Davidson Iriekpen
1 November 2009
Lagos — Mallam Isa Yuguda is the incumbent governor of Bauchi State, having been sworn into office on May 29, 2007. He contested and won the April 14 2007 gubernatorial election on the platform of the All Nigeria Peoples Party (ANPP). Before then, he was a member of the ruling Peoples Democratic Party (PDP) and served as Minister of Aviation under the administration of former President Olusegun Obasanjo.
Preceding the April general elections, the former governor of the state, Adamu Muazu who allegedly did not want Yuguda to succeed him, skimmed him out of the gubernatorial contest. Yuguda consequently pitched his tent with the ANPP and won the election.
Perhaps, another good example is Dr. Olusegun Mimiko who is today the governor of Ondo State. Mimiko was a staunch member of the PDP, he served as Secretary to the State Government (SSG), before becoming the Minister of Housing and Urban Development.
Mimiko was denied the ticket of the PDP, he later defected to the Labour Party (LP) and won the election in State.
Also, is Chief Patrick Osakwe who is a third term senator representing Delta North Senatorial District in the Senate. Osakwe was a strong member of the PDP in Delta State on whose platform he contested and won 1999 and 2003 elections into the Senate. In 2007, he was denied the ticket by the powers-that-be in the PDP. He left for Accord Party (AP), got the ticket and defeated the wife of the then National Chairman of the PDP, Mrs Josephine Ali who contested against him.
The above examples are candidates who won election based on their popularity and not on the basis of the party they belong to. Other examples abound in the country of candidates who decamped or defected from their original political parties to another when they were either denied the tickets. These candidates later contested for the same election on the platform of other parties and went ahead to win the elections.
It is against the above background that the recent application filed by the former governor of Rivers State, Sir Celestine Omehia at the Supreme Court, seeking a review of its judgment delivered on October 25,2007 could be understood. The case has again brought to the fore the salient issue of who actually contests elections in Nigeria, is it the political party or the candidate.
In the court processes filed and served on parties recently, the former governor is arguing that the reasons given by the court on January 18, 2008 for its decision was a nullity because it lacked the jurisdiction and was incompetent to do so. He is contending that the said judgment of the court amounted to a special repeal of Sections 177, 178 (iii) and 179 of the 1999 Constitution, adding that a judgment which deemed a candidate who had not contested an election as having won and lost same was unconstitutional, null and void and of no effect.
According to him, the court in its judgment stated that "it is only a party that canvasses for votes and only a party that wins an election", was an act of judicial lawmaking, which is a fundamental encroachment on the powers assigned to the legislature under the principle of separation of powers. He further averred that the provisions of Sections 177, 178 (iii) and 179 of the 1999 Constitution and Sections 33(i), 34(i) and (iii), 35, 36, 37(i) 38, 39 51, 54 (iv), 64 (i) and (ii) 65, 70, 71, 76, and 103 (i) of the Electoral Act 2006 clearly express the intention of the legislature that it is the candidate who contests, wins or loses election. This court by its findings referred to, Omehia averred, actually made new laws.
The former governor argued that the decision of the court where it declared Amaechi as the winner of the election, which he did not contest was not based on any fact, available evidence, law or precedent but in its decree that "it is only a party that canvasses for votes that wins an election." Omehia therefore wants the court to make an order restoring the parties to their status quo as of the date preceding the date of the judgment (October 24, 2007).
It would be recalled that controversies had trailed the issue of who the authentic PDP candidate in the election in the state was. Despite claims by Omehia and PDP that he (Omehia) was the PDP candidate and governor in the state by virtue of his winning the April 14 governorship election.
Amaechi had deposed otherwise, claiming that if PDP had a governor in the state he should be the one, having overwhelmingly won the party primaries of December 2006.
