Legal Propriety of Swearing in A President-Elect Whose Return is Being Challenged in Court: The Bola Tinubu Scenario in Focus

By Sylvester Udemezue

Nigeria’s presidential election held on 25 February 2023 led to Mr Asiwaju Bola Ahmed Tunubu being declared the winner by the election umpire, the Independent National Electoral Commission (INEC). Although no fewer than 4 (four) political parties and their candidates have rejected the result as declared by the INEC, and filed lawsuits (election petitions) in the Court of Appeal sitting as the Presidential Election Tribunal in the FCT, Abuja, the controversy trailing the fiercely disputed election has led to calls that planned swearing in of the President-elect by stayed pending resolution of the court cases arising from the election.

Many who support this call fear that if he’s sworn in, the judiciary could get compromised by the power of incumbency, into doing anything but justice in the cases before it, judging by the widespread negative perception (founded or unfounded) of the Nigerian judiciary. While this commentary does not propose to investigate the reasons for the poor perception of the judiciary among the public, it’s important to note that the call for Tinubu to not be sworn in until the final resolution of all pending election petitions is as thick-skinned, hardheaded and vehement, as the opposition to the call.

So, there are two directly opposing camps. But then there’s this middle-ground, conciliatory call (championed by Olisa Agbakoba SAN et al) that the Presidential Election Tribunal could, indeed should, proceed to determine all pending election cases before 29 May 2023, so that each of Mr Tinubu and his transducers would know their fate before 29 May 2023. I’ve examined and found as remote, the possibility or practicability of resolving or determining the pending lawsuits before 29 May 2023, considering the extant law vis-a-vis the issues and facts raised or arising for determination in each or all of the pending petitions.

While the arguments and counterarguments persist, the questions herein discussed include: (1). Does the Nigerian Constitution have any room for an interim government? (2). Can the tenure of the current president be lawfully extended to allow for the resolution of pending election petitions before the swearing-in of the President-elect? (3). Is there any law that supports the suggestions that Tinubu’s swearing-in be paused to allow for the resolution of pending election lawsuits? (4). What is the way out of the brouhaha raging among the swear-him-in-on-29-May-2023 camp, the do-not-swear-him-in-yet camp, and the resolve-these-cases-before-29-May-2023 conciliatory group?

Well, without wasting anyone’s time, and with due respect to all the camps, the position of the law, as I see it, is that if the election petitions pending before the Presidential Election Tribunal over the 25 February 2023 presidential election, are not resolved one way or another before 29 May 2023, Mr. Asiwaju Bola Ahmed Tinubu ought to be sworn in on 29 May 2023, pending resolution of the lawsuits, Tinubu having been declared the winner of the election. My reasons:

(A). Nature abhors a vacuum. If Asiwaju Tinubu is not sworn in on 29 May 2023, there might be a vacuum/void in governance in Nigeria because Mr President Buhari ought to vacate the office on 29 May 2023. A country should never, at any time, be left without a leader. However, some have argued that, although section 135(2), CFRN 1999 provides that “Subject to the provisions of [section 135(1)]”, the current president “shall vacate his office at the expiration of a period of four years commencing from the date when he took the oath of allegiance and oath of office” [the 4-year terminates on 29 May 2023], yet the president could lawfully be made to hold office until the next president is sworn as allowed by section 135(1)(a) of the Constitution which provides that ”… a person shall hold the office of the president until when his successor in office takes the oath of that office”.

This is especially so, considering that section 135(2) would ordinarily give way to section 135(1)(a) in any case of conflict between the two because section 135(2) is stated to apply “subject to” section 135(1) meaning that section 135(1) is superior to section 135(2) of the Constitution. While I agree that by virtue of section 135(3), the National Assembly may by resolution extend for a period not exceeding “six months”, the tenure of office of the president, the thorny problem (with the argument for an extension to enable resolution of pending election lawsuits) is: under what circumstances may it be lawful to make the current president to hold office beyond 4(four) years”?

Luckily, section 135(3) lists out such circumstances that may justify the extension of the president’s 4-year tenure but unfortunately does not include nor envisage the current scenario (when the election process that produced the President-elect is being challenged in court). According to section 135(3) the National Assembly may invoke this power to extend the current president’s 4-year tenure only “If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections”.

