By Femi Falana ON his own part, Obaseki JSC, stated that: “It is now political history that some of the Nigerian politicians who had...
By Femi Falana
ON his own part, Obaseki JSC, stated that: “It is now
political history that some of the Nigerian politicians who had the honour of
being voted into Parliaments and the Houses of Assembly under the previous
civilian Constitutions just before and after independence, did little to keep
their loyalty to the political parties which sponsored them for election.
No self-respecting politician would wish to see a repeat of
the wave of carpet- crossing and sitting tight that characterised those eras.”
Those who have placed uncritical reliance on Atiku’s case have failed to
appreciate that the validity of the votes scored by the PDP in the presidential
election did not arise for determination.
To that extent, the case cannot be a justification for the
subversion of the democratic rights of voters by political defectors. Whereas
in the 2019 governorship election in Ebonyi State, the PDP garnered 393,343
votes across the 13 local government areas of the state, its closest
challenger, the APC, got 81,703 votes.
After the PDP had emerged the winner of the election, the
certificate of return was issued in the name of its flag bearer by the INEC
Chairman, Professor Yakubu Mahmud who stated that: “I hereby certify that Nweze
David Umahi of Peoples Democratic Party, PDP, has been elected to the office of
Governor of Ebonyi State…” Even though Governor Umahi has decamped from the PDP
to APC, neither the INEC nor the High Court of Ebonyi State has amended the
Certificate of Return to read: “Nweze David Umahi of the All Progressives
Congress”!
It is interesting to note that some lawyers have maintained
that Governor Umahi has exercised his freedom of association by decamping from
PDP to APC. While the governor’s freedom of association is constitutionally
protected, he cannot be permitted to infringe on the democratic rights of the
393, 343 citizens who voted for him as the governorship candidate of the PDP
have been completely ignored.
Or are we to believe that the votes scored by the PDP have
been merged with those of the APC since the PDP candidate decamped to APC?
Curiously, in making a mockery of the democratic rights of the people of Ebonyi
State, the critics of the judgment of Justice Egwu have failed to advert their
minds to the undeniable fact that majority of the voters actually exercised
their franchise in favour of the PDP.
After all, the names of the candidate, David Umahi and his
deputy were not on the ballot papers. In the leading judgment of the Supreme
Court in All Progressives Congress v. Marafa, LOR (24/05/2019) SC, Justice Paul
Adamu Galinji declared that all the votes cast for the APC were “wasted votes”
on the grounds that the party failed to conduct a proper primary.
The Court added that all political parties with the second
highest votes in the elections and the required spread, are elected to the
various elections. In the instant case, the votes credited to the PDP in the
2019 governorship election in Ebonyi State cannot be said to have been wasted
based on the decision of Governor Umahi to decamp to the ruling party.
Since the said votes are not wasted, it is inconceivable
that they have been legally transferred from the PDP to the APC. Under no law
in Nigeria can the exercise of the right of Governor Umahi to defect from the
PDP to APC extinguish the four-year mandate freely given to him on the platform
of the PDP during the 2019 general election.
We wish to submit, without any fear of contradiction, that elections
are won by political parties and not by candidates. In Amaechi v. INEC &
Ors (2008) LCN/3642 (SC), the Supreme Court held that: ”The above provision
(i.e. section 221) effectually removes the possibility of independent candidacy
in our elections; and places emphasis and responsibility in elections on
political parties.
Without a political party, a candidate cannot contest.” Pius
Olayiwola Aderemi JSC, emphatically stated that: “…It is the political parties
that the electorate do vote for at election time.” This decision has been
consistently misinterpreted by some lawyers who share the view that the
position of the apex court in Amaechi’s case has changed and that the decision
reached in Atiku’s case represents the correct position of the law on defections
by state governors.
In a rather desperate bid to buttress the point, reliance
has been placed on the Court of Appeal decisions in INEC v Action Congress
(2009) 2 NWLR Pt. 1126-524 (CA), where it was held that, “…the participation of
a political party does not exceed campaigning for the candidate…” and Ngige v.
Akunyile (2012) 15 NWLR Pt. 1323-343 (CA) where it was said that “…a political
party is nothing more than agent of the candidate in gathering votes to an
election.”
In order to discredit the judgement of the Federal High
Court, some lawyers have referred to sections 140 and 141 of the repealed
Electoral Act 2010 to prove that the case of Amaechi v INEC is no longer the
law. Apparently, the lawyers are not
aware of the case of Labour Party v INEC (Suit No FHC/ABJ/CS/399/2011) where
Kolawole J. (now JCA) had declared that both sections of the Electoral Act,
2010 for being inconsistent with sections 134 and 179 of the Constitution which
imbues the judiciary/court with powers to declare the person with majority
votes winner of an election process.
According to the learned trial judge: “The two sections
smacked of legislative tyranny, in the sense that they removed the
constitutionally guaranteed powers of the court to declare any candidate winner
of an election. The judge further stated that what the National Assembly had
done in this instance was to deliberately interfere with judicial affairs.
While noting further that the two sections were nothing but legislative
judgment…”.
