Tuesday, 10 December 2013
Awolowo vs. Shagari: The Day The Law Died In Nigeria By Seyi Olu Awofeso
Justices of Nigeria’s Supreme Court hunkered down in defensive crouch to interpret a set of impossible facts on September 26, 1979.
Justice Fatai Williams presided; flanked by Justices Irikefe, Bello, Idigbe, Obaseki, Uwais and Kayode Esho, to decide the 1979 presidential election petition brought by Chief Obafemi Awolowo against Alhaji Shehu Shagari.
According to the results announced on 16th August, 1979 by the Federal Electoral commission (FEDECO), Shehu Shagari scored 5, 688, 857 votes nation-wide whilst Obafemi Awolowo had 4, 916, 651 votes.
Awolowo did not dispute these figures but rather contended that Shagari’s scores were in-sufficient, because the law required a returned candidate must fulfil two conditions simultaneously; namely to have the highest number of votes, which Shagari had, but also have “…not less than one quarter of the votes cast at the election in each of at least two thirds of all the (19) states within the federation.” – which Shagari did not have, according to Awolowo.
By the declared results agreed, Shehu Shagari got 25% of the votes cast in twelve (12) states; namely: Bauchi, Bendel, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. The 13th state was the issue. It was Kano state – where Shagari scored 243,423 votes, equivalent to 19.4% of the 1,220,763 votes cast in total.
On those agreed facts, Awolowo prayed the Nigerian Supreme Court to declare as follows:- that although Shagari received 5,688,857 nationwide at the said election, Shagari still had less than 25% of the votes cast at the election in each of at least two thirds of all (19) states in the federation, and, the Election Tribunal was wrong to declare, based on the result in Kano State, that “…. 25% of two-thirds of the votes in Kano State is 203, 460.5 votes….,” and, therefore:
· "The Supreme Court should now determine that the said Alhaji Shehu Shagari was not duly elected or returned and that his election or return was void."
Awolowo argued that the phrase “…in each of at least two thirds of all the states within the federation.” means thirteen (13) states because there is nothing either in the Electoral Decree of 1977 or the Electoral (Amendment) Decree of 1978 authorizing fractionalization of a state for the purpose of determining two thirds of its votes.
Further, he contended that insofar as fractionalization of a state in this context is un-lawful, the phrase should instead be interpreted to mean that a candidate must score 25% of the votes in at least 13 out of the then 19 states in Nigeria.
It is wrong logic to determine two thirds of the votes in Kano by dividing the 1,220,763 total votes cast in Kano by two-thirds to arrive at 813, 842, and then declare Shagari’s own votes of 243,423 in Kano as greater than 25% of the total votes cast in Kano, since that will be tantamount to Shagari’s return as validly elected on the basis of one-sixth of the total votes in Kano State, contrary to law, Awolowo argued.
“The phrase ‘.........in each of at least two thirds of all the states within the federation’ does not mean ‘in each of at least two thirds of all the votes within the federation’ “, Awolowo averred, “because states are not equivalent to votes in that phrase by any literal interpretation”.
Shagari disagreed and contrarily argued that the word “states” indeed means votes within that phrase. Shagari submitted that his own total score of 243,423 in Kano state should therefore be held constant, whilst scaling down the total votes of 1,220,763 cast in all of Kano state by one third, to thereafter calculate and approve that he indeed scored 25% of the votes in Kano State.
“Oh, no!” Awolowo retorted. “To do so is nonsense, because in the event that states are to be treated as votes, contrary to law, the proper course would be to scale down Shagari’s own votes in Kano state by one third simultaneously with the scale-down of the total votes cast in all of Kano state by the same one third, so as to determine if Shehu Shagari scored 25% of the votes in Kano State.”
Shagari demurred. “If you do that, it will be an in-direct way of approving Awolowo’s interpretation that the law stipulating that a winning candidate have ‘not less than one quarter of the votes cast at the election in each of at least two thirds of all the (19) states within the federation’ means a winning candidate must score 25% of the votes in 13 states, which would impose on me a higher burden than the one required by law”.
Chief Justice Fatai Williams read the lead judgment of the Supreme Court after hearing these arguments.
