By Jude-Ken Ojinnaka
Since the delivery of PEPC judgement on Wednesday, September 6 by five Appeal Court Justices, mixed reactions have continued to trail the unanimous decision of the Presidential Election Petition Tribunal headed by Justice Haruna Simon Tsammani.
The petitions challenging the declaration of Bola Ahmed Tinubu by INEC as the winner of the February 25 presidential election were filed by the People’s Democratic Party, and its presidential candidate Atiku Abubakar, the Labour Party and its presidential candidate Peter Obi and the Allied People’s Movement.
The PEPC had in its judgement upheld the electoral victory of President Bola Ahmed Tinubu while dismissing the case of the petitioners as being incompetent.
Reacting to the judgement of the PEPC, as it relates to the constitutional provision of 25 per cent votes in the FCT, the immediate past Chairman of the NBA Section on Public Interest and Development Law, (NBA-SPIDEL), Dr. Monday Onyekachi Ubani first noted that judicial intervention in Electoral process is enshrined in the electoral Act .
According to Ubani, while speaking as a guest on Deji 360, said the requirement of gaining 25 per cent votes in the FCT is a constitutional provision, adding that where the words in a statute are clear and unambiguous, it will be very wrong to apply any other method of interpretation.
He noted that while the law provides that the winner must have 25 per cent votes in 24 states AND the FCT., the use of the word AND is operational.
He said, “The departure of the court from adopting a literary interpretation and adopting another method, does not accord with the position of the court in all other places where they have used literary interpretation; the provision is very clear and unambiguous.
“Where any provision of the law is clear and unambiguous you don’t resort to the mischief rule of interpretation and that is why the Supreme Court will be the final court to determine this issue
“To me whatever we are saying here is our own opinion until the Supreme Court makes a finding on it, then we can say it has become a precedent that has been finally established, and that is why the petitioners have said that they will proceed on appeal to get the final decision of the Supreme Court in this matter,”
Speaking on INEC’s non-real-time transmission of electoral results to the IREV server, and the PEPC’s ruling that such is not a mandatory requirement, Ubani said, part of the novel provision of the amended Electoral Act 2022 is the provision for transmission of results.
He noted that the Act also gives INEC the powers to enact its own guidelines, adding that whatever INEC chooses to do therefrom, was not under any persons authority.
According to Ubani, the manner of voting, uploading and other consequential actions were a result of INEC guidelines as enabled by the Electoral Act.
Ubani pointed out that INEC also promised to transmit the election results real-time, noting that this was the essence of the whole money spent on the electoral process.
“But INEC transmitted in real-time the results of the Federal House of Representatives, and the Senate and when it came to the Presidency, INEC failed big time and when asked INEC was talking about glitches.”
Ubani noted that whereas the PEPC had ruled that INEC was not mandated to transmit the results in real-time, it must be noted that by the provision of the Electoral Act, INEC had already been empowered to enact guidelines which enactment by the same provisions of the Electoral Act, was what it used to regulate the process.
According to him, a very active court would chide INEC for departing from its own guidelines and for that departure, there must be some level of pronouncement made by the court.
“So if you argue that there was no express provision for transmission then it means we are going back to the period before 2022 when there was no provision for electronic transmission of votes and this is not healthy for our electoral journey as it encourages manipulation. It will encourage fighting and killing of each other. So, that judgement is something that the Supreme Court must still make a pronouncement on, whether it was right for INEC to have made a guideline and still departed from it without the PEPC making any reprimanding remarks,” he said
On whether the non-transmission of the election results in real time vitiated the process, Ubani noted that if the same were uploaded in real-time, it would have allowed for transparency as the public would have followed the process step by step and arrive at a uniform result
“So let us not clap for INEC for departing from their guidelines,” he chided