Why I Disagree With The Legal Position Of The Attorney General Of The Federation, INEC And The APC On The Kogi Elections Conundrum. – John Aruoture.

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It is conceded that I was one of those persons who rooted for the appointment of Abubakar Malami, SAN as the Attorney General of the Federation & Minister of Justice (hereinafter referred to as “AGF”). However, my ab initio support does not preclude me from disagreeing with his legal stand-points on issues as they affect the collective interests of the nation.

The Kogi State gubernatorial elections conundrum is nascent in our legal jurisprudence. The death of a candidate, albeit the leading candidate in an on-going election exercise before its conclusion is not an event envisaged by either our statutes or the grundnorm which is the 1999 Constitution (as amended) (hereinafter referred to as the “Constitution”). The Electoral Act 2010 (as amended) (hereinafter referred to as the “Electoral Act”) clearly provides for the action to be taken when a candidate dies before the polls; which is to permit the party to substitute the candidate. The Constitution provides for when the candidate dies after being declared winner; which is that his running mate is sworn in his stead. But, there is no provision whatsoever, on when a candidate dies during the elections!

Being a novel scenario, the electoral umpire fell into a dilemma and sought for legal advice from the chief law officer of the federation, that is, the Attorney General of the Federation & Minister of Justice, Abubakar Malami, SAN. I make bold to say that the legal advice offered by the AGF in response to the request of INEC and which the APC acted upon, appears more political than legal. As earlier canvassed, while the statutes do not envisage this scenario of death of a candidate during elections, they also do not support the legal position of the AGF. What is his position? In his advice, he opined that the electoral body instructs the APC to nominate a new gubernatorial candidate to replace the late Abubakar Audu.

In stating the basis of his advice, the AGF relied on section 33 of the Electoral Act and section 221 of the Constitution when he was quoted as saying;

“It is therefore apparent that the community reading of the two provisions (section 33 of the Electoral Act and sections 221 of the Constitution) do not leave any room for conjecture. APC as a party is entitled to substitution by the clear provisions of Section 33 of the Electoral Act. Also Section 221 of the Constitution is clear that votes that were cast were cast in favour of the APC.”

For clarity the said Section 33 provides that:

“No political party shall be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate”.

The second authority relied upon by the AGF, Section 221 of the Constitution stipulates that;

“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.”

It is my humble opinion that these authorities are inapplicable to the peculiar facts of the situation as interpreted by the AGF. With all due respect the opinion or advice of the AGF does not accord with the clear provisions of the law and judicial pronouncements. I do not see how these legal provisions relied upon by the AGF fairly appreciate the peculiarities of the Kogi conundrum.

As it pertains to the death of a candidate, the stated Section 33 of the Electoral Act cannot be read in isolation but must be read communally with Section 36 of same Act which specifically and clearly touches on “death of a candidate”.  It should be noted that this provision is absent in the Electoral Act 2006, and the rationale behind its inclusion in the extant Electoral Act was to put an end to the penchant of political parties in the past who were wont to arbitrarily and unilaterally for flimsy or “Godfatheristic” reasons substitute the names of successful aspirants who fell out with them or who worsted their choice at the party primaries; these substitutions were made even at the eve of elections. The National Assembly had to wield into these obnoxious and unscrupulous actions of party bigwigs by inserting Section 33 which makes it impossible to substitute a candidate except by his/her death or resignation from the candidacy by a letter written under his hand.

Having shared the background knowledge of the rationale behind this provision, it is safe to view that provision of the Electoral Act only from the prism of the mischief the legislative draftsmen sought to cure with its enactment. My position becomes clearer when this provision is read alongside section 36 which specifically provides for the death of a candidate. It states:

 36 (1) “If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days.”   

A careful analysis of these provisions would indicate that the intention of the legislative draftsmen was clearly “death before the polls” and not “death during the polls”. It is worthy of note that “death after the polls” was envisaged by Section 181(1) of the Constitution, but none for death during the polls.

It is important to point out that the attempt of the AGF to impliedly rely on the authority of the notorious Ameachi vs. INEC decision where Rotimi Ameachi did not partake in the guber polls in River state but was declared winner because votes were for political parties, is no longer tenable; it is not the present position of the law. The insertion of Section 141 in the Electoral Act 2010 has dynamically changed the face of the law.

