Ise Oluwa Ige
8 April 2007
BACKGROUND: IN the last two months, there has been a raging controversy over the extent of the constitutional powers wielded by the Independent National Electoral Commission (INEC) to disqualify candidates already okayed for election by their political parties from contesting election. The debate was fuelled by the claim by the chairman of INEC, Prof Maurice Iwu that his commission could, unilaterally, screen all political office seekers in the country and disqualify any of them caught by the eligibility clause of the 1999 constitution without any recourse to a court of law.
The claim, no doubt, polarized the polity into two opposing camps as those for and against tackled each other on the open field afforded by the media. The issue later became a subject of litigation as the sitting Vice president, Alhaji Atiku Abubakar together with his political party, the Action Congress (AC), invoked the original jurisdiction of the Federal high court, Abuja, for pronouncement on two live issues.
Atiku battles INEC over powers of disqualification before the trial court: Assigned to hear the case was Justice Babs Kuewumi of the Federal high court, Abuja. But at the time hearing commenced in the case, INEC had begun screening candidates jostling for various elective offices in the country. The trial judge first issued an interim injunction restraining INEC from going ahead with the screening exercise before it delivered a judgment in the case. Specifically, the trial judge, in his judgment, held that INEC could screen candidates seeking to contest election but that it could not disqualify anybody from contesting election.
Atiku before the Court of Appeal: INEC was not satisfied with the judgment and had to contest it at the Court of Appeal. Atiku joined INEC at the Court of Appeal and urged it to affirm the judgment of the trial court. Besides, Atiku filed a counter-claim urging the court to hold that INEC does not even have the powers to screen any candidate.
While the matter was pending, INEC pronounced certain candidates, including Vice president Atiku Abubakar disqualified from contesting this year's poll. Atiku's sin was that he stated in the INEC's form that he had once been indicted by the Federal Government Administrative Panel of Enquiry. INEC said that the vice president was caught by section 137 (1) (i) of the 1999 constitution.
At last, INEC disqualified Atiku, contests his bar before the trial court: Angered by INEC's decision, Atiku filed a fresh suit before a Federal high court, Abuja to challenge his disqualification. He wanted the court to pronounce that INEC had no powers to disqualify him or any other candidate for the April poll. He also said that assuming without conceding that he could be disqualified, he invited the court to hold that he was wrongly disqualified because the indictment entered against him by the Federal Government Administrative Panel had been voided by the judgment of Justice Inumidun Akande of the Lagos high court in a suit by Otunba Fasawe.
INEC, however, faulted his argument in its defence on the grounds that the judgment of the Lagos high court was a judgment in personam and not a judgment in rem. INEC said that Fasawe was in court to enforce his fundamental human rights and that whatever relief he got would only apply to him and could not extend to Vice President Abubakar. The electoral body said it is more so because Fasawe complained of fair hearing whereas Atiku was not only invited to give evidence on the allegation made against him but that he also responded even in writing to some of the allegations before he was indicted.
Tradition of seniority
INEC said that the case of Fasawe was different from that Atiku. The fresh constitutional suit filed by Atiku was assigned to the newest judge of the Federal high court of Nigeria, Justice Tijani Abubakar. Justice Abubakar who was a former attorney general of a state in the North took his oath of office on May 14, 2004 and by the tradition of seniority on the bench, the most junior judge of the Federal high court of Nigeria. He rolled together both the preliminary objection filed by INEC with the substantive suit, heard them and fixed judgment for last Tuesday, the same day the Court of Appeal was to give judgment on whether or not INEC had powers to screen and disqualify candidates.
Did Atiku forum-shop? At this juncture, it is important to look at the subject-matter of the case before Justice Abubakar and the one before the Court of Appeal to see if there is any similarity between them. Without doubt, the two cases are different only to the extent that Atiku wanted the trial court to examine the validity of the report of the Administrative Panel of Enquiry which indicted him. Substantially, the two cases are the same in that Atiku wanted the high court presided over by Justice Abubakar and the Court of Appeal to declare that INEC lacked the powers to disqualify any candidate from contesting election without a recourse to a court of law. Although INEC asked Justice Abubakar to dismiss Atiku suit relying on the principle of res judicata, the court disagreed.
Two courts give contradictory judgments on powers of INEC to disqualify: In any event, a full panel of the Court of Appeal declared, last Tuesday that the Independent National Electoral Commission (INEC) has powers, under the law, to unilaterally screen and disqualify any candidate who has not met the constitutional requirements from contesting election in the country.
The appellate court which entered the decision in the suit commenced by Vice president Atiku Abubakar said it was not mandatory for the electoral body to go to a court of law for an order disqualifying candidate once such person has been found wanting in the constitutional requirements.
