Dealing With The Spate Of Inconclusive Elections
When the Chief Justice of Nigeria, Justice Mahmud Mohammed on taking up the mantle of leadership vowed to sanitize the judiciary and the entire justice system he was only saying the obvious. Indeed the the past Chief Justices strove to pass on the baton of sanitization; perhaps what is crucial in the present occupier of the office is the fact that the occupier of the executive arm is also a change agent whose mantra for sanitization has gone viral.
Recently the Chief Justice was quoted as saying: “our justice system has become notorious for delays, occasioned by a combination of endless adjournments, incessant interlocutory applications and overwhelming caseloads, a situation that breeds a huge disincentive for businesses”.
I believe that the next opportunity he has to address
more issues besetting the judiciary he would include conflicting
judgments at the ongoing electoral cases. The present situation is a
serious indictment on the nation’s justice sector.
The Electoral act set up the Election appeal Tribunal to declare the
processes, results and the parties being the embodiment of candidates
indeed complied with rules and regulations thereby confirming the
outcome. And this includes Independent National Electoral Commission
(INEC), the arbiter’s decision of the inconclusiveness of elections
based on the 1999 Constitution and the Electoral Act 2010 as amended.
Is it possible that these laws or their interpretations have led to
the recent spate of inconclusiveness of elections?
Prof Attahiru Jega led INEC had fewer supplementary inconclusive
elections. Since the new helmsman took office none of the elections
conducted sailed through without these hitches - Kogi, Bayelsa. But
awaiting results problems from Jega’s era that would have been
rectified by the tribunal escalated, including Taraba, Rivers, Delta,
Taraba gubernatorial race was largely based on People’s Democratic
Party (PDP) VS All Progressives Congress (APC). The incumbent
Governor, Darius Ishaku ran on the platform of PDP while his
challenger former Senator Aisha Jummai Alhassan was APC’s flag-bearer.
At the collation of results Ishaku scored the highest number of votes
but the election was later nullified by INEC. A fresh election saw
who had 2nd highest vote being declared winner which ran counter to
the dictates of S. 140(2) of Electoral act 2010 which provides that:
“(1) Subject to subsection(2) of this section, if the Tribunal or the
Court as the case may be determines that a candidate who was returned
as elected was not validly elected on any ground, the Tribunal or the
Court shall nullify the election.
(2) Where an election Tribunal or Court nullifies an election on the
ground that the person who obtained the highest votes at the election
was not qualified to contest the election, the election Tribunal or
Court shall not declare the person with the 2nd highest votes as
elected, but shall order a fresh election”.
In applying this provision the tribunal noted the facts of the Taraba
contest turned on qualification or none of it and therefore ruled that
“when the issue of non-qualification is predicated on non-sponsorship
or non-nomination of a candidate, the proper order to make is declare
as elected, the candidate with the 2nd highest votes because the
returned winner cannot be said to have participated in the election
and all votes cast on the said election are regarded as wasted votes”.
This conclusion is conspicuously at variance with the 3rd Respondent/
INEC’s reply filed at the tribunal to the effect that PDP sponsored
Gov. Darius and that his nomination and election is valid in law.
Note that no PDP members challenge the nomination, qualification or
sponsorship of Darius. The first election held on 11 April produced a
score-board that showed Ishaku’s voted as 317,198 while Alhassan’s
votes as 262,386. The difference between the 2 candidates was 54,812.
The number of votes cancelled at some polling units totaled 100,000.
On 13th April the Returning Officer Prof. Muhammed Kariey declared the
result inconclusive relying on paragraph 44 (m) of the 2015 INEC
Election Guidelines (admittedly inferior to the constitution) to the
effect that “where the margin of win between the 2 leading candidates
is not in excess of the total number of registered voters of the
polling unit(s) where election was cancelled or not held, decline to
make a return until another poll has taken place in the affected
polling unit (s) and the results incorporated into a new form EC 8D
and subsequently recorded into form EC 8E for Declaration and Return”.
A supplementary election was scheduled to hold within 30 days. On 25th
April when the election was held Darius Ishaku polled a total vote of
369,318 to defeat his closest rival Alhassan who polled 275,084 votes.
