Another Challenge for the Judiciary


The Supreme Court’s position that only political parties win elections is no longer sustainable in view of the recently concluded Osun West Senatorial District bye-election, writes Davidson Iriekpen

The recently concluded Osun West senatorial district by-election conducted to fill the vacant position created by the death of Senator Isiaka Adetunji Adeleke may have come and gone, but it has again brought to the fore the importance of a candidate in winning an election.

In the election, Ademola Adeleke of the Peoples Democratic Party (PDP) defeated his rival, Mudashiru Hussain of the All Progressives Congress (APC) by a huge margin to emerge the senator for the senatorial district.

Recall that in the build up to the Osun State governorship election in 2014, Governor Rauf Aregbesola of the APC had sought the support of Isiaka Adeleke who was then in the PDP in order for him to defeat Iyiola Omisore. Adeleke later defected to the APC. As soon as Aregbesola won the election, and with the 2015 general election at hand, he prevailed on the senator representing Osun West senatorial district in the Senate, Mudashiru Hussain, to relinquish the ticket to Adeleke as compensation. Adeleke, also a former governor of the state, won the election.

However, last April, the senator and former governor died in mysterious circumstances. To compensate the family, the late senator’s younger brother, Ademola Adeleke, was selected as a replacement. But this, THISDAY gathered, did not go down well with Aregbesola and some APC chieftains in the state who thought the position should not be hereditary.

They however, insisted on Hussain who had earlier been disqualified from contesting the primaries by both the party’s electoral committee and the three-man appeal panel set up by the National Working Committee (NWC) of the party.

The electoral committee and appeal panel had based Hussain’s disqualification on his non-resignation as a member of the Osun State Executive Council 30 days to the primary election as prescribed by the party’s constitution. But some members of the NWC argued that it would be wrong to disqualify a candidate favoured by an incumbent governor, so, the resolutions of the party’s electoral committee and appeal panel on Hussain were set aside. This did not go down well with Ademola Adeleke who resigned his membership of the APC in protest and defected to crisis-ridden PDP.

After the poll, Adeleke was declared winner with a huge margin of over 39,000 votes. The victory has again raised the questions: Who wins election between a political party and candidate? Can a political party win election without a candidate?

Many analysts believe that Adeleke’s victory and perhaps many others in the past, are a challenge to the judiciary, particularly the Supreme Court, that the candidate a political party presents for an election is equally as important as the party as against its judgment of the Supreme Court in the now famous Amaechi v INEC case where the court, relying solely on Section 221 of the 1999 Constitution, sacked Celestine Omehia as governor of Rivers state and awarded victory to Chibuike Rotimi Amaechi on the grounds that it is a political party that wins an election in Nigeria, not a candidate. In its reasoning, the court held that since the Nigerian constitution did not allow independent candidacy, any election won belonged to the political party. The court also held that a good or bad candidate may enhance or diminish the prospects of his party in winning but at the end of the day, it is the party that wins or loses an election.

In the famous case, the Supreme Court declared Amaechi whose name was never on the ballot paper for the election, neither did he campaign nor was voted for as governor because electoral mandate in the country belongs to political parties and not the candidate. The court consequently sacked Omehia whose name was on the ballot and was voted for by the electorate, saying that since the country’s laws did not recognise independent candidacy, the mandate belonged to the political party. It held that since Amaechi was the rightful candidate of the PDP that won the 2007 governorship elections in the state on account that he won the party’s primary election in December 2006, he be sworn in as governor.

But since the judgment was delivered in 2007, many legal and political analysts have been calling for its review in subsequent cases. They also wondered why the apex court did not consider Sections 177 and 179 of the Constitution which make reference to candidates in an election. They also asked what if the candidate presented for an election by a political party was not qualified, unlikable and did not do well in previous positions, jobs or vocation? Many others have also wondered what if the electorate are not happy with the party’s choice of candidate as in the case of APC and opt for protest votes in the case of Adeleke?