With respect, the Supreme Court has never jettisoned its
position in Amaechi’s case. Hence, in Wada v. Bello (2017) 3 W.R.N. 72; the
court reiterated and upheld its earlier position in Amaechi’s case when it held
that: “A political party is an abstraction.
It has to canvass for votes through its members as agents,
in the same way it contests, wins or loses elections through a candidate it
nominates who acts as its agent. There is no provision for independent
candidates.
The candidates nominated to contest at an election by his
party acts as an agent of his party. He is, as it were, an agent of a disclosed
principal and as far as third parties are involved, benefits and liabilities
accruing to the candidate (as agent) belong to his party (the disclosed
principal).”
Thus, in line with the tenets of the rule of law the INEC
has been guided by the decisions of the Supreme Court in Amaechi v INEC and
Wada v Bello. For instance, the INEC declared the All Progressives Congress,
APC, as the winner of the December 5, 2020, senatorial bye-election held in Imo
North.
The returning officer reportedly announced that APC polled a
total of 36, 811 votes while PDP came second with 31,903 votes but the INEC
Resident Electoral Commissioner in Imo, Professor Francis Ezeone said that the
commission was unable to return a candidate at the time as a result of several
court orders for and against the two major contenders. Interestingly, the
commission did not declare the candidate who won the election until the Supreme
Court affirmed Frank Ibezim’s candidacy, several months after the election.
In the same vein, in February 2022, INEC declared the APC as
the winner of the chairmanship election conducted in Abaji Area Council of
Abuja but due to a legal tussle over the party’s aspirant, no candidate was
declared the winner of the election. The INEC Returning Officer for Abaji Area
Council said that it would not be legitimate to declare any of the aspirants as
the winner of the election.
He announced that, “We cannot declare a candidate winner in
Abaji because the winning party does not have a candidate here, the case is
still in court.” He said that a winner would be announced after the resolution
of the pending intra party dispute by the Supreme Court.
Up till now, the winner of the election has not been
declared as the case has not been determined. It is interesting to note that
the practice of declaring political parties as winners of elections without
naming the candidates by the INEC has not been challenged in any court.
The consistent interpretation of section 221 of the 1999
Constitution (as amended) by the Supreme Court has confirmed that votes cast
during elections in Nigeria are owned by
political parties and not by candidates who are flag bearers or agents. Since
the candidates are agents of their principals it is grossly misleading to
insist that Governor Umahi has transferred the 393,343 votes scored by the PDP
to the APC because of his defection.
Furthermore, Governor Umahi had constituted the government
of Ebonyi State on the basis of the majority of the lawful votes scored by the
PDP in line with the provision of section 179 of the Constitution. Thus, before
the defection of Governor Umahi from PDP to APC, Ebonyi State was a PDP-led
Government.
Therefore, the APC-led Government in the State formed as a
result of the defection of the Governor is illegal as it is a negation of
section 1(2) of the Constitution which has prohibited the control of the
government of Nigeria or any part of it except in accordance with the provisions
of the Constitution.
It has also been argued that the defection of Governor Umahi
in exercise of his freedom of association has cancelled the 393, 343 votes
scored by the PDP. Even under a military
dictatorship in Nigeria, the African Commission on Human and Peoples Rights
held that the cancellation of the results of the June 12 presidential election
won by Bashorun M.K.O. Abiola by the Ibrahim Babangida military junta was a
violation of the combined provisions of articles 13 and 20 of the African Charter
on Human and Peoples Rights.
See Constitutional Rights Project &Anor. v Nigeria (2000) AHLR 198. Furthermore, in
view of the several provisions of the Constitution and the Electoral Act which
have provided for participatory
democracy on the basis of majoritarian rule the defection of Governor Umahi
cannot wipe out the 393, 343 lawful votes scored by the PDP in Ebonyi State.
It view of the foregoing, it is submitted that the judgment
of the Federal High Court delivered by Justice Ekwo is in tandem with the relevant provisions of
the Constitution, Electoral Act and the African Charter on Human and Peoples
Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of
Nigeria, 2004.
It is also in line with the decisions of the Supreme Court
which have confirmed that elections are won by political parties. However, in view of the penchant of members
of the ruling class to subvert the wishes of the people through cross carpeting
or defection borne out of wanton opportunism it is high time that votes were
made to count in the country.
The members of the National Assembly and the various state
legislative houses should take advantage of the ongoing constitutional review
to put an end to the subversion of the wishes of the electorate by compelling
political leaders who decamp from the political parties on whose platform they
were elected to resign from office forthwith.
In conclusion, I am compelled to remind Nigerian politicians
and lawyers of the cautionary words of the Honourable Justice Ganjili in the
case of A.P.C. v Marafa (supra). Worried over the brazen political manipulation
and impunity by the Nigerian ruling class, his Lordship said that, “For this
great country, some politicians who are either ignorant of what party politics
is, or out of mischief, have continuously dragged this nation backward.
If care is not taken, this class of politicians will drag
this nation to the Stone Age, where all of us will be consumed. I once again,
as this court has consistently preached, urge this class of politicians to play
the game according to law and guidelines which they themselves have enacted. It
is only when this is done that sanity will take center stage in the domestic
and international affairs of this great nation.”
Falana, a Senior Advocate of Nigeria, wrote from Lagos
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