“The prophecies of what the court would do in fact, and nothing more pretentious are what I mean by the law” Justice Oliver Wendel Holmes
Almost everyone who has a law degree or attempted to have one in Nigeria should be familiar with the statement above when learning about definitions of law as provided by various schools of thought. I do not believe I can recall any other definition verbatim. For some reason, the definition provided by Justice Oliver Wendel Holmes, propounding the realist theory of law, has stuck.
For many, the court is the last resort when seeking justice or resolving a conflict while for others, the court is the first resort. This is because as an independent arm of government, the pronouncements of a court are pristine; in fact, they are seen as law as long as they are consistent with the provisions of the Constitution. The weight of these pronouncements is such that they become precedent and are binding as law on lower courts and unless a higher court gives a different judgment, the court cannot deviate from the previous pronouncements and judgments.
Some propounders of the legal realist school of thought have further extended Holmes’ popular quote regarding what the law is. Judge Richard A. Posner extended the theory to its limits by announcing that:
“Law is the activity of licensed persons, the judges, rather than a body of concepts (rules, principles, whatever) … The law is not a thing they discover; it is the name of their activity. They do not act in accordance with something called “law” — they just act as best they can”.
Though several scholars believe that Posner has taken legal realism to the extreme by his pronouncements, the argument on whether that is true is not is the discourse for today. The reality is that the pronouncements of the court are weighty to the effect that the Supreme Court of the Federal Republic of Nigeria has the final say in any case, as long as it is not in contravention or inconsistent with the provisions of the constitution. This brings me to the crux of this discussion.
On February 25th, 2023, Nigerians went in their numbers to cast their votes to determine the President and members of the National Assembly for the next four? years. The results as declared by the Independent National Electoral Commission (INEC) are at the heart of several recent political and social conversations. All lights are beamed on the judiciary as Nigerians await the pronouncement of the electoral petition tribunal. What decision will the court make in its interpretation of the ultimate law of Nigeria?
The 3rd Ground for the petition before the presidential election tribunal was that the second respondent was not duly elected by a majority of the lawful votes cast at the election in accordance with Sec 134 of the 1999 CFRN. This petition follows Section 134(1)(c ) of the Electoral Law 2022 which provides the 3rd ground on which an election petition can be made. Let us quickly examine the first section of the 1999 Constitution of the Federal Republic of Nigeria. It says:
“This Constitution is supreme, and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
Section 1(2) further provided that “The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution”.
Essentially, all the parties to the suit and every concerned citizen of Nigeria anticipates what interpretation the tribunal would give to Section 134(2)(b) of the constitution which states that a candidate for an election to the office of President shall be deemed to have been duly elected, where,
“he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”
What rule of interpretation will the court apply in this case and most importantly how will the given interpretation affect the country?
On the surface, the above-stated provision of the Constitution seems plain, simple, and can be easily understood by the layman but the English language is tricky, and our lawmakers carefully inserted a conjunction; the word “and”. Several lawyers have tried to speak to the intent of the lawmakers in drafting the constitution and while the intent of the lawmakers may not be known to me, what is known however is the right of every Nigerian citizen of voting age to exercise their franchise. The FCT is the country’s capital and while there are several non-indigenes residents there, we sometimes forget there are indigenes who are residents also. If the voting power that determines the president of Nigeria significantly places less importance on the votes of the people (both indigenes and non-indigenes) of the FCT, one wonders then why polling units should exist and elections happen in the FCT to determine presidential elections. One would also wonder why Section 179(2)(b) of the constitution which speaks to gubernatorial elections does not insert a clause separating state capitals from other parts of the state in determining the “two-thirds” requirement.
While the constitution is clear that no person or group of persons shall take control of the government in any manner inconsistent with the provisions of the constitution, Nigerians, and the world if I dare say, await the court’s interpretation of Section 134(2)(b) as indeed, it lies on the judiciary, and only the judiciary to interpret the law. What then will the court decide?
•Faith O. Waziri is an Abuja based lawyer and a champion of women participation in politics. She writes tweets at @onomwem and can be reached via onomwemwf@gmail.com
