The legal quandary, which the All Progressives Congress has found itself in Zamfara State, was not only avoidable, but self-inflicted, writes Tobi Soniyi
Filing multiple cases on same subject matter often results in confusion. This explains why many people do not understand the issues in dispute among members of the All Progressives Congress (APC) in Zamfara State.
The crisis in Zamfara APC can be traced to the aborted congress of 2018. The governor, Abdul’Aziz Yari wanted affirmation during the congress but a faction led by the Chairman of the Senate Committee on Petroleum (Downstream), Kabiru Marafa, said the condition for adopting affirmation did not arise.
Eventually, the congress did not hold, because the governor would not allow congress to take place. Marafa cried foul and appealed to the leadership of the party to intervene. That appeal went unheeded.
Had the leadership of the party resolved the crisis that erupted during the congress, APC would not have had any difficulty conducting primaries in Zamfara. As was the case in Ogun, Imo and Rivers States, the APC leadership’s failure was in full display in Zamfara.
The warring factions maintained their respective positions and ensured that no valid primaries were conducted to elect the party’s standard bearers for the national assembly, governorship and house of assembly elections. Attempts to hold the primaries at different times were stalled following clashes between supporters of the governor and Senator Marafa.
But the governor was determined to have his way and was able to maneuver his allies in the party hierarchy at the national level. But again, Marfa raised the alarm, warning that the party would not be able to present candidates for the 2019 elections if the leadership of the APC did not call Yari to order. For the umpteenth time, he was ignored.
However, Yari eventually submitted a list of candidates to INEC but the commission refused to act on it. For one, the time within which the commission stipulated for political parties to submit the list of candidates had lapsed. Second, the commission was of the view no valid primary was conducted.
When the leadership of the party failed them, members went to court. Marafa and co filed a suit before the Federal High Court in Abuja while those loyal to Yari chose to file their case before a Zamfara State High Court.
Coincidentally, both courts delivered judgment on the same day: January 25th, 2019.
Justice Ijeoma Ojukwu, of the federal high court said it was not the fault of INEC that APC failed to conduct a valid primary within the scheduled period. Ojukwu said INEC’s action was intended to curb impunity among political parties and politicians.
She consequently restrained INEC from accepting the list of candidates, which Yari claimed emerged from a purported primary held on October 7, 2018. The court in Zamfara ordered INEC to accept the list. It became confusion galore.
Appeals and counter-appeals were filed by the parties before the Abuja and the Sokoto divisions of the Court of Appeal. This further complicated what ordinarily should have been a simple matter for the leadership of the APC to resolve.
The President’s Failed Promise
On February 11, while campaigning for his reelection in Gusau, the Zamfara State capital, President Muhammadu Buhari, said the crisis would be resolved before the elections. This, however, did not happen as no concrete steps were consciously taken to call the warring factions to order. Buhari was unable to present the party’s flag to APC’s governorship candidate in Zamfara, because there was none.
A Call for Postponement
Following a judgment by the Sokoto Division of the Court of Appeal delivered on February 13, 2019, dismissing one of the appeals on the ground that the appellant has filed an application to withdraw same, the Attorney General of the Federation, Abubakar Malami, SAN, wrote to INEC asking the commission to postpone election in Zamfara.
The AGF erroneously took the view that the dismissal of the appeal amounted to upholding some applications filed under the dismissed appeal. One of such motions asked the appellate court to temporarily validate the APC Zamfara primaries and allow those who emerged therein to participate in the election.
The AGF cited sections 38 and 39 of the Electoral Act. Both sections envisage a situation, where “at the close of nomination, there is no candidate validly nominated, the commission shall extend time for the nominations and fix a new date for the election.”
But the Marafa faction countered the AGF. The group stated that parties were already in court while other political parties nominated their candidates. The group’s lawyer, Mike Ozekhome, SAN, wrote to INEC Chairman, Prof. Mahmood Yakubu urging him to discountenance the AGF advice.
INEC thus refused to postpone election in Zamfara. It also insisted that APC had no candidate in the state.
