By Jide Ajani
Having won the presidential election of March 28, 2015, the indifference of President Muhammadu Buhari to, and the seeming manifest disdain he has shown to constitutional provisions regarding the composition of the Independent National Electoral Commission, INEC, suggests that he no longer cares about the sanctity, neutrality and integrity of Nigeria’s electoral process.
By the same token, his shambolic attitude is begetting other further shambolic acts from the Zambezi Street, Abuja headquarters of INEC, as the macabre dance steps in Kogi, Bayelsa, Gombe and the unfolding drama in Anambra Central senatorial district could have been avoided had Mr. President paid more attention to the need for an improved electoral process by obeying the Constitution regarding the composition of INEC.
Therefore, regarding the composition of INEC’s Board, Buhari needs to be asked whether his appointment of seven supposedly good heads are better than the 13 good heads constitutionally required to form a complete Board for the election management body. Similarly, what does the President hope to achieve, after benefitting from a process that was sanitised for effectiveness, only to watch it slide because of his manifest insouciance?
This report will show clearly the dangers being courted by Buhari’s attitude, as well as the need to quickly fill the remaining six slots that would empower INEC with the full complement of its Board as stipulated by the Constitution – over 20 states of the federation do not have RECs as at today, thereby opening the Commission to the mercy of malleable civil servants.
ANAMBRA CENTRAL SENATORIAL ELECTION AND THE DEARTH OF INSTITUTIONAL MEMORY
Watchers of unfolding events in Anambra State over the court-ordered senatorial election are wondering if Nigerians learnt anything from past events and decisions taken, particularly by the courts. The latter concern stems from the backdrop of the planned senatorial primary election by the Peoples Democratic Party, PDP, as well as the inconclusive and questionable primary conducted by the All Progressives Congress, APC, to nominate another candidate to replace its candidate in the cancelled election. Either as a product of ignorance, total disregard for the laws of the land or greed, or all, Dr. Chris Ngige who, though qualified to contest the re-run, but has now accepted appointment as a minister under the Buhari administration, is watching as his party continues to muddy the waters.
Worse still, the questionable participation of officials of the Independent National Electoral Commission, INEC, as observers of the so-called primaries, has brought to the fore concerns of Nigerians about the seeming absence of institutional memory in Nigeria’s electoral body.
It would be recalled that this is not the first time that courts cancelled an election and ordered a re-run.
In such instances, those who can participate have a clearly established electoral legislative framework in elections.
Indeed, in Labour Party vs INEC, the Supreme Court – which is the highest court in the land-on February 13, 2009, delivered a judgment on this same subject-matter on who is qualified to participate in such election and whether political parties could conduct fresh primaries.
It, therefore, comes as a surprise that INEC, which was a party to the matter, cannot advise political parties on the right course to take but, instead, continues to encourage politicians to embark on illegal actions through active participation of its officials, who are sent to observe such illegal primaries, whereas the apex court in the land has ruled on such matter.
Why should INEC assist political parties to reinvent the wheel on the questions already answered by the apex court that only those who participated in the annuled election can participate in re-run? Why should INEC tolerate and continue to suffer the headship of one of its directorates that its own review committee had recommended should not head such a sensitive department that is very central to its operations and success of Nigeria’s electoral process? A review of the Appeal Court decision that led to the expected re-run and the subsisting judgment of the apex court below would clearly show how much Nigeria has been regressing since May 29, 2015.
WHY THE ELECTION WAS CANCELLED IN THE FIRST PLACE
It would be recalled that on December 7, 2015, the Court of Appeal, Enugu, in suit no CA/E/EPT/28/2015, between Chief (Sir) Victor Umeh, OFR ( a former National Chairman, All Progressive Grand Alliance, APGA) & Anor v. INEC & Ors, upheld the appeal of the former Chairman of APGA and senatorial candidate in the 2015 election. The Appeal Court held that the 11th Respondent, Hon. Uche Lillian Ekwunife, was “not the product of a valid primary and, therefore, not duly and legitimately nominated, that has disqualified her from contesting the election into the Anambra Central Senatorial District.”
Consequently, the court nullified her election and ordered INEC “to conduct a fresh election into the Anambra Central Senatorial District, within 90 days from today.”
