It should be recalled that sometime, about two days ago, I posited that Buhari had only a moral and ethical obligation to tender his WAEC certificate and not a legal one. However, after a careful perusal of the law, I want to retract that statement as it appears not to represent a legal and factual analysis of the matter. A factual and LEGAl analysis subject to the pronouncement of the Court on the issue, appears to suggest that Buhari in fact owes a legal duty to tender his WAEC certificate; the failure if which may disqualify him from contesting in 2019.
It must be noted that my previous but seemingly erroneous position that Buhari didn’t owe a legal obligation was predicated on the express provision of the 1999 Constitution of the Federal Republic as amended. A careful perusal of Section 318 at first glance appears to lead to the conclusion that Buhari does not owe a legal obligation to tender his certificate. However, it should be noted that the Constitution is not the only law that regulates the conduct of elections in Nigeria. The Electoral Act also does. While the Constitution in fact does not require a WAEC certificate, Buhari has found himself by his own doing, caught up with a provision of the Electoral Act. The error I and other senior colleagues and SANs who have supported Buhari have made is that we only considered the provision of the constitution and not the Electoral Act (EA) in light of the peculiar facts of Buhari’s case.
Section 31(2) of the E. A. requires every candidate to swear an affidavit that he has fulfilled all the constitutional requirements for election into office. Section 31(4) allows “any person” who reasonably believes that any information given by the candidate in the affidavit is false to file a suit at the High Court. Section 31(6) provides that were a court finds that a person has made a false statement in his affidavit, the court shall issue an order disqualifying the candidate from contesting the election.
In Buhari’s case, if he had not said in his nomination form that he had WAEC certificate, it won’t have been an issue since the constitution does not necessarily require same. However, having stated that he has it, Section 31(5) places a legal obligation on him to ensure that such claim is not false for if it turns out to be, he would be disqualified in pursuance of Section 31(6) of the Electoral Act. The need for Buhari to provide a WAEC certificate is therefore not legally necessitated by the Constitution but by his own assertion in his nomination form that he has it.
Everyone, whether SAN or not who have therefore argued before now that Buhari does not need a WAEC certificate appear to have been wrong. While any or other Presidential candidates in Nigeria may not necessarily need a WAEC certificate, Buhari does because he has claimed to have it. Any other presidential candidate who also claims to have any certificate, even a Masters must also provide it as a legal neccessity even though the constitution does not require a masters.
Let it be noted that this piece does not address the issue of authenticity of Buhari’s claims. It simply seeks to debunk the argument that Buhari does not need a WAEC certificate. The present situation of Buhari is thus first a situation of facts and then a situation of corresponding law to his own peculiar factual situation.
In light with Section 31(5) which allows anybody who believes a candidate has given false information to approach the court, one of my colleagues has approached the court that Buhari lied about his WAEC qualification. See the annexures below.
The court would finally determine whether Buhari’s claims was false or not but no one can reasonably say anymore that Buhari’s need to tender his WAEC is not a legal one; more so as his failure to so do may lead to his disqualification.
AUTHOR: J.A. AGUNBIADE he is a lawyer practising in Lagos. You can contscc him on Facebook at Adeseewo Agunbiade