VICE-PRESIDENT ELECT: COSTLY CLERICAL ERROR FOR KASHIM SHETTIMA?
In the second of our series looking at the legal challenges to Bola Tinubu and Kashim Shettima’s election victory, Ameze Belo-Osagie looks at the double nomination case against the vice-president elect. If you missed the first in the series, on the 25% in the FCT question, get up to speed.
On 10 April 2022, the All Progressives Congress filed its response to the election petition of Peter Obi. Among other issues, Obi’s petition challenged the validity of APC’s Vice-Presidential candidate Kashim Shettima. The petition argued that he was ineligible for the position of Vice-President, on the basis that he was simultaneously nominated for the position of Senator in the Borno Central Senatorial District, and for Vice-President, under Bola Ahmed Tinubu.
Some legal issues are complex and require a careful consideration of constitutional text, history, and precedent to arrive at a persuasive answer. Others are straightforward: Kashim Shettima is not eligible to be Vice-President of the Federal Republic of Nigeria.
Kashim Shettima is not eligible to be Vice-President of the Federal Republic of Nigeria.
DOUBLE NOMINATION
Section 35 of the Electoral Act of 2022 states: “Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.” The Supreme Court of Nigeria has held that if the words of a statute are plain and unambiguous, the literal meaning should apply. See Abegunde v. Ondo State House of Assembly & Ors (2015) LPELR — 24588 SC. Further, the word “shall” is mandatory. See Chief G.A.N. Ofodile & Anor v. C.A. Aliozo Esq. & Ors (2021) LPELR-54159 (CA).
It indicates a necessary consequence of dual nomination, not one that is open to interpretation. Section 134(2) of the 1999 Constitution, as amended, states that the whole of Nigeria shall be considered one constituency for the purpose of an election to the office of President. Section 142(2) applies this same criterion to the election to the office of Vice-President.
So, this case should turn not on the law but on the facts. If Kashim Shettima “knowingly allow[ed] himself to be nominated” as APC’s Vice-Presidential candidate before he withdrew as APC’s Borno Central Senatorial candidate, his nomination is void.
APC’S RESPONSE
To emphasise how weak the APC’s legal response is, let’s imagine, for the purposes of argument, that the factual timeline played out exactly the way it claims in its reply. Here is the timeline:
On 6 July 2022 the APC claims that Kashim Shettima withdrew from his Senate nomination, by sending a letter to the All Progressives Congress. (see page 14, paragraph 22, i of the APC Reply)
On 14 July 2022 “he was nominated as the vice-presidential candidate of the Respondent.” (see page 14, paragraph 22, ii). This nomination was put into effect “by completing and submitting his Form EC9” to INEC. (see page 15, paragraph 23)
On 15 July 2022 he submitted “Form EC11C” a Notice of withdrawal form to INEC. (see page 14, para 22, iii). The APC claims that this form was signed by Shettima on the 6th of July but, for no stated reason, was not submitted to INEC until over a week later. (see page 14, para 22, iii). The APC concedes that the form is dated 15th July 2022. (see page 15, para 22, iv).
THE RULES
Section 31. of the Electoral Act provides that a candidate can withdraw following this procedure:
First, the candidate gives “notice in a writing signed by him and delivered personally to the political party that nominated him”.
Second, “ the political party shall convey such withdrawal to [INEC] not later than 90 days to the election.” The purpose of this provision was to enforce internal party democracy, preventing parties from substituting duly elected primary winners for party favourites at the last minute.
For that reason, the bill included a requirement for public disclosure to INEC, as well as private communication between candidate and party. The APC has alleged that Shettima did submit a private letter.
But, by their own admission, it appears that INEC was not informed of this withdrawal until 15 July 2022, the day after he had already submitted his nomination form for Vice-President. Bluntly, the inquiry may stop there.
APC’S OPTION
The only route out for the APC is to claim that the withdrawal takes effect when the candidate delivers the letter to his party. If the letter is NOT disclosed to INEC within the appropriate time period, then the withdrawal somehow goes from valid to invalid.
