Yesterday, the 6th of September, 2023, the Presidential Election Petition Court (the Nigerian Court of Appeal) finally gave a judgement on the presidential election petitions arising from the 2023 general elections in Nigeria dismissing the petitions before it on many grounds.
In the process of delivering its judgement, the court made some declarations. Some of those declarations brought an expected end to debates that have dominated the political space in the past few months— the most significant of those debates being the controversy around getting 25% in the FCT and the controversies around President Bola Ahmed Tinubu’s struggles with the US justice system over allegations of drug trafficking.
While the court, in its wisdom, held on the 25% in the FCT controversy, per Harruna Tsammani, JCA, that the FCT is neither superior nor inferior to any other state, thereby rendering the petitioners’ arguments against respondents toothless, it is the declaration of the Court on PBAT’s drug-related controversies that have caused the more significant uproar amongst Nigerians— in large part due to a lack of understanding on the people’s part, rather than injustice or incompetence on the part of the justices. This article seeks to clarify the position of the law with respect to the controversy, in an attempt to help the agitated citizenry understand the reasoning of the court.
The article first addresses the relevant position of the constitution as well as the Electoral Act with respect to the qualification of persons to run for the office of the president vis-a-vis the controversy; then goes on to perform an analysis of the facts as established and proven before the Court of Appeal. Finally, the article reconciles the constitutional and statutory provisions relating to candidate qualification with the decision of the Court of Appeal.
A good way to start would be to establish that the court is under a duty to consider evidence before it. It is not within the job description of any court to help a party look for evidence to support its case.
Flowing from the above, it becomes pertinent to establish that the petitioners in this petition raised the issue of non-qualification due to an alleged criminal indictment, and had gone ahead to contend that in 1993, Tinubu forfeited $460,000 in the US, and Exhibit PA5 was tendered as evidence to solidify this claim. The Court of Appeal, however, ruled that Exhibit PA5, which is believed to be the certified true copy of a United States of America (USA) District Court judgment, which reportedly ordered Asiwaju Bola Ahmed Tinubu’s forfeiture of $460,000 from drug-related offences, only shows a civil forfeiture and not a criminal one, leaving it the product of an action in rem and not in personam.
In explaining the above, it is important to first produce the provisions of Section 137(1)(e) of the Constitution of the Federal Republic of Nigeria, 1999, which provides, “137. (1) A person shall not be qualified for election to the office of President if -
(e) within a period of less than ten years before the date of the election to the office of President, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct.” In essence, the constitution is clear that for a person to validly contest in an election to become president, he must not have been “convicted and sentenced” for an offense involving dishonesty. It is important to note that the use of the word “offense” is indicative of crime; hence, this provision relates solely to criminal proceedings.
While forfeiture of $460,000 to the US may be indicative of some dishonest dealings, the concept of forfeiture in law exists on three different levels— criminal, civil, and administrative. This article concerns itself with the first two.
Forfeiture is a weapon to combat corruption, and it takes place through a judicial or administrative procedure that transfers the ownership of specified funds or other assets to the State. According to the Court in Nwaigwe v FRN[(2009} 16 NWLR (Pt. 1166} 169 at 200.], forfeiture is "a divesture of specific property without compensation. It imposes a loss by the taking away of some pre-existing valid right without compensation". In essence, forfeiture is a formidable weapon against the enjoyment of proceeds of crime. It is apposite to state that the concept of forfeiture is deeply rooted in our jurisprudence.
Criminal forfeiture is the term used to describe a type of forfeiture resulting from a criminal prosecution and conviction. This is evident from the language of Section 21 of the EFCC Act, which states that, for the avoidance of doubt and without any further assurance than this Act, all properties of a person found guilty of a violation of this Act and proven to have originated from or been acquired through such an economic or financial crime and have already been the subject of an interim order shall be forfeited to the Federal Government. As a result, it is evident that a criminal forfeiture, in this case, is the result of a conviction; the properties must have been acquired through an economic or financial crime and they must have been the subject of an interim forfeiture order.
Civil forfeiture, which is an innovation of Article 54(c) of the UN Convention against Corruption mandates state parties to; Consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted because of death, flight or absence or in other appropriate cases], is an action in rem against the property as against a person. In rem forfeiture or Non - Conviction Based Forfeiture is a legal mechanism that provides for the restraint, seizure, and forfeiture of stolen assets without the need for a criminal conviction.
As Ashiru and Akinmusire note, Despite the considerable variations between civil and criminal forfeiture, these asset recovery mechanisms share certain features as they are both judicial processes which require the institution of formal actions in Court, the success of which culminate in Court orders directing the transfer of title in the assets to the state. They also aim at ensuring that those who engage in illegal activities do not benefit from their acts which consequently serve as a form of deterrence to the general public. Generally, it is easier for the prosecution to get back the proceeds of a crime using civil forfeiture because of the burden of proof on the balance of probability which is usually easier to achieve compared to the proof beyond reasonable doubt that would be required in criminal forfeiture.
On the authority of Oti v. EFCC (2020) 14 NWLR (Pt. 1743), Non Conviction Based Forfeiture is typically the outcome of an action in rem. It does not involve the trial and conviction of a person.
Similarly, the authors of the Guide For Non-Conviction Based Asset Forfeiture (World Bank 2009) opined that where criminal and NCB asset forfeiture differ is in the procedure used to forfeit assets; with the main distinction between the two being that criminal forfeiture requires a criminal trial and conviction, whereas NCB asset forfeiture does not. Criminal forfeiture is an action against the person; while civil forfeiture is an action against the property.
Exhibit PA5 as tendered by the petitioners only show that the forfeiture alleged was civil in nature; as a result, the constitutional provision for disqualification has not been met. This is because, in the eyes of the law, PBAT has not been criminally tried.
Another thing worth noting is the effluxion of time occasioned by the fact that the case of forfeiture having been resolved since 1993 is well over 30 years now. Why it is even an argument in the first place continues to boggle the sound mind, since the constitution in S137(1)(e) was clear to set the limit at 10 years before the date of elections.
Flowing from all of the above, this paper agrees with the decision of the Court of Appeal to dispose of the petitioners' “strange complaint about the respondent’s qualification to contest election to the office of President of the Federal Republic of Nigeria"; and the writer thinks you should agree too.