By Onikepo Braithwaite
Court of Public Opinion v Court of Law: Law and Morals
I have said a few times that the way issues are considered and litigation works in the court of public opinion in Nigeria, is usually not the way proper law and litigation work in actual legal proceedings and courts of competent jurisdiction. And, usually, when the legal outcomes are not what the public desires or expects them to be, they are unhappy, they cry foul and are up in arms against the Judiciary, legal system, and even the Government. But, one of the reasons for the difference between the judgement of the court of public opinion and a court of law, is that the former is mostly based on morality and emotions, while the latter is based on statute and legal principles. I’m sure that I may have referred to the theory of ’Inclusive Legal Positivism’ in the past. It basically holds that law and morals are conceptually different, but can and sometimes do intersect. What is considered immoral, isn’t always unlawful. Marrying two sisters may be considered to be immoral, but not unlawful, while stealing is both immoral and unlawful. Even abortion which is considered to be murder and a sin as far as morality and religion are concerned, isn’t illegal in all jurisdictions – it is called the ‘right to choose’ in certain places.
It is possible for a legal system to incorporate moral standards into its legal reasoning, where moral reasoning becomes part of what the law is, for instance, the Sharia legal system that’s operated in Saudi Arabia.
Nigeria keeps morality separate from its legal system, and with the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) excluding criminal jurisdiction from the Customary and Sharia Courts, it further narrows the many things which are immoral and could be offences as far as custom or religion are concerned, from being statutory offences in Nigeria. So, for example, fornication and telling white lies may be considered to be immoral, and most religions certainly adjudge them to be so, but the Constitution cherishes freedom of speech and association and upholds them as fundamental rights (see Sections 39(1) & 40 of the Constitution). The first mistake of the court of public opinion is equating immorality with illegality, and without following any due process, delivering judgement on that basis.
Constitution Isn’t Self-Executory
However, though a Constitution is the supreme law (see Section 1(1) of the Constitution), it is not always self-executing, nor is it a complete working code. Most of what it requires is executed or carried out through ordinary laws, institutions, and procedures created under it. The Constitution creates the State, allocates power, sets limits, and states principles. Some clauses operate immediately: they confer jurisdiction, create offices, or invalidate inconsistent laws. Others only state a goal or a duty, and leave the details to later legislation.
In a few months, Nigeria will be going into its eighth general elections since the inception of the Fourth Republic. The elections will cover four positions – President/Vice President (see Sections 130, 131 & 137 of the Constitution); Governor/Deputy Governor (see Sections 176, 177 & 182 of the Constitution); National Assembly – Senate and House of Representatives (see Sections 47, 65 & 66 of the Constitution); State House of Assembly (see Sections 90, 106 & 107 of the Constitution) [see these aforementioned sections of the Constitution on the establishment, qualifications, and disqualifications for these offices]. The Constitution has explicitly stated the qualifications for these offices and what would disqualify an aspirant for same, but, the details of how challenges or disputes that arise from these provisions should be addressed are not provided therein, that is, the provisions are not self-executory.
Though some disqualifications are not clear cut, and cannot be acted upon because of a say-so or circumstantial evidence, others are obvious, and in some situations INEC may not accept nominations from such an overtly unqualified aspirant. For instance, contrary to Section 65(1)(a) of the Constitution which stipulates 35 years of age, if a one year old baby in diapers is supposedly running for Senate, it is obvious to the naked eye that the baby isn’t qualified, and INEC cannot be expected to accept the nomination of a baby candidate. It was probably because of the absurdity that could result from the provision, that the old Section 31(1) of the 2010 Electoral Act (as amended) which provided that INEC couldn’t disqualify a candidate for any reason whatsoever, was deleted from the law.
Likewise, the constitutional disqualifications due to criminal sentences and convictions are also quite clear – 1) a person under a sentence of death imposed by a competent court of law or tribunal in Nigeria (a sentence of death or any conviction imposed by a Sharia Court wouldn’t qualify, because the Constitution doesn’t endow a Sharia Court with criminal jurisdiction); 2) under a sentence of imprisonment for any criminal offence imposed by a court or tribunal or substituted by a competent authority for any other sentence imposed by such court or tribunal – that is, the person is still serving or bound by the sentence; 3) if within a period of 10 years before the election, such person has been convicted and sentenced for an offence involving dishonesty or been found guilty of breaching the Code of Conduct – a person convicted of a non-dishonesty offence such as straight forward armed robbery, will not be bound by this 10 year rule.
The truth is that, unproven criminal allegations are not convictions. And, even when they are convictions, the Constitution has stated how these convictions can impact candidates. A suspect is also entitled to the presumption of innocence, until proven guilty – see Section 36(5) of the Constitution; Ogwo v State (2026) LPELR-83571(SC) per Adamu Jauro, JSC where the Supreme Court reiterated Section 36(5). Of course, the argument of cynics is that the system delays the prosecution of high profile suspects particularly politicians, so they are not disqualified either by being caught under a sentence, or suffer the 10 year ban after being convicted.
President Tinubu’s Example
Those pushing the campaign against President Bola Tinubu, GCFR, based on a Chicago controversy of the 1990s do not appear to be abreast with the law, if one is examining the matter from the only prism that counts as far as the law is concerned – that of the above-mentioned disqualifications provided in Section 137 of the Constitution regarding a Presidential/Vice Presidential candidate. For one, President Tinubu isn’t under any sentence; secondly, there is no evidence that he was convicted for any criminal offence; thirdly, assuming but not conceding that he was convicted in the 1990s, even if it was a dishonesty offence, the 10 year ban would have expired over 20 years ago.