This decision reversed an earlier verdict handed down by a Federal high court judge, Justice Babs Kuewumi to the effect that INEC could only screen candidates but would have to go to court before it could bar unqualified candidates from contesting election. The appellate court delivered its judgment in the matter between 9:00am and 10:00am of Tuesday, last week. In fact, at about 10:05am on that Tuesday, the whole world, through mobile phone and the media was aware of the substance of the verdict. On the same day, a Federal high court, Abuja presided over by Justice Tijani Abubakar was scheduled to deliver his own judgment on substantially similar but partially different subject- matter.
He had fixed 2:00pm for the reading of his judgment. But the trial judge did not sit until exactly 3:15pm on the day. Because of the delay, tension had mounted with supporters of Vice president Atiku Abubakar, numbering about 3,000 who thronged the premises of OAU Quarters, making noise. They were all armed with brooms, being the symbol of the opposition Action Congress. As the judgment was being read, they felt that Atiku would lose and they started shouting that without him (Atiku), there would be no election in Nigeria.
But alas, the trial judge, in a manner that could best be described as judicial rascality, threw into the wind the principle of stare decisis and 'overruled' the Court of Appeal by saying that INEC lacked the powers to disqualify any candidate without any recourse to the court of law. The judge also held that the only reason upon which Atiku's disqualification was premised was invalid. In the opinion of the trial judge, Atiku's disqualification could not stand because a Lagos high court presided over by Justice Inumidun Akande had voided the report of the indictment entered against Atiku and the judgment was yet to be set aside. Of course, the two contradictory judgments, once again, set the stage for a fresh controversy, over whether or not INEC could disqualify any candidate.
Lawyers react: According to a Lagos based lawyer, Mr Femi Falana, once an appeal court has said that INEC has the powers to disqualify any candidate caught by eligibility clause in the 1999 constitution, anything contrary said by the trial judge, Justice Tijani Abubakar amounts to rubbish. "As far as I am concerned, the honourable trial judge has not said anything," he said. An Ilorin-based legal practitioner and member of the inner bar, Mr Yusuf Ali (SAN) also agreed with Femi Falana, saying the constitution was clear on the issue and that the judgment of the Federal high court mandating INEC to recognize Atiku Abubakar was a waste of time.
But son to an Ibadan based Senior Advocate of Nigeria (SAN), also a lawyer, Mr Esan said he would not agree with both Ali and Falana. According to him, the two cases decided by the Court of Appeal and the Federal high court are different and therefore INEC would have to respect the order directing it to put Atiku's name on the ballot paper. The president of the Nigerian Bar Association (NBA), Mr Olisa Agbakoba (SAN) had also said that the two cases were different and that both strengthened the chances of Atiku contesting the April 21 presidential election.
Atiku stands disqualified--FG: Be that as it may, the official bar leader and Attorney-General of the Federation, Chief Christopher Adebayo Ojo (SAN) had sympathized with some of his colleagues whom he said were confusing Nigerians on the implications of the judgment. He said as far as he was concerned, it is only the court of law that could interpret the law and that it is only he that could give legal advice to the concerned Federal Government agency (INEC) on the implication of the two judgments and what should be done about them.
While he would not be dragged into disclosing what his legal opinion on the matter was, he hinted last Thursday that Justice Abubakar's judgment had been appealed against. He said that if INEC refused to obey that judgment, having been appealed, he said it could not be accused of disobedience to court order.
In a veiled language, he said Vice President Atiku Abubakar stood disqualified until the Supreme Court pronounced with a finality on the matter. It would, however, be recalled that this has been the approach of the justice minister with regards to judgment procured at both the trial and intermediate courts. He has always advised parties, especially which judgement is in its favour like Atiku in the instant case, to be patient and allow the apex court of the land to pronounce on the case with finality before attempting to execute it. This was the case in the Ladoja case and it was the situation in the Peter Obi's case, among others.
Only Supreme Court can redeem Atiku's presidential ambition: From all indications, it seems that INEC may not allow Vice president Atiku Abubakar to contest the presidential election except the Supreme Court gives a direct order directing it to include Atiku's name on the ballot paper. And from all indications too, the Supreme Court may not have the opportunity of making such pronouncement before the April 21 since the appeal against the order of the high court directing that Atiku be allowed to contest the presidential election is only before the Court of Appeal now. It is unfortunate that the appeal filed by Atiku before the Supreme Court is only on the powers of the electoral body to disqualify candidates from contesting election without a recourse to a court of law.
There was no relief in the suit where Atiku is asking that an order be issued on INEC that he must be allowed to contest. Atiku may perhaps be lucky if the Supreme Court reverses the last Tuesday's Court of Appeal judgment which held that INEC has no powers to disqualify any candidate from contesting without a recourse to court of competent jurisdiction. Maybe, maybe not, such a pronouncement may collapse his disqualification, only time can tell.
Be the first to Write a Comment!
Copyright © 2007 Vanguard. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
