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‘God forbid that a lawyer knows all the laws, but a good lawyer is the one who knows where to find the law’. This common adage by Lord Denning is part of what I found missing in the response from the camp of Senator Uche Ekuwunife to my article titled ‘Umeh v Ekwunife: Understanding the legal issues’.
What otherwise would have been a brilliant rejoinder by Dr. Chike Amobi came to nothing as he abandoned the legal issues I raised to attack my person with venom and profanity. I don’t know how those verbiages he wrote rebutted my clear submissions on the true position of the law. It is obvious that the Senator he represents is not receiving quality advice at a time she needed it most. I extend my sincere empathy.
Will she survive? That is an interesting way to describe winning an election or contest in poll or tribunal. At the current level of final adoption written submissions, so much depends on the weight the tribunal attaches to the evidence before it. Every court understands its duty to interpret the wordings of the law and the duty to dispense justice. In performing these duties, the court is guided by provisions of the law. It is trite that when any other law runs contrary to the constitution, the constitution prevails. Only a mystery will make a court rule against the constitution.
Let me reiterate that the gravamen of Umeh’s petition before the tribunal is not about how PDP conducted its primary election or selection. Umeh’s grouse is that Senator Ekwunife’s did not participate in all stages of the election and is therefore in breach of Section 285(13) of the 1999 Constitution as amended and ought not to be lawfully returned as elected Senator.
The said section 285(13) renders every other contrary laws or contrary judicial pronouncements irrelevant. Abiding by section 34 and 35 of the Electoral Act as submitted by Dr Amobi does not invalidate Section 285(13) of the Constitution. In this wise, the Supreme Court decision in the case of Sylva v PDP which relied on Section 33 and 35 of the Electoral Act, also relied on by Dr Amobi in his rejoinder have become impotent and no longer relevant in the face of Section 285(13) SUPRA which provided that “An election tribunal or court shall not in any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the election.” In other words a ‘person to be declared and returned as a winner of an election by court or a tribunal must have been a person who have participated in all stages of the election, starting from his nomination as a candidate to the actual voting’.
For the avoidance of doubt, the Supreme Court clarified the meaning of ‘all Stages of Election’ in Agbaso v Ohakim and ANPP v Osiri where it upheld the stages of election to entail, ones membership of a political party, indication of desire to be party’s candidate, primaries for the nomination of the party’s candidate, presentation of the candidate to INEC, the event of the election, return of the successful candidate after the election’.
The Appeal Court in Ukpong v Etuk defined non compliance in the Electoral Act as ‘failure to abide by, obey, follow or comply with the provisions of the Act in the process of the nomination or conduct of the election’.
Contrary to Dr Amobi’s submissions, Senator Ekwunife except by miracle or magic wouldn’t have complied with Section 285(13) of the 1999 Constitution as amended when by her own admission she didn’t participate in the PDP primaries because as at the time of the primaries she wasn’t a member of the party and had not indicated interest to contest on the party’s ticket.
Dr Amobi’s attack on the jurisdiction of the tribunal does not appeal to me in the least as the Supreme Court in Ukpong v Etuk vested jurisdiction on the tribunal where the dispute is connected with the process. The Court held: ‘It is necessary that everything connected with the process leading to the election including the actual election and its aftermath come within the jurisdiction of the election tribunal’. Also the use of the word ‘Tribunal’ in Section 285(13) (b) as amended leaves no doubt that, this specific provision is directed at the ‘Election Tribunal’.
I am yet to comprehend how these salient points raised by the Courts at different times were lost on Dr Amobi. More so when the position of the courts in interpreting the Constitution and the Electoral Act has not changed, except one wants to undertake the futile voyage of arguing against the oracle.
One of the major issues bedeviling our democracy is the impunity of the political class who are not willing to play by the rules and politicians who jump from one party to the other as is in the instant case. These were the mischief Section 141 of the Electoral Act 2010 as amended now elevated to constitutional provision by virtue of section 285(13) of the 1999 Constitution as amended intends to curb, whereby, it provided that a ‘person to be declared and returned as a winner of an election by court or a tribunal must have been a person who have participated as a candidate in all stages of the election, starting from his nomination as a candidate to the actual voting’.
Did the PDP candidate in the 2019 Anambra Central Senatorial District election participate in all stages of the election as required by Section 141 of the Electoral Act and Section 285 (13) of the 1999 Constitution?
Section 87(1) of the Electoral Act provides that a Political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants for all elective positions”.
In the instant case, the candidate did not participate in the primary election held by PDP on 2nd October 2019 or any other primary election conducted by the party on any other date for the purpose of nominating its candidate for the Election in question.
Section 285(13) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, provided that “An election tribunal or court shall not in any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the election.”
Again, the PDP candidate claimed to have purportedly resigned from APC and was nominated as substitute candidate of the Peoples Democratic Party on November 17, 2018.
While there is nothing wrong in being a substitute candidate, such a candidate must be eligible for substitution, meaning the candidate must have participated in the primary election which is a sine qua nom or condition precedent to either becoming a substitute or participation in the general election. To metamorphose from nowhere to become substitute is equivalent to skipping all the hurdles in a race to brace the final belt.
The Supreme Court upheld this view in the case of Abiodun Faleke v INEC, where it ruled inter alia “a person seeking to contest an election into office must be a member of a political party and must be sponsored by that party. Furthermore, he must have participated in the party’s primary elections. However, in the circumstances of the case, the appellant could not metamorphose into the Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.
In the case of Zamfara which is recent and relevant, the court without mercy disqualified the entire APC candidates in the 2019 general election on the ground of non compliance with Section 285(13) which is condition precedent for being declared the winner of any elective position.
When you have done things illegally ,it is not the duty of the court to aid you to benefit from illegality. Laws are made to be obeyed by all concerned including political parties. Therefore the law shall take its cause where a party fails, neglects or refuses to comply with the mandatory provisions of the electoral Act on the nomination and submission of the names of its candidate for a general election. Such a political party shall be deemed or taken in law to have fielded no candidate in that particular election. Dr Amobi, this is the position of the law. Only a mystery will make the court rule against the constitution.