Consider the consequences of this interpretation. Candidate A writes to withdraw from the position of Borno Central Senatorial nominee for Party A on 6 July. In August, Party A selects Candidate B to replace him by consensus, as outlined in Section 84(2).
The party does not inform INEC of Candidate A’s withdrawal until January 1st, which is less than 90 days to the election. As such, the withdrawal goes from valid to invalid.
Thus, there are two “legitimate” candidates for Party A’s ticket: Candidate A, whose withdrawal was voided, effectively reinstating him, and Candidate B, who emerged through the party’s internal legal process.
This interpretation clarifies the potentially chaotic and confusing results of having a “withdrawal” that is immediately effective upon receipt of the private letter but becomes ineffective if the party does not inform INEC.
It creates uncertainty that may hang in limbo for several months, and even lead to the presence of two “legitimate” candidates.
The only sensible reading of the statute is to interpret the withdrawal as taking effect only when both conditions are met. The withdrawal is not effective merely because the candidate informs his party in private, the party must also inform INEC in public.
Because the APC failed to do so until after Shettima accepted and submitted his forms for the vice presidential nomination, he was doubly nominated and his nomination is now void.
[not informing INEC] creates uncertainty that may hang in limbo for several months, and even lead to the presence of two “legitimate candidates.
BUT IT’S JUST ONE DAY
At this point, some might protest that this reading is overly formalist and harsh. What, after all, is the harm in being doubly nominated for a single day (the 24 hours between the nomination acceptance on 14 July 2022 and the withdrawal, effective 15 July 2022)? Basic principles of fairness.
The APC has repeatedly avoided responding to the merits of suits against it, by raising procedural objections to its opponents. Recall the case of All Progressives Congress v. Machina.
REMEMBER ALL PROGRESSIVES CONGRESS [AND LAWAN] V. MACHINA?
On 6 February 2023, after an eight-month court battle, the Supreme Court issued its judgement in All Progressives Congress v. Machina. Several Nigerian news outlets covered the judgement in similar terms, reporting that the Supreme Court had “affirmed” current Senate President Ahmed Lawan as the “legitimate” APC candidate for the Yobe North senatorial district.
The judgement predictably sparked outrage. Senator Lawan had withdrawn from the Yobe North primary to compete for APC’s presidential ticket. In his absence, Bashir Sheriff Machina emerged victorious in an INEC-supervised primary held on 28 May 2022.
But Machina’s victory was short-lived. After Lawan’s loss to Bola Ahmed Tinubu, the APC organised a second primary, this time unsupervised by INEC, on 9 June 2022. Lawan was announced as the victor.
Observers covering the court’s decision drew two conclusions. First, by certifying this result, the Supreme Court had effectively declared that the legitimate winner of the primary was a candidate who did not even contest in the race.
Second, if the Supreme Court were willing to issue such a patently unfair judgement, it did not bode well for any future legal controversies that might sway the presidential election.
The observers are half right. The Machina judgement is a sign of deeper rot in the legal system but not for the reasons most speculated.
THE COMPLEXITIES OF LAWAN V. MACHINA
Let’s start with a basic factual correction that will take some effort to explain: the Supreme Court did not declare Ahmed Lawan as APC’s “legitimate” candidate for Yobe North senatorial district.
Nigeria inherited an adversarial system of justice from British colonialists. In this system, it is up to the parties to gather evidence and present legal arguments.
The judge’s role is somewhat passive: they must limit themselves to the arguments raised by the parties to render a judgement, even if their legal knowledge makes clear that there are other viable arguments that could have produced a different result.
Making sense of the Supreme Court’s judgement requires that we first clarify what legal arguments it actually considered and then analyse what legal arguments it endorsed.
the Supreme Court did not declare Ahmed Lawan as APC’s “legitimate” candidate for Yobe North senatorial district.
Machina’s original petition to the Federal High Court raised four claims via a legal process known as an originating summons. An originating summons is the proper channel where there aren’t substantial facts in dispute.
