WHAT ONCE STARTED AS A DISAGREEMENT AMONG CANDIDATES WITHIN THE CONGRESS FOR PROGRESSIVE CHANGE (CPC) FOR ELECTION INTO NATIONAL ASSEMBLY TO REPRESENT KATSINA STATE IS FAST TURNING TO A MESS IN THE JUDICIAL ARENA, WRITES TOBI SONIYI
Following the inability of the Congress for Progressive Change (CPC) to manage its affair especially as regards the choice of its candidates for National Assembly election that took place in 2011, the judiciary was invited to settle the matter, as a faction of the party went to a Federal High Court in Abuja seeking to be declared the authentic candidates of the party.
What started as a political mess has now snowballed into a bigger crisis involving the Independent National Electoral Commission and the judiciary? The Peoples Democratic Party (PDP) is also waiting on the side to see if it can benefit from the crisis. If not properly managed, the issue may further expose the judiciary to avoidable crisis of confidence. As at press time, four different courts in the matter have delivered not less than four judgments. A fifth court, that is the Court of Appeal in Abuja, will still make a pronouncement on it.
Not many people understand the facts of the case; it suffices therefore to attempt a summary of the facts.Section 85(1) of the Electoral Act 2010 requires every registered political party to give a 21-day notice to INEC of its intention to conduct any convention, congress, conference or meeting convened for the purpose of nominating candidates for any of the elective offices specified under the Electoral Act.
In compliance with this provision, the Congress for Progressive Change (CPC) National Headquarters, wrote a letter to INEC on December 24th, 2010, giving notice to the commission of its intention to conduct primary elections for April 2011 National and State Assemblies as well as Governorship Elections in Katsina State. According to the time-table contained in that letter, all primary elections for Katsina State would conclude on January 13, 2011 and submission of the list of successful candidates to INEC to be made the following day (January 14, 2011). The CPC also notified INEC of the constitution of a committee under Col Jibril Mohammed Hassan (Rtd), saddled with the responsibility of organising the primary elections.
That election took place on that day (January 13, 2011) and Hon. Aminu Masari and others vying for various National and State Assembly offices emerged victorious. On January 14th 2011, the CPC National Congress Committee under Dr. Lanre Tejuosho submitted names of winners of the primary elections to INEC after ratification of the list by the NEC and Board of Trustees of the party.
After losing in the January 13, 2010 primary, Senator Yakubu Lado Danmarke and others refused to accept the result of the election and in concert with the Katsina State Chairman of the CPC, organised another primary election on January 15th, 2011 and consequently on January 16th 2011 declared themselves candidates of the CPC in Katsina State. They sent their names to INEC but the commission declined to accept their list.
Instead of accepting the decision of the party, these aggrieved members of CPC took their case to the judiciary. Having failed to convince INEC to accept their names as candidates for the 2011 elections, Senator Yakubu Lado Danmarke and 43 others decided to take INEC, the CPC and the National Chairman of the CPC, Prince Tony Momoh to the Federal High Court, Abuja in case No FHC/ABJ/CS/126/2011. That marked the beginning of how the judiciary was brought into the matter. Among others, they asked for the enforcement of their rights and for an order that they were the legally elected CPC candidates for Katsina. The suit was brought under Sections 221, 222, and 223 of the Constitution and Sections 85 and 86 of the Electoral Act 2010.
On February 15th 2011, the trial Judge, Justice Abdul Kafarati, granted the reliefs sought by the plaintiffs and declared that they have: “sufficiently proved that they are the candidates of the CPC in April 2011 general elections.” It should be placed on record that the judgment aggravated the crisis and sow the seeds of confusion that latter followed. This is because, it was on the basis of that judgment that INEC removed the names of the candidates sent by the leadership of the party and replaced them with that of the Danmarke’s group. By the time the elections would be conducted in April, the high court order subsisted and they remained on the list. The election was largely won by CPC and INEC issued them with the certificates of return.
Meanwhile, CPC was dissatisfied with the judgment and filed an appeal at the Court of Appeal in Abuja alleging miscarriage of justice. The notice of appeal was filed on March 1st, 2011, with eight grounds of appeal.At the Court of Appeal, the appellants asked the court to determine whether: (a) the trial court was right in holding that the 1st to 43rd respondents have sufficiently proved that they are candidates of the CPC in Katsina State, (b) a miscarriage of justice has not been occasioned by the wrong conclusion of the trial court, (c) the trial court was right in granting all declaratory and injunctive reliefs sought by the Respondents with regard to Sec 87 of the Electoral Act and the CPC constitution,
(d) the failure of the trial court to consider issues for determination raised by the appellants did not occasion a miscarriage of justice.
On April 20, 2011, the Court of Appeal sitting in Abuja upheld all the arguments of the CPC and consequently set aside the judgment of the Federal High Court. In a unanimous decision delivered by Justices Mohammed Lawal Garba, Jimi Olukayode Bada and Regina Obiageli Nwodo (Mrs), the court stated that by the provisions of the Electoral Act 2010 (as amended) and the 1999 Constitution (as amended) the party at the national level was the only organ empowered to organise primary elections and not any of its branches and therefore the Katsina State Chairman of the CPC: “cannot usurp the powers conferred on the National Executive committee… and any such act...without any evidence he was delegated to so act is outside statutory provisions and such act is invalid.”
