There have been lots of legal fireworks going on at the kogi state governorship election petitions tribunal sitting in Abuja, and folks wants to know my views concerning the goings on there.
I really have got no view that is radically different from my earlier positions on the cases at the tribunal. However, the opinion I want to express today is the legal angle of LEGISLATIVE INTENTIONS ,which is intended to finally rests the debate on whether APC was correct at law to substitute late Abubakar Audu for Alhaji Yahaya Bello in the supplementary elections and that’s why the Bello team need to pay attention to this piece.
The issues raised by the petitioners ranges from Non-Compliance to eligibility.
1.Hon.Edward Onoja’s admittance that Bello’s voter card has not been transferred from Abuja to Kogi state.
2. Bello not having deputy governorship candidate at the election
3.That it was wrong for APC to have replaced Audu with Bello/votes inheritance .
4.That election procedures was compromised in favour of APC.
My views are as follows:-
1.Hon.Edward Onoja who is the defence witness and also chief of staff to Governor Yahaya Bello had testified as a witness of truth, at the tribunal that he had not been able to transfer Governor Bello’s PVC to kogi state due to non performance at the INEC.
1. Since all the process of transfer of PVC had been completed on the side of Bello, the burden of performance has validly been moved from Bello to INEC, as such could not be liable of default consequences, if any.
ii.Howbeit, Bello’s election cannot even be voided if for instance he had no voter’s card at all.
According to Lord Hardene, you cannot put something on nothing because it’ll fall, this point has no foundation at law and so cannot stand.
Ownership of a voter’s card or inability to vote at election is not found to be amongst things that qualifies or disqualify a candidate at election as postulated in the constitution of the federal republic of Nigeria 1999 as amended and the example of those that found themselves in such situation in Nigeria sufficiently abounds.
The position of a State of Governor is provided for by the Constitution in Section 176.
It provides that – there shall be for each State of the Federation a Governor and the Governor shall be the Chief Executive of that State.
The only persons qualified to be Governors are-
1.Citizens of Nigeria by birth;
2.Persons who have attained the age of 35 years;
3.Members of a political party & sponsored by that party;
4.And such candidate that has been educated to at least School Certificate Level or its equivalent.
It should also be noted that the following persons are not qualified for election to the position of the Governor:-
1.Persons who have voluntarily acquired the citizenship of another country (or state as in Faleke) emphasis, mine;
2.He has been elected to the position 2 previous times;
3.A lunatic or person of unsound mind;
4.Persons under a death sentence;
5.Persons who have been convicted and sentenced for an offence involving dishonesty within the past 10 years of the electionor has contravened the Code of Conduct;
6.An undischarged bankrupt;
7.Persons employed in public service;
8.Member of a secret society;
9.Persons who have been indicted for embezzlement or fraud;
10.Persons who presented a forged certificate to INEC.
The above are the only legal grounds that qualify or disqualify one from contesting the position of governor in Nigeria .
At what point has it become a law that a candidate must vote for himself at an election ?
For purpose of reference ,Iyiola Omisore in 2003 won election into the senate of Nigeria,even while in prison remand.
Theodore Ahamefule Orji, did not just won election from prison custody, but was prematurely sworn in as governor in 2007, while on bail,he served out two terms of eight years.
The both never had the opportunity of voting for themselves. What’s more!
Whether INEC has transferred Bello’s voter card or not is immaterial at law especially when the vote transfer needful has been done by Bello.
So by logic or symmetry, the issue is at best a mischief .
It’s left to be seen how a judge will void an election of a man whose voter card has not been transferred by INEC (when he has already applied) and then declare another who is an indigene of Lagos state and Kogi state at the same time, governor!
2. On the issue of Bello becoming governor without deputy.
Faleke claimed he wrote his party , the APC that he should not be fielded as deputy governorship candidate to Bello in the said election .
How did that translate into valid withdrawal?
Section 221 of the constitution reserves the sole right of nomination and substitution of candidate at an election to only registered political party,in this case, the APC,the party never withdrew his candidacy .
Firstly ,the law abhors and forbids Faleke to approbate and reprobate at the same time.
Secondly, Faleke had agreed to work as deputy governor in the in-coming APC government, and so does not have the luxury to pick and chose the party candidate to deputize.
Thirdly ,APC is not under any legal obligation to acquiesce to Faleke’s demand especially when such demands cannot help her electoral fortunes .
APC couldn’t have substituted Faleke because his letter, ideally was out-of-legal time.
