I know that Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), gives us the right to ventilate all our grievances in court, but must we abuse our Section 6(6)(b) right by wasting the time of our already over-burdened courts with somewhat frivolous matters? How long will we allow Politicians to use our esteemed courts, as their playground? Honestly, in the case of Suit No: EPT/BY/GOV/03/2020 Advanced Nigeria Democratic Party (ANDP) v INEC, PDP & Douye Diri, what many see is some sinister conspiracy similar to what we saw in Rivers State after APC was excluded from the ballot; to ensure that another candidate from a nondescript party, and not the PDP candidate, wins the election by hook or by crook, and then possibly to have them either defect to APC or exercise the power of Federal over them, because of APC’s seemingly obvious desperation to get a leg into at least one of the oil producing States of the South South! The plot thickens with a news report which circulated on social media on Friday, in which the same ANDP distanced itself from this present legal proceedings, not to mention the mysterious revival of this Petition (which was previously withdrawn) only following the declaration of the PDP candidate as the winner of the election – possibly confirming the APC conspiracy theory!
I have seriously pondered over the majority decision that was recently handed down in the ANDP case, and I must say that I can only align myself to an extent with the dissenting judgement of the Chairman of the Tribunal, Hon Justice Muhammad Sirajo. Many issues arose in this Petition and decision, but because of space constraints, l shall only deal with a few which I deem to be crucial.
The Constitution and the Electoral Act
Section 177 of the Constitution provides for Qualification for election as Governor, and by virtue of Section 187(2), these provisions also apply to the Deputy Gubernatorial candidate as well. Section 177(b) unequivocally states that, candidates for both positions must have attained the age of 35 years. In the first place, strangely, the two Deputy Gubernatorial candidates presented by ANDP, that is, David Esinkuma and subsequently, Janet Inowei, fell short of this provision, not having attained the age of 35. In fact, Ms Inowei turned 35 years, 10 days after the November 16, 2019 election. Isn’t it mischievous and shameful, that so-called political parties believe that they can make a mockery of the provisions of the grundnorm by presenting candidates who do not meet its requirements, and then seek refuge in the Tribunals and Courts by taking advantage of seeming inconsistencies in statutory provisions and legal technicalities? This assertion, seems to fit the bill in this case.
Is it not obvious that the proviso in Section 31(1) of the Electoral Act 2010 (as amended)(EA), that INEC shall not reject or disqualify a candidate for any reason whatsoever, is not just vague and blanket, sometimes leading to absurdity; but, in this particular circumstance, runs foul of the provision of Section 177(b) of the Constitution, which makes the mandatory age for qualification of election for Governor (and Deputy) 35 years? Is INEC not empowered to make such an obvious observation to ANDP, that its candidate doesn’t meet the constitutionally provided age requirement, a fact which any serious political party should have been well acquainted with, before fielding its candidate? That proviso in Section 31(1) of the EA is absurd in the face of clear cut constitutional breaches like that of the ANDP; they do not need judicial interpretation. I will go further to argue that, Section 285(14)(c) of the Constitution which classifies the ANDP matter as a pre-election one, provides inter alia that: “….a political party challenging the actions, decisions or activities of the INEC disqualifying its candidate from participating in an election…..”, certainly recognises the fact that INEC can disqualify a candidate from participating in an election, and that such party can challenge the disqualification in Court, not a Tribunal (Section 285(14)(10) of the Constitution).
Let me give another example, to further buttress the absurdity of the afore-mentioned proviso vis-a-vis Section 177 of the Constitution. If somehow, a Chinese citizen who moved to Nigeria for the first time ever a year before the election, Mr Chu Wong, on the platform of ‘Chinco Nigeria Party’ submits a nomination form to run for the office of Governor or as a Deputy Gubernatorial candidate; because of the proviso in Section 31(I) of EA that INEC cannot disqualify a candidate for any reason whatsoever, as the Constitution stands today, should INEC then accept the nomination of Mr Chu Wong contrary to Section 177(a) of the Constitution, which provides that candidates must be citizens of Nigeria by birth, and wait for the court to declare him to be Chinese, because the constitutional provision is said by some not to be self-executory, but must be interpreted by the court?! Or if a baby, still in diapers, is nominated as the Deputy Gubernatorial candidate, INEC should go ahead and accept the nomination? I think not. That is how preposterous and farcical that that omnibus proviso in Section 31(1) which requires stricter qualification, is!
Yes, saying that INEC cannot regurgitate to an offender the provision of the Constitution which such a nomination offends, especially those that are as clear as day like that of ANDP, is not only as risible as having Mr. Chu Wong run for Governor in Nigeria, but also makes nonsense of the constitutional provisions. This was the basis of Ground IX of the Petition – that the pronouncement of qualification for election is a judicial function – Maybe, but in this case, why? Anybody who can read, even a seven year old, can see the clear provisions of Section 177 of the Constitution, without employing or going to court to employ any of the further rules of interpretation (golden or mischief).
It is Section 177(b) that disqualified Mr Esinkuma, not INEC. Section 1(1) of Constitution declares its supremacy and bindingness on all throughout Nigeria (including ANDP), while Section 1(3) declares that the Constitution will prevail over any inconsistent law. I submit that for the purposes of this case, Section 31(1) of the EA is inconsistent with Section 177(b) of the Constitution, if it precludes INEC from informing a political party that its nominee/candidate is under-age or that Mr Chu Wong is not a Nigerian citizen by birth, ab initio. Surely, as the institution which is described as the organiser of elections in Nigeria, INEC’s constitutional role cannot be limited by an inferior statute to be that of a rubber stamp, especially to unconstitutionality and wrong-doing.