It was against the background that a former Governor of Edo State, Prof. Oserheimen Osunbor, described the Supreme Court verdict as one of the most remarkable decisions ever handed down by the courts to undermine the country’s democracy and the supremacy of the constitution and the rule of law. He said the judgment failed to realise other sections of the constitution which equally lay emphasis on the candidate.

The former governor and two-time senator said: “The correct position is that both the candidate and his political party jointly win or lose an election.” According to him, Section 221 of the Constitution relied upon by the justices of the apex court clearly envisaged canvassing “votes for any candidate” not votes for any political party. He stated that the marginal note indicated that the section deals with prohibition of political activities by associations other than registered political parties, not who wins or loses an election.

Quoting copiously from Sections 177 and 179 of the Constitution to show that it is not only a political party that wins an election, the professor of law and former Chairman of the Nigerian Law Reform Commission (NLRC) wondered: “How in the face of these clear provisions of the constitution and the Electoral Act could it be said that it is a political party, not the candidate that wins an election, will, unless it can be explained as a case of ‘judicial law-making,’ remain a mystery which only time will reveal.”

To show that it is not only a political party that wins election, he cited Section 177 which states: “A person shall be qualified for election to the office of governor of a state if: (a) he is a citizen of Nigeria by birth; (b) he has attained the age of 35 years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least school certificate level or its equivalent.” He equally referred to Section 179 (2) to drive home his point. The section states: “A candidate for an election to the office of governor of a state shall be deemed to have been duly elected where, there being two or more candidates; (a) he has the highest number of votes cast at the election; and (b) he has not less than one quarter of all the votes.

“The correct position in my view is that both the candidate and his political party jointly win or lose an election – one cannot do it without the other. That is why a victorious candidate will claim with joy that he has won an election while the political party can lay claim to having won x number of seats in the legislature or won the governorship or presidential election.

“On the basis that both candidate and party jointly contest an election INEC in the 2007 elections printed on the ballot papers the photograph of each candidate besides his party logo/emblem. Presumably, because of the Supreme Court pronouncements in Amaechi’s case the use of candidates’ photographs has been discontinued. In all other countries that I know of, candidates’ photographs appear on the ballot papers to provide further aid to voters in identifying where to mark their ballot paper.

“It may be more convenient for INEC in terms of the logistics to be spared the trouble of printing the photographs of candidates especially where the question as to who is the rightful candidate is resolved by the courts very close to election day. Nevertheless, it is hoped that INEC will, despite the challenges of logistics resume the printing of candidates’ photograph as is the practice in other countries because this is helpful to the voter. At any rate, if and when our Constitution is amended to permit independent candidates, INEC will have no choice but to use their photographs on the ballot paper.

“Amaechi’s case as we have seen, has far wider ramifications than were envisaged by the Supreme Court justices when they decided the case. Its effect will continue to reverberate in our polity for years to come as it is now in many on-going cases but it is hoped that the apex court will revisit that decision when the opportunity comes its way.”

He appealed to judges to consider the immediate and long-term implications for the benefit of the country’s democracy because they practically disenfranchise and subjugate the electorate, while substituting their own personal preferences for the will or choice of the voters. He advised that elections should be won or lost at the polls not in a court of law, adding that it was better to be mindful “lest judicial impunity would breed other forms of impunity.”

But despite this intervention and many others, it was shocking again recently when the apex court having been aware of the impunity political parties perpetrate, sacked Sani Danlandi of the PDP from the Senate and Herman Hembe of the APC from the House of Representatives and declared that they be replaced with people whose names were never on the ballots without recourse to the candidates of other political parties who contested the elections with Danladi and Hembe.


Amaechi’s case, as we have seen, has far wider ramifications than were envisaged by the Supreme Court justices when they decided the case. Its effect will continue to reverberate in our polity for years to come as it is now in many on-going cases but it is hoped that the apex court will revisit that decision when the opportunity comes its way.

Osunbor… candidates are equally important in an election