For example, it might be appropriate where two parties are having a dispute over the performance of a rental agreement. Both agree on the facts and on the legitimacy of the agreement, but they disagree on the interpretation of a particular clause. In that case, the court can resolve the cases on the basis of documentary evidence — simply by reading and interpreting the agreement. No additional fact-finding is required.
Now imagine a slightly different iteration of that case. The landlord alleges that the tenant has failed to pay the full rent amount. The tenant denies this and insists they made the payment. The tenant claims that the landlord has failed to make repairs required to make the apartment habitable. The landlord claims to have made the repairs.
Here, there are disputed facts that will determine the case; resolving it will probably require witness testimony, in addition to documents. For that reason, the case has to proceed through a writ of summons, the alternative legal process for civil claims.
LAWAN V. MACHINA, APC GETS TECHNICAL
In the Machina case, the APC alleged that the first primary that brought Machina to victory was improperly conducted and that the certificate indicating his victory was fraudulent.
Some objections were far more exacting: the APC pointed to some documents that referred to “Alhaji Bashir Sheriff,” as opposed to “Bashir Sheriff Machina” claiming that the discrepancy in title and spelling cast doubt on the legitimacy of his documents.
The Supreme Court eventually held that, because there were contested facts about the conduct of the second primary, the case could not be resolved by an originating summons. On that basis, it dismissed the case.
It’s worth stressing what the case did not decide: the Supreme Court did not rule, on the merits, that Lawan was a proper candidate. It expressed no view on the legitimacy of the second primary, on Machina’s candidacy, or on the propriety of the APC’s conduct.
The court’s only holding was that, before it could reach a substantive judgement, Machina had to proceed via a different process.
In theory, Machina was perfectly free, after the judgement, to refile his claim using a writ of summons, so that a court could actually hear the relevant evidence and decide who was the legitimate candidate.
The barrier is timing. Nigeria’s courts have a large backlog of cases that create long delays between the hearing of a case and the announcement of a decision.
Even if Machina had diligently refiled, he would likely not have gotten a decision until after the election.
Nigeria’s courts have a large backlog of cases that create long delays between the hearing of a case and the announcement of a decision.
THE COURTS AS A TIME SINK
This timing problem is a structural defect of our Electoral Act.
For issues that arise during or after the conduct of an election, we have an election tribunal specially designed to issue timely decisions and quickly resolve controversies.
But for issues arising before an election, litigants are forced to go through the ordinary court process. This has allowed sophisticated litigants to in effect spoil legitimate claims: so long as you can raise procedural objections to get cases dismissed, you can run out the clock until the election.
The APC has deployed this technique repeatedly.
Rather than use its equitable powers to try to devise a commonsensical solution, the Supreme Court has generally decided to stick closely to the technical requirements of the law.
There are good reasons to take this approach: strict and formalist interpretations of the law promote clarity and provide strong incentives for lawyers to follow the proper procedures.
But once this approach has been taken, it needs to be consistently applied. Now that a legal technicality is to the APC’s disadvantage, the court should be expected do exactly what it has done in the past: stick to the clear text of its laws, regardless of potentially messy consequences.
The Machina case shows clearly why it’s important to clarify who’s standing for election, and this clarity is perhaps even more important for the office of vice president.
A double nomination should void Shettima’s candidacy, no matter how brief the period.
APC’S STRATEGIC MISSTEPS
Apart from the fact that the APC’s own reply establishes and proves the case against Shettima, there are also other oddities in the reply it filed.
First, the reply either asserts demonstrable falsehoods or logically contradicts itself.
For example, page 15, paragraph 23 claims that “the decision of INEC [in publishing a list of candidate names including Shettima] was never challenged at all or within the time allowed to do so, as stipulated by section 285 of the Constitution.”
Just three paragraphs later in paragraph 27, it concedes that the PDP did, in fact, challenge Shettima’s nomination.
The PDP filed a suit raising the exact same issue on July 28th, 2022, two weeks after Shettima’s nomination was formalised.
