Nigeria first voted in presidential elections just over 43 years ago, in October 1979. The introduction to this form of government was not very auspicious. Four years after the experience, in December 1983, Muhammadu Buhari, then a major general in the Nigerian army, overthrew the system. Thereafter, the soldiers ran the barn for another 14 and a half years.

In 1979, soldiers supervised the elections. To govern it, they promulgated Electoral Decree No. 73 of 1977, which required that the candidate who obtained the most votes and also achieved a minimum of 25% of the votes cast in at least two thirds of the votes be the winner. states in Nigeria. So there were 19 states; 10 in the North and nine in the South. Two thirds of nineteen was not a whole number.

The lack of attention to this piece of elementary arithmetic would be consequential. When the vote was taken, it turned out that the candidate with the highest number of votes, Shehu Shagari of the Nigerian National Party, won 25% in 12 of Nigeria’s 19 states. in the 13the state, Kano, got about 20%. The Federal Electoral Commission, however, declared him the winner. Two-thirds of 19 is 12-two-thirds.

Chief Obafemi Awolowo, Nigeria’s top lawyer who came second on the Nigerian Unity Party’s ballot, challenged the declared result before the election petitions court. If he succeeded, the country would have held a second round to decide the winner.

The case went all the way to the Nigerian Supreme Court. The military had pledged to step down on October 1, 1979. Elections were held on August 11, with only 50 days separating election day from the scheduled October 1 handover day. It wasn’t long.

Four days before the date set for the military transfer, on September 26, 1979, the Supreme Court announced its sentence. Six of the seven judges reasoned that in order to reach two-thirds of 19, 25% of two-thirds of the votes cast in the 13th had to be calculated.the Express. Through this act of judicial fission, they determined that the 20% of Kano State scored by Shehu Shagari was sufficient to cross the threshold and that FEDECO’s proclamation of a winner “substantially complied” with the standard prescribed by the Electoral Law. . .

Therefore, since 1979, the legal standard required for the announcement of results in any election in Nigeria is “substantial compliance”. This can be subjective to the point of whimsical. What it means, in fact, has been whittled down to meaninglessness over four decades of multi-agency election sleight of hand.

While the rule has been constant, the circumstances to which it applies have varied. In 2007, for example, the question was whether an election held without serialized ballots to control ballot contamination met the standard. The Supreme Court held that it did, reasoning rather bizarrely that such a scenario did not inherently favor any candidate over others, but essentially created a level playing field.

In 2023, the outcome of the presidential election will surely rest on the meaning of “substantial compliance” in the context of metastatic insecurity that is likely to prevent voting in some parts of the country. Although elections in Nigeria have historically not been complete without violence, 2023 will be the first time the country has faced a real possibility that secure voting will be impossible in a significant number of places across the country.

Assuring the country and the world of the desire of the Independent National Election Commission under his leadership to organize the 2023 elections on schedule, the commission’s chairman, Professor Mahmood Yakubu, has become increasingly fickle about the possibility of that a multiplicity of insurgent groups in different parts of the country could interfere with or impede the exercise of the franchise on a significant scale.

The assessments of both security services and independent monitors are even more worrying. In December 2022, the Blair Institute for Global Change issued a report that insecurity had indeed endangered Nigeria’s democracy. To give an idea of ​​the scale of the violence, the International Crisis Group also reported in the same month that “at least 10,000 Nigerians were killed in armed conflict and more than 5,000 were kidnapped between January and mid-December 2022. Other data indicates that at least 550 of 774 local government areas saw incidents of armed conflict between January and mid-December.

Estimates of the number of places, units, or voters that may be affected vary. He Vanguard The newspaper reported on January 8, 2023 that elections could be blocked in hundreds of places in up to 14 states across the country.

On October 2, 2022, This day The newspaper reported an assessment by Nigeria’s security services that insecurity could prevent elections from taking place in 686 communities or districts located in at least “90 local government areas and 18 federation states.” This represents 7.78% of the country’s 8,812 districts. Without an idea of ​​the voting population of each of these districts, it is impossible to determine the number of registered voters who suffer from this exposure. The number would almost certainly run into the millions.

Even if many of these places do eventually vote, the violence could have such a chilling effect as to cripple election administration or reduce turnout. Voters, fearful for their personal safety, may choose to do other things or simply lie low in their places of residence rather than turn up and risk fatal consequences.

The potential effect of insecurity anywhere approaching the scale supposedly estimated by the security services would be far-reaching. Faced with this, the country must plan for the consequences of the failure or frustration of voting on such a scale or its impact on the results. As a mathematical proposition, if the number of registered voters in the affected units or localities is cumulatively equal to or greater than the margin between the two leading candidates, then surely there cannot be a winner.

But there could also be a more challenging scenario where the number of affected units or voters in a state could affect the question of whether or not a particular candidate could have gotten 25% of the votes cast. The question of whether or not the election goes to a runoff could hinge on whether insecurity prevented “substantial compliance” in a handful of states. That will be uncharted legal territory.

Whatever happens, insecurity has already recorded its first electoral loss. On the third anniversary of his decision to install the man who came fourth as the winner of the 2020 Imo State gubernatorial election, on January 13, 2023, the Supreme Court disqualified the Peoples’ Democratic Party candidate in the Imo West Senate Zone of the state. of the February 25 Senate race, arguing that the primaries that produced it took place in Owerri, the state capital, and not in Orlu, the zonal seat. The two locations are separated by just 35 kilometers. In the opinion of the court, it was irrelevant that this change of venue was forced by deadly insecurity that made it impossible to hold the primaries in Orlu.

Substantial compliance will come under bloody scrutiny in the coming months. You can even determine who becomes the next president.

Odinkalu teaches at the Fletcher College of Law and Diplomacy and can be contacted here