He first of all admitted on court records, in writing, that the Electoral Law as phrased is a “clumsily worded section”, but then rather oddly said “this clumsily worded section” is (nevertheless) “devoid of any semantic ambiguity”.
This was the philosophic pivot of the resulting court judgment. Now, for starters, in a sound exegetical analysis, can a clumsily worded law or statement be devoid of semantic ambiguity at the same time, as the Supreme Court held?
The Supreme Court of Fatai Williams with Justices Irikefe, Bello, Idigbe, Obaseki, Uwais, concurring, said yes. But verbal reasoning till now says no, because ‘meaning’ is the sole and ultimate purpose of law or speech. A clumsily worded law or statement must necessarily lack meaning, for otherwise; it would be a contradiction of terms.
A law is a law only when it has a meaning. If a drafted law lacks meaning it is not a law. No duty falls on any court of law to render it a meaning since no court has legislative jurisdiction to enact a law. The Latinate maxim "ut res maqis valeat quam pereat" - clutched as straw by the Supreme Court - does not authorize judicial legislation.
A meaningless law is, instead, un-erringly void; pro tanto.
And so, by parity, a statement with 'no semantic ambiguity' cannot at the same time be 'a clumsily worded statement or law', as the Nigerian Supreme Court illogically decided, but instead, would be a well-phrased one, as a matter of logical consistency.
Reasoning properly is the sole means and purpose of adjudication - not the sterile quotations of precedents or sections of law. For after all said and done, justice is the full and final search of meaning of either an event, a fact or a law. No previous case displaces the need to reason afresh, not least because the law must follow the facts, but also that no previously decided case can be so controlling as to displace the need to reason a case anew since no set of facts is ever the same.
To mistake precedent of court cases for knowledge is to engage in something other than law, because previously decided court cases can at best guide on principles rather than control the gritty specifics of a present case.
Therefore, to reason afresh is more compelling in a case of first impression for having no previously case as guide. That class of cases thus calls forth all of the reasoning power of a human being who is authorised to decide; but once that reasoning power fails, for any number of reasons, society invariably loses faith in the future ability of that law decider.
As here, and tellingly too, the records before the Nigerian Supreme Court showed that the Election Tribunal, as the court of first instance, had found that “….25% of two-thirds of the votes in Kano State is 203, 460.5 votes…..”.
This crass finding by the Tribunal ought to have set alarm bells ringing in the Supreme Court, because 0.5 vote, as equivalent to half a vote, is a factual and legal impossibility.
Yet, none of the Supreme Court Judges nullified this atrocious finding on point of law.
As such, once the Supreme Court Justices then progressed to mix up logical reasoning in Awolowo v. Shagari, by declaring the law at issue as “clumsily worded” and yet “devoid of any semantic ambiguity” - thus meaning it has the same clarity as an excellently worded phrase - nothing else recommended that court’s declaration of law.
That’s why September 26, 1979 was the day the Supreme Court in Nigeria failed verbal reasoning the most.
For after absurdly declaring 'votes' as equivalent to 'states' - on the basis that the Electoral law did not stipulate rounding off a 'state' to the nearest number of 13 in the event of fractions - the court quickly entered into self-refutation by nodding in approval at the fractionalisation of a vote in Kano State; as 0.5, in calculating 25% of two thirds of the votes in Kano.
Then, without any clear or convincing reason, the Supreme Court gaily wrote down its reasonless assertion as legal conclusion.
More in levity than not, the Supreme Court declared that winning “not less than one quarter of the votes cast at the election in each of at least two thirds of all the (19) states within the federation”, means;
· winning 25% of the votes cast in 12 states, and thereafter,
· winning 25% of two thirds of the total votes cast in the 13th state, by scaling down the total votes cast in the 13th by one-third, without correspondingly scaling down the vote of the winning candidate by the same one-third,
· dividing the scaled down total votes cast in that 13th state by the intact votes of the leading candidate in the 12 states.
In effect, the Supreme Court cancelled out one third of all the votes cast for Obafemi Awolowo in Kano State, and then cancelled one third of the votes cast for the three other candidates in 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 Kano State; after cancelling out one-third of Awolowo’s votes in Kano state and after cancelling one-third of the votes of the other three candidates, whilst leaving all of Shagari’s votes in Kano State intact.
………………Seyi Olu Awofeso is a Legal Practitioner in Abuja