Amaechi was declared the winner out of the eight aspirants who participated in the PDP primaries conducted in the state in December 2006. But soon after, former President Olusegun Obasanjo insisted that his candidacy was unacceptable to the party. Obasanjo, it was believed, based his judgement on reports he had on Amaechi from the then Mallam Nuhu Ribadu-led Economic and Financial Crimes Commission (EFCC), which, according to him, were too damning.
Because of the exigency of time, a second party congress and primaries could not be held and the PDP national headquarters in Abuja subsequently gave the Rivers State chapter a week to come up with a consensus candidate and after weeks of internal networking within the party, Omehia emerged as a consensus candidate and the campaign for votes began. However, on April 14, 2007 when gubernatorial elections held all over the country, Omehia was declared winner in Rivers State by the Independent National Electoral Commission (INEC). Omehia's victory was only the beginning of a protracted legal battle that eventually ended at the Supreme Court on October 2007, the court ordered that Omehia should vacate the governorship seat for Amaechi.
In the lead judgment delivered by Justice George Oguntade, the apex court made it explicitly clear that without a political party in Nigeria, a candidate cannot contest election. The court held that a good or bad candidate may enhance or diminish the prospect of his party in winning an election but that at the end of the day it is the party that wins or loses an election.
Justice Oguntade noted: "Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day it is the party that wins or loses an election."
The Section 221 of the Constitution referred to by Justice Oguntade states: "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."
But Section 147 of the Electoral Act 2006 touches on the nullification of election by tribunal or court, it states "Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election.
Subsection 2 states: "If the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act."
Subsection 3 states: "Subject to the provision of subsection (2) of section 149 of this Act, on the motion of a respondent in an election petition, the election tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act, or the provisions of First Schedule of this Act."
The challenge which the above quoted section throws to the Supreme Court here is: where is Amaechi in this equation? Obviously, the entire Section 147 of the Electoral Act 2006 can only be interpreted by people who though not knowledgeable of the law, can think, as pointing to the direction that there was no gubernatorial election in Rivers State on April 14, 2007, taking into consideration of the events that preceded the election. In this case, there was a party without a valid candidate. The action would have been to remove the violating party from participation. However, since these remaining parties and their candidates were belong to Nigeria, the law should protect them.
More importantly perhaps, is the fact that Section 147 did not mention a party, but a candidate. Since Nigerian is no longer running a parliamentary system where the party is supreme, there could be no gainsaying the fact that what is implied above was the presidential type model with minimal whip system and the corresponding elevation of candidates over political parties.
The Apex Court, perhaps failed to acknowledge the full effect of section 179 of the 1999 Constitution in its totality. Since the constitution is superior to any legislative act (Electoral Act), and should guide the Supreme Court, section 179 of the 1999 Constitution should be essential to the determination of the case?
For instance, Section 179(1) states that: "A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election- (a) he has a majority of YES votes over NO votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations.
Subsection 2 states that "A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates - (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.
Subsection 3 states that "In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be - (a) the candidate who secured the highest number of votes cast at the election; and (b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.
Subsection 4 states that "In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if - (a) he has a majority of the votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.
Subsection 5 states that "In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for another election between the two candidates to which that sub-paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of governor of a State if he has a majority of the votes cast at the election."
The questions really begging for answers are: Is the candidate mentioned by this section the party or a person? If the answer is a person, where then is the person who contested the election on behalf of the PDP in the election?
Perhaps the logical the answer could be obvious, no person, since it was PDP which the court by implication had been proclaimed superior to the candidate mentioned in the constitution which violated the rule of law according to the Supreme Court and not a person.
It becomes very clear then that PDP cannot be the 'person/candidate' referred to in section 179 of the 1999 constitution.
When the above analysis is viewed side by side with the examples of popular candidates such as Yuguda, Mimiko and Osakwe who dumped their original political parties (PDP) when they were denied the ticket to contest and still won the elections, it leaves many observers more bemused on who actually contest elections in Nigeria, is it the party or the candidate.
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