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ISSUE 2 OF THE PRESIDENTIAL ELECTION PETITIONS TRIBUNAL JUDGMENT— A Judgment Founded on the Abuse of the Principles of Electoral Franchise and the Constitutionality of Bye-Laws

Part 2

Nwankwo T. Nwaezeigwe, PhD, DD
Odogwu of Ibusa, Delta State
Institute of African Studies, University of Nigeria, Nsukka
Leader, Coalition against Christian Genocide in Nigeria (CAC-GEN)\
Email: Nwaezeigwe.genocideafrica@gmail.com  Website: https://cac-gen.org

 Date: Sept 19, 2023

According to John Marshall, the iconic fourth Chief Justice of the United States of America: 

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

What then is law, if one may ask? According to Legal Vidhiya:

Law is an instrument which regulates human conduct or behaviour. Therefore, Law is a broader term which includes Acts, Statutes, Rules, Regulations, Orders, Ordinances, Justice, Morality, Reason, Righteous, Rules of court, Decrees, Judgment, Orders of courts, Injunctions, Tort, Jurisprudence, Legal theory, etc.

If we take it that the Constitution of the Federal Republic of Nigeria, 1999, and the Electoral Act, 2022, of the Federal Republic of Nigeria are extant body of laws of the Federal Republic of Nigeria, then we shall in the same vein accept that the Independent National Electoral Commission (INEC) Regulations, Guidelines and Manuals for the conduct of the 2023 General Elections are By-Laws. 

What it means is that while the people are supposedly the source of the Constitution of the Federal Republic of Nigeria, 1999, which is in turn the source of the Electoral Act, 2022, the Electoral Act, 2022 is in turn the source of the INEC Regulations, Guidelines and Manuals. And we may go further to ask, what are by-laws? According to The Black’s Law Dictionary: By-laws are:

Regulations, ordinances, or rules enacted by a private corporation for its own government. A by-law is a rule or law of a corporation, for its government, and is a legislative act, and the solemnities and sanction required by the charter must be observed. 

Relying on such legal authorities as, Teck v. Elliott, 79 Fed. 10, 24 C. C. A. 425, 3S L. R. A. 610; Mining Co. v. King, 94 Wis. 439, 69 N. W. 181, 36 L. R. A. 51; Bagley v. Oil Co., 201 Pa. 78, 50 Atl. 760. 56 L. R. A. 184; Dairy Ass’n v. Webb. 40 App. Div. 49, 57 N. Y. Supp. 572; it concluded: 

That the reasonableness of a by-law of a corporation is a question of law, and not of fact, has always been the established rule; but in the case of State v. Overton, 24 N. J. Law, 435, 61 Am. Dec. 671, a distinction was taken in this respect between a by-law and a regulation, the validity of the former being a judicial question, while the latter was regarded as a matter in pais.

This is the legally-binding position on “Issue 2” of the judgment which we were informed was anchored on:

“Whether having regard to the evidence adduced by the parties the Petitioners have established that there was sufficient non-compliance with the provisions of the Electoral Act, 2022, and that the non-compliance substantially affected the results of the election.” (See page 188 of the judgment).

We should bear in mind the key-phrase in the above definition of a by-law: “a legislative act, and the solemnities and sanction required by the charter must be observed.” So in the matter of a by-law, it is not a question of whether it is binding on the person or institution that enacted it. It is also not equally a question of whether the person who made the by-law is under obligation to abide by the same by-law. 

It is simply a question of law; the question of whether the man who enacted a law is not obliged to act in accordance with the same law, whether it is morally acceptable in law to enact a law and willingly decide to disobey the same law? It is therefore not a matter of relying on technicalities to evade what is law.  This is the fundamental question the judgment blatantly refused to address.

Indeed there are occasions where experience becomes an incubus to advancement of knowledge in the legal profession. This is the case with this judgment. For any judgment to be acceptable to the logic of moral cognition founded on divine principles of justice, it must be rested on the tripod of justice, equity and fair play. You don’t interpret laws as if, every knowledge that borders on the issue under disputation ends in the court room or law school; whereas the main crux of the disputation is rested on the logical fulcrums of extra-juridical knowledge and events. 
Citing authorities on elections conducted on the basis of manual or analogue collation and transmission/transfer of results to justify the abuse of a legally binding process for an election based statutorily on digital transmission/transfer of results is like comparing a battle of bows and arrows to that of guns and tanks.