In CPC vs. Ombugadu (2013) 18 NWLR (Pt. 1385) 1, the Supreme Court held Per Ngwuta, JSC, in pg. 119 para F-H that:

“Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:

“An election tribunal or court shall not under any circumstances declare any person winner of an election in which such a person has not fully participated in all the stages of the said election.”

By the above provision, the National Assembly has set aside the decision of this court in Ameachi v. I.N.E.C. (2008) 5 NWLR (Pt. 1080) page 227 at 296. Contrary to the decision of this court in Ameachi’s case, the implication of section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him.

In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by the tribunal or court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting”. 

This provision of the Act was also given judicial flavor by the Supreme Court in Jev v. Iyortyom (2014) 14 NWLR (Pt. 1428) 575. In this authority, the apex court Per Okoro, J.S.C. held giving the lead judgment in pg. 622, para. C-D thus:

“By section 141 of the Electoral Act (supra), the 1st respondent cannot be declared the winner of the election as was done in Ameachi v. INEC (2008) All FWLR (Pt. 407) 1; (2008) 5 NWLR (Pt. 1080) 227. The clear position of the law now is that a person must participate in all the stages of an election before he can be declared the winner of the said election.”    

Can the Governor-elect, Yahaya Bello be said to have participated in all stages of the election, having taken part only in the party primaries (which he lost) and the supplementary elections? My answer is an emphatic “NO!”

The Supreme Court Adds A Twist By Setting Aside A Part Of Its Decision In Jev v. Iyortyium.

However, as a legal practitioner and an officer in the temple of justice, I am duty-bound to engage in full disclosure on issues of law and fact in order to meet the ends of justice. A couple of weeks ago, the Supreme Court had cause to review its earlier decision on the applicability of Section 141 of the Electoral Act in Jev v  (supra) decided in 2014. In a recent and different decision in Jev. vs. Iyortyium (2015) LPELR – 24420 (SC) brought again before it by Yusuf Ali, SAN (applicant’s counsel) via a motion on notice praying the apex court to review its earlier decision and set aside its earlier order barring Sekav Dzua Iyortyom from being sworn in since he did not take part in all the processes of the election, the court took a different and curious stand. In his application, the Learned Silk argued that the basis of the refusal of the Supreme Court in declaring the applicant as the winner of the said election was exclusively on the provision of Section 141 of the Electoral Act 2010 (as amended) whereas the Federal High Court in Suit No: FHC/ABJ/CSI/2011 between Labour Party vs. Hon. Attorney General of the Federation delivered on 21st July, 2011 had annulled the said provision. According to him, Section 141 of the Electoral Act (supra) has been completely wiped out of the Electoral Act by the said judgment of the Federal High Court. He opined that the Supreme Court in its judgment was obviously oblivious of the fact of the nullification and obliteration of the provision of Section 141 of the Electoral Act upon which the consequential relief ordering a fresh election was hinged. In its ruling on the application of Yusuf Ali, SAN, the Supreme Court held Per John Inyang Okoro, J.S.C. that:

“I wish to put on hold my opinion on the part of his argument relating to and touching the judgment of the Federal High Court which I hope to speak at an opportune time. But having a closer look at Section 141 of the Electoral Act reproduced above, it is quite clear that the said section refers to some courts for which the Supreme Court is not part of. Section 133 (2) of the Electoral Act is not one of the courts to which section 141 regulates. This is much more so since the issue for consideration was not an election appeal but a pre-election matter. Clearly, the definition of “tribunal or court” does not include the Supreme Court or the Federal High Court hearing and determining pre-election matters. It is trite and an  unassailable legal principle that the express and unambiguous mention of one thing in a statutory provision, automatically excludes any other which otherwise would have applied by implication withregard to the same subject matter. On the whole, it is my well considered opinion that this application is meritorious and is hereby granted as prayed. Accordingly, the consequential order No. 2 made in the judgment of this court in appeal No. SC. 164/2012 delivered on 30th May, 2014 which ordered the Independent National Electoral Commission (INEC) to conduct fresh election into the vacant seat of Bukuru Federal Constituency of Benue State in the House of Representatives is hereby set aside”

Notwithstanding the Supreme Court review of its decision in Jev v. Iyortgium (supra), I make bold to still stand by my position and further assert that the recent pronouncement of the apex court supports my view but circumscribes the choice of courts that the losers of the elections, Idris Wada and the PDP can approach, and the challenge must be vehicled only through an election petitions tribunal and not the regular courts in pre-election matters.