Clearly, the decision was challenged.
As to the claim about the propriety of its timing, the APC is making two contradictory arguments.
On one hand, with regard to the PDP case, it argued that the court should dismiss the issue for lack of standing. Standing is a legal principle that refers to the right to sue; it ensures that the parties in court are people with a legitimate interest in the case, who have suffered a legally cognisable injury and are well motivated to litigate.
The APC successfully convinced the court that the nomination was an issue internal to the APC.
Even if Shettima’s nomination were somehow invalid, the only legitimate challengers would be any competitors for the vice presidential ticket within the party, not APC outsiders.
However, on the other hand, with regard to the present petition by Peter Obi and the Labour Party, they claim that the nomination of Shettima cannot be challenged because it is a pre-election matter.
If the APC’s competitors cannot challenge a concededly invalid nomination before the election and also cannot challenge it after the election, the effect is to make the laws unenforceable.
Once a nominee is duly announced by a party, his competitors in other parties have a clear interest in enforcing the nomination rules — they are seeking to avoid the legal injury of being forced to compete against an illegitimate candidate.
The standing problem could be resolved either by relaxing the doctrine to permit a pre-election challenge or reserving the challenge for after the election.
But it cannot be impossible for anyone except the APC to hold the APC to the rule of law.
it cannot be impossible for anyone except the APC to hold the APC to the rule of law.
SETTLED, NOT SETTLED
Second, where the reply does make legal arguments, they are often flatly wrong.
On page 6, section vi, the APC argues “A fortiori, the issues raised by the Petition [referring to Obi]…are spent, academic, hypothetical, and amount to a colossal waste of judicial time as they are issues which have been caught up by the principle of estoppel per rem judicatam, same issues, having been litigated upon and determined by the Federal High Court” in an earlier suit brought by the PDP.
Res judicata, Latin for “a matter judged,” is a legal principle that protects the finality of court judgments.
It requires that when “there is a final judgement rendered by a court of competent jurisdiction on the merits” it constitutes an “absolute bar” to any subsequent litigation on the same issue, between the same parties. See Tony-Anthony Holdings Ltd. v. CBA (2013) AFWLR (Pt 698) 944 at 963 (CA).
In simpler terms, returning to the landlord example, once the court resolves the substantive issues and announces its final decision, neither the tenant nor the landlord can keep suing each other for the rent or repair issues.
For res judicata to bar litigation, the case must involve (1) the same claim, (2) between the same two parties (or a third party with virtually identical legal interests), (3) the claim must have been resolved on the merits, (4) and there must have been a final judgement.
Here, the APC is asserting that a case between itself and the PDP should somehow bar the LP from making its claim, despite the fact that the PDP and the LP are separate legal actors whose interests are conflicting — they did, after all, just compete against each other in the election that is being challenged.
Further, the claim must have been resolved on the merits. PDP’s case, as discussed previously, was dismissed for lack of standing. No substantive decision was reached. So, bluster aside, this is simply not how civil procedure works.
MINIMAL ENGAGEMENT
Third, on critical and contested issues, where the APC might seek to establish and demonstrate legal reasoning for its positions, it fails to do so.
The reply does not so much argue in Tinubu’s favour as it does flatly reassert that he was victorious with little supporting reasoning or analysis.
For example, in response to the heated constitutional controversy over the 25% criterion, the reply simply states that the FCT is to be treated as “if it were a state.” (page 37, para 118).
This section includes no citations to any legal authority, no attempts to engage with or refute contrary arguments, and no legal reasoning in favour of the FCT-included approach.
The best the reply musters on Tinubu’s behalf is that it would not be “reasonable to …den[y] his victory and subject [him] to having to seek fresh votes… at a great cost.”
SLOPPY FILING
Fourth, basic spelling and grammar mistakes abound.
For example, page 21, paragraph 44 asserts that the “mandatorily [sic] and bindingness of the regulations and guidelines for the conduct of elections 2022 are subject to the discretion of” INEC.
