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Election:Tribunal Can Declare Winner, Says Court

01 Jul 2011

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Tribunal declared Rotimi Amaechi, as the Rivers State Governor

Justice Okechukwu Okeke of the Federal High Court in Lagos Thursday nullified Section 140 (2) of the Electoral Act, 2010 which prevents Election Petition Tribunals from declaring winners of elections.

Section 140 (2) specifically states that: “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 second highest votes as elected, but shall order a fresh election.”

Delivering judgment in a suit filed by the Action Congress of Nigeria (ACN) challenging the legality of the amendment done to the Electoral Act, 2010 by the immediate past National Assembly, Justice Okeke said the section was null and void and of no effect whatsoever and inconsistent with the constitutional provision which gives powers to the courts to make declarative injunctions.

The judge, however, upheld Section 87 (8) which bars political appointees at any level from voting as delegates at political party conventions or congresses for the purpose of nominating candidates for election, saying that it was necessary so as to provide a level-playing field for all contestants.

The judge said: “It is my considered opinion that Section 87 (8) must remain because if elections must be free and fair, all parties must be on the same level playing ground.

“If you want to take political appointment, you must know the implication that as a political appointee, you will not be able to act as delegate in party primaries.

“It is my humble view that Section 87 (8) is a valid provision in the interest of peace so that all contestants will be on equal footing.”

The judge also upheld Section 141 which states that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”

At the last adjourned date, the National Assembly had through its counsel, Sebastian Hon (SAN), conceded that it lacked the power to amend the Electorate Act to prevent Election Petition Tribunals and the courts from declaring any person who successfully prove his or her case as validly elected.

On this date too, the ACN had equally conceded to the superior argument of the National Assembly on Section 141 that the section should remain the way it is to prevent anyone that does not participate in electoral process from being declared as winners.

The National Assembly had hinged Section 141 on the ground that prior to the amendment, there was heated debate whether the Supreme Court was right when it declared Rotimi Amaechi as the Rivers State Governor when he had not contested in the April 2007 general election.

The concessions on both parties consequently narrowed down the issue to Section 87 (8) of the Electoral Act, 2010.

During the adoption of the written argument, the ACN had urged the court to nullify Section 87 (8) on the ground that it contravened the provision of the constitution.

The party stressed that Section 87 (8) unduly disenfranchises serving political appointees from participating in their internal political process for nominating candidates for general election and that the section was also a violation of the right of association guaranteed under Section 40, Chapter IV of the constitution.

Responding, Hon argued that the ACN lacked the locus standi to challenge the provisions of Sections 141 and 87 (8) of the Electoral Act, because the sections were regular, consistent and constitutional.

Hon had also stated in a counter-affidavit to the suit that the amendment to the Electoral Act was enacted to the overall interest of all Nigerians, irrespective of political party affiliations.

He further stated that Section 87 (8) was enacted based on concerns whether political appointees should be allowed to vote at political party primaries, given that most of them were performing duplicated functions as they were being paid from public funds.

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