One of the most controversial and legally deterministic cases to come out of Nigerian politics was the landmark judgment delivered on September 26, 1979, by the Supreme Court, in favour of Alhaji Shehu Shagari’s election at the 1979 presidential polls against Chief Obafemi Awolowo.
General Olusegun Obasanjo had just conducted the much-awaited presidential election on August 11, 1979, and was ready to hand over power to civilian leadership. Alhaji Shehu Shagari, who contested under the banner of National Party of Nigeria (NPN) had been declared as president-elect causing the Presidential candidate of the Unity Party of Nigeria (UPN), Chief Obafemi Awolowo to challenge the emergence of Shagari in a petition filed at the tribunal.
The election petition, originally filed at the tribunal on September 6, 1979, was called upon to interpret Section 34 A (i) (ii) of Electoral Decree No. 73 of 1977 to determine whether 2/3rds of a state is synonymous with 2/3rds of the total votes cast in that state or the votes cast in 2/3rds of votes cast in the territorial or physical areas of a state. The tribunal dismissed Awolowo’s petition and he proceeded to the Supreme Court. The judgment culminating from the contentious section of the electoral decree eventually became popularly known as the Twelve Two-Thirds (12 2/3rds).
Shehu Shagari already had 25% of the votes cast in 12 states of the federation; namely: Bauchi, Bendel, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers, and Sokoto. But according to the law, Shagari needed to have 25% of votes cast in a required 13th state to satisfy the conditions of being declared the winner. Meanwhile, Shagari only scored 243,423 votes in a 13th state in consideration – Kano, and which was only equivalent to 19.4% of the 1,220,763 votes cast in total.
The majority decision of the Supreme Court judgment had its source from a spurious erasure of 1/3rd of all the votes cast for Obafemi Awolowo and 3 other presidential candidates in the votes for Kano State; but left all the 243,423 votes cast for Shehu Shagari in Kano state intact, as the denominator of the 813,842 votes remaining in the state. The arithmetic behind this controversial decision of the court would not only be the major crux of the judgment – the semantics of what the definition of ‘State’ and ‘Votes’ mean in elections was also tested by critics decades later.
The determination of the case rested particularly on how the learned justices of the Supreme Court, namely: Andrews Otutu Obaseki, Kayode Eso, Mohammed Bello, Chukwuweike Idigbe, Muhammadu Lawal Uwais, Ayo Gabriel Irikefe and Atanda Fatai-Williams, interpreted a contentious section of the 1977 Electoral Law controversially.
The lead justice in the appeal determination at the Supreme Court, who was also the Chief Justice of Nigeria, Fatai-Williams, was quoted to have remarked that that the section of Electoral Law on the basis of which Awolowo is basing his challenge of Shagari’s victory upon, as phrased in a, “clumsily worded section” and “devoid of any semantic ambiguity.” And so he proceeded to give the contentious Section his own interpretation.
Kayode Eso, the only one of the justices with a dissenting opinion, held that two-third of 19 states could only be 13 and not 12 2/3rds. Eso’s position further cautioned the majority judgment’s assertion in stretching the law to fit the anomaly being created just to allow Shagari to satisfy enough of the conditions to be declared the winner of the 1979 elections.
The 12 2/3rds judgment is, therefore, a great reference point in highlighting the current judicial and political climate; in the light of the tribunal judgment yesterday which upheld the election of incumbent President Muhammadu Buhari against the appellant Alhaji Atiku Abubakar – albeit under what some perceive as shaky grounds and exactly 40 years after a decision which some argue tainted the place of the judiciary in upholding the rule of law.
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