Furthermore, I also did not see anywhere in the the Petition, where ANDP denied the fact that Mr Esinkuma and Ms Inowei were under-age at the time of the election. The majority decision of the Tribunal therefore, also ordering a fresh election in which an under-aged candidate can contest is bizarre, and similarly runs foul of Section 177(b) of the Constitution. In the event that such an under-aged candidate runs in a fresh election, surely this would be the first ground for other contestants to challenge the election? He/she would be disqualified by the Court/Tribunal. So, why the merry go round? What is the essence of handing down a decision that fails the test of legality and constitutionality? In any event, even if fresh election is held, the APC will not be a part of it, as the Supreme Court invalidated its candidature for the Bayelsa gubernatorial election in Suit No. SC/1/2020 – Peoples Democratic Party v Biobarakuma Dei-Eremienyo & 3 Ors. For those who are jubilating in the belief that a fresh election means a totally new process, from nomination of new candidates to primaries and finally the actual election, by no stretch of the imagination can one make such an illogical conclusion. It simply means that the ANDP should be added to the ballot which it claims to have been excluded from, along with those who are lawful candidates of the November 16, 2019 election.
Interestingly, it seems that David Esinkuma did not formally withdraw his candidature with any written notice as is required by Section 35(1) of the EA, before Janet Inowei was purportedly substituted – at least I didn’t see any mention of that in the Petition (Grounds X and XI). Section 32(2) of the EA says that there shall not be more than one person nominated for one office. By failing to properly withdraw the first nomination, and even though INEC did not accept the second nomination, ANDP had two under-aged nominees for the same office of Deputy Governor of Bayelsa State, begging the question as to whether the ANDP did in fact, have a valid nomination for the election in the first place.
From the foregoing, I wonder if Section 138(1)(d) of the EA which was the bedrock of the Petitioner’s claim is even applicable to this case, as one of the elements that must exist in order to prove that ANDP was unlawfully excluded from the election, is that it had a valid nomination. By ANDP’s own admission in its Petition, ANDP couldn’t have had a valid nomination, because I would imagine that, a constitutionally qualified candidate must necessarily be a condition precedent for a valid nomination. In my humble opinion, both candidates being under-age or having two nominees for the same position, makes the assertion that ANDP had a valid nomination, untenable.
Apart from the above, there were jurisdictional issues in the case. By the virtue of Section 285(14)(b) & (c) of the Constitution, this matter qualifies as a pre-election one, which must be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit, as it relates to nomination of candidates for the election before the election took place; and such action should be filed in a High Court or Federal High Court. Instead, this matter was filed on the 26/2/2020, 12 days after Douye Diri was declared as the duly elected Governor of Bayelsa State on 14/2/2020. However, INEC wrote to ANDP on 27/9/2019 to say that the deadline for the submission of nominations for candidates had closed on 9/9/2019, and therefore, its name would not be on the ballot. The Petition should have been filed by October 11, 2019, 14 days from the date of INEC’s letter of 27/9/2019 when the cause of action – the exclusion from the ballot, arose (as clearly defined in Section 285(14)(c)).
I do not agree that the matter is a post-election one (by the foregoing, it is not). But, if it was, by virtue of Section 285(5) of the Constitution, it should have been filed within 21 days after the date of the declaration of the result of the election, which many argue is 14/2/2020 when Senator Diri of the PDP was declared as winner, and not 17/11/2019 when David Lyon of the APC was previously declared; that the Supreme Court’s nullification of Lyon’s declaration in the PDP case (Supra), rendered the initial declaration null and void. Can this be the reason for the attempt to shroud this Petition, in a borrowed post-election garment?
Even if there lies a conflict between Section 138(1)(d) of the EA which the Petitioner sought to rely upon to support its claim that the matter is a post-election one; and Section 285(14)(c) of the Constitution which INEC relied upon as qualification as a pre-election matter, again, the provision of the Constitution prevails; and the Tribunal should not have entertained this Petition for lack of jurisdiction, having been filed out of time and before the wrong court (wrong venue).
As the saying goes, ‘he who comes to equity, must come with clean hands’. The ANDP did not come to equity with clean hands, as the party fielded unqualified candidates, and should in fact, have been convicted of presenting candidates who do not meet the constitutional qualifications, punishable with a fine of N500,000 for each candidate (Section 31(8) of the EA), while paying costs for abuse of court process. The Petition is incompetent, and the Tribunal should not have entertained it for the aforementioned reasons. It is also trite law that, jurisdiction is the life blood of a matter; that a court is incompetent without jurisdiction, and if a court lacks the requisite jurisdiction to entertain a matter, no matter how well tried it is, all the proceedings therein are null and void, and of no effect – Madukuolu v Nkemdilim 1962 2 S.C.N.L.R 341.
The only conclusion that can rightfully be drawn from this Petition is that it is a pre-election matter, as a candidate who does not qualify in accordance to Section 177 of the Constitution (in this case Section 177(b)), and is excluded from participating in an election, must go to court within 14 days of the exclusion. A candidate who does not satisfy constitutional requirements, cannot be said to have been validly nominated, let alone unlawfully excluded from participating in an election; while, additionally, the Election Petition Tribunal lacked the jurisdiction to entertain the matter.
“THE ONLY CONCLUSION THAT CAN RIGHTFULLY BE DRAWN FROM THIS PETITION IS THAT IT IS A PRE-ELECTION MATTER, AS A CANDIDATE WHO DOES NOT QUALIFY IN ACCORDANCE TO SECTION 177 OF THE CONSTITUTION (IN THIS CASE SECTION 177(B))……CANNOT BE SAID TO HAVE BEEN VALIDLY NOMINATED, LET ALONE UNLAWFULLY EXCLUDED FROM PARTICIPATING IN AN ELECTION…..”