Syntactically, the first word should be the noun “mandatoriness” rather than the adverb “mandatorily.” (Leaving aside the substantive legal claim being made here, an issue which will be addressed later in the series).
Page 38, paragraph 119 complains of the “costs and s [sic] expense” of a potential runoff if the FCT-as-kingmaker approach were endorsed.
Page 30, paragraph 85 insists that INEC did not tamper with the result “as being falsely claim [sic]” rather than “claimed.”
These errors are obviously not fatal in the grand scheme of things.
But it points to sloppiness in the execution of the reply that should be surprising, given the high stakes of the case.
If the lawyers could not proofread their work product, how careful have they been in their analysis of the legal issues or in their scrutiny of a voluminous and deeply contested factual record?
In an election cycle where the meaning of the word “and” is being debated, such oversights could prove costly.
[APC’s reply] points to sloppiness in the execution of the reply that should be surprising, given the high stakes of the case.
APC V. “THE HATERS”
Fifth, the petition wastes a fair amount of time advancing what can only be described as a pugilistic public relations strategy rather than an effective legal argument.
For example, when referencing Bola Ahmed Tinubu’s alleged links to drug trafficking, the petition laments that the allegation has been “falsely, mischievously paraded by [Tinubu’s] political adversaries like the petitioners, detractors and haters to scandalize, demonize and de-market him to the Nigerian electorate…with a view to delegitimizing his well-earned victory at the polls.”(page 19, paragraph 31).
This kind of rhetoric is effective at eliciting viral clips after appearing on Channels TV, or being hailed as a political sage at your local beer parlour. It does not, however, contribute anything to the legal argument.
Whether the petitioners have pure motives in raising the alleged drug issue changes nothing about the resolution of the case. The entire point of standing doctrine is to ensure that those who come to court are highly motivated to litigate the issue.
This is precisely why elections are challenged and indeed, can only be challenged, by directly aggrieved parties.
For that reason, it is a direct, intended, and obvious result of the Supreme Court’s standing doctrine that those who challenge the election will be the opponents of the declared winner, who are unhappy with the results.
The legal system is supposed to be adversarial; it is premised on the idea that direct competition between motivated opponents will produce the best arguments. But opposition equals “hateration”, according to the APC.
Perhaps the legal strategy was to imply that Obi and the Labour Party were abusing the court’s processes.
But there too, the APC fails to make its case. Abuse of court process may be justified if a plaintiff uses a legal proceeding to insult a defendant in ways that are unrelated to the legal claim they raise.
Let’s return to our landlord and tenant dispute once again. Imagine for some reason, the landlord chooses to include in his filing that the tenant put on weight recently, that he heard rumours of an extramarital affair in the house, and that their son just failed out of school.
Those allegations have nothing to do with the contract claim; they are merely designed to embarrass the tenant.
In that instance, it would be appropriate for the court to strike them out of the record, or perhaps sanction the landlord.
But here, the alleged drug connection is absolutely central to the legal claims; it bears directly on Tinubu’s legal capacity to be declared President.
the alleged drug connection is absolutely central to the legal claims; it bears directly on Tinubu’s legal capacity to be declared President.
Similarly dramatic language appears when the APC’s legal team accuses the Labour Party of “sponsorship racketeering,” (a phrase they place in bold for added emphasis). The problem is that bold claims require strong evidence.
Racketeering is not just a word to describe conduct one finds objectionable. In a legal sense, it specifically describes a coercive and fraudulent scheme designed to repeatedly extract illegal profits.
To establish racketeering, one needs to describe the nature of the coercion involved, the specifics of the scheme alleged, the actors responsible for the scheme, the method by which the scheme generates ill-gotten profits, and show some evidence of the profits.
Without those details, the accusation simply doesn’t land. It saps the petition of its credibility and worse, distracts from a much more plausible argument: that Peter Obi did not comply with timing requirements before securing his candidacy.
(Of course, there is the minor problem that, by the APC’s own arguments in defence of Shettima, timing and eligibility rules are non-enforceable at this stage).