Disputing Qualifications
The first response as to how a dispute on electoral qualifications can be resolved comes from Section 6(6)(b) of the Constitution, which extends judicial powers, inter alia, to the determination of all matters between persons or persons and institutions, which would definitely include those qualifications or disqualifications, excepting only matters covered by Section 6(6)(c) of the Constitution. Such disputes are resolved by the court.
The second response lies in the statutes concerning electoral qualifications. Section 29(5) of the Electoral Act 2026 (EA) provides that only a fellow aspirant of the same political party who partook in the primaries, can challenge a candidate’s constitutional eligibility if they have reasonable grounds to suspect that the candidate provided false information concerning their constitutional qualifications in the forms submitted to INEC. Such fellow aspirant must file their case as a pre-election matter at the Federal High Court, seeking a declaration that the information is false, and the suit must be filed not later than 14 days from the date the cause of action arose – see Section 285(9) of the Constitution. The sum and substance of this is that, though the qualifications and disqualifications are provided by the Constitution (‘constitutional matter’ as the public is always quick to remind us), the Constitution has only set the limits of qualifications and disqualifications. The EA is the law that stipulates, how some of these qualifications can be challenged. Those who have the locus standi to make the challenge are explicitly mentioned in Section 29(5) of the EA – it is restricted to only fellow aspirants, who participated in the primaries with the candidate with the suspicious qualifications.
And, where a Claimant doesn’t have the locus standi, that is, the right to bring an action, the court lacks the jurisdiction to hear the matter. In Adebiyi v DaSilva & Ors (2024) LPELR-62590(SC) per Chioma Egondu Nwosu-Iheme, JSC, the Supreme Court held that: “A person is said to have locus standi to sue in an action if he is able to show to the satisfaction of the Court, that his civil rights and obligations have been or are in danger of being infringed”. Similarly, in Okonjo-Iweala v Saheed Fawehinmi & Ors (2025) LPELR-80384 (SC) per Stephen Jonah Adah, JSC, the Supreme Court held inter alia thus: “This duty can only be carried out by one who is injured by the said act of the Respondents. The Court, therefore, must shun the temptation of giving a blank cheque to everyone, to prime up the zeal to approach the Court over every decision of the Executive and the Legislature. This will not be a problem, if there is no abuse. There is, in our clime, high tendency of abuse of such an unguarded open door, which will cause a floodgate of baseless and irritable litigations that will worsen the congestion that is rocking the Courts”.
The rationale behind both decisions seems to be that, it is only a person who is directly affected by an action, that has the right to institute legal proceedings to correct that action. In the case of primaries, it is a fellow aspirant that is directly affected. If fellow aspirants are directly affected by the constitutional qualifications of each other, so also should fellow election candidates be so affected. This principle should easily be extended to fellow candidates in an election. And, just as a fellow aspirant can bring such a challenging action after the primaries, so also should a fellow candidate be able to bring the same challenge against fellow candidates or the winner, after the election, as part of their election petition. Unfortunately, challenging constitutional qualifications is not open to candidates, as it’s no longer one of the grounds upon which an election petition can rest – see Section 138 of the EA. The new Section 138 of the EA which replaced Section 134 of the 2022 EA operates as an ouster clause – ousting the right of aggrieved candidates to sue on constitutional qualifications. This operates as a denial of the candidates’ right to fair hearing, guaranteed by Section 36(1) of the Constitution.
However, this brings us to the conundrum. It appears that during the period before the elections, no one has the locus standi to challenge constitutional qualifications under civil jurisdiction (aside from aforementioned fellow aspirants) and in some cases, INEC which may be able to refuse a nomination as described above.
Then, there’s the question of getting a constitutional judicial review of Section 138 of the EA, on the ground that it denies candidates of their right to fair hearing on constitutional qualifications, is inconsistent with Section 6(6)(b) of the Constitution and should therefore, be declared unconstitutional to this extent (see Section 1(3) of the Constitution). Firstly, which venue would such a Petitioner ventilate this issue? An election petition tribunal may not be the proper venue for this. Should it be the Federal High Court? The argument for the establishment of a Constitutional Court to determine these types of questions, still lingers on. Of course, the allegation simpliciter that a candidate isn’t constitutionally qualified, should normally be able to be part of an election petition. But, it goes beyond that. Examining the law itself, is necessary.
Secondly, the review of the law cannot arise until the locus standi of the Petitioner who is demanding for the review is established. This requisite locus standi for candidates, will most likely be ignited by the elections (just as it is ignited for aspirants by primaries). It would then make the argument of fellow candidates that they suffer direct injury viable, not just because an unconstitutionally unqualified candidate may have partaken in the election, but also that such a candidate is declared the winner of the election, and allowed to take up the position. See Adebiyi v DaSilva & Ors (Supra).
Conclusion
A challenge of the constitutional qualifications of a candidate before an election in the court of public opinion, doesn’t appear to be able to achieve any tangible results, possibly apart from being a source of embarrassment and discomfort to such candidate. As long as morality remains separate from law, morality is mostly of no relevance in law.
In a court of law or tribunal, such challenge or quest to have a candidate disqualified or prevented from taking part in an election, apart from the Section 29(5) of the EA mode, amounts to an abuse of court process, because the law as it stands, doesn’t seem to permit it. In certain jurisdictions, Counsel that bring actions that abuse the court process, thereby wasting the precious time of the courts, usually face sanctions, which serve as a deterrent to others.
Sections 29(5) & 138 of EA have converted a constitutional matter to an intra-party squabble, and deleted it from election petitions. Seeking the invalidation of Section 138 of the EA for denying candidates who may have locus standi their right to fair hearing, its attempt to override Section 6(6)(b) of the Constitution, and allowing those who do not meet the constitutional qualifications to slip through the cracks, may be desirable.