The Constitution interpretation Rule of Exclusio unius est exclusio alterius is derived from a Latin term literally meaning “the expression of one thing is the exclusion of the other”. This is a common law principle for construing legislation which holds that a syntactical presumption may be made that an express reference to one matter excludes other matters not expressly or impliedly mentioned. I submit that this principle applies here. Besides, the lawmakers must be held to have said what they meant and to mean what they have said as seen in the plain words of section 135(3) of the constitution.

In my opinion, the only way to lawfully stop such swearing in the pending resolution of pending election petitions is by an amendment of the 1999 Constitution and the Electoral Act 2022. Unfortunately, such an amendment appears either not being contemplated or outright impracticable at the moment. Nevertheless, even if such an amendment is undertaken at this time, it would not apply to the (current) Tinubu scenario, especially in view of the concept of non-retroactivity of legislation.

It’s accordingly considered more reasonable to conclude on this point, that while the National Assembly is entitled to extend Mr President’s tenure of office beyond 4 years, where an election has already been held and a winner declared by the INEC, the National Assembly is NOT entitled to invoke the provisions of section 135(3) of the Constitution to stop or otherwise halt inauguration of the declared winner of the election; it’s immaterial that the election is being challenged in court. This being the case, the current president must vacate the office on 29 May 2023, and the President-elect must be sworn in on 29 May 2023, pending resolution of pending lawsuits, unless anyone of the following happens:

(I) If the President-elect dies (God forbid) before 29 May 2023 in which case the Vice President-elect must be sworn in his place on 29 May 2023 (see Section 136(1) of the Constitution);

or

(II) If both the President-elect and the Vice President-elect die or are unable, for any reasons whatsoever, to assume office before the inauguration of the National Assembly, in which case the INEC must conduct a fresh election (see Section 136(2) of the Constitution).

As it stands today, since (a) an election has been held, a “winner” declared by INEC, and since nothing has happened to warrant the invocation of any of the circumstances listed in section 136 of the Constitution, it’s respectfully submitted that the declared winner must be sworn in on 29 May 2023, unless and until an election tribunal or court gives a contrary directive.

(B) The Candidates of the Labour Party (LP), People’s Democratic Party (PDP), among others, and their respective political parties, have already instituted lawsuits at the relevant Election Tribunal (in line with section 130 of the Electoral Act, 2022) to challenge INEC-declaration of Asiwaju Tinubu as the President-elect of the Federal Republic of Nigeria.

The mere fact that these opposition/aggrieved parties have filed lawsuits challenging the INEC declaration is a sufficient admission or acknowledgement by the Claimants/Plaintiffs (technically called Petitioners) that Asiwaju Tinubu has already been declared the winner and is accordingly the President-elect, who alone is entitled to be sworn in on 29 May 2023, to avoid a vacuum in governance pending resolution of the pending lawsuits. The Claimants are therefore under an obligation, having submitted their grievances for judicial adjudication or determination, to maintain and respect the status quo pending the determination of the cases in court (the tribunal).

This does not mean that the Claimants have accepted the declared winner as the next president, nor that the Claimants have accepted the process that produced him, but that in the eyes of the law, whether the declaration and return made by the INEC were lawful or unlawful, the declared winner (Asiwaju Tinubu) is and remains the President-elect, and unless the Court says otherwise, ought to and must be sworn in on 29 May 2023 pending resolution of the disputes in court. I have earlier submitted thus:
”I think section 138 of the Electoral Act provides a reasonable guide under the circumstances. If as is provided by section 138, a candidate whose election has been declared VOID by the tribunal, could still stay in office pending resolution of the appeal arising from the tribunal decision, there appear to be no good reasons to support any view that a person whose election is being challenged at the Tribunal on grounds that the election was unlawful or that his declaration was unlawful, should not be sworn in the pending resolution of pending lawsuits?

[“The Arise TV Interview and likely holes in Agbakoba (SAN)’s suggestions on upshots of Nigeria’s Presidential Election” By Sylvester Udemezue; 06 April 2023; lawandsocietymagazine]

PLEASE READ MORE:
“Limits Of Individual Freedoms In A Constitutional Democracy In Light Of Datti Baba-Ahmed’s “End Democracy” Asseverations”

By Sylvester Udemezue
(published on 09 April 2023 in each of BarristerNG; ThenigeriaLawyer; LawAndSocietyMagazine; Newswirelawandevents; TrippleNetMedia; NewsDeskNg, Thenigerianvoice, etc)
Respectfully submitted,
Sylvester Udemezue (Udems),

Source:barristerng