By Chidi Anselm Odinkalu
Nigeria first voted in presidential elections just over 43 years ago in October 1979. The introduction to this form of government was not very auspicious. Four years into the experience, in December 1983, Muhammadu Buhari, then a Major-General in the Nigerian Army, overthrew the system. Soldiers thereafter ran the barn for another 14 and a half years.
In 1979, soldier supervised the election. To govern it, they promulgated the Electoral Decree, No. 73 of 1977, whichrequired that the winner would be the candidate who scored the highest votes and also achieved a minimum of 25% of the votes cast in at least two-thirds of the states in Nigeria. There were 19 States then; 10 in the north and nine in the south. Two-thirds of nineteen was not a whole number.
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The failure to advert to this piece of elementary arithmetic would prove consequential. By the time the voting was done, it turned out that the candidate with the highest number of votes, Shehu Shagari, of the National Party of Nigeria (NPN), scored 25% in 12 of Nigeria’s 19 states. In the 13th state, Kano, he scored about 20%. The Federal Electoral Commission (FEDECO), nevertheless, declared him winner. Two-thirds of 19 is 12-two-thirds.
Chief Obafemi Awolowo, the Senior Advocate of Nigeria (SAN) who came second in the ballot on the ticket of the Unity Party of Nigerian (UPN), challenged the declared outcome before the election petition tribunal. If he succeeded, the country would have conducted a second round to decide the winner.
The case went all the way up to the Supreme Court of Nigeria. The military had committed to leaving power on 1 October 1979. Elections took place on 11 August and a mere 50 days separated election day from hand over day due for 1 October. It was not a lot of time.
Four days before the designated date of the military hand-over, on 26 September 1979, the Supreme Court announced its judgment. Six of the seven Justices reasoned that in order to arrive at two-thirds of 19, you had to work out 25% of two-thirds of the votes cast in the 13th state. By this act of judicial fission, they determined that the 20% of Kano State scored by Shehu Shagari was enough to cross the threshold and that the proclamation of a winner by the FEDECO was “in substantial compliance” with the standard prescribed by the Electoral Act.
Since 1979, therefore, the legal standard required for the announcement of results in any election in Nigeria is “substantial compliance”. This can be subjective to the point of whimsical. What it means in fact has steadily been whittled away into meaninglessness over four decades of multi-agency,electoral chicanery.
While the standard has been constant, the circumstances to which it is applied have varied. In 2007, for instance, the issue was whether an election organized without serialized ballot papers to control for the contamination of ballots nevertheless met the standard. The Supreme Court held that it did, reasoning rather bizarrely that such a scenario did not inherently favour any candidate over others but essentially created a level rigging field.
In 2023, the outcome of the presidential election will almost certainly rest on the meaning of “substantial compliance” in the context of metastatic insecurity which is likely to preclude voting in some locations in the country. Although elections in Nigeria have historically not been complete without violence, 2023 will be the first time in which the country will confront a real possibility that it may be impossible to undertake voting safely in a significant number of locations around the country.
While assuring the country and the world of the desire of the Independent National Electoral Commission (INEC) under his leadership to organize the 2023 elections to schedule, Commission chairperson, Professor Mahmood Yakubu, has increasingly become voluble about the possibility that a multiplicity of insurgent groups in different parts of the country could interfere with or preclude the exercise of the franchise to a significant scale.
Assessments by both the security services and independent monitors are even more worrisome. In December 2022, the Blair Institute for Global Change issued a report to the effect that insecurity had, in effect, put Nigeria’s democracy under threat. Providing a sense of the scale of the violence, the International Crisis Group reported also in the same month that “at least 10,000 Nigerians were killed in armed conflict and over 5,000 abducted from January to mid-December 2022. Other data indicate that at least 550 of 774 local government areas saw incidents of armed conflict between January and mid-December.”
Estimates of the number of places, units, or voters who may be affected vary. The Vanguard newspaper reported on 8 January 2023 that the conduct of elections could be precluded in hundreds of locations in up to 14 States around the country.
On 2 October 2022, Thisday newspaper reported an assessment by Nigeria’s security services indicating that insecurity could preclude the conduct of elections in 686 communities or wards located in at least “90 local government areas (LGAs) and 18 states of the federation”. This represents 7.78% of the 8,812 wards in the country. Without an idea of the voting population of each of these wards, it is impossible to make a determination as to the number of registered voters who suffer this exposure. The number would almost assuredly run into millions.
Even if voting eventually were to occur in many of these places, the violence could have such a chilling effect as to mar election administration or deplete turn out. Voters, afraid for their personal security, may choose other things to do or simply lie low in their places of abode rather than turn out and risk fatal consequence.
The potential effect of insecurity on anywhere approaching the scale reportedly estimated by the security services would be very far reaching. Confronted with this, the country must plan for the consequences of the failure or frustration of voting on such a scale or for its impact on the outcomes. As a mathematical proposition, if the number of voters registered in the affected units or locations is cumulatively up to or more than the margin between the top two candidates, then surely, there cannot be a winner.
But there could also be a more challenging scenario where the number of affected units or voters in a state may be such as to impinge on the question whether or not a particular candidate could or could not have made 25% of the votes cast. The question whether the elections go to a run-off or not, could depend on whether insecurity precluded “substantial compliance” is a handful of states. That will be legal uncharted territory.
Whatever happens, insecurity has already recorded its first electoral casualty. On the 3rd anniversary of its decision installing the man who came fourth as the winner of the governorship election in Imo State in 2020, the Supreme Court on 13 January 2023 disqualified the candidate of the Peoples’ Democratic Party, PDP, in Imo West Senatorial Zone of the state from the contest for the Senate on 25 February holding that the primaries that produced him occurred in Owerri, the State capital, rather than Orlu, the zonal headquarters. The two locations are separated by a mere 35 kilometres. It was immaterial in the view of the court that this change in venue was forced by lethal insecurity which made the conduct of the primaries in Orlu impossible.
Substantial compliance will suffer bloody scrutiny over the next few months. It may even determine who becomes the next president.
Odinkalu teaches at the Fletcher School of Law and Diplomacy and can be reached here