According to the court, the trial court was wrong in relying on the primary elections of January 15, 2011 to hold that the 1st to 43rd respondents have sufficiently proved that they are the candidates of the CPC in Katsina State for the April 2011 general election.The court held: “The decision of the trial court was not based on the overwhelming documentary evidence that the January13, 2011 primaries were sanctioned by the Board of Trustees of the appellants.”Their Lordships further held that the issue of who should be candidate of a political party at an election was a party matter that should be determined by the rules of its constitution and provisions of the Electoral Act.
“The court will normally be involved where the provisions in the electoral Act or the Party’s constitution has not been complied with”, the Appeal Court concluded.Danmarke and others were not satisfied with the decision of the Court of Appeal and consequently filed an appeal at the Supreme Court.
After examining the issues in dispute, the Supreme Court came into a conclusion that the issues in disputes were internal affairs of CPC upon which no court of law had the jurisdiction to pronounce. The apex court said that nomination of candidates was the exclusive preserve of a political party.
In its Judgment of December 16th 2011, read by Justice Walter Nkannu Onnoghen (JSC) and unanimously agreed to by Justice Dahiru Mustapha (CJN), Justice John Afolabi Fabiyi (JSC), Justice Mary Odili (JSC) and Justice Olufunlola Oyelola Adekeye (JSC), the Supreme Court stated that the Federal High Court ought not to have assumed jurisdiction when Yakubu Lado Danmarke brought the matter to it for lack of jurisdiction. Courts, according to the apex court, did not have the right to nominate candidates for or on behalf of political parties, as that was one of the cardinal responsibilities of political parties as enshrined in the constitution, which stipulated that candidates to all elections must be members of and sponsored by a political party.
Consequently, the court held as follows: “In the instant case, the jurisdiction in question is statutory and very limited in scope. On the face of the claim it would appear that the courts have jurisdiction under section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act 2010 (as amended). If the right is being claimed by the appellant and in dispute between the parties arose from the primaries of January 15, 2011 alone. Once there arises a dispute as to which of the two primaries a right of candidature on the parties to represent a political party in an election, the matter is taken outside the purview of Section 87(4)(b)(ii), (c)(ii)(9) of the Electoral Act 2010 (as amended).
“In conclusion, I hold the view that the courts have no jurisdiction to determine the matter in dispute. Consequently, Suit no. FHC/ABJ/CS/126/2011 and appeal nos. CA/A/133/2011, SC/157/2011 and SC/334/2011 are hereby struck out for lack of jurisdiction.”This last sentence by the Supreme Court later became another source of dispute. Interpreting the Supreme Court’s decision, INEC took the view that the list of names submitted by the CPC on January 14, 2011 and duly received by INEC remained valid and legal being the list presented by the leadership of the party, which had the powers to organise primaries.
The commission further took the view that the candidates foisted on it by Justice Kafarati of the Federal High Court were not the candidates. Doing the needful, and in order to give effect to the judgment of the Supreme Court, INEC withdrew the certificate of return earlier issued to two Senators and eight members of the House of Representatives who were the “others” in the Yakubu Lado Danmarke and others’ case. It also promptly issued new certificates of return to the validly nominated and CPC sponsored candidates in the 2011 National Assembly Election.
That marked the beginning of another round of litigation as the group whose certificates of return were withdrawn went back to the Federal High Court in Abuja claiming that the Supreme Court did not order INEC to withdraw their certificates of return. This new case was assigned to Justice Gladys Olotu. The affected CPC members urged the court to stop INEC from issuing certificate of return to Sen Yar’Adua, Sen Hadi Sirika and eight others and where such certificates of return had been issued they asked for an order restraining the National Assembly not to swear them in.
However, certificates were issued and the new members sworn-in by the Senate President and Speaker of the House of Representatives (on the advice of their Legal teams) before the Federal High Court could sit.
Along the line, the PDP candidate for Katsina Central Senatorial district, Senator Ibrahim Ida filed a similar suit wherein he asked the court to declare that he was the rightful candidate to step into the seat of the senatorial district after CPC had replaced Ahmed Sani Stores with Abubakar Sadie Yar’Adua as its candidate for the senatorial district.
He said that it was wrong for INEC to issue certificate of return to Yar’Adua and instead the PDP should have been declared the proper party to take over the senatorial seat because CPC was factionalised. He also asked the court to hold that Yar’Adua should not have been inaugurated as the senator representing the senatorial district.
Although, Yar’Adua and other affected members of the CPC including the party itself opposed the new suit, Justice Olotu gave judgment in favour of the CPC members who went to court and held that INEC had no power to withdraw the certificates of return earlier issued to them. The learned justice held that the court has jurisdiction to hear and determine the suit and that the suit, as filed by the Plaintiffs was not hypothetical, academic and did not constitute an abuse of court process as claimed by the defendants in their preliminary objection.
As at press time the Yar’Adua group has filed an appeal at the Court of Appeal in Abuja. Whatever the judgment of the court, whoever loses at the Appeal Court will have an option of going back to the Supreme Court. On the face, it appears that the same issues between the same parties are being litigated twice. This is not too good for the nation’s judiciary because courts are expected to determine the issues in disputes between parties once and for all.
Eventually, it is the apex court that will finally settle this political logjam that has turned into judicial mess. But how soon will that be?