Nigeria first participated in presidential elections over 43 years ago, in October 1979. The introduction of this form of government was not particularly promising. Just four years later, in December 1983, Major-General Muhammadu Buhari led a military coup that overthrew the newly established democratic system. Subsequently, the military ruled Nigeria for another 14 and a half years. During the 1979 elections, the military supervised the electoral process under the Electoral Decree No. 73 of 1977. This decree stipulated that the winning candidate must not only receive the highest number of votes but also achieve a minimum of 25% of the votes cast in at least two-thirds of Nigeria’s states. At that time, Nigeria had 19 states—10 in the north and nine in the south. However, two-thirds of 19 is not a whole number, and this oversight would have significant consequences.
When the votes were counted, Shehu Shagari, the candidate from the National Party of Nigeria (NPN), received the highest number of votes but only achieved 25% in 12 of the 19 states. In Kano, the 13th state, he garnered approximately 20%. Despite this, the Federal Electoral Commission (FEDECO) declared him the winner. Chief Obafemi Awolowo, who came in second as the candidate of the Unity Party of Nigeria (UPN), challenged the outcome before the election petition tribunal. If he had succeeded, a second round of voting would have been necessary to determine the winner. The case ultimately reached the Supreme Court of Nigeria. With the military committed to handing over power on October 1, 1979, and elections held on August 11, there was only a brief 50-day window before the transition. Just four days before the military’s scheduled handover, on September 26, 1979, the Supreme Court announced its ruling. Six of the seven Justices concluded that to calculate two-thirds of 19, one needed to determine 25% of the votes cast in the 13th state. This judicial interpretation allowed them to declare Shagari’s 20% in Kano sufficient to meet the threshold, asserting that FEDECO’s declaration of a winner was “in substantial compliance” with the Electoral Act.
Since 1979, the legal standard for announcing election results in Nigeria has been “substantial compliance.” This term has proven to be subjective and has gradually lost its meaning over four decades of electoral manipulation. While the standard itself has remained unchanged, the circumstances surrounding its application have varied significantly. For example, in 2007, the Supreme Court ruled that an election conducted without serialized ballot papers did meet the standard, arguing that such a scenario did not inherently favor any candidate but rather created a level playing field for rigging. As Nigeria approaches the 2023 presidential election, the interpretation of “substantial compliance” will likely be crucial, particularly in light of pervasive insecurity that may hinder voting in several locations across the country.
Historically, elections in Nigeria have been marred by violence, but 2023 presents a unique challenge, as there is a real possibility that voting may be impossible in many areas. Professor Mahmood Yakubu, the chairperson of the Independent National Electoral Commission (INEC), has expressed concerns about the potential interference of multiple insurgent groups with the electoral process. Reports from security services and independent monitors paint a grim picture. In December 2022, the Blair Institute for Global Change warned that insecurity posed a significant threat to Nigeria’s democracy. The International Crisis Group reported that at least 10,000 Nigerians were killed in armed conflicts and over 5,000 were abducted from January to mid-December 2022. Furthermore, incidents of armed conflict were reported in at least 550 of Nigeria’s 774 local government areas during the same period.
Estimates regarding the number of communities or voters affected by insecurity vary. A report by the Vanguard newspaper on January 8, 2023, suggested that elections could be hindered in hundreds of locations across up to 14 states. On October 2, 2022, Thisday newspaper cited an assessment from Nigeria’s security services indicating that insecurity could prevent elections in 686 communities or wards across at least 90 local government areas and 18 states, representing 7.78% of the 8,812 wards in the country. Without knowing the voting population in these wards, it is impossible to estimate how many registered voters would be affected, but the number is likely to be in the millions. Even if voting occurs in some of these areas, the violence could deter turnout, as voters may choose to stay home rather than risk their safety.
The implications of insecurity on such a scale are profound. If the number of registered voters in the affected areas equals or exceeds the margin between the top two candidates, it would be impossible to declare a winner. Additionally, if the number of affected voters in a state is significant enough, it could raise questions about whether a candidate could achieve the required 25% of the votes cast. The decision on whether elections will proceed to a runoff may hinge on whether insecurity precludes “substantial compliance” in a handful of states, creating a legal gray area.
In a related development, insecurity has already claimed its first electoral casualty. On January 13, 2023, the Supreme Court disqualified the candidate of the Peoples’ Democratic Party (PDP) in the Imo West Senatorial Zone from contesting in the upcoming elections. The court ruled that the primaries that produced him took place in Owerri, the state capital, rather than Orlu, the zonal headquarters, despite the change in venue being necessitated by severe insecurity. As the country approaches the elections, the concept of substantial compliance will face intense scrutiny, potentially influencing the outcome of the presidential race.
Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy and can be reached at chidi.odinkalu@tufts.edu.
Credit: [Premium Times](https://www.premiumtimesng.com/opinion/577158-how-insecurity-could-decide-nigerias-next-president-by-chidi-anselm-odinkalu.html)
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