What happens if court orders presidential election rerun? Here’s what the Nigerian constitution says

Since the presidential election tribunal began sitting in May, there have been heated debates among supporters of the three leading candidates in the February 2023 election. While some are optimistic that the tribunal will upturn the election that produced Bola Tinubu as Nigeria’s 16th president, others see their optimism as mere wishful thinking that will never come to fruition.

For the first time since the country returned to democratic rule in 1999, the presidential election held on February 25, 2023, was a three-horse race among the candidates of the ruling All Progressives Congress (APC), Bola Tinubu, Peter Obi of the Labour Party, and Atiku Abubakar of the People’s Democratic Party (PDP).

Amid controversies, allegations of bullying, voter manipulations, and suppression, and INEC’s failure to upload results of the presidential election to the IREV portal from the polling unit as promised, Tinubu was declared the winner of the election by the Independent National Electoral Commission (INEC) on March 1, 2023, with a total vote of 8.7 million.

The European Union Election Observers, in their report on the conduct of the 2023 election, which has been rejected by the presidency, claimed that “public confidence and trust in INEC were severely damaged due to lack of transparency during the conduct of the federal level polls and INEC’s delayed and insufficient explanations for those failures.”

While the conduct of the election was completed four months ago and the winner has since been sworn in, the battle to control the seat of Africa’s largest economy is far from over as Peter Obi who came third in the election with 6.1 million votes, and Atiku who came second with 6.9 million votes are in court challenging Tinubu’s emergence, sparking a new wave of heated political debates among their supporters.

Among other charges, including lying under oath and an allegation of drug trafficking, Kashim Shettima’s alleged double nomination, Peter Obi is asking the court to compel INEC to conduct a fresh election where Tinubu will not be qualified to contest.

Obi’s supporters who are expecting the court to declare a rerun are also demanding Tinubu’s disqualification in the case of a rerun. They have been tweeting with the hashtag #DisqualifyTinubuNow on Twitter.

The National Chairman of the Labour Party Solomon Abure on Monday, July 10, 2023, also claimed that the ruling party is preparing for a rerun and told LP’s supporters to be ready in case the court nullifies the election.

What does the law say in the case of a rerun and which of the candidates is eligible to participate?

While Obi’s supporters are looking forward to a rerun, it appears many are not aware of the provision of the law which says that the candidate with the second-highest number of valid votes in an election will be declared the winner in a case where the court declares that the person returned as the winner by INEC was not qualified to contest the election.

Kolawole Babatunde, a legal practitioner, told Neusroom that “after elections have been conducted and results announced, only the court can determine the legality or otherwise of the said election.”

“Section 136 of the Electoral Act deals extensively with the orders court (tribunal) can make in relation to election results,” he said.

Section 136 (2) of the Electoral Act states that “Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall declare the person with the second-highest number of valid votes cast at the election who satisfies the requirements of the Constitution and this Act as duly elected.”

From the provision above, Atiku, who scored 6.9 million votes, and not Obi, might be considered the legitimate winner of the election if Tinubu is indicted on drug charges and hence disqualified, and Atiku satisfies all other electoral provisions.

But Peter Obi’s petition against INEC and Tinubu is also partly hinged on the widely debated section 134 of the Nigerian constitution which provides that for a “presidential candidate to be declared the winner, they must have the highest number of votes cast at the election and not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”

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In Abuja, out of a total of 478,923 accredited voters, Obi secured about 59 percent of the total votes cast, leaving Tinubu with 19 percent and Atiku with 15 percent.

The controversy regarding Abuja votes has continued to divide opinions, among citizens and legal practitioners.

While it is left for the court to resolve the issue, a rerun, based on selection 136 (1), is expected to be conducted, if the apex court resolves that securing 25% in Abuja is mandatory.

With widespread cases of voter manipulation, Peter Obi and Atiku are also seeking to nullify INEC’s declaration of Tinubu on the grounds that he was not validly elected on any ground.

In this scenario, the Electoral ACT 2022, states

“if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or Court shall nullify the election and order the Commission to conduct a fresh election not later than 90 days after the ruling.”

However, if the court rules that Tinubu was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the election tribunal or the Court, as the case may be, shall declare Atiku the winner of the election, if he satisfies all other requirements of the Constitution and the Electoral Act.