It is this court-ordered fresh election, about the illegality of fielding a candidate in the first place, that is generating palpable confusion and political tension in Anambra Central Senatorial District regarding who will be the eligible candidates for the said fresh election.
AN AVOIDABLE CONFUSION AND POLITICAL TENSION
It is unfortunate that in today’s Nigeria, the authorities seem so prepared to waste so much public resources in conducting elections as was the case in the Kogi State supplementary election, which many consider unnecessary, but was conducted on the grounds of a so-called 91,000 voters, who were yet to vote, and who may not even have had the Permanent Voter Cards, PVCs, whereas the total number of people who had PVCs was just 25,000, and APC was already leading by well over 41,000 votes.
In the same vein, the prevailing confusion and political tension in Anambra Central Senatorial District could have been avoided given that it is a simple majority election that does not require spread. Hence it could have been called without equivocation, if the Court of Appeal had returned Umeh, as the winner of the senatorial election having obtained the second highest number of votes cast in the election. It was the most logical and legal conclusion the Court of Appeal should have reached to save dwindling public funds to be used again to conduct another election, having nullified the election of Ekwunife on the grounds of non-qualification which means, in the eyes of the law, the PDP candidate was never a candidate.
There is no legal impediment hindering the Court of Appeal from returning the APGA candidate in the circumstance because the hitherto hindrance in Section 140(2) of the Electoral Act 2010 (as amended) has been struck down by the Federal High Court as unconstitutional. For ease of reference, Section 140(2) of the Electoral Act 2010 (as amended) provides thus: “Where an Election Tribunal or Court nullifies an election on the grounds 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 second highest votes or any other person as elected, but shall order a fresh election.” Interestingly, the provision above is no longer extant, because it has been struck down twice by the Federal High Court as acting ultra vires to the National Assembly and, therefore, unconstitutional.
The judgments of the Federal High Court that struck down S. 140(2) of the Electoral Act 2010 were delivered on July 21, 2011 in Suit No. FHC/ABJ/CS/399/2011 Labour Party v. INEC and on June 30, 2011 in Suit No. FHC/L/CS/471/2011 ACN v. The National Assembly. Both decisions are subsisting and should have been relied upon to make a return that would have avoided the tension and more waste of public funds for the ordered re-run.
Even though the Appeal Court is well aware of the status of S. 140(2) of the Electoral Act 2010, it, nevertheless, acted to the contrary, given its own observation in its judgment that: “Whether Section 140(2) of the Electoral Act is extant or not, no advantage can be conferred on the Appellants by declaring the 1st Appellant as a winner on the grounds of his obtaining the second highest votes as elected.” The observation, with respect to the Court of Appeal, is strange.
Pray, how can declaring the winner of an election not confer an advantage on him? Certainly, declaring the winner of the election would have saved INEC the enormous cost/task of organising a fresh election. It would have also saved the electorate from the palpable confusion and political tension in Anambra State regarding who will be the eligible candidates in the court-ordered fresh election. The prevailing confusion and political tension in Anambra Central Senatorial District could also be avoided if INEC clears the air by adopting the “common sense doctrine” established by the Supreme Court in LABOUR PARTY v. INEC (2009) 1 – 2 SC (pt. 11) 43 or (2009) 6 NWLR (pt. 1137) 315.
FACTS AND LESSONS OF LABOUR PARTY Vs. INEC CASE AND COMMON SENSE DOCTRINE
Relatedly, after the Court of Appeal nullified the governorship election in Adamawa State in 2007, on the grounds of unlawful exclusion and the court ordered for fresh election in the state, the Labour Party sought to submit a new list of candidates for the fresh election. INEC refused to accept the new list, informing the Labour Party that the Commission will conduct the fresh election with the list of candidates used for the nullified election. Aggrieved, the Labour Party went to court to compel INEC to accept the party’s new list of candidates.
By way of a referral, the Court of Appeal was asked to determine, amongst other points, the right of the Labour Party to submit candidates of her choice for the fresh governorship election in Adamawa State. Without equivocation, the Court of Appeal held that where there is nullification of a general election and a re-run election is ordered, only candidates who were nominated to contest in the nullified election can contest in the re-run election.