Some sections read as amusingly Trump-like, such as the insistence that “ 1st petitioner [a reference to Peter Obi] is not a popular candidate that could have won and did not in fact win… He narrowly escaped being defeated in his own polling unit, unlike the 2nd respondent [a reference to Tinubu], who not only convincingly won in his polling unit, but overwhelmingly won the election across the whole country” (page 75, para 117).
Precision and discernment are key values for legal practitioners.
If the purpose of the sentence is to emotionally vindicate a candidate or protect their reputation, it belongs in a press release.
If its purpose is to defend their legal interests, there needs to be a logically supported and clearly explained connection to a legal claim.
Of what relevance is a narrow victory in Obi’s polling unit when Obi’s petition focuses on the alleged ineligibility of the Vice-President-elect due to double nomination; the alleged ineligibility of the President-elect due to being subjected to a civil forfeiture; the alleged corrupt practices by INEC; and the alleged failure of the Presidential ticket to meet the constitutional threshold in Section 134?
I am not aware of any information that would raise concerns about the competence of the lawyers specifically named in this petition. (Of course, there are other lawyers in Tinubu’s orbit).
But the impression the filing gives is of a team that does not have a fully coherent and well-mapped-out strategy and is coming under increasing scrutiny and pressure.
Nowhere is this clearer than in their direct response to the alleged drug connection, an issue that is both legally murkier and far more nuanced than many commentators seem to appreciate. (Analysis of this specific issue will be the next article in the series).
To Tinubu’s supporters, a key part of his appeal was the ability to assemble highly competent, disciplined, and efficient teams that could perform under pressure.
This effort to defend his mandate does not inspire confidence.
a key part of his [Tinubu’s] appeal was the ability to assemble highly competent, disciplined, and efficient teams that could perform under pressure.
REMEDY, THE BAYELSA PRECEDENT
Finally, there is the question of remedy. How could the court respond to the election of an ineligible Vice-Presidential candidate?
The best indicator is how Nigerian courts have responded to similar situations in the past.
In Bayelsa’s 2019 election, the APC ticket of David Lyon and Biobarakuma Degi Eremienyo was initially declared by INEC as winners, after winning the most votes.
Their PDP opponents challenged Eremienyo’s candidacy in court on the grounds that he submitted certificates that misrepresented his educational record.
The Supreme Court not only agreed with PDP as to Eremienyo’s candidacy, but also offered a surprisingly sweeping remedy, holding that “the joint ticket of [Lyon and Eremienyo] was vitiated by the disqualification of [Eremienyo].”
As such, the Supreme Court declared that their Certificate of Return should be withdrawn and awarded to the candidate with the next “highest number of lawful votes cast…who also had the requisite constitutional (or geographic) spread.” Hence, PDP Governor Diri came to office.
The Bayelsa case is close, but not precisely analogous.
Eremienyo’s certificates made him subject to disqualification under Section 31 of the Electoral Act; Shettima’s case under Section 35 would merely void his nomination.
The Supreme Court has never overturned a presidential election. Doing so would still not fully resolve the question of who should be Nigeria’s next President.
Even if APC were to be disqualified, PDP’s Atiku Abubakar, the candidate with the next highest number of votes, does not currently meet the constitutional spread to be immediately declared the victor.
The result would have to be an Atiku-Obi runoff, plunging Nigerians once again into the thicket of a hotly contested election.
Between the legal controversies and the uncertainty created by the APC’s reply, one thing seems clear: this case is far from settled.
Between the legal controversies and the uncertainty created by the APC’s reply, one thing seems clear: this case is far from settled.
Ameze Belo-Osagie, is pursuing a PhD in political science at Stanford University School of Humanities and Sciences. She earned a bachelor’s degree cum laude in political science and African studies from Yale University, and a JD from Harvard Law School. She tweets at @mezbeloo.
Special thanks to Chioma Unini of the Nigerian Lawyer for getting hold of several of the documents for us.