The matter of “Issue 2” of the judgment is totally anchored on what Justice John Marshall referred to as maxims of democracy.  As he rightly put it: “What are the maxims of Democracy? A strict observance of justice and public faith, and a steady adherence to virtue.” 

Raymond Nkannebe in his critique of the February 26, 2020 Supreme Court judgment on Bayelsa State Governorship election opined:

With the Supreme Court reaffirming its decision in the Bayelsa guber conundrum on 26th February, 2020, the judgment of the Court has effectively fallen on the laps of academics, lawyers and other stakeholders for interrogation and strictures if anything, to establish the extent to which it conforms with binding precedents of the Court and even more importantly the principle of franchise; the greatest marker of any democracy. Having gone through the judgment qua the leading judgment as read by Ejembi Eko JSC, it is the opinion of this writer that it is one steeped in technicalities over substance and a setback for the efforts towards evolving a body of jurisprudence that accentuates the ballot as the ultimate means of emergence of leaders. With respect to the eminent jurists in the panel, it is a decision reached per incuriam and which the Court should have the courage to depart from when such a case comes before it again.

I totally agree with this legal pundit in his above opinion and, I will go further to assert that the same circumstance applies to both the submissions of the three defence counsels—A. B. Mahmoud, SAN, Wole Olanipekun, SAN, and Lateef Fagbemi, SAN, and the final decision of the Justices on  the matter of INEC compliance to its own by-laws.

Raymond Nkannebi’s argument and subsequent opinion are anchored respectively on the blatant abuse and disregard of the principles of “franchise” regarded as “the greatest marker of democracy” and, the elevation of “technicalities over substance, and a setback for the efforts towards evolving a body of jurisprudence that accentuates the ballot as the ultimate means of emergence of leaders.” 

We may ask at this juncture, what is a franchise in law? According to FindLaw Team, “A franchise is a legal and commercial relationship between the owner of a trademark, service mark, trade name, or advertising symbol (the franchisor) and someone who seeks to use that identification in a business (the franchisee).”

In the case of the Nigerian General Elections, 2023, the franchisor are the Nigerian electorates and their trademark/service mark is their votes; while the franchisee is the Independent National Electoral Commission (INEC) who undertook to do the business of electing their leaders with their votes.

In the same light, according to European Code of Ethics for Franchising:

Franchising is a practical ensemble of essential provisions for the governance of the relations between a franchisor and each of its franchisees, operating together in the framework of the franchise network. The overarching principles of ethics that underline this set of provisions are good faith & fair dealings, which translate as franchisor-franchisee relations based on fairness, transparency and loyalty each of which contribute to founding confidence in the relationship. 

The key sentence in the above definition states: “The overarching principles of ethics that underline this set of provisions are good faith & fair dealings, which translate as franchisor-franchisee relations based on fairness, transparency and loyalty each of which contribute to founding confidence in the relationship.”
This means that the relationship between the Franchiser defined in the present context as the voters and, the Franchisee, defined again in this context as INEC, must not only be one based on good faith, but fairness, transparency and loyalty. How far can these be said of the relationship between the Nigerian voters and INEC in the business of applying BVAS in the transmission/transfer of the results of the last February 2023 Presidential election?

In his paper titled, “Good Faith as a Key Principle of Business Ethics to Franchise Agreement.” Pan Lindawaty Suherman Sewu, of Universitas Kristen Maranatha asserted:

“The main principle of creating a franchise agreement is a base on good faith. The relationship between the parties in the franchise agreement is based on human dignity. Freedom of contract is subject to the norms and values of goodwill which embodied in business ethics especially when implemented in business activity. The principle of good faith is a universal value with global principle. The principle of good faith basically has two dimensions of honesty-rationality and decency/fairness. Regulation on the franchise especially with regards to clause contained in a franchise agreement and disclosure document (prospectus) must be formulated based on good faith of the parties.”