OKORO, JCA, in the lead judgment, elucidated as follows at pages 102 – 103 of the law report:
“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 council (sic) or nullified, and not a bye-election.
“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. It is just restoring the parties to the status quo ante belum. See Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 ORS CA/K/EPT/SHA30/20C (unreported) delivered on 6th November, 2003”.
“Let me demonstrate this”, Okoro went on, “with a common place example. We are familiar with athletes who participate in, say, 100 metre race for example. They are ordered to the starting point of the race by the umpire. But before the gun is shot or the whistle is blown, there could be a false start maybe due to the mistake of one or more of the runners. The race is cancelled. They are ordered back to the starting line to repeat that same race with all the competitors who took part during the false start. At that stage, no new competitor is allowed to take part. Only those who had been screened and had taken part in what usually called “the heat” and are certified fit for the final race that are allowed in the repeat race.” Underlining for emphasis.
Similarly, at page 109, AUGIE, JCA, concurred that whenever an election is nullified, the implication is that “it’s the same candidates that were set to run in the election that must go back to run in the fresh election ordered ………Labour Party, though has a right to sponsor a candidate, cannot exercise that right when an election is nullified and a fresh election is ordered because the date and period for calling for nominations has elapsed.” (Underlining for emphasis).To cap it all, OREDOLA, JCA, admirably summed it up as follows at page 110 of the judgment: “Even though the order for the conduct of a fresh election after the nullification of a previous one is not an entirely new process that can be likened to starting on a clean state, nevertheless, it is also not the case of a fresh call to arms or a scenario of clarion call of “to thy tents O Isreal”. Rather, it is one of “as you were.”
From the brilliant pronouncements above, why should INEC get itself involved in monitoring an illegal primary election for the APC purportedly held on January 19, 2016, or any other party other than those candidates who participated in the annuled election excluding the PDP and its candidate, Ekwunife, whose participation as an unqualified candidate led to the cancellation? To paraphrase Justice Oredola, the Anambra Central Senatorial District court-ordered fresh election cannot be a fresh call to arms and clarion call of: “To thy tents” all political parties.
It is unfortunate that INEC’s illegal clarion calls have thrown these political parties into a frenzy of organising primary elections for the nomination of new candidates to participate in the court-ordered fresh election in Anambra Central Senatorial District.
The macabre dance of these political parties in Anambra State has continued unabated, notwithstanding the generally accepted fact that the time for nomination of National Assembly candidates elapsed since December 2014.
WHY INEC MUST SHUN DOUBLE STANDARDS
Meanwhile, INEC wrote a letter, dated December 15, 2015, rejecting the nomination of one Hamma Adama Ali Kumo, though it made a u-turn, based on the advice of its legal services department in the court ordered re-run of Akko Federal Constituency of Gombe State.
This was for an election that took place on Wednesday, January 27, 2016. So, why would the same Commission encourage new primaries in respect of same court-ordered election in Anambra?
INEC, as the constitutional watchdog of political parties, must step in, as a matter of urgency, and douse the confusion and political tension in the state. The Commission must make its position clear regarding who are eligible candidates for the fresh election.
INEC, initially, made its position clear regarding Akko Federal Constituency of Gombe State to the National Chairman of APC that the submission of the name of a new candidate for the court-ordered election is “not acceptable” because “the period for nomination of candidate for the election has since elapsed,” but failed to follow it through to a logical conclusion .
This, Sunday Vanguard discovered, through an inside source in INEC headquarters in Abuja, was based on the usual wrong advice of the head of its legal department.
One Bawa heads the department. With INEC Chairman, Professor Mahmood Yakoob, not being a lawyer, the legal services department is expected to properly guide the Commission. Interestingly, a committee, set up within INEC, had suggested, some time ago, that the department should be re-organised for effectiveness. This was an elegant euphemism for the redeployment of the headship of the department but nothing has changed and the malady continues.
The question now is, why would INEC fail to similarly notify APC that the period for nomination of candidates for the court-ordered fresh election in Anambra Central Senatorial District has elapsed? In addition, why allow the APC to dance naked in Anambra in the name of primary election and cause palpable confusion in the process? Or, does it mean that whilst the period for nomination of candidates has elapsed elsewhere, it has not elapsed in Anambra Central Senatorial District?