In matters of election petitions, Richard Osuolale Abimbola Akinjide remains a legend.
Having successfully determined the letters and spirit of the Electoral Decree of 1977, proving to the courts that Section 34 (A) (l) (c) (ii) of the Electoral Decree, means that two-thirds of a state is synonymous with votes cast in two – thirds of votes cast in the territorial or physical areas of the state and, thereby, handing Usman Aliyu Shehu Shagari the presidential election victory of 1979, Akinjide remains very relevant to jurisprudential matters in Nigeria.
Practising his law at over 70 years, Akinjide still appears in court – he’s about the most visible minister in the Second Republic who is not only in politics but has his professional calling as first love.
Therefore, Sunday Vanguard decided to seek his opinion on the seeming futility of a political party pursuing an election petition in a presidential election, especially in the face of the punishing Doctrine of Substantial Compliance.
This legal luminary agreed with Sunday Vanguard that an election petition at that level is no more than a fool’s errand (Read Prologue) – a wasted effort
Can we have a flawless election anywhere in the world?
No! Anywhere in the world, whether it is Europe, America or even in Africa, it is accepted that in a normal democracy, it is impossible to conduct a flawless election. It is humanly impossible and that is why you have the doctrine of substantial compliance that is written into all election laws in all countries.
The doctrine of Substantial Compliance! What does it mean?
With the doctrine of substantial compliance, it is implicit and conceded that there must be flaws in the election but that once there is substantial compliance, then the election should be accepted as having substantially complied with the laws and the return should not be upset.
But why shouldn’t an election be upturned if there are flaws?
If you look at what happened in 1960 in the United States when John Fitzgerald Kennedy defeated Richard Nixon, there were flaws in the election in Chicago; there were flaws in the elections in Texas. The majority of Kennedy over Nixon was very thin and supporters of Nixon urged him to file a petition but Nixon said no.
He explained that if he filed an election petition and he won, it would damage, forever, the United States and the legitimacy of the office of the president of the United States.
Nixon went on to say that it is better for Nixon not to be president than for an American institution to be damaged and, therefore, he refused to file a petition against Kennedy’s victory in 1960 – I was in New York at that time. This is a lesson which our leaders here should learn.
But there is a difference between the two countries…?
Yes, there is a difference and the difference between the United States and Nigeria is that the United States is a nation while Nigeria is a country and not a nation. Many people who file election petitions here don’t look at it from a national perspective but from a sectional point. You want to be president of Nigeria and not the president of the East, West or Delta or North and that is the critical difference between us here and the countries of the West.
Let’s even find out, would you take a case to appeal an election victory or a presidential election at that? Would you come forward and prove that an election did not substantially comply with the provisions of the law?
Is that based on principles or on the understanding of the letters and spirit of the law?
I will not and the lawyers who are advising the would-be petitioners should be very, very careful and also put not only the law into consideration but also the national interest and the consequences of any debacle.
That an election was flawed and a winner has emerged is enough debacle! So, what other debacle?
Good question! The new President has to summon the first meeting of the National Assembly and that is the Senate and the House of Representatives.
Now, if there is no president, the National Assembly can not meet and the previous president can not summon that assembly because his term has expired so he can not. It is the new president that would do it.
So, in the event that there is no president who would do it! There would be total anarchy and chaos in the land. The same thing applies in the state where the new governor is expected to inaugurate the state house of assembly.
Apart from the Doctrine of Substantial Compliance, there is also a Doctrine of Consequences, the Doctrine of Consequences, was applied during the election debacle between George Bush and Al Gore because of the problem of Florida. The United States can not afford not to have a president and by voting of five to four, the United States of America’s Supreme Court said Bush was validly returned and the moment the court said that Gore just picked up his phone and called up Bush to congratulate him and with that call gave validity and legitimacy to Bush as president.
These are the things we should learn and not party interest or personal interest or sectional interest.
Within the context of our own environment and contestation for power, we have heard politicians say openly that they would rather rig and win rather than be the one to file a petition, that they would rather be the defendant of a flawed electoral victory than be the litigant who would be saddled with the burden of proving that an election did not substantially obey the law. In this context, is the law not creating an environment where people would just go ahead to rig, win and wait for the other party to come and prove that there was no substantial compliance?
If you look at the process in Europe, the United States and other civilised countries, they put a searchlight on aspirants. This is because the private lives of a would-be public servant is of national interest because those countries would not want to put a crook in power, one that would put sectional or private interests above national interests or the common good.
Therefore, in my view, the present electoral law is too cumbersome, it should be simplified and emphasis should be placed on character and on national interests. India as the greatest democracy in the world, you would not hear some of this rubbish we seem to be used to here. You will not see somebody in office after a year or two and an election petition is still going on; that is absolute rubbish. But it is not the fault of the people it is the law. During the Tafawa Balewa and Shehu Shagari time, the electoral law was simplified and simple such that all election petitions are concluded before swearing-in.
Our laws say the litigant must prove that the elections are flawed. Using substantial compliance doctrine, how easy would it be for a litigant to prove that an election did not substantially comply in a presidential election in Nigeria?
The law is the law because when you go to court even on any matter, you must prove your case.
The onus is on you whether it is an election matter or a land matter you’ve gone to court so you must prove your case. When you say somebody has stolen money, you must prove it. So when you go to court to say an election was flawed, then you must prove your case.
In 1979, the contention was about what constitutes two-thirds. Give a summary of that great trial?
My defence against Chief Awolowo’s petition was predicated on three critical points. One is that there was total compliance in accordance with the electoral law. In the alternative, there was substantial compliance.
Thirdly, in any event, the electoral petition and the reliefs sought were flawed and Justice Otutu Obaseki highlighted that very thoroughly.
So, from the point of view of total compliance or substantial compliance or the way the petition was presented, we won.
Professor Reid, of the University of London, wrote to me and also told me that what I did has made a notable contribution to constitutional law all over the world.
There is no doubt that the case of Awolowo Vs Shagari has been cited in many electoral petition cases in the country because I hear of some rubbish in some places that the judgment should not be cited. That is absolute rubbish.