A Lifeline of Sorts
On February 21, 2019, the Abuja Division of the Court of Appeal dismissed the appeal filed by APC challenging the judgment of Justice Ijeoma Ojukwu of the Federal High Court, Abuja, which held that APC did not conduct a valid primary in Zamfara. The appeal was dismissed based on the party’s application to withdraw same. The appellate court, however, held that a cross appeal filed by Yari and other members loyal to him partially succeeded and went ahead to set aside the decision of the lower court on jurisdiction.
However, the judgment was neither direct nor specific on whether the list of candidates should be accepted by INEC. The warring parties gave different interpretations to suit themselves. APC said the judgment had paved the way for its candidates to contest while Marafa and his supporters argued that the status quo should be maintained.
To err on the side of caution, INEC listed the candidates from Yari’s list. They participated in the election and won massively.
And Now, the Bombshell!
On Monday March 25, the Sokoto Division of the Court of Appeal set aside the judgment of the Zamfara State High Court, which allowed APC to field candidates in the 2019 elections in Zamfara State. While ruling on the appeal filed by Marafa and 129 others, the appellate court gave a judgment that rattled the APC.
Marafa and others had approached the appeal court and argued that the state high court lacked the jurisdiction to entertain the suit and that its judgment should be declared null and void.
The appellate court in a judgment delivered by Justice Shaibu Yakubu, held that the Zamfara State High Court failed to evaluate wholly all evidence presented before it before giving its verdict on the APC primaries in the state.
Justice Yakubu, who delivered the lead judgment of the court, said all evidence placed before the court had shown that the respondents (APC and others) did not conduct primary elections, which accordingly, contravened the electoral law.
His Lordship also noted that the party had made two unsuccessful attempts to conduct primaries in the state and list of candidates was not duly submitted to INEC by the national headquarters of the party.
His Lordship held: “We have looked at the exhibits 4, 7 and 8 which are very clear that primary election was not conducted. Evidence shows that the state governor only appointed a special committee that later came up with candidates’ names in place of primary elections. So far, all evidence constituted that primary election was not conducted which contravened the electoral law.”
The judge also faulted the lower court for relying heavily on oral evidence in taking its decision, saying “oral evidence cannot be used to discredit any written evidence. A procedure must be followed whether there is an order or not. This court hereby sets aside the judgment of the trial court. This must be a hard and bitter lesson for all political parties, who will not follow the guidelines before them,” part of the judgment read.
The court, however, ruled in favour of the respondents on jurisdiction. It held that the trial judge had power to determine such a case in accordance with the law. The respondents are Kabiru Liman-Danalhaji and 139 others. They were represented by Mr. Mahmud Magaji, SAN.
Supreme Court to the Rescue
The Zamfara governor-elect and those elected into the state’s house of assembly may still be saved. That is, if the Supreme Court rules in their favour. Last Tuesday, the state governor said he would challenge the Court of Appeal judgment, adding that he would approach the Supreme Court for interpretation of the appeal court ruling and for better understanding.
“I think it is better for us to go to the Supreme Court so that the court can be able to explain what the judgment is about. In the entire judgment, there is no order or directive of what to be done or what not to be done.”
The governor also noted that the judgment did not make any pronouncement regarding the National Assembly and State House of Assembly elections in the state.
Put Something on Nothing
If not for the judgment of the Zamfara State High Court, the APC would not have fielded candidates for the governorship and the state house of assembly election. Therefore, when that judgment was set aside, the basis upon which the APC candidates participated in the election had been extinguished.
In the words of the counsel to the appellants, Ozekhome, “To situate the aforesaid development in its true legal perspective, it follows that all the candidates of the APC, who purportedly participated in the Governorship and State Assembly elections held on 9th March, 2019, were never candidates in the eye of the law and the purported elections are therefore null, void and of no effect whatsoever.”
Another Senior Advocate of Nigeria, Dayo Akinlaja said except the Supreme Court set aside the judgment of the Court of Appeal, INEC would have to conduct fresh election in Zamfara State.
Akinlaja said the implication of the Appeal Court judgment was that the people of Zamfara had not been given the opportunity to elect those who should govern them and that for them to be given the opportunity, a fresh election would have to take place. Akinlaja’s view was in tandem with Ozekhome’s.