APC under the electoral law, could only do that 45 days before the commencement of the election, because unlike Audu, he is alive.
And for those that are so fascinated about Hon.Faleke’s claims, they’ll do well if they can read section 137 of the electoral act.
That section expressly stipulates that”An election petition may be brought by one or more of the following persons..(a)A candidate in an election .(b)A political party which participated in an election.
Faleke does not fall into any of the categories above. The law does not permit one to give what he doesn’t have ,nemo daquod,non habet .
No locus for egbon Faleke .
If Faleke was determined to make his threat real, he should have gone to court to obtain an order compelling APC to withdraw his candidature, instead he went seeking for the impossible .
Hon.Faleke slept over his right, according to Oputa JSC ,as he then was”it should be allowed to continue in its slumber deep”.
Faleke’s right remains in abeyance, especially when INEC has issued a valid certificate of return on his name as deputy governor elect.
I reiterate, no locus standi.
3.That it was wrong for APC to substitute candidate, and Bello cannot inherit Audu’s votes.
Just like Hon.Edward rightly extrapolated at the tribunal, the votes casts in an election belongs to the political party and not candidates, so issue of inheritance of votes does not arise.
Read section 221,and also see Rotimi Amaechi vs PDP.
Some people has argued that there are no tidy answers or airtight explanations in the constitution and the electoral law on the substitution of candidate in the middle of an election, even when the candidate had become permanently indisposed, by the reason of death.
The right to substitute party candidate in an election was adequately provided for in section 221 of the Nigeria constitution 1999 as amended ,especially when it’s read in community with sections 33 and 36 of the electoral act of 2010 as amended.
Section 33 of the electoral law allows for substitution of candidate by political party, while section 36,subsection 1 provides for the period and consequential reliefs that should follow the substitution .
This is where LEGISLATIVE INTENTIONS comes in.
One of the strongest factors to consider in the interpretation of statutes under the common law jurisdictions is LEGISLATIVE INTENTIONS,that’s reading into what could possibly be the wishes or intentions of the legislators at the time of drafting the said statutes or law.
The right questions at this juncture should be,what was the state of mind of Nigeria legislators that drafted the 1999 constitution and the electoral law with their amendments,at the time of writing those laws?
Were they drunk?
Are they sadists?
Or were they seniles? that all the rights and privileges so enjoyed by a leading political party, with a victory bound candidate like APC and the late Prince Abubakar Audu,to be EXTINGUISHED, simply because the candidate died in the middle of an election????.
This is a serious factor that MUST be considered by the jurists in the determination of this case.
I know justice Halimat Alfa as a first class jurist of TRUTH,IN FACT AND ON THE BENCH,I don’t expect her to void a popular mandate on the mere fact of SEMANTICS,ipso facto,ipso jure!
Let’s look at it the other way round. If not God Almighty, who had resolved the matter the way He did, and the APC had made the mistake of fielding Faleke instead of Bello, what will be our lot in kogi state?a long drawn legal battle that would have brought Bello into government in the Amaechi fashion.
Again,Rotimi Amaechi vs PDP supra refers, and also check Njoku vs Goodluck Jonathan in the eligibility suite against president Jonathan in the wake of 2015 presidential election.
4.Finally on the electoral process being compromised in the favour of APC.I have heard the rhetorics of some forensic evidence (from the moon) to prove that the said election was rigged in favour of APC, that some electoral materials meant for another state was found in kogi, and was used illegally for APC.
I was in kogi state at the time of campaigns and all through the elections, and it was glaring to all reasonable members of the society to see that governor Wada ,as he then was, was going to have a great fall at the elections, which he indeed had, he suffered a massive defeat in the hands of the electorate.
If indeed it’s proven that such incidence happened at the elections, then it must be minimal, because we all saw the popularity of APC and her candidate at the election and the issue of non-compliance being raised cannot be used to void Bello’s election.
Under the applicable laws, compliance at elections is not TOTAL, but SUBSTANTIAL,Muhammadu Buhari vs Olusegun Obasanjo is a case in point. In the case of kogi gubernatorial elections,PDP vs APC,the non-compliance is NOT sufficiently SUBSTANTIAL to void the election of Bello. Beyond the beautiful drama at the tribunal by chief Olanipekun and Chris Uche all SAN, the media hype and the exuberance of the ignorant few as it were, I personally do not see a contrary outcome in the cases.
Simeon Ujah
Writes from Kogi State