Neither Faleke Nor Wada!

In another vein, a curious position taken by some persons, certainly PDP apologists is that Governor Wada ought to have been declared winner on the demise of Abubakar Audu. On what basis? This position is so laughable and baseless that there is no time to waste on it. Even the late Audu Abubakar who was in the lead could not have been declared winner haven not satisfied the provisions of section 179 (1) of the Constitution which provides that a candidate can only be declared winner if he has scored the highest number of votes cast and one fourth (1/4) of the votes cast in two third (2/3) local governments of the state.

On another hand, some persons are of the opinion that the APC running mate, Mr. Faleke ought to have been promoted to become the flag-bearer while a running-mate is chosen by him or the APC. Those persons who toed this line fail to realize that the same section 141 of the Electoral Act and Jev v. Iyorgium (supra) also bars Mr. Faleke from this ascension. How? Did he participate in the APC primaries conducted to choose their Guber candidate? It was after the primaries that the late Audu Abubakar, the winner of the primaries picked him as his running mate.

Again, while it can be argued that Mr. Faleke participated in the elections, can it be said that he participated as a governorship candidate or as a running mate in order to satisfy that provision of the law? Suffice it to say that the authority can be distinguished on the ground that the Supreme Court adjudicated on and pronounced on a flag-bearer of an election and not a running mate.

The Legal Advice Of The AGF Appears Political.

I had commenced this opinion by stating that the decision of the AGF was political rather than legal. The reason for my assertion is simple. I believe the permutations were that by the time the decision of INEC to go ahead with the supplementary elections is challenged at the tribunal, Governor Wada the PDP aspirant having lost the elections would be an ordinary petitioner and citizen at the tribunal, out of office while the APC candidate would have been sworn in as Governor. In the event that the Supreme Court agrees with Wada’s position, nullifies the polls and orders for a rerun, the APC would have gained more grounds politically, having been in Kogi Government House for over a year immediately preceding the conduct of the rerun. They would at that time be enjoying the powers and favours of incumbency while Wada and the PDP would be running helter – skelter unlike the reverse roles before this last election.

Would It Have Been Out Of Place For The AGF To Call For Fresh Elections?

If on the other hand, the AGF had advised that the elections be cancelled and fresh elections conducted, would the time-frame available for fresh nominations, and conduct of the elections not be a breach of section 178 (1) and (2) of the Constitution? The Constitution provides that elections be conducted not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.

It is my well considered view that the decision of INEC to proceed with the supplementary elections rather than ordering an outright cancellation preparatory to fresh polls stands to be nullified by the judiciary upon a challenge by the aggrieved parties. The decision of the APC to field Mr. Yahaya Bello in the supplementary polls is one that will be tested by the courts and we wait on the Supreme Court to pronounce on it.

A Separation of Offices.

In light of the interpretation given to the legal provisions by Abubakar Malami, SAN, I seek to reiterate my often held view that the office of the Attorney General of the Federation should be separated from the office of the Minister of Justice, while the former serves as the counsel/legal adviser to the entire federation, the latter, a political appointee of the sitting President and ruling party concerns himself with being the counsel/legal adviser to the Federal Government and his benefactors. If the offices were separate, the AGF may have given a totally different advice to the electoral umpire, not being bothered by party politics and political permutations.

Did The Governor-elect Have a Running-mate?

On the issue of whether the APC went into the supplementary elections without a running mate, and hence does not have a Governor-elect, having regard to the shenanigans and tantrum-throwing by Mr. Faleke, the running mate who asked INEC to declare him governor-elect on the death of Audu Abubakar and allegedly refused to partake in the supplementary polls, my view is that; Section 35 of the Electoral Act clearly provides for what a candidate who intends to withdraw his candidacy should do. It provides that:

“A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political party that nominated him for the election and the political party shall convey such withdrawal to the Commission and which shall only be allowed not later than 45 days to the election.”

The regnant question that arises from this imbroglio is: did Mr. Faleke comply with this provision of the Electoral Act? Can mere mouthing of an intention to withdraw in the presence of journalists and pressmen suffice in compliance of the law? The emphatic answer is a “No”!

John Aruoture is a Legal Practitioner based in Delta State and tweets @Aruoturejon.