I believe that the 2023 presidential elections should be challenged in court. I have written this example of the legal brief for anyone interested. But remember, I am not a lawyer!
Mr or Mrs ABDE v Federal Government of Nigeria
The Plaintiff
Mr or Mrs ABDE.
The Defendant
Government of the Federal Republic of Nigeria and a member of the African Union.
The Claim
The Plaintiff avers a) that the 1999 constitution of Nigeria is invalid and of no legal effect, and b) that asking him to vote in the 2023 presidential elections, scheduled for 25 February 2023, under this invalid constitution infringed and violated his right to vote in a free and fair election.
Relief sought
The Plaintiff respectfully asks the Court to compel Nigeria to remove the constitutional obstacle, that is, the 1999 Constitution of Nigeria, which has the effect of preventing his participation in a free and fair 2023 presidential elections on 25 February 2023.
Relevant law
The Plaintiff avers that his right to choose his president in a free and fair election was guaranteed by Article 13.1 of the African Charter on Human and Peoples’ Rights which says: ‘Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.’ The African Charter was written into Nigeria’s domestic law in 1983.
The right to vote is not provided for in any Constitution of Nigeria enacted since independence on 1 October 1960. Nevertheless, the right to vote has been granted since then to every adult citizen of Nigeria by convention, and implied by conduct.
The right to vote is fundamental to democracy and to the rule of law, which Nigeria purports to practice. It is the right to vote that enables Nigeria’s citizens to access Fundamental Rights, such as, the rights to freedom from discrimination, to freedom of opinion and expression, to freedom of association and peaceful assembly, to freedom of movement as well as the rights to education and to information.
Jurisdiction
Any Court of Record in any state in Nigeria has jurisdiction and inherent powers to adjudicate this case, provided that the court is located in the Plaintiff’s own state of domicile, and that that court is not listed as ‘federal’ in any of Nigeria’s Federal Constitution since 1 October 1960.
The doctrine of ‘inherent powers’ gives the court independence from external interference. The doctrine is recognised under Nigerian Law. The doctrine was defined in Pearse v Oloyede & ORS (2013) LPELR-22086(CA) as, ‘ …a source of law which is peculiar and special to civil procedural law. The jurisdiction of the court which is comprised within the term “inherent”‘ is that which enables it to fulfil itself and effectively as a court of law.’
The Supreme Court in Col. Halilu Akilu v Chief Gani Fawehinmi (NO.2) SC.215/88 – SC.216/88 said: ‘Inherent jurisdiction or inherent power, (as it is more commonly called) of court is that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any court of record to supplement its express jurisdiction and powers.’
According to the Supreme Court in Adigun V AG of Oyo State (1987) 2 NWLR (pt. 56) 197, ‘An inherent power has to be inherent in the sense that it forms an essential and intrinsic element in the whole process of adjudication. It is innate in a Court, and is not a subject of specific grant by the Constitution or by legislation. That is why inherent powers of the Courts cannot be taken away or abridged by legislation…’
The Supreme Court in Ugba & Anor v Suswam & Ors (2014) LPELR-22882 (SC) said: ‘Apart from its powers derived from the Constitution which remain extant and unimpaired, the Supreme Court is also imbued with inherent powers as explained in Connelly v D.P.P. (1964) A. C. at P. 1301 where Lord Morris said ‘There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it act effectively within such jurisdiction. I would regard them as powers which are inherent in its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process’.
nb: It should cost less than N2,000 to file the case at court. It would cost about the same amount for the court itself to serve the case on the Attorney General or you could simply post it yourself via a courier service!
Background to the case
Nigeria’s 1999 constitution is illegitimate, illegal and of no legal effect because it was a fraud perpetrated on Nigerians by General Abdulsalami Abubakar, an unelected military dictator. First, the document was a military decree, Decree No. 24 of 5 May 1999. Indeed, the document was titled a military decree. Since Nigeria ceased to be a military state in May 1999, Decree No. 24 no longer had the force of law from the material date onward. Second, the General was part of a criminal enterprise. He came to power as a result of a military coup. A military coup is a crime against the state. The General had neither the authority nor the standing to impose a constitution on Nigeria.
An objective of the General’s Decree No. 24 was to enable him and his fellow criminals to escape justice. Section 6 (6) of the fraudulent 1999 constitution provides: ‘The judicial powers vested in accordance with the foregoing provisions of this section - (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’
Third, the General knew that for it to have the force of law, the document that he called a constitution had to be ratified by the people. Therefore, he wrote: ‘we the people of the Federal Republic of Nigeria, having firmly and solemnly resolved…do hereby make and give ourselves the following constitution’. The General did not ask the people to ratify it. Instead, he faked ratification.
The African Charter on Democracy, Elections and Governance that Nigeria signed on 2 July 2007, ratified on 1 December 2011, and deposited on 9 January 2012, also rendered the 1999 Constitution illegal and illegitimate. Article 10 , Section 2 required that: ‘State Parties shall ensure that the process of amendment or revision of their constitution reposes on national consensus, obtained if need be, through referendum.’
Article 2 (4) required State Parties to ‘Prohibit, reject and condemn unconstitutional change of government in any Member State as a serious threat to stability, peace, security and development…’ Article 23 prohibited military governments: ‘State Parties agree that the use of, inter alia, the following illegal means of accessing or maintaining power constitute an unconstitutional change of government and shall draw appropriate sanctions by the Union: 1. Any putsch or coup d’Etat against a democratically elected government…5. Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.’
The Independent National Electoral Commission (INEC) was established by Section 153(f) of the 1999 Constitution to, among other things, organize elections into various political offices in Nigeria. No valid elections can be held under the auspices of INEC because the 1999 constitution that created it is illegal and illegitimate. Thus, any attempt to hold elections under the fraudulent 1999 constitution commits a breach and an infringement of the Plaintiffs’ right to vote.
Locus standi
Disclosure of locus standi by the Plaintiff enables the court to assume jurisdiction. The public importance of the case is irrelevant. The law required that the judgement of the court must confer a personal benefit to the Plaintiff. A Plaintiff can only ask the court to protect his own civil rights and obligations.
The Court of Appeal in Shibknu v. Attorney- General of Zamfara State [2010] 10 N.W.L.R. (PT 1202) 312 @ 341 said that it was: ‘…a bounden duty of a plaintiff to show that he has locus standi in a suit, especially one which has been commenced by way of originating summons. Such a plaintiff has to disclose his special interest or the actual threat or injury that he will suffer from the infringement complained of.’
The Plaintiff’s ‘special interest’ in this instance is his right to vote. The ‘injury’ that he would suffer was deprivation of his right to choose his president in a free and fair 2023 election. The Plaintiff avers that the 2023 election could not be free and fair because the 1999 constitution under which the election was proposed to be held is a fraud.