9 August 2007

Nigeria: Re - Of Asaba Tribunal and INEC's Intrigues


Abuja — I READ with mixed feelings, the article written by Mr. Mike Igini, a lawyer and social commentator on pages 31 and 39 of Vanguard Newspaper of July 31 and August 1, 2007, respectively.

I was happy to read the rather convincing arguments of a good lawyer with a good intention and obviously a conviction for what is right and just in a decent society.

However, I was sad that his readers were not availed the facts and history of the case which would have enabled them to appreciate the level of injustice done to Rotimi Amaechi, the people of Rivers State, Nigeria as a whole and the universally acceptable tenets of democratic governance under the rule of law. It seems to me that Mr. Igini's article lacked this vital ingredient not due to incompetence on his part but simply because, like most Nigerians, it was not available to him.

I am compelled therefore to write this piece in response to Mr. Igini's article so Nigerians who are the judges in the court of public opinion can see the undiluted true picture of the facts and history of the case and the unavoidable issues thrown up by the judgement of the Court of Appeal which if left unchallenged has the potential to breed a travesty of justice whilst setting back the hand of our democratic clock.

History and facts of the case

Hon. Rotimi Amaechi, former Speaker of Rivers State House of Assembly was nominated as the Rivers State gubernatorial candidate of the PDP for the April 14th 2007 elections. He scored over 98 per cent of the votes cast at the primary elections. Consequently, his name was forwarded to INEC as required by the Electoral Act.

When it became obvious that some elements within the party were scheming to have his candidature scuttled, Hon. Amaechi headed for the court (suit No FHC/ABJ/CS/29/2007). Whilst the matter was pending in the court, the PDP applied to INEC pursuant to section 34 of the Electoral Act seeking to change or substitute Amaechi with Celestine Omehia, a member of PDP who did not purchase nomination forms and did not take part in the primary elections. The reason given by the PDP for this move was that Amaechi's name was forwarded to INEC in "error". Delivering judgment in this matter on the 15th of March 2007, Justice Binta Murtala Nyako refused Amaechi's claims but set aside the substitution on the ground that it was done whilst the suit was pending.

Dissatisfied, Amaechi appealed to the Court of Appeal whilst Omehia cross appealed against the order setting aside the substitution. Whilst this appeal was pending, Omehia was allowed by INEC (a party to the suit) to contest the election, even whilst the order setting aside the substitution was subsisting at all material times.

On the 4th of April, 2007, when the appeal came up for hearing, the Court of Appeal (which had upheld an appeal by Senator Ifeanyi Araraume whose name was also purportedly submitted in "error" by PDP), informed the parties and their counsel that it was bound by its earlier judgment in Araraume's case on the interpretation of section 34. On this understanding, Omehia's counsel applied for the matter to be adjourned to await the decision of the Supreme Court in Araraume's case. The court thus adjourned the matter to await the outcome of the Supreme Court judgment. The Supreme Court in its judgment, not only upheld Araraume's appeal, but made far-reaching consequential orders which it held the court of appeal ought to have made.

On the date fixed for hearing, after the judgment in Araraume's case, the Federal Government suddenly announced a two day public holiday which it claimed was to enable voters travel to participate in the governorship election. The matter was thus adjourned again for hearing. Before the adjourned date, however, the PDP characteristically acted to defeat the Supreme Court judgment in Araraume's case and frustrate the appeal in Amaechi's case. The party expelled both Araraume and Amaechi.

On the adjourned date, counsel for Omehia, PDP and INEC brought applications arguing that the expulsion robbed the court of jurisdiction to hear the appeal since Amaechi was no longer a member of PDP. In spite of the known fact that the matter was pending on appeal when the party purported to expel him, the Court of Appeal held that Amaechi no longer had locus which he had at the time the cause of action arose. Dissatisfied, Amaechi appealed to the Supreme Court which in a very short but explicit ruling held that the Court of Appeal was wrong to have declined jurisdiction. The Supreme Court ordered the Court of Appeal to hear the appeal and the cross appeal on the merits and expeditiously, too.

EFCC? Or how else can we explain the Court's clear reference to the EFCC list of investigated and indicted politicians which itself was also not before the court?

The available draft Government white paper dated 12th February never indicted Amaechi. Government only "noted" the panel's findings but did not accept it. The Court of Appeal in the 1991 case involving Francis Dooukphola Vs NECON and Ada George held that Government's observation of NOTED on a panel's report does not amount to an indictment. If the Court of Appeal had the opportunity of seeing the Government white paper on which it ought to base its findings of fact on indictment, it would have seen that Amaechi was never indicted.

The clear words of section 34 (1) and (2) the electoral Act require the party seeking to change a candidate whose name was submitted to INEC to give cogent and verifiable reasons to INEC. The reason PDP gave for seeking to change Amaechi was "error". But the Court of Appeal held that INEC could adduce other reasons at its "disposal" radically different form that which the party gave. The court seemed to suggest that INEC has unfettered power to fish or even shop for reasons even when none was given.

The court of Appeal ignored subsisting Supreme Court judgment in Atiku VS INEC to the effect that neither INEC nor any other Government Agency has the power to disqualify or stop any person from contesting an election except where the alleged indictment is by a competent court of law.

In various inconsistent paragraphs in the judgment, the Court of Appeal appeared to have ignored the Supreme Court decision in Ararume's case where it held that "error" is not a cogent and verifiable reason, in some other more intriguing paragraphs, the appellate court sought to the redefine and enlarge the scope of the Supreme Court interpretation of section 34 of the Electoral Act.

The Court of Appeal's decision seems to suggest that administrative bodies or any person for that matter (particularly political parties), can by their acts done whilst a matter is pending foist on the court a situation of helplessness to do justice based on the plaintiff's complaints. The issue before the court was the fundamental question of who is the rightful candidate of the P.D.P as at when the cause of action arose and not what the parties did whilst the matter was pending.

Nothing would have been lost if the election was postponed to await the outcome of the matter in court. The constitution makes ample provision for what should be done where elections could not hold. In any event, should a party to a suit be allowed by the court to destroy or seek to destroy the subject matter of the suit and then rely on his act for a remedy that legalizes his unlawful act thereby leaving the aggrieved without a remedy?

Section 34 requires that the substitution or change of a candidate must take place within 60 days to the election and no change (save in the event of death of candidate) can take place less than 60 days before the election. In the instant case, 60 days counted backwards from 14th April expired on or about the 12th of April 2007, at which time the report of the administrative panel had not been accepted by Government. How then could INEC have acted on the report of the panel except if it did so after the time allowed for substitution?

The Court of Appeal seems to have ignored a long line of cases decided by it (the Court of Appeal), and the Supreme Court to the effect that the power of the Federal Government to set up panels of inquiry under the Tribunals of inquiry Act is limited to matters within its legislative competence. Neither Tribunals of enquiry nor the performance of the functions of a Speaker of a State House of Assembly are within the legislative competence of the Federal Government. See the cases of Eko Hotels V. Lagos State Government (decided by Court of Appeal) and Fawehiumi V. Babangida (decided by the Supreme Court),

In the final analysis, my concerns as a legal practitioner are for the apparent disregard of the binding power of the hierarchy of courts system in Nigeria and by extension, the chain effect of this seemingly unfortunate development for the rule of law and for veritable democratic practice founded on the constitution and the laws derived from it such as the Electoral Act

Chuma C. Chinye - A legal Practitioner and Public Policy Consultant, wrote from Abuja

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