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Dealing With The Spate Of Inconclusive Elections

By Ikechukwu Ozoemena
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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,

Abia etc.
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

Aisha Alhassan
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

first place?
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.

Iyke Ozemena
Attorney
IKECHUKWU O. ODOEMELAM & CO
Corporate Attorneys/Consultants
http://www.corporateleadersboard.ning.com
http://www.facebook.com/corporateboard

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