The Propriety Of Swearing In A President Before Conclusion Of Challenge To Election

By Ikenna Okoli, SAN, FCIArb. (UK)

The President, Mr Bola Ahmed Tinubu was sworn in on 29 May 2023 as the 16th President of the Federal Republic of Nigeria. This, notwithstanding the ongoing legal challenge of the election that produced him as President. There was a lot of agitations that he should not be sworn in before the conclusion of the cases challenging his election.

Mr Tinubu being sworn in as President has followed the precedence established from President Obasanjo to date. There has always been a challenge to the declaration of a winner of the presidential election except in 2015 when Dr Goodluck Jonathan bucked the trend. In all other instances, despite any ongoing challenge, the declared winner has always been sworn in. We can argue about the propriety of swearing in someone whose election is being contested at the tribunal, but the fact remains that it has always been the practice in Nigeria since the Fourth Republic.

Is the practice of swearing in a person whose election is being challenged legal? There is no law prohibiting it. But is the practice appropriate? Definitely not. It beggars belief that anyone whose election is being challenged in court will be sworn in before the determination of the challenge to the election. Once a president elect gets sworn into office, the dynamics change completely. He becomes all powerful and can influence a lot of things. It will be more difficult to throw him out of office at that point. The person will also have the public funds available to him or her to defend the cases challenging the election.

But rather than the position taken by many people insisting that it is not proper to swear in Mr Tinubu, the appropriate thing to do is to ensure an amendment to the law to ensure that it does not happen again.

Now section 132 (2) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides thus: “An election to the office shall be held on a date not earlier than one hundred and fifty days and not later than one hundred and thirty days before the expiration of the term of the last holder of that office.”

Section 132 (2) deals with the timeline for the election of the President. The timeline provided for holding the presidential election is not long enough to accommodate the conclusion of election petitions before swearing in of the President. That provision needs to be amended to ensure that there is enough time to resolve any dispute that may arise from the election. The election can be concluded nine months before the expiration of the term of the last holder of that office. That way any challenge to the election will be thoroughly exhausted before the swearing in of anyone who was announced the winner of the election.

Of course, in a very rare situation, there may be a case where a rerun may be ordered and the outcome of that rerun is also challenged. There are different ways to deal with the situation. The resulting dispute may not be subject to any appeal so as to ensure conclusion before swearing in or a designated officer holds the rein of office temporarily till there is a resolution as to the winner of the disputed election.

Once a winner of a disputed election is not sworn in till the conclusion of the dispute, the courts will be better placed to render decisions without fear or intimidation.

Besides the issue of the courts and their decisions, it just makes no sense that a disputed winner in any election should be sworn in and begin to exercise the enormous powers of the office of the President of Nigeria.

As President, Mr Tinubu has taken some far-reaching decisions. He has signed the bill increasing the retirement age of High Court judges. He has suspended the obnoxious Mr Emefiele and also suspended Mr Bawa as EFCC Chairman. He has sacked all service chiefs, among other things. What then happens if the court finds that Mr Tinubu was not duly elected and pronounces another candidate as the winner of the election?

But knowing how we approach matters, I think that now that Mr Tinubu has been sworn into office, the matter will take a back seat till the next round of elections. The time is now to sensitize ourselves and ensure that pressure is mounted on the legislators to ensure that the proper thing is done. It has nothing to do with any particular person, but it is not proper that anyone should be sworn into office whilst the election that produced the person is still being challenged.

Ikenna Okoli, SAN, FCIArb. (UK), Surulere, Lagos