The opposition had to petition the tribunal that the elected Governor
was not properly nominated/qualified/participated and his closest
contender wanted her declared winner of the election. The Tribunal
accepted the argument and declared her winner on 7th November 2015.
However, the unrattled governor went to the Court of Appeal to
overturn the ruling!
In the case of Senator Uche Ekwunife PDP, representing Anambra Central
Senatorial Zone, whose challenger was Chief Victor Umeh of APGA the
Court of Appeal headed by Justice A.H. Yahaya overturned the decision
of the tribunal which had earlier on upheld Ekwunife’s election
describing the decision as perverse. The Court went on to order a
fresh election by INEC within 90 days. Sometimes it becomes difficult
to decipher the rationale for the tribunal’s or Court’s decision for
fresh election which is the equivalent of re-run or supplementary
election where a fraction of the constituency is affected. When INEC
decided that the elections conducted in 3 LGAs in Abia did not comply
with Electoral Act and held the results several days before announcing
its inconclusiveness, were they right in the parameters (Constitution
or Electoral Acts) that led them to that conclusion? After a re-run
which produced results that led to the declaration of Dr. Ikpeazu
winner and thereafter confirmed by the tribunal, was it not what the
Court of Appeal wanted by querying the INEC’s cancellation in the
Instead Court of Appeal accepted the cancellation based on the
provision of s.68 of Electoral Act and remarked that only the tribunal
could set it aside but the tribunal did not. On this point the Court
of Appeal held that the tribunal erred in law by upholding the
election of the 3 LGAs. It is also interesting that the Court of
Appeal clearly identified that the Returning Officer had no powers to
cancel the elections at that stage. The question becomes what the
proper order/decision to make? Rather than order for fresh election or
logically conclude that the cancellation at that stage by the
Returning Officer was wrong and restore the votes cast, it endorsed
the cancellation of 3 LGAs to the dismay of a sitting governor and
about 300,000 eligible voters.
These created uncertainties about the law and rumors were rife as to
the proper interpretation of the law. In the case of Abia protesters
seem to be completely unguided. The Attorney-General & Commissioner
for Justice, Ume Kalu had through print and electronic media made the
point quite clear that the date of delivery of that judgment was not
fatal to Dr. Ikpeazu’s case since S. 143(2) of the Electoral Act 2010
has covered him front and back until the entire process of appeal to
the Supreme Court has been exhausted. So the Status quo has to be
maintained until such determination.
As at 31st December, 2015 preceding a holiday/weekend coupled with
non-availability of record of judgment for notice of appeal, the
sitting governor (the res) subject matter cannot be destroyed or
removed until final appeal.
Since this Court of Appeal judgment have come to realize why the late
Chief Justice, Mohammed Bello of blessed memories said “we pass
judgments which we know do not comply with our conscience……Any law
which a judge thinks is bad he applies it, but he criticizes it in his
judgment”. There is no doubt that the Supreme Court justices have hard
nut to crack!
In these times of legal crisis it is interesting to note the reactions
of the Attorney-General & Minister of Justice or Commissioner for
Justice as the case may be. In recent times Rivers state former
Commissioner Bom Wogu insisted that the National Judicial Council had
no business under s.271 of the 1999 Constituting in deciding who
becomes the state Chief Judge while opponents disagreed.
In the wake of Prince Abubakar Audu’s sudden demise before the
conclusion of an election he had almost won, it prompted an
unprecedented moment in the constitutional and democratic history of
Nigeria, leading to the criticisms that there was constitutional
lacunae. When Abubakar Malami reacted not many thought his opinion was
rational in law; they wanted Supreme Court decision. However, during
party primaries that produced Audu who scored the highest votes to
emerge winner, his closest rival was Alhaji Yahaya Bello.
Whenever a party is faced with the challenge of nominating its
candidate/flag-bearer the has always insisted that since political
parties are in the business of political entrepreneurship it is the
prerogative of the party therefore to ascertain and confirm who that
member should be. The case of Emeka v. Okadigbo which is a Supreme
Court decision established that it is the party that determines its
candidate, that was why I argued in another forum that there was no
constitutional lacunae in the Kogi state election debacle. A fortiori
the legal position of Abia governorship tussle has been clearly stated
by the comments of the Attorney-General & Commissioner for Justice.
IKECHUKWU O. ODOEMELAM & CO