The key sentence in the above assertion is: “The principle of good faith basically has two dimensions of honesty-rationality and decency/fairness.” These two dimensions of the principles of franchise in law are indeed the taproots of every moral judgment, which is often thrown into the trash-cans of lame-brained technicalities. This was indeed what the iconic “Socrates of the Supreme Court”, Justice Chukwudifu Oputa, had in mind when he opined that: “The object of the Bench and the Bar equally should be not only the attainment of justice, but also the attainment of justice with a human face.”

The question which A. B. Mahmoud, SAN, Wole Olanipekun, SAN, and Lateef Fagbemi, SAN, failed to address in their technicality-infested submissions, and on which the Five-Leprous Finger Justices of the Presidential Election Petitions Tribunal—  Justices Haruna Simon Tsammani, Stephen Adah, Monsurat Bolaji-Yusuf, Moses Ugo, and Abba Ibrahim failed to underscore in their judgment is whether the “two dimensions of honesty-rationality and decency/fairness” are necessary factors in determining the nexus of INEC non-compliance to its own bylaws over and above clandestine and laughable technicalities in law?

Now, let us come down to level of our local understanding of what franchise means with this brief analogy. A community described here as the voters (franchisers), appointed kingmakers described here as INEC (franchisee), for the purpose of electing their king (President) and traditional chiefs (Senators and Members of the Federal House of Representatives) described here as the business under the seal of the franchise agreement.

The kingmakers under the powers conferred on them by customs (Constitution of the Federal Republic of Nigeria, 1999,) and tradition (Electoral Acts, 2022), to enact the precise rules and regulations (INEC Regulations and Guidelines) that must be followed in the election process which included the manner of conveying the results of the three elections from the various villages of the community to the main village square, which must be through a designated village route defined herein as BVAS. 

However, while the kingmakers conveyed the results of the elections of the chiefs (Senators and Members of the House of Representatives) held the same day and at the same venues with that of the king (President) through the designated route (BVAS) as enacted by them, they however decided to convey the results of the election of the king (President) through a bush path which was not the designated route and by so doing refused to apply the same law made by them equally for the three elections; declaring that the same route used to convey the results of the elections of the chiefs at the same time and venues with that of the king was infested by bandits and political thugs.

This is the simplest definition of franchise in law which does not rely on technicalities to resolve, but on naked application of germane laws. Such act non-compliance is clearly by law an infringement of a constitutional law which umbilical cord is routed in the Constitution of the Federal Republic of Nigeria itself and thus must not escape being judged by its own law. In fact such act of transgression in law can only be explainable under the principles of disenfranchisement.

According to Cambridge Dictionary, disenfranchisement simply means,  “to take away power or opportunities, especially the right to vote, from a person or group.” This was what happened in the case of INEC non-compliance with respect to non-compliance to its regulations and guidelines over the use of BVAS in the transmission of the Presidential election results. 

In suit ABJ/CS/ABJ/1335/2022 (Chief Mike Ozekhome, SAN, and Abubakar Damisa Sani vs. INEC), the judgment of which was delivered on Friday, 25th November, 2022, Hon. Justice Inyang Ekwo held ipso facto in his words:

In my opinion, the intent of the lawmaker in making any law is that any person to whom the responsibility, power or authority for implementing the law is given must act reasonably in doing so. This means that the power of the Defendant to stop the exercise of continuous registration of voters not later than 90 days before the general elections must be exercised reasonably.

The fundamental question which both the defence counsels and the Justices failed to even address much more provide a legally-binding answer is whether INEC, in its selective application of its regulations and guidelines vis-à-vis the failure to transmit the result of the Presidential election via BVAS and, the transmission of the results of the Senate and House of Representatives elections through the same BVAS the same day, acted reasonably in law as opined by Hon. Justice Inyang Ekwo?

Against this background, what it means is that if this issue on non-compliance by INEC to its own bylaw is ultimately upheld by the Supreme Court in favour of the defendants, it will not only lay the precedence of a law-maker having the legal right to break at will the same law made by him, but will signal the end of democracy in Nigeria, since by then, Nigerians would have been made to understand that any regulations, guidelines and manuals made by INEC for the purpose of conducting elections are violable under the full protection of the law and thus unusable as veritable instruments of conducting credible elections in Nigeria.
To be continued in Part 3.

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