the City and Guilds Certificate; or
(b) education up to Secondary School Certificate level; or
(c) Primary Six School Leaving Certificate or its equivalent and-
(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and
(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year, and’
(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and
(d) any other qualification acceptable by the Independent National Electoral Commission.”

If Nigerians are thus appalled at the standards set for the country’s topmost position, they must not look to the judiciary to change that. They should look to their representatives in the National Assembly.

Section 31 of the Electoral Act 2010 (as amended) governs the submission of list of candidates for elections by political parties. It gives political parties not later than 60 days to the date of the elections to submit their list of candidates, in the prescribed forms, to INEC. Subsection 2 provides that the list or information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate, indicating that he has fulfilled all the constitutional requirements for election into that office. This is the only document required by the Electoral Act to be submitted along with the forms.

Again, if Nigerians require more documentation from aspirants of political offices, they must not look to the judiciary. They need to look to their representatives in the National Assembly to change the law.

The principle of separation of powers is essential for the proper working of a democracy. Therefore, we must learn to hold each arm accountable in accordance with its powers. There are many grounds on which to hold the Nigerian judiciary accountable. For instance, I believe that with respect to the Osun State gubernatorial election petition, the judiciary shirked its responsibility to pronounce on substantive issues relating to INEC’s conduct in the course of the gubernatorial election. But, as a general principle, we cannot hold the judiciary accountable for the standards set by our laws.