Ozekhome contended that by the unanimous judgment of the Court of Appeal, Sokoto, APC’s purported primaries for the governorship and assembly elections had been set aside and quashed in its entirety in very clear and lucid terms.
He said: “The legal import of the said judgment is that the so-called primaries allegedly held by the Zamfara State chapter of the APC, rather than the national body of the APC, as a legal entity, and on which all the candidates hinged their candidacy has now been effectively and totally nullified.
“Consequently, it goes without saying and indeed follows as the night follows the day, that everything that was founded on the said flawed APC primaries was null, void and of no effect whatsoever. This is because the very pillar on which it rested has now legally collapsed by the judgment of the Court of Appeal, Sokoto Division.
“The foregoing is in accord with law and simple logic as it is naturally impossible to place something on nothing and expect it to stand; it must collapse like a pack of cards.”
In his views, Dr. Tunji Abayomi likened the situation in Zamfara to a building with a faulty foundation, adding that it would surely collapse and that by the judgment, there was no lawful primary and there could not be lawful elections in the state.
“You cannot build something on nothing”, he added.
Another SAN, Joe Agi, said INEC should not delay in withdrawing certificates of return it issued to APC candidates in the elections as the judgment was in tandem with its (INEC) earlier position that the APC was not qualified to contest the elections in the first place.
He stated that conducting primaries was a prerequisite for qualifying to contest any election and since the APC did not conduct any primaries it was not qualified to participate in the elections.
“INEC should withdraw their certificates of return from the candidates immediately. INEC has said that APC was not qualified and that the party did not have candidate in the elections, because they did not conduct primaries in accordance with the law.
“Invariably the judgment of the Appeal Court confirms the position of INEC before that judgment came from Zamfara High Court. So, INEC should go back to the position it has taken prior to the election”, he said.
The senior lawyer further submitted that INEC did not need to wait for any appeal to the Supreme Court before withdrawing its certificates of return since the matter was not an election matter where the law provides for 21 days within which to appeal.
For Mr. Ebun Adegboruwa, the implication of the judgment is that there was total leadership vacuum in Zamfara State. He said the judgment was a lesson for Nigeria leaders, especially political leaders that the Judiciary cannot be taken for granted.
“It is a clear message to our leaders that they cannot continue to take the judiciary for granted. If politicians take judiciary for granted then they will pay for it in this manner.
“Most of the cases in court are due to impunity of the leadership of the party. The ruling APC needs to put its house in order. You cannot continue with impunity, because you are in power. That is the message the judiciary is sending to political parties. Once a case is in court, the party should resolve it or wait for the determination of the case. Politicians should learn lessons and play by the rules,” Adegboruwa advised.
Echoing similar sentiment, the governorship candidate of the Peoples Democratic Party in Anambra, Mr. Oseloka Obaze said: “In the fullness of time, one redeeming value of the fractious 2019 elections is that it would have offered the Nigerian judiciary a fortuitous window of opportunity to redeem itself and affirm the doctrine of separation of powers in our democracy. Judicial rulings on Osun and Zamfara represent positive redemptive values.”
INEC Suspends Issuance of Certificates of Return
While Yari and co were preparing to lodge an appeal at the Supreme Court, INEC had taken the decision to suspend the issuance of certificates of return to elected APC candidates in Zamfara.
The commission said the suspension was in obedience to the judgment of the Court of Appeal in Sokoto, which set aside the judgment of the Zamfara High Court that allowed the APC to field candidates for the March 9, elections in Zamfara.
“INEC has been served with the judgment of the Court of Appeal, Sokoto concerning the sponsoring of candidates by the APC in Zamfara and is studying same. Consequently, the presentation of certificates of return for the Zamfara governorship and state House of Assembly scheduled for Wednesday 27 has been suspended,” the commission said.
The problem in APC is a microcosm of the challenge the ruling party is having in governance.
No one should expect a ruling party that can’t discipline its members, to organise congresses and conduct primary elections to provide good governance. It is simply a case of nemo dat quod non habet, which literally means no one can give what they do not have.