Rerun Polls: Why Candidates Cannot Be Changed
In a recent report, the Independent National Electoral Commission, INEC, disclosed that over 78 reruns will be held in a number of states for the Senate, House of Representatives and State Houses Assembly elections nullified by the court.
To have this number of elections cancelled with some still pending is a clear indication that we have not really got it right with our electoral processes from the internal activities of the political parties to the conduct of the general election. Impunity remains the order of the day in our electoral system. But we should know that no system endures with impunity.
It is on this note I think INEC must wake to ensure that things are done according to laid down rules and regulations in all the processes leading to the conduct of elections. Some of the elections were canceled because the candidates of the parties that won were not properly nominated and thereby disqualified by the court. Others were nullified as a result of certain irregularities during the elections.
Now, I ask, is it not important we ensure that the proper thing is done for the rerun polls soon to be conducted by INEC to avoid going back to square one? Of course, any right-thinking and well-meaning Nigerian would answer in the affirmative. From the judgements nullifying the elections for which reruns are now to be conducted, it is clear that what is to take place now is not bye-election but a restart of elections deemed by the court to be null and void and cannot stand.
I therefore do not understand why some political parties are talking about fresh primaries as if the reruns are bye-elections and INEC is keeping mute. INEC ought to have come out boldly to tell the parties that no new candidate would be accepted for the reruns apart from those that participated in the canceled elections. That is the position of the law and INEC is quite aware of the fact as contained in the Supreme Court judgement of its case between Labour Party (LP) on the Adamawa State governorship rerun where the LP wanted to change its candidate but INEC refused. Why should we want to condone such now? Of what use would the change agenda of the current administration be if we continue to allow impunity in the system. By the ruling of the court, some candidates and their parties were disqualified from participating in the reruns, yet most of them are insisting that they must take part and planning to conduct fresh primaries when such is not even allowed in this instance.
After the Court of Appeal upheld the nullification of the April 14, 2007 Adamawa State Governorship election and ordered a rerun, the Labour Party had approached the Federal High Court for the purpose of interpretation and application of the law as it relates to the right of political parties to field a candidate of their choice in any election. The party’s action was informed by the refusal of INEC to allow it present a fresh candidate for Adamawa guber rerun as ordered by the Appeal Court.
Three questions were raised which were referred to the appellate court by the Federal High Court. The LP had asked the Court of Appeal to determine whether:
(1) By the combined effect of section 221 of the 1999 Constitution and section 32(7) and paragraph 27(3) of the first schedule to the Electoral Act 2006, the plaintiff is not entitled to submit to the defendant (INEC) and defendant mandated to receive from the plaintiff list of candidates for any election or by-election.
(2) By virtue of the Supreme Court decision in Ugwu vs Araraume 2007 NWLR, 1048 at 367 and Amaechi vs INEC & others 2007, NWLR, 1065, it is not the prerogative of the plaintiff to nominate and sponsor candidates of his choice for any election in Nigeria.
(3) In the light of the decision of the Court of Appeal in INEC vs Action Congress (AC), February 2008 upholding the nullification of the Adamawa election and ordering a fresh election, the plaintiff is not entitled to submit a fresh list of candidates for election as required by Section 32 of the 2006 Electoral Act.
In the judgement read by Justice Joseph Okoro on April 10, 2008, the appeal court held that Adamawa governorship rerun was not a bye-election, and only candidates who participated in the first election were qualified to contest the rerun election. Justice Okoro noted that the re-run election ordered did not refer to a by-election because it merely returned the candidates to the status quo ante.
According to him, Section 32(7) of the 2006 Electoral Act did not apply in the matter and that for a nullified general election, only the persons who were candidates in the said election could take part in the re-run as the date for the nomination of candidates had lapsed. He held that there was no room for substitution as the candidates for the re-run were not contesting for a vacant office.
Not satisfied with the pronouncement of the appellate court, the LP filed an appeal in the Supreme Court. But the Apex Court affirmed the verdict of the Court of Appeal.
In its ruling, delivered on the 13th day of February, 2009 by Justice Ikechi Francis Ogbuagu, the Supreme Court in the case between Labour Party (the appellant) and INEC (the respondent) agreed with the court of appeal that "Where a general election has been held and there is a false start, for example, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal, and a re-run or re-start is ordered, it is my humble view that the re-run or re-start refers to that general election cancelled or nullified, and not a bye-election".
Justice Ogbuagu explained that "The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free contest. It does not admit of any other candidate since as it were the period for nomination and screening of candidates would have elapsed. See Honorable (sic) Mohammed Salisu A. Alwa'u & anor. vs. Abbas Yakubu & 2 ors, CA/K/EP/SHA/30/2003 (unreported) delivered on 6th November, 2003……In the final analysis or conclusion, this appeal, I hold in my respectful but firm view, is unmeritorious. It fails and it is accordingly dismissed.”
By the said Supreme Court verdict which now ought to be a reference point in the conduct of rerun elections in the country, any fresh primaries held by political parties to choose new candidates for the forthcoming reruns would amount to a complete nullity and an exercise in futility. So, let it be known that parties cannot present new candidates at this point. Political parties whose candidates had their elections quashed on the ground of disqualification cannot participate in the coming rerun polls because there is no room for fresh candidates.
INEC must be well guided on this issue of party candidature for the coming reruns, so we don’t find ourselves in a situation where rerun elections will again be canceled and we keep wasting our resources on conducting same election several times. We can’t afford that in this present precarious condition of our country’s economy.
Joseph, a social commentator